[Senate Hearing 111-1186]
[From the U.S. Government Publishing Office]
S. Hrg. 111-1186
CHESAPEAKE BAY RESTORATION:
STATUS REPORT AND RECOMMENDATIONS
=======================================================================
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
__________
APRIL 20, 2009--ANNAPOLIS, MD
__________
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
APRIL 20, 2009
OPENING STATEMENTS
Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland 1
WITNESSES
Sarbanes, Hon. John, U.S. Congressman from the State of Maryland. 4
Connolly, Hon. Gerald E., U.S. Congressman from the State of
Virginia....................................................... 5
Prepared statement........................................... 7
Response to an additional question from Senator Boxer........ 11
Fox, J. Charles, Senior Advisor to the Administrator for
Chesapeake Bay and the Anacostia River, U.S. Environmental
Protection Agency.............................................. 13
Prepared statement........................................... 16
Responses to additional questions from:
Senator Boxer............................................ 28
Senator Cardin........................................... 30
Baker, William C., President and CEO, Chesapeake Bay Foundation.. 63
Prepared statement........................................... 65
Responses to additional questions from Senator Boxer......... 75
Hutchison, Robert, Partner, Hutchison Brothers................... 79
Prepared statement........................................... 82
ADDITIONAL MATERIAL
Fact sheet from Blue Plains...................................... 161
Testimony from the Chesapeake Bay Commission..................... 165
CHESAPEAKE BAY RESTORATION: STATUS REPORT AND RECOMMENDATIONS
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MONDAY, APRIL 20, 2009
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Water and Wildlife,
Annapolis, Maryland.
The subcommittee met at 10:12 a.m., in the Joint Committee
Hearing Room, Maryland Legislative Services Building, 90 State
Circle, Annapolis, Maryland, Hon. Benjamin L. Cardin (chairman
of the subcommittee) presiding.
Present: Senator Cardin.
OPENING STATEMENT OF SENATOR BENJAMIN L. CARDIN,
U.S. SENATOR FROM THE STATE OF MARYLAND
Senator Cardin. First, let me welcome you all to this
hearing of the Water and Wildlife Subcommittee of the
Environment and Public Works Committee.
It is a pleasure to be here in Annapolis for a field
hearing. It is very appropriate, I think, that this hearing
take place in Annapolis because it does bring back for me the
days when Harry Hughes was Governor, and the concept of
developing a multi-State approach to dealing with the
Chesapeake Bay, partnerships between government and the private
sector, was initiated. At the time, I was the speaker of the
State legislature, so it's nice to be back here at this Joint
Hearing Room where we held so many meetings to develop a
strategy to improve the Chesapeake Bay. And at that time, we
developed a partnership, recognizing that we could not do it
alone. And thanks to the work that was done over 30 years ago
now, the Chesapeake Bay is better today than it would have
been.
I know we are going to have a hearing that will bring out a
lot of the challenges we have in the Chesapeake Bay and that
the health of the bay today is not what it needs to be. But if
the leadership was not displayed with Governor Hughes and
others back 20-some years ago, I hate to think of what
condition the bay would be in today. So we have made progress,
but we have a lot more that needs to be done, and I am pleased
that we can conduct this hearing in Annapolis where much of the
early work was done on developing a strategy to clean up the
Chesapeake Bay.
I also want to acknowledge that Senator Boxer, the chairman
of the Environment and Public Works Committee, and Senator
Inhofe and Senator Crapo, the ranking member of the Water and
Wildlife Committee, are all very much interested in the
Chesapeake Bay and have encouraged me to conduct hearings as we
look for strategies on a reauthorization of the EPA's
Chesapeake Bay Program under section 117 of the Clean Water
Act. That is our objective.
The Chesapeake Bay United Nations Ramsar Convention
recognizes it as an ecological region of global significance.
It has been called the national treasure by Presidents from
Ronald Reagan to Barack Obama. It is critical to Maryland's
economy, to our environment, to our culture, and our history.
It is in trouble--the Chesapeake Bay today. The University
of Maryland's Center for Environmental Science--the ecological
health of the Chesapeake Bay, they say, remains poor. There is
excess nitrogen, phosphorus, and sediments entering the waters
of the Chesapeake Bay. The main sources are from agriculture,
urban and suburban runoff, wastewater from treatment plants,
and contaminated airborne pollutants.
The Chesapeake Bay represents a model for estuary programs
nationwide and how to curb pollution from Casco Bay in Maine to
the San Francisco estuaries in California.
I think, the model for success must include three major
elements, a focus on the entire watershed, not just the bay
itself, but the rivers and streams in the watershed itself.
No. 2, you must engage all of the key shareholders,
stakeholders, the Federal Government, the States, the local
governments, the private sector. And I know we will be hearing
from Will Baker later from the Chesapeake Bay Foundation. But
those partnerships are critically important if we are going to
have a successful effort on behalf of the Chesapeake Bay.
And it must be based on sound science. The lab works that
are being done today need to be supported, and we need to base
our policy on good science.
Well, the challenges that we have for the Chesapeake Bay.
In the last 25 years, we have seen the population of the bay
region increase from 12 million to 17 million. That extra 5
million has a major impact on the challenges of the bay. The
impervious surfaces that funnel the polluted water into the
Chesapeake Bay have increased by 100 percent over that 25-year
period. It is estimated that we are losing about 100 acres of
forest land a day in the Chesapeake Bay watershed.
The good news is that there is a willingness to take
action. I think the stakeholders understand that we need to
take the efforts to a new level, that maintaining or holding
the status quo is not an acceptable option on the Chesapeake
Bay. We need to do much, much more. And we need to look at all
of the sources of pollution from agriculture--the farm bill
that I know my colleagues here had a lot to do with,
particularly Congressman Sarbanes in the House. The Chesapeake
conservation funding to reduce the nitrogens in the farm bill
is critically important. But is it enough?
In regards to runoff, what can we expect from our cities
and towns to do to control that source of pollution? From our
air, the nitrogen oxides that produce excess nitrogen pollution
in the bay. Are current planned programs to reduce air
pollutants enough?
And wastewater treatment plants, a source of excess
nitrogens and phosphorus pollution. Do permit requirements need
to be based on the limits of technology? Should they apply to
every sewage treatment plant in the watershed regardless of
size or location?
It is not just pollutants. We also need to deal with how we
manage our resources. We know that we have a challenge with the
oyster and crabs. For example, are we taking too many menhadens
out of the bay to turn into fish oil, dietary supplements,
thereby losing their natural filtering capacity in the process?
Well, these are some of the questions I hope that we will
have a chance to talk about at today's hearing. Today's hearing
is to try to fill in the information we need in order to draft
the proper legislation. I intend to introduce legislation later
this year reauthorizing the Chesapeake Bay. What should be
included in that legislation? I hope this hearing will help us
fill in that process.
I am very pleased that two of my colleagues from the House
of Representatives are with me today. I want to first welcome
Representative Gerry Connolly from Virginia. He will be on our
second panel, but it is nice to have our colleague from
Virginia with us today. And, of course, John Sarbanes, my
colleague from the State of Maryland from the third
congressional district is also with me today.
With that, let me first turn to Congressman Sarbanes for an
opening statement. Then I'll recognize Congressman Connolly.
[The prepared statement of Senator Cardin follows:]
Statement of Hon. Benjamin L. Cardin, U.S. Senator
from the State of Maryland
This hearing of the Subcommittee on Water and Wildlife of
the Committee on Environment and Public Works will come to
order.
Today's hearing will focus on the health of the Chesapeake
Bay, the status of the restoration effort, and recommendations
about what can be done to accelerate progress. We will hear
from two panels of witnesses.
This will be the first in a series of hearings I intend to
hold as the subcommittee prepares legislation to reauthorize
the Environmental Protection Agency's Chesapeake Bay Program
under Section 117 of the Clean Water Act.
The United Nations' Ramsar Convention recognizes the
Chesapeake as an ecological region of global significance. The
Bay has been called a ``National Treasure'' by American
Presidents ranging from Ronald Reagan to Barack Obama. In
Maryland, it is the economic, environmental, cultural and
historic heart of the State.
The Chesapeake Bay is also in trouble.
A recent report from the University of Maryland Center for
Environmental Science finds that the ecological health of the
Chesapeake Bay remains poor. The Chesapeake Bay and its
tributaries are unhealthy primarily because of pollution from
excess nitrogen, phosphorus and sediment entering the water.
The main sources of these pollutants are
agriculture,
urban and suburban runoff,
wastewater from sewage treatment plants, and
airborne contaminants.
The Bay continues to have poor water quality, degraded
habitats and low populations of many species of fish and
shellfish.
What is to be done?
We must first recognize that the Chesapeake Bay Program has
played a critical role in stemming the tide of pollution. The
Bay Program is a model for the National Estuaries Programs that
are helping curb pollution from Casco Bay in Maine to San
Francisco Estuary in California.
Any success that these programs have had is because, like
the Chesapeake Bay Program,
they focus on the entire watershed,
they involve all the key stakeholders, and
they are based on sound science.
The population of the Chesapeake Bay Watershed has grown
from 12 million when the Program started 25 years ago to over
17 million residents today. That's a 40 percent increase. And
it is not just more people producing more pollution.
The amounts of impervious surfaces, the hardened landscapes
that funnel polluted water into our streams and rivers and
eventually the Bay, have increased by about 100 percent over
the same timeframe.
We are losing an astounding 100 acres of forest lands every
day in the Bay watershed.
Simply put, there are millions more of us, and the size of
our impact on the Bay watershed has grown twice as fast as our
population rate. Without the Bay Program, the health of the
Chesapeake would undoubtedly be worse than it is.
But barely holding our own is not good enough. And so
merely fine tuning the Bay Program will not be good enough
either. We need some significant changes if we want significant
improvements. And we do.
Everywhere I go there is a strong desire to see the
Chesapeake restored. People are ready to take action to control
pollution, restore water quality and see the living resources
of the Bay return in abundance.
Much of the pollution to the Bay still comes from our
agricultural lands. Are the major increases in Chesapeake
conservation funding that we wrote into the Farm Bill going to
be sufficient to dramatically reduce nitrogen, phosphorus and
sediment pollution from farms? Will additional efforts be
required as well?
Every day, polluted water runs off our streets and roof
tops. Polluted stormwater runoff is not the largest part of the
problem, but it is the only source sector of pollution that is
still growing. What can cities and towns do to control this
growing problem, and how can they pay for it?
Nitrogen oxides from air pollution are washed out of our
skies daily, showering the Bay Watershed with excess nitrogen
pollution.
Are planned programs to reduce air pollution stringent
enough to curb this hidden source of nutrient pollution to the
Bay?
Wastewater treatment plants are an obvious source of the
excess nitrogen and phosphorus pollution that is fouling the
Bay. Do permit requirements need to be based on the limits of
technology? Should they apply to every sewage treatment plant
in the watershed, regardless of size or location?
Pollution alone is not the problem. We don't have enough
blue crabs and native oysters, in part because we haven't
managed our fisheries very well.
For example, are we taking too many menhaden out of the Bay
to turn them into fish oil dietary supplements, thereby losing
their natural filtering capacity in the process?
Do we have enough forage fish to keep our rockfish abundant
and healthy? Does the Bay Program need to have a formal
fisheries management component to it?
Today we will start to examine the key issues facing the
Bay. More importantly, we will start to examine ways to
reinvigorate the Bay restoration effort.
Later this year I will be introducing reauthorization
legislation. All of our panel members share a vision of a
healthy Chesapeake, supporting diverse and abundant life in its
waters and wetlands.
I look forward to hearing from our distinguished panelists
today on what steps EPA can take and this Congress can take to
make that vision a reality.
STATEMENT OF HON. JOHN SARBANES,
U.S. REPRESENTATIVE FROM THE STATE OF MARYLAND
Mr. Sarbanes. Thank you very much, Senator Cardin. Thank
you for the invitation to participate in the hearing.
We are at a crossroads with the Chesapeake Bay, of course.
We are always really at a crossroads, but the opportunities
presented now are particularly exciting.
As I was driving here today, it occurred to me that,
growing up, when it rained--and you were not too happy because
it rained out your baseball game or something--you were told,
well, it is a good thing because it makes the flowers grow and
the trees grow. And you sort of took that to heart. Now I find
when I am driving in the rain, there is a part of me that
cringing because I am thinking about the water rolling off the
blacktop or from the fields and pouring into the tributaries
across the watershed and the negative impact that that is
having, as long as we do not achieve some of the goals that we
continue to lay out but seem unable to attain.
So this is a very, very important hearing. I thank you for
convening it.
We are very excited, of course, at Chuck Fox's new role at
EPA. There could not be a better person. I look forward to his
testimony.
Senator Cardin and I were with the new EPA Administrator
the other day at Fort Meade who declared with pride that
science is back, and science will certainly undergird all of
the work that we are going to do to try to improve the health
of the Chesapeake Bay going forward.
What is exciting now, in particular, is the level of
information that is available to us about the sources of
pollution is really drilling down to a new level which not only
is important for the scientists and the experts to give us
guidance, but it gives citizens the opportunity to participate
by taking ownership of the watershed in their own back yards,
which I think is the ultimate solution to the bay's troubles.
I am very much in support of the concept you mentioned,
which is creating this mutuality of understanding across the
watershed, particularly among public policymakers, and we are
trying to design right now a card we can give to every Member
of Congress--Jerry will be one of them--who have got
tributaries that flow into the watershed so they can understand
the impairments that exist in their own district with respect
to rivers and streams and begin to fully appreciate how what
happens in their district impacts on the health of the entire
Chesapeake Bay. That is how we are going to turn the corner on
this.
And the citizen participation that is going to happen is
really going to be led by the next generation, by our young
people who can take up these causes with a fervor that is hard
for us to manage sometimes. And I want to thank Will Baker for
his leadership on environmental education and working with me
closely on the No Child Left Inside effort.
The bay will be clean when the 17 million residents of the
watershed who have bad habits tip the balance by developing
good habits with respect to the environment, and hearings like
this and participation of the citizenry going forward are going
to make the difference.
I thank you very much for the opportunity to participate.
Senator Cardin. Thank you again. I am glad you mentioned No
Child Left Inside. Of course, Congressman Sarbanes has been the
leader on that issue, and it is, I think, a critically
important part, education, in dealing with the Chesapeake Bay.
So I congratulate you on that.
Now, Congressman Connolly, we are going to have an
opportunity to hear from you later, but I'd be glad to give you
a moment.
STATEMENT OF HON. GERALD E. CONNOLLY,
U.S. REPRESENTATIVE FROM THE STATE OF VIRGINIA
Mr. Connolly. Well, thank you, Mr. Chairman. I just want to
thank you for your leadership. Having this hearing I think is
terribly important. I am going to be talking a little bit later
about the whole issue of impervious surface, but the
relationship between land use and what is happening in the bay
I think is just critical. As someone who has just spent the
last 14 years of his life in local government, I know there are
things we can do, and let me just give you one example that is
not in my testimony.
One of the last things I had a chance to do before I came
to Congress as chairman of Fairfax County was put together a 3-
year task force on Tysons Corner. Tysons Corner is bigger than
all of downtown Boston. It is the largest retail and commercial
office market on the east coast between Manhattan and Atlanta.
80 percent of the stormwater in Tysons is untreated. We have 46
million square feet of stuff on the ground and 41 million
square feet of surface parking space. And we can change that.
The plan we are coming up with Tysons will change that such
that there will be 100 percent of all stormwater treated, and
we are going to significantly reduce that impervious surface.
So there are things we can do as policymakers in local
government especially that can make a big difference in trying
to turn around some of the concerns we have with respect to the
bay.
Again, I thank you for your leadership, Mr. Chairman.
[The prepared statement of Representative Connolly
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Well, thank you very much.
Without objection, opening statements from members of the
committee--the record will be open to include those opening
statements. In addition, the entire written statements of our
witnesses will be included in the record, and they may proceed
as they see fit.
We will have two panels. Our first panel will be Charles
Fox, Chuck Fox, who is the Senior Advisor to the Administrator
for Chesapeake Bay and the Anacostia River, U.S. Environmental
Protection Agency. We take great pride in Chuck assuming that
new position. He has a distinguished record as a champion of
the bay restoration and water issues. He served as Secretary of
Maryland's Department of Natural Resources, as well as
Assistant Administrator of the EPA's Water Division during the
Clinton administration. Chuck, it is a pleasure to have you.
STATEMENT OF J. CHARLES FOX, SENIOR ADVISOR TO THE
ADMINISTRATOR FOR CHESAPEAKE BAY AND THE ANACOSTIA RIVER, U.S.
ENVIRONMENTAL PROTECTION AGENCY
Mr. Fox. Thank you, Mr. Chairman.
You cannot come to this hearing room and not reflect upon
some of the past. My first experience in this hearing room was,
in fact, under your leadership as the speaker of the House. I
think my colleague, Will Baker, and I were testifying on the
phosphate detergent ban, and I think it is a classic example of
had we not taken those actions, today we would be far worse off
than we are. A lot of that is because of your early leadership.
So thank you very much.
My name is Charles Fox. I am a senior advisor to
Administrator Lisa Jackson at the U.S. Environmental Protection
Agency. And we really appreciate the opportunity to discuss
EPA's emerging new leadership to restore and protect Chesapeake
Bay and its watershed. We are working very closely with our
Federal and State partners to define what we hope will be bold,
new ways of strengthening the management, performance, and
accountability of the Chesapeake Bay Program.
Administrator Jackson outlined her vision and priorities to
the agency in a recent memo to all EPA staff. She described
President Obama's three core values for our agency. No. 1,
science must be the backbone for our programs. No. 2, EPA must
follow the rule of law, and No. 3, EPA's actions must be
transparent. These guiding principles apply to the agency's
work broadly, as well as our work here in the Chesapeake Bay.
Administrator Jackson's memo also highlighted five
priorities that would receive her personal attention. She
described one of her priorities to intensify our work to
restore and protect the quality of the Nation's waters. She
stated in particular that the agency will make strong use of
our authorities to restore threatened treasures such as the
Chesapeake Bay and the Great Lakes.
A little over a month ago, I began my service as the
Administrator's Senior Advisor on the Chesapeake Bay and
Anacostia River. I am both excited and, I must admit, daunted
by the opportunity to work with all the bay partners and
Members of Congress to find ways to address the challenges
confronting the bay and its people.
The Chesapeake is a national treasure. While we are mindful
of our accomplishments over the past 25 years, we are also
intensely focused on how to improve our work to have greater
success in the future. We are committed to change and to
provide the leadership necessary to improve the performance and
accountability of the Chesapeake Bay Program. We cannot pledge
that the bay's health will improve dramatically in the next
several years. However, we can and do pledge to provide the
leadership that will be responsive to the conclusions of
scientists, to our obligations under Federal law, and to the
desires of the region's community.
Last month, the Chesapeake Bay Program issued its annual
assessment of the health of the Chesapeake Bay, also referred
to as the ``Bay Barometer.'' A copy of the executive summary
has been provided to the chair and to the members of the
subcommittee. The Bay Barometer affirms what we all know:
despite the longstanding commitment by the array of partners,
the health of the bay and the watershed remains severely
degraded. Virtually all of the 13 specific measures show very
limited progress. The one striking exception is the restoration
of the population of striped bass. This success is attributed
to the bold action by Maryland, Virginia, and other east coast
States to limit harvest pressure years ago. At the same time,
it is worth noting that this population has been stressed in
recent years by high instances of mycobacteriosis.
The recent health assessment describes some important but
not yet sufficient progress to reduce nutrient pollution from
agriculture and wastewater treatment plants. Agriculture
remains the single largest source of nutrient and sediment
pollution to the bay, with about half of the nutrient load
directly related to animal manure. However, the report also
shows that pollution from urban and suburban stormwater is
actually increasing.
This negative trend is directly linked to the rise in
population in the watershed. Since 1950, the number of
residents has doubled. Projections through 2030 show continued
population growth and continued increases in sprawling urban
and suburban development. From 1990 to 2000, the amount of
impervious surfaces, such as roads and rooftops, increased by
41 percent, even though the population only rose by 8 percent.
Congress reauthorized section 117 of the Federal Clean
Water Act in 2000. This section expired in 2005. It formally
authorized the Chesapeake Bay Program and the landmark
agreement that was adopted in 2000 by the Federal Government
and our State and local partners. But as we all know, the key
goals of that 2000 agreement are not going to be achieved.
Sadly, the bay program is actually not even close to achieving
most of the key goals of the 2000 agreement.
Improving water quality remains the fundamental challenge
for EPA and our partners. This challenge, in turn, is defined
more precisely as reducing runoff pollution from urban,
suburban, and agricultural lands. Presently we have a range of
tools that we are implementing to tackle these problems.
However, the range of existing tools may not be enough to get
the job done.
EPA and our partners will want to better focus our existing
regulatory authorities and other tools to improve performance
and accountability. However, we also must consider new tools to
improve the health of the Chesapeake. We look forward to
working with this subcommittee and other Members of Congress to
explore these issues in the months ahead. Reauthorizing section
117 presents all of us with a unique opportunity to redefine
our future.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Fox follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Mr. Fox, thank you for your testimony. I
also thank you for your service.
As you point out, we are not going to meet the goals set
out in the 2000 agreement by 2010, which is the date that we
are supposed to achieve certain, specific goals. There is
expectation that EPA may very well put in total maximum daily
load restrictions and that it is unclear as to what you can do
in regards to point pollution issues and nonpoint pollution
sources.
So my question to you is, what do you believe you can do
under the existing authorities that you have in order to
achieve the maximum desired effect, knowing what the 2000
agreement intended to do? And do you need additional authority
from Congress in order to be able to achieve what you believe
is necessary in regards to the 2000 agreement?
Mr. Fox. Your question, Mr. Chairman, I think goes to the
heart of the challenges that we are facing today. By way of
clarification for you and others, TMDL stands for total maximum
daily load. In and of itself it is literally nothing more than
a piece of paper that has a budget, an allocation for how much
pollution needs to be reduced from different sources. The TMDL
in itself does not convey any new regulatory authority to the
agency, although it does, in fact, guide subsequent permitting
decisions that are made over the point sources in the
watershed.
Right now within the watershed, EPA under Federal law
defines point sources to include wastewater treatment plants,
as well as stormwater runoff from urban and suburban areas, as
well as CAFOs, concentrated animal feeding operations, the
largest, if you will, of the so-called factory farms throughout
the bay watershed. There is a range of animal operations that
are presently not under the point source permit program, and
there is a range of urban and suburban runoff areas that are
not part of the point source program.
I think the agency is going to have to look at this and
make some determinations as to whether or not we need to
strengthen and expand the universe of point sources under
current law and whether or not we, in fact, also need to set
some more minimum standards for these point sources under
Federal law.
I would say, having said all of this, that there is still a
very significant part of the pollution load to the Chesapeake
Bay that is not regulated under Federal law. This is what we
call true nonpoint sources of pollution. This is an area where
we might need to talk more with this subcommittee and with some
of our State partners to really figure out the best way to
capture some of these nonpoint sources within the context of a
watershed-wide framework. We can do some of that under current
law. There is no question, but the interesting part about this
is these are the most cost-effective and cheapest parts of the
pollution reduction equation, is what is coming from, in
particular, some of the agricultural sides of this equation.
And so I think in the end, if we want to really design a true
watershed-wide framework, we are going to have to find a way
that we incorporate all sources and do this in a way that
really gives us a high degree of confidence that we are going
to get these pollution reductions from them.
Senator Cardin. I understand that you have been on your
current job for, you said, 30 days and that the Obama
administration is still in its first 100 days. So we understand
you are still trying to sort out some of the issues here.
I think the guidance we are going to need is that a lot of
this depends upon voluntary compliance to a certain degree,
particularly in the nonpoint sources. What we need to know,
with good science, is how much is coming from the regulated
point source pollution issues and how many are nonpoint, and
what we need to do to expand the regulatory framework, if you
need additional authority and how we can do that in the most
cost-effective way without causing major problems for the
industries.
That type of advice is going to be critically important for
us as we look forward to having an effective regime to reach
these results. But it has got to be based upon good science, as
we said earlier, and it also has to be based upon what
additional regulatory authority you need. When you have the
permitting where you can hold up permits, you only can do that
to a certain degree. It may work; it may not work. But it's not
exactly the most efficient way to go about some of these
issues.
Mr. Fox. The one comment, Senator, is that in many ways the
Chesapeake Bay--we are the envy of the world. Our scientists
have, in fact, defined with tremendous precision the very work
that we need to do throughout the watershed. We know today, for
example, in each individual watershed how many acres of
nutrient management plans need to be implemented on
agricultural land, how many buffer strips need to be installed,
how many point source sewage treatment plants need to be
upgraded. We can really define in very precise terms exactly
what work on the ground needs to happen.
I think the challenge, as you suggest precisely, is
figuring out what is the delivery mechanism that we can use as
Government to help make this happen on the land. And in some
cases it might be incentive programs. It might be direct
Federal or State funding, and in other cases it might be
appropriate use of accountability or regulatory authorities.
But that is to me where I sit now the biggest challenge,
taking what the scientists have told us what needs to happen
and being able to tell you and the people of the watershed in a
very accountable way that we have a likelihood of achieving
this over a certain period of time.
Senator Cardin. I agree. Of course, the stormwater is
another issue. What can you do in working with local
governments to have a more effective way of dealing with the
stormwater issues affecting the bay?
Mr. Fox. The committee will hear from Congressman Connolly
who has just done some outstanding work in northern Virginia,
and I think he captured very well the challenges with his
Tysons Corner example.
The good news is we have some successes to build on.
Montgomery County, Maryland recently enacted what we call an
MS-4 permit, which is EPA's point source permit for dealing
with what we call municipal separate stormwater systems. That
is where you get the MS-4. In that, Montgomery County laid out
a series of specific performance standards that it has for new
development, as well as retrofitting existing development. And
I think that it is going to be actions like this that in fact
really help us some of the goals that we have for urban and
suburban stormwater runoff.
I have had the privilege of reading the testimony that you
are going to hear and seeing some of the photos, and I think
the Congressman can describe pretty eloquently not just some of
the things we can do on the ground, but frankly how cost-
effective they really are.
Senator Cardin. We look forward to Congressman Connolly's
testimony.
We also look forward, though, to your leadership within EPA
to figure out cost-effective ways. To me, this is one of the
low-hanging fruit areas that we should be able to do much more
effective work in and it can be done in a cost-effective
manner.
Let me allow Congressman Sarbanes an opportunity to
question.
Mr. Sarbanes. Thank you, Senator Cardin.
Again, we are so excited at your new role.
I am going to ask a kind of related question, coming at it
a little bit differently to what Senator Cardin asked you
initially in terms of the EPA being able to have an impact.
What are three things that you would look back on and say if
the EPA had been more active, proactive, more engaged in
enforcement or activity, on these three items, it would have
made a significant meaningful, statistically significant impact
on the health of the bay, as you look back over the last few
years, which I would interpret would then be areas of priority
for you going forward?
Mr. Fox. Not to take anything away from the challenges that
my colleagues faced in the past, I think if you look
objectively today, one would argue that we probably should have
required nitrogen removal in wastewater treatment plants sooner
and with a higher degree of specificity and aggressiveness than
we have. At this point, we are on track to getting permit
limits in all wastewater treatment plants by 2010. I think in
hindsight, this is something that the scientists showed to us
and the engineers showed to us could be done, and it could be
done and it could have been done perhaps a little bit sooner.
The MS-4 permits that I mentioned before for municipal
stormwater--I think we are now entering a phase where we at EPA
are developing a series of fact sheets, model permits. We are
seeing some leadership from localities like Montgomery County.
I think this is another area where we had the regulatory
authority, we had the tools, we have gained knowledge today.
Again, in hindsight, this might have been something that we
should have moved a little bit faster on.
And then finally, I would say in a very similar vein would
be the subject of animal agriculture, so-called concentrated
animal feeding operations. This is a very delicate and
difficult problem. It is one that has been defined, in part, by
the courts. And EPA leadership or, in some cases, lack of,
frankly, in the last administration--the agency is just now
beginning a permitting program for concentrated animal feeding
operations throughout the watershed. I think, in hindsight,
this is something too that we probably should have spent a lot
more time and energy on many years ago because when you look at
the data, animal manure, as I testified, is responsible for
roughly half of the agricultural loads.
Mr. Sarbanes. Thank you.
And then my second and last question is, what do you view
as the most obvious points of collaboration between agencies
and governmental agencies like the EPA that are engaged in this
cleanup of the Chesapeake Bay and the citizen efforts that can
be undertaken? I mean, put on your hat as a resident of the
watershed and as somebody who has been very active at the sort
of grassroots level. Where do you see those new opportunities
for real collaboration between the ``ordinary citizen'' who
wants to take up this charge and government working together?
Mr. Fox. It is a very good question, and I think all of us
today confront a world that is over-deluged by communications
from all kinds of things. We all worry in our daily lives about
our children and getting them to karate practice or getting
them to school on time. And I think we do need to find more
effective ways of communicating with people about what they can
do to help with the Chesapeake Bay.
Myself personally, somebody who is very knowledgeable about
this, when I did remodeling at my home, I put in a nitrogen
removing septic tank. I did my own stormwater treatment not
just to collect the stormwater from my own house, but I
actually collect it from some of my neighbors' houses as well.
I am fortunate that I was able to do this.
But I will tell when I did all of this about 8 years ago,
it was hard for me to get information to figure out how to do
it right, and I think today we have that information. We really
just have to find effective delivery mechanisms in this
complicated world to get this information to people because I
think in their hearts they want to help.
Mr. Sarbanes. Thank you very much.
Senator Cardin. Congressman Connolly.
Mr. Connolly. Thank you, Mr. Chairman, and thank you for
your testimony this morning, Chuck.
A question. Do you think it might be helpful, when we look
at trying to get local governments cooperating even more in the
goals we are setting for the Chesapeake Bay, if we were to have
a uniform Federal standard on low-impact development?
Mr. Fox. I am going to perhaps not answer that question as
directly as I should, and I say that because the agency,
outside of my purview, is in the process of making some
regulatory decisions on that very point. And I do not want to
in any way jeopardize their record or their decisionmaking.
I would say that I have heard from local governments and I
have heard from State governments, many in the bay watershed,
that they would love nothing more than EPA to help them by
establishing some minimum criteria for how they would go ahead
and implement various stormwater management programs.
I will never forget a fascinating discussion with the mayor
here in the city of Annapolis--this was many, many years ago--
where she expressed a very strong willingness to upgrade her
sewage treatment plant. But she made it very clear to me that
it was very difficult for her to do that in the absence, in
this case, of uniform statewide requirements for plant
upgrades. And she was, at the time, really suggesting to me
that that is what we really needed to do. And I think that is
precisely the kind of leadership that EPA can and should be
providing going forward.
Mr. Connolly. As we move forward--you know, local and State
governments in our region have spent a lot of money on water
treatment, sewage treatment, even stormwater treatment. One of
the concerns, obviously, expressed by both State and local
governments is, as we move out to the future and we do adopt
more aggressive standards, there is an element of unfunded
mandate in this.
Can you talk just a little bit about what the thinking is--
I know you have only been there 30 days--in terms of potential
additional resources or assistance from the Federal Government
to State localities to implement the standards we are talking
about?
Mr. Fox. In many ways, this question of funding sources for
pollution control is something that I think, getting back to
the Congressman's question about how we could have done things
differently--in many ways, I think this has sidetracked some of
our progress, and let me explain this briefly.
Beginning 2002-2000, there was a lot of conversation about
how much would it cost to save the bay. And this resulted in
any one of a number of different analyses, including a very
high-level blue ribbon task force that presented a series of
recommendations to Members of Congress, I think at that point,
specifically asking for a multi-billion-dollar Federal funding
to help the bay cleanup.
I think as a practical matter in today's fiscally
constrained environment, both at the Federal level and the
State level, we simply cannot expect that in fact there is
going to be substantial increases in public investment. And I
think we have to use that as a realistic assumption for how we
then develop plans going forward.
So to get to your specific question, many localities, the
District of Columbia, Montgomery County, are now implementing
stormwater management fees as a way of paying for some of these
costs that have to be borne at the local level. It is an
``unfunded mandate'' at some level in that government agencies
set minimum standards. Local governments, in turn, have to find
a way to pay for them. And we might be able to look at ways
that the Federal Government can help with all of this, but in
the end, I think we are going to have to make some judgment
about who is the best person to design, operate, and ultimately
fund some of these kinds of operations.
One observation I would make too is that if you look at the
last 30 years of the Federal Clean Air Act, our Nation has made
just tremendous progress improving air quality throughout the
Country. We have today requirements for catalytic converters on
cars that in fact increase the cost of buying a car. You can go
to California and have requirements on the kind of paint you
buy trying to limit the VOCs in that that probably results in
increased costs of that paint.
I think increasingly we have to think about ways of
incorporating some of these costs of cleaning up the Chesapeake
Bay into the products, services, and other things that
consumers grow to love in the Chesapeake Bay watershed. And I
think this is some of our challenge in figuring out what is the
most cost-effective way of crafting these solutions together.
Mr. Connolly. Just a final follow up on that, Mr. Chairman.
Might the clean water State revolving fund play a role in
trying to help mitigate some of those costs to States and
localities?
Mr. Fox. No question it could be very helpful in some
cases. Many municipalities already have access to low-interest
market funds, so that the SRF programs are not necessarily all
that valuable to them, although they do certainly take
advantage of it. Generally speaking, there is a very broad
array of projects that are eligible under the SRFs. They tend
to be much more advantageous to the smaller communities that
might not already have access to low-interest loans on the bond
market.
Mr. Connolly. I would just say to you in the current
economic climate, we may want to take a fresh look at that
because a lot of municipalities are having trouble accessing
the credit markets.
Thank you very much. Thank you, Mr. Chairman.
Senator Cardin. Congressman Connolly raises a good point
about the fact that you are dealing with so many different
local governments within the Chesapeake Bay watershed. We have
six States. We have the District of Columbia, a lot of local
governments.
You mentioned the Clean Air Act and the challenges we had
as a Nation to deal with the quality of our air. Well, to a
certain degree the problem of the Chesapeake Bay is similar to
the air. It is not only the jurisdictions that are within the
watershed. We also have, of course, air pollutants that come in
from wherever that affect the quality of the bay. When you
implement TMDL, it seems to me it is going to be difficult to
figure out how you do that with all these different levels of
government.
So I guess my question is, can we learn something from the
Clean Air Act? Can we have noncontainment issues if we do not
reach certain goals, that there would be restrictions imposed?
And then science gives us the options that can be taken. So
local governments know what they can do in order to achieve
certain results, but they have to be in containment if they are
going to be able to be freed from additional requirements. Is
there something we can learn from that model?
Mr. Fox. I think there is an enormous amount we can learn
from that model.
I did an analysis recently, before I came to this job, of
looking at the exact same time period that the Chesapeake Bay
Program existed with the progress under the Clean Air Act. And
in the period 1980 to--I think at the time I looked at this,
the data might have gone through 2002. The Clean Air Act's
challenges were just like the Chesapeake Bay. There was an
increase in population, increase in vehicle miles traveled like
impervious surface that exceeded that of population, increase
in energy demand and increase in GDP, and at the same time in
that period under the Clean Air Act, the six priority
pollutants under the Clean Air Act with GPA measured actually
went down by over 40 percent. If you were to compare similar
trends on water pollution loads in the Chesapeake Bay, you
would not see that decline.
I think some of the examples that you laid out about why
the Clean Air Act worked better--I think these are precisely
the kind of things that we all need to look at going forward
here in the Chesapeake.
The Clean Air Act--one of its root structures is what is
called a SIP, State implementation plan, which is not unlike a
TMDL. But under the Clean Air Act, all sources of pollution are
within that SIP, and there are very clear requirements on the
part of the States, as well as the sources of pollution, to
take action to stay within the loading caps of that SIP, even
in the context of growth.
I remember when I was at MDE, we had a new plant coming
into Baltimore. He wanted to locate in a nonattainment area. We
said please come in. We want the jobs, but you need to know you
need to give us a 2-to-1 offsets for your nitrogen oxide
emissions, and that was specific requirements for the SIP and
it was a way of dealing with growth in the context of the Clean
Air Act.
Senator Cardin. Well, I think we really need to think out
of just the current structure because it was well-intended, but
I am not sure it gives us the effect of monitoring to reach the
goals that we set and that you are going to need a stronger
framework to deal with it.
I do think with a new administration, there are always new
opportunities. We should try to take advantage of this. The
good news on the Chesapeake Bay is that there is broad
consensus that we have got to take this to a new level, and it
has been embraced by the business community, by all different
parts of our economic fiber that understand the importance of
the bay.
So I think we do have a unique opportunity and we need to
think beyond just the current structure as to what structure
will give you the tools you need to accomplish the results
without imposing undue burdens on the private sector, which is
obviously a point that we have to be very careful about.
Mr. Fox. Right. Thank you.
Senator Cardin. I understand you are going to be remaining
at the desk. We want to bring up our second panel. In case they
need help, you are there to help. You are from the Federal
Government. That is good to hear.
The second panel will consist of Gerry Connolly who will
move from here to there. The Congressman represents the Fairfax
area of Virginia, Virginia's 11th district, has served in local
government as chair of the Fairfax County Board of Supervisors,
chair of the county's Legislative Committee, and chair of the
Northern Virginia Regional Commission, among other roles. In
2002, he was the recipient of an environmental achievement
award from the Hunter Mill Defense League and has been
recognized by Fairfax Trails and Streams for his environmental
stewardship.
Will Baker is well known for his work on the Chesapeake
Bay. He is President and CEO of the Chesapeake Bay Foundation,
and he has had that position since 1982. The foundation is the
largest not-for-profit conservation organization dedicated
solely to preserving, protecting, and restoring the Chesapeake
Bay. In 1988, Washingtonian Magazine named Mr. Baker the
Washingtonian of the Year for his work on bay restoration. Mr.
Baker led the foundation in 1992 when it received the
Presidential Medal for Environmental Excellence. Will Baker is
well known to those of us in Maryland and this region as a
person we can go to get an honest assessment of what we need to
do in regards to the Chesapeake Bay.
Robert ``Bobby'' Hutchison is a partner of Hutchison
Brothers grain operations. He holds a board position with the
Maryland Agricultural Commission, the Maryland Grain
Utilization Board, and the Talbot County Farm Bureau. Mr.
Hutchison serves as treasurer of the Center for Agro-Ecology,
Inc. and is a member of its executive committee and can give
us, I think, an honest assessment of the difficulties of
agriculture in a very tough environment today and that we make
sure that we have balance in what we do in regards to the bay.
Agriculture is a critical ingredient to the economy of this
region.
It is a pleasure to have all three of you with us, and we
will start with Congressman Connolly.
Mr. Connolly. Thank you, Mr. Chairman. Thank you again. I
again want to thank you for your leadership. Having a champion
such as yourself in the U.S. Congress, especially in the
Senate, overlooking this terribly important issue, important to
our entire region, is a comfort and I look forward to working
with you in the House of Representatives.
I would like to summarize my written testimony, which you
have in front of you.
The bay has three main sources of pollution: point sources,
agricultural nonpoint source pollution, and urban/suburban
point source pollution.
In the past few decades, we have achieved remarkable
reductions in point source pollution, as you indicated, Mr.
Chairman, in your opening statement. By 2006, for example,
sewage treatment plants throughout the bay watershed have
reached 72 percent of their reduction goal and 87 percent of
their phosphorus reduction goal.
The 2008 farm bill added $4 billion to USDA conservation
programs. This dramatic increase in investment will
significantly reduce agricultural nutrient and sediment
pollution entering the bay.
But despite long-term reductions in point source pollution,
the dramatic increases in agricultural conservation spending,
the health of the bay has not materially improved. Failure of
the bay to recover is due principally to continuing increases
in impervious surface areas and associated stormwater runoff
carrying nutrients and sediment. According to the Chesapeake
Bay Foundation, suburban and urban nonpoint source pollution is
the only pollution sector in the bay watershed that continues
to grow, and the growth has been dramatic. Between 1990 and
2000, for example, the impervious surface area increased 41
percent in the bay watershed, compared to the 8 percent
population growth experienced in that same time period.
The data is fairly clear. This Chesapeake Bay authorization
bill must both reduce the spread of impervious surface area
that results from sprawl and create regulatory and incentive
structures that can eliminate impervious surface areas in
existing developed areas. This means we must engage land use
practices.
Prior to my election to Congress, I served for 14 years in
local government, the last 5 as chairman of Fairfax County. As
a suburban county with 1-plus million people, Fairfax County
has been ground zero for increasing impervious surface areas.
Some of our sub-watersheds have imperviousness between 25 and
40 percent. These expanses of pavement have killed most of our
streams. The last native trout in Fairfax County perished in
the early 1990s. Stream erosion is so severe that some stream
channels have 20-foot high eroded banks.
When I ran for chairman, I pledged to enact a comprehensive
environmental agenda to address this. Following the election,
the board dedicated 1 full penny in our tax rate to stormwater
management for the first time ever, producing $60 million in
revenue over 3 years. With this money, we paid for stream
baseline assessments that found dramatic differences in stream
health that correlated negatively to impervious surface areas.
In watersheds with less than 5 percent surface area, we found
healthy and diverse populations of benthic macroinvertebrates,
fish and good stream habitat. In watersheds with low
imperviousness, ranging from 5 to 10 percent, such as
watersheds near the Town of Clifton in Fairfax, we found some
reduction in species diversity. In watersheds with
imperviousness ranging from 15 to 40 percent, however, we found
extreme stream bank erosion, little to no benthic
macroinvertebrate life and very low diversity in species.
Based on these findings, we then funded 30 watershed
management plans for all of our county watersheds to identify
what projects would be necessary to protect watersheds with
healthy streams. We adopted a low impact development strategy
as part of comprehensive plan.
And we found, Mr. Chairman, that developers were more than
willing to cooperate. The private sector was more than willing
to cooperate in looking at other ways of treating stormwater.
So we looked at rain gardens. We looked at green roofs. We
looked at the trench infiltration. And we have actually got
successful models that we used in the county.
I believe that the local jurisdictions, with a little bit
of help from the Federal Government and from the State
governments, actually can tackle this problem. I mentioned
Tysons Corner. We have an opportunity to retrofit one of the
largest urban concentrations of impervious surface in the
Chesapeake Bay watershed, and if we have the political will to
do so, we can actually turn it around into a green center of
technology, into a green urban center in our region and
actually address and improve the water quality coming out of
that area.
So I look forward to your questions, Mr. Chairman. But I do
believe that impervious surface is one of the major culprits
for why we have not achieved the progress we had so hoped to
achieve in Chesapeake Bay. The good news is I believe there is
a lot we can do about it. Thank you.
Senator Cardin. Now we will hear from Mr. Baker, and if you
could bring the microphone a little closer to you, it would be
easier, I think, for the people to hear.
STATEMENT OF WILLIAM C. BAKER, PRESIDENT AND CEO, CHESAPEAKE
BAY FOUNDATION
Mr. Baker. Thank you very much, Mr. Chairman. I am
especially pleased to be here this morning.
I thank Congressman Connolly for all his great work at the
local level, and we look forward to working with him at the
Federal level.
Let me, if I might, just summarize the testimony that I
have presented to you.
First, it seems to me that it is a terrible disgrace and
really a national shame that when you or I go out to a
restaurant in our hometown of Baltimore, Maryland, we have
probably a 9 out of 10 chance of eating an imported crab cake
rather than one that comes from the Chesapeake Bay. If that
does not strike home here at the center of the Chesapeake Bay
watershed--we cannot get a real crab cake from the bay--
something is definitely wrong.
According to NOAA, some 4,500 crab-related jobs were lost
in the last decade, all at a cost of $640 million to Maryland
and Virginia. That is an economic impact of an environmental
damage.
And oysters. H.L. Mencken's immense protein factory is
largely boarded up. A generation of kids growing up now may
never taste a Chesapeake Bay oyster or see the economic engine
that once was the Chesapeake Bay oyster industry.
There is a little good news, and it is important to focus
on the good news when we get it. It appears as if native
oysters may now be developing a resistance to the two
parasites, MSX and Dermo. Maryland in 2008 planted over 500
million hatchery-produced seed oysters. Hopefully, they will
have a chance to survive.
And crabs have responded, as we just saw last week, to
catch restrictions.
It is a truism, however, that a crab not harvested will
remain in the Chesapeake Bay and build the population. But if
we hope for more, if we hope for long-term sustainable
fisheries and water that is safe for humans, we have to do much
more in dealing with water quality. Huge dead zones, water
dominated by algae and bacteria and areas that continue to be
plagued by toxic contamination--all this adds up to a
Chesapeake Bay system which is dangerously out of balance.
As we know, the pollutants causing systemic collapse are
too much nitrogen and too much phosphorus, and the same
phenomenon is happening worldwide. Here on the bay in our 10th
Annual State of the Bay report, the Chesapeake Bay Foundation
gave the bay a D. The grade is not so much for the bay itself,
as for the government which has failed to put science to work
in its restoration.
If you want to search for good news here, there is some as
well. It is true we have held our own, as previous speakers
have noted, in spite of enormous population growth. One could
argue that the per capita impact on the Chesapeake has been
reduced by 50 percent or more over the last 50 years as the
population has doubled, but none of us are satisfied with
saying the bay would have been worse if not for our collective
efforts.
So what can we do? Let me make just a few points.
The condition of the Chesapeake is a national disgrace. I
say that not so much to be rhetorical as to make a point. While
the States have made numerous good-faith efforts over the last
several years, the Federal Government has simply not been in
place doing what the Clean Water Act has required. A national
treasure remains trashed.
Let us look at how we go there. Between 1976 and 1982,
Congress funded the largest and most comprehensive scientific
study of any body of water conducted in the world, $33 million
over 7 years. The result was captured in an Evening Sun--we
remember that paper--headline, The Bay is Dying, Scientists
Say. The Bay is Dying, Scientists Say.
Central to the collection of studies that were released was
the simple fact that the Chesapeake is part of a huge six-
State, 64,000 square mile system. Only by managing it as a
system was there any hope for restoration. Your predecessor,
Senator Mathias, called for a title 2 river basin commission to
be the jurisdiction responsible for managing the Chesapeake
Bay. That was in 1982. Basically the States said no way. We are
not ceding authority to a new jurisdiction. Instead, a new
executive council was created which would lead a multi-State/
Federal team.
Did it work? Clearly not. I do not know if you have ever
been to an executive council meeting, but with few exceptions,
they are simply a recitation of individual State actions.
There is no mystery why the bay is not getting any better.
Science told us to manage it as a single system, but we are
not. Unless there is fundamental change now in how the bay is
governed, the next 25 years will be just as grim. Science was
right. Senator Mathias was right. But politics got in the way.
We have called publicly on EPA to step up to its management
responsibilities under the Clean Water Act. We are cautiously
optimistic with the new leadership at EPA. We met recently with
Lisa Jackson, and we are certainly very pleased with Chuck Fox
as the new Senior Advisor to the Administrator. We are
cautiously optimistic that a new era is about to begin. Let us
all work together to see that that happens.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Baker follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Cardin. Thank you, Mr. Baker.
Mr. Hutchison.
STATEMENT OF ROBERT HUTCHISON, PARTNER, HUTCHISON BROTHERS
Mr. Hutchison. Thank you, Mr. Chairman. My name is Bobby
Hutchison, and I am kind of overwhelmed to be a part of this
panel. I am here today on behalf of the Maryland Farm Bureau
and Maryland Grain Producers to express my thoughts on the
progress made in bay restoration and some ways that we think we
can accelerate it.
Four insights that I would like for you to take away today
are:
One, Maryland farmers lead the Nation in the use of best
management practices and advanced technology to protect the
environment and specifically the Chesapeake Bay.
No. 2, Maryland farm businesses are relatively small family
operations. They do not have environmental compliance officers
or attorneys on staff. They are husbands and wives sitting at a
kitchen table at the end of the day trying to keep up with all
the paperwork.
No. 3, all new environmental regulations aimed at
protecting the bay have significant economic impacts on small
businesses in the watershed. Cost-share programs by the Federal
and State governments are not grants. They involve substantial
monetary investment by farmers.
And No. 4, Maryland farmers are willing to do more to
protect and restore the bay if the programs are reasonable,
economically feasible, based on sound science, and equal to the
efforts being made by other sources of bay nutrients.
To give you a little bit of background about myself, I farm
with two brothers, a son, and a nephew in Cordova on the
eastern shore on a 3,600-acre farm. We grow grains, corn,
soybeans, barley, wheat, and also processing vegetables, peas,
lima beans, and cucumbers. We also sell seed corn to supplement
our income.
Tremendous progress has been made. Since the bay
restoration efforts began in the mid-'80s Maryland farmers have
made tremendous progress. Farmers are applying nutrients based
on certified nutrient management plans. All poultry feed
includes phytase. Cover crop acreage has expanded considerably,
and new best management practices are added annually.
A review of Maryland's BayStat model shows that agriculture
is progressing toward meeting its goals. EPA's assessment,
table 1, shows that agriculture is close to 50 percent of its
goals, but urban programs have declined by more than 60 percent
in every category. Maryland farms are now responsible for only
7 percent of bay nitrogen and 8 part of bay phosphorus.
The Bay Commission Cost Effective Strategies have defined
six best management practices. Five of those were from
agriculture. We are concerned that undue emphasis has been
placed on the agricultural best management practices to clean
up the bay.
I also believe strongly that the Chesapeake Bay Program has
failed in its efforts to restore the oyster population in the
bay. Without these natural feeders, water quality will never be
restored regardless of the activities that occur on the land.
This must be a priority.
The bay model needs to be improved to take into account
things that the farmers are doing that they do not receive
Federal funding for. These include no-till, variable-rate
fertilizer application, slow-release fertilizer use, chemical
storage, and even some traditional practices such as buffers,
stream fencing, and grassed waterways, and these are totally at
the farmers' expense and are not given credit in there.
The bay model is also out of date in some of the figures it
uses. For example, in 1985 my corn yields were 100 bushel.
Today they are 120, with irrigated fields running close to 245
bushel. It is important that the bay model uses the
characterization of agriculture and nutrient use in Maryland,
and it is imperative that it is updated and there is greater
transparency with the data that is being used to compile
agricultural progress.
We have made significant improvements, and I refer you to
table 2 that shows the efficiency of nitrogen use. In 1980, we
were producing .6 bushel from a pound of nitrogen. In 2005,
that was up to 1.3 bushels. In phosphorus, it was from 1.33
pounds per bushel to 2.89. That has come through genetic
improvement and also better practices, ways of applying
nutrients such as side dressing, split applications on small
grain, and use of slow-release nitrogen products.
We are going to see more improvement as the future goes on
through bio-technology. There is drought-tolerant corn that is
just around the corner. There is better nitrogen efficiency use
with corn just around the corner. So we will see that increase
as time goes on.
Also, there are things coming on board such as GreenSeeker,
which is the ability to go across the field and measure the
nitrogen that is in the crop and apply the rate as to what is
already there, a variable rate. But that is experimental. It
looks very promising.
There is also technology for poultry litter injection, and
that is promising.
One of the things that we can do immediately is produce
ethanol from barley in the bay. There are several groups
looking at it. I was part of a group that looked at it and we
decided not to move forward with our project, although we
believe it would work. But Chesapeake Energy down in Somerset
is talking about building a plant, and they are planning to use
barley. But more importantly, Osage BioEnergy in Hopewell,
Virginia has broke ground on a barley plant. They will use up
the 300,000 acres of barley that can be grown so it can act as
a cover crop and work for water quality. And then on top of
that, after you get the benefits from the grain, if we learn to
make cellulose ethanol from the straw, it can be a win-win for
the bay.
We are concerned about the CAFO rules being applied more
strictly in region III than they are in other parts of the
country, and we think there should be some attention given to
that.
And we are also that the technical providers that we go to
in agriculture have a knowledge of our farming practices. There
is a core group out there of the Extension, crop consultants,
and local soil conservation districts, and we think that is
where the money should come down and go through those agencies
as opposed to diluting an already short supply by bringing in
other groups to work with us.
Sustainable agriculture. That means something different to
every one of us. I would suggest that sustainability involves
maximizing yields to meet future nutritional needs while
decreasing impacts on the environment. If farming does not
provide a reasonable income to the farmer, it cannot be
sustained. I believe the bay program documentation clearly
demonstrates that a well-managed farm is far better for the bay
than urbanization. The agricultural community maintains its
willingness to work with Congress, the Governor, the bay
program, and all other interested parties to do our part to
clean up the bay. We ask for your support for adequate
technical assistance and an understanding for the needs of
economically viable family farms.
Thank you, and I apologize for going so far over. Thank
you.
[The prepared statement of Mr. Hutchison follows:]
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Senator Cardin. Thank you, Mr. Hutchison.
I appreciate all three of your testimonies.
Agriculture is a critical industry to Maryland and this
entire region. It is usually ranked No. 1 as far as the
economic importance to our State.
I could not agree with you more about your statement that
Maryland farmers are willing to do more to protect and restore
the Chesapeake Bay if the programs are reasonable, economically
feasible, based on sound science, and equal to the efforts
being made by other sources of bay nutrients. I think that
should be the framework in which we operate. So I applaud you
for that.
I also want to compliment the agricultural industry in this
region because I think they have been very aggressive in
working with us as partners to try to come up with best
practices, helped us with the farm bill, the conservation
provisions in the farm bill to try to provide ways in which we
can make progress.
I guess if you care to respond--if Congress or EPA decided
that it wanted to regulate agricultural nutrient runoff more
aggressively and broadly, how do you think that burden should
be shared? Do you have a view as to the best way for us to try
to get a handle on it in a fair manner?
Mr. Hutchison. I certainly have some thoughts. I certainly
do not know that I have the answer. But to be honest, at this
point in time, I do not know what we can do that we have not
already adopted at this point. As I said, I think there are new
things coming along. Some of those, such as the biotechnology
will not have any public sector cost to it. I think that would
be borne entirely by the farmer. But I do think there are
things such as the GreenSeeker, the poultry litter injection
unit that was demonstrated about 10 days ago at the Y. Those
things have tremendous costs to them to the farmer and limited
use, and it might be very well to help fund that.
Certainly the research for such things as the slow-release
nitrogen, slow-release phosphorus products--and that is ongoing
right now. I do not think that needs to be stepped up, but that
needs to be proven whether there is an economic benefit or an
environmental benefit, and if it is strictly an environmental
benefit, then there may need to be some help to use those
products. Currently my limited research on my farm has shown
that there is no economic benefit to it. It is kind of a
tradeoff. But if it proves that it is good for the bay, then it
would be certainly a legitimate tradeoff.
I do think that farmers in general--not in general--all
farmers look at the environment and want it to be better than
it was when they started on their farm. They want to hand it
down to their children in better shape, not just the farms
themselves, but the total environment.
But there is only so much cost burden that we can share. So
I do think that increased subsidies--that is not the right
word--cost-share programs are appropriate, and I do point out
in the testimony there that I think there are $91 million that
have been spent by the Government and $13 million matching by
the farmers. So we do have a cost to pay, and I think that is
probably appropriate. But I think it needs to be remembered
that we do have to bring money out of our own pocket to do
that, and I think there should be some help in some of these
things that are questionable at this point.
Senator Cardin. Well, there are certainly some best
practices that will actually help the farming economy, but
there are others that have to be shared in a fair manner. I
appreciate that.
Mr. Fox, I just want to make sure the record is clear on
the impact to the goals we are trying to accomplish. I am
looking at your March report that you referred to, I think,
early in your presentation on pages 24 and 25. You have a pie
chart there that looks at nitrogen, phosphorus, and sediment as
far as the industries and the relative responsibility on
pollution in the bay. I just want to make sure that this is
accurate from the best information that you have today because
this will be one of the issues that will guide us. If you would
just go through that with us briefly, I would appreciate it.
Mr. Fox. Yes, Mr. Chairman. As I go through this, I will
start with the caveats that you expect, and that is that this
is the gross summary bay-wide assessments of the loads from
different sources. When you look at individual watersheds, the
breakdown is a little bit different. And there are
subcategories within all of these categories that, of course,
are not captured in this as well, and I will mention a couple
of those.
What it says is that for the total nitrogen loads to the
bay, the relative responsibility for agriculture is estimated
at 42 percent. The wastewater side, which includes publicly
owned and privately owned wastewater treatment plants, is 20
percent. Runoff from urban and suburban sectors is 16 percent,
and importantly, that is obviously a growing percentage. And
then the atmospheric contribution is 22 percent on the nitrogen
side. And this comes chiefly from automobiles and powerplants,
fossil fuel combustion.
On the phosphorus side, a very similar picture for
agriculture at 46 percent; wastewater at 22 percent; urban/
suburban runoff at 32 percent.
And then, of course, on the sediment side, the number is
very significant for agriculture, and that is estimated at 76
percent with the urban and suburban at 24 percent. We do not
find significant sediment loads from wastewater treatment
plants or atmospheric sources.
Senator Cardin. Without objection, we will include the
report in our committee record for today's hearing.
[The information referred to follows:]
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Senator Cardin. I wanted you to go through this because,
again, I agree with Mr. Hutchison's point, that it has to be
equal to the efforts being made by other sources of bay
nutrients. I will broaden that. I think if we look at the bay
in its totality, we need a strategy that is going to be fair to
all of the segments. Some are easier to get to because of
perhaps the regulatory system or the source, but we need to
have a fair program to all the activities that are dealing with
the pollutants, obviously go to those that are the most
economical to deal with, but we need a comprehensive approach.
Mr. Baker, let me just turn to you for a moment. So what
type of regulatory system should we have? What do we need to
do? Do we need a fundamental change? Senator Mathias you
mentioned earlier, who is one of my heroes when it comes to not
just the Chesapeake Bay, but is a great role model for all of
us who serve in the U.S. Senate. 1982 it was that he made his
recommendation. It was a different political climate in 1982
than it is today. Should we be looking at Senator Mathias'
recommendation, or can you bring us up to date as to how you
think we need to deal with the current challenges?
Mr. Baker. Thank you, Senator. By definition, the boundary
of State government ends at the State line. And so a management
regime that relies on individual Governors to set strategies
that will have a cumulative benefit of restoring a system that
spans six States and the District of Columbia is bound to be
handicapped from the get-go.
The development or the putting in place of a whole new
governmental entity, a title 2 river basin commission, is
probably as unlikely today as it was in 1982 from a political
standpoint. But the jurisdiction that does have not only we
say, we believe, the authority but the responsibility
watershed-wide is the Federal Government, specifically the
Environmental Protection Agency. Let me just give you one
example.
The northern section of Maryland's part of the Chesapeake
Bay is really dominated by what comes out of Pennsylvania and
New York State. Maryland has no authority and certainly no
responsibility to address pollution coming out of Pennsylvania
and New York State. The States of Pennsylvania and New York
have interest in clean water in their jurisdictions, but
anybody would be fooling themselves if they said that their
primary interest is improving the waters of Maryland.
So you need a Federal Government to set a specific and
enforce a standard for the entire watershed. We think that the
science has absolutely been precise in terms of where the
pollution is coming from and what reductions need to be made on
a tributary-by-tributary basis. The need is for EPA to enforce
that science, and certainly what we have heard from Ms. Jackson
says she will. We are looking forward to seeing that that
happens, and as you know, we have a lawsuit against EPA to try
to see that a Federal court will require EPA to enforce those
provisions of the Clean Water Act.
Senator Cardin. I guess my point is this. There is a new
administration in town. They certainly have a different
priority as it relates to the environment. And I guess my
question to you--and maybe if you do not feel comfortable in
answering it, you can certainly supplement this at a later
point. But do we have an adequate regulatory framework in
place? We just need to enforce it. And should we be giving this
administration an opportunity to act? Or do we need Congress
acting to strengthen the regulatory and monitoring and
enforcement provisions so that you can get the results? And I
think your observations here to be very important to us.
Mr. Baker. I understand the question precisely. There is
ample authority and responsibility under the Clean Water Act to
not wait, to begin reducing pollution immediately from all of
the areas that are clearly stated in the Clean Water Act,
certainly all point sources, stormwater from urban and suburban
areas, and certain agricultural sources.
Now, do we need in this Country greater guidance, greater
clarity, perhaps some expanded responsibilities if section 117
of the Clean Water Act were reauthorized? Absolutely,
absolutely. But there is no need to wait any longer to start
putting things in place under existing authority, and we have a
lot of ground to make up. We really have seen very little, if
any, of that in the last decade.
Senator Cardin. Another area I would ask for your advice,
and that is the transparency at EPA. Again, we have a new
administration. I think they are trying to make sure that there
is accountability for good policy and the use of good science.
I think it is an opportunity perhaps for us to institutionalize
a better public transparency on how decisions are made, and we
would welcome your thoughts as to whether we should try to put
that into legislation or just get it through administrative
action.
Mr. Baker. I think you use all tools at your disposal. And
when you asked Mr. Fox the question after his testimony, the
one word I wrote down was transparency. I think that is
critical, and I think EPA and the rest of the Federal agencies
have an absolute obligation for full and complete transparency
with the public. That has not been the case at all times in the
past. The public and really decisionmakers at the State and
local level are often whipsawed by different information that
comes out, and that simply does not need to be the case. And I
think EPA can play a big role in that.
Mr. Connolly. Mr. Chairman.
Senator Cardin. Certainly.
Mr. Connolly. Could I go back, if you would not mind, just
to the issue of governance and the concept that Mr. Baker cited
from our friend, Senator Mathias, whom I had the privilege of
working with for most of a decade on the Senate side?
We do have some models that require regional cooperation
and regional planning that wash the hands of States--or maybe
to put it positively, cross-jurisdictional responsibilities.
For example, we have a structure in transportation with
metropolitan planning organizations. In metropolitan
Washington, it is TPB. It is the Transportation Planning Board,
which has a lot of power in deciding which projects get
approved in Maryland, D.C., and Virginia and which do not, what
is in the constrained long-range funding plan and what is not.
And so we do have that model.
With respect to air quality, we have MWAQC, the
Metropolitan Washington Air Quality Committee, that actually
has a lot of power in requiring respective jurisdictions
ultimately, if they do not volunteer to do it, to take
mitigation measures that are very specific. We have even looked
at things like odd/even days for lawn mowing to make sure that
metropolitan Washington is in compliance with EPA air quality
standards.
So it seems to me that we could look at some of those
models with respect to the bay because I think Mr. Baker's
point is well taken. The fervor with which Maryland and
Virginia have entered into mitigation measures and the
investments that we have made most certainly have not been
matched by some of our neighboring States.
Senator Cardin. Well, I want to agree with both of you. I
want to agree with Mr. Baker in that I do think EPA has a great
deal of authority, and they can act. We want to see them act in
order to protect the environment. That is what EPA's mission
is. We want them to be certainly within the legal authority
that they have, but using that to accomplish their goals. And
where they run into difficulty because of legal uncertainty,
please come to us and see whether we can help you clarify that
and work with you.
But on the other side, I am concerned about consistency
here and would like to make sure that we have in statute the
clear direction necessary to reach our objectives in regards to
the Chesapeake Bay. So even if you have the authority that you
need, I would be concerned that if we are not more specific in
statute, we could fall back to a time where it may not be as
high a priority as it is with this current administration. So I
think we would want some guidance in either of those
circumstances.
Mr. Baker, I want to ask you one of my favorite questions
concerning the Asian oyster. I know that the decision was made
not to move forward on it, but that could be changed tomorrow
or the next day. Does Congress need to act on this issue?
Mr. Baker. I had not even thought of that. The decision
that came out of the Corps of Engineers now stands. We think
they made the right decision. Certainly when so little has been
done to really give the Chesapeake Bay oyster the chance it
deserves, to bring in a foreign species with all the
consequences that are unknown, would be right in the face of
good science. So any help Congress could give would be welcome,
and we would be happy to work with you on it.
Senator Cardin. Well, we may take you up on that. It would
be good to have clear direction in statute on these types of
issues. On the other hand, we do want good science to be able
to move forward. But I share your concern. Senator Mikulski has
been one of the leaders in the U.S. Senate on trying to make
sure that we have good science as it relates to oysters in
Maryland. Of course, there have been many projects moving
forward.
You seem to be more optimistic than perhaps I have heard in
the past on the oyster. Is there a reason for that?
Mr. Baker. Well, yes, two things. First, there is some sign
that it looks as if our native bay oyster may--and I really
underscore ``may''--be developing some resistance to the two
parasites.
And second, just look at the marketplace. There are a
number of companies now growing and marketing native Chesapeake
Bay oysters, triploid, which means they are sterile oysters, in
Chesapeake Bay and are making some money at it.
Third, restoration works. And I might take this
opportunity, if I may, to clarify a statistic that has been
widely bandied about, that $58 million has been spent on
restoration of the bay oyster over the last decade or more.
That is simply an incorrect number. $17 million has been spent
on restoration. The balance has been spent on basically a put-
and-take fishery, moving oysters from one area to another to
try and circumvent disease, building oyster reefs and bars that
then would be harvested. But really, the total dollars that
have been spent on restoration, when you think of what has been
lost and what is at risk, is not nearly enough.
Senator Cardin. Thank you.
Do you have a view on the menhaden as to whether there
needs to be better management of the taking of the menhaden?
Mr. Baker. Absolutely. The menhaden fishery, as you know,
is primarily a Virginia fishery. Virginia still uses large
trawlers to harvest menhaden, and menhaden are a filter feeder
similar to oysters and other shellfish.
The Atlantic States Marine Fisheries Commission instituted
a 5-year window of opportunity in which the fishery is capped
to allow the scientists to come up with the best number
possible as to what the sustainable harvest is. Once that
number is available, we ought to follow the science once again
and meet that, and whatever it takes to meet it should be
followed.
Senator Cardin. Well, I think management is a critical
issue. You mentioned the rockfish, that it seems like it is
going to be a good season, although my brother went fishing
yesterday and did not catch anything. He is a pretty good
fisherman. So we will see.
Of course, the crab crop looks like it is going to be
better, certainly better this season than last.
Congressman Connolly, I want to ask you about what
practices you are using in regards to looking at dealing with
the runoff. It is amazing to me because I have seen some very
practical ways of dealing with runoff issues that look like it
is economically feasible. It is less expensive than pouring all
that concrete. It certainly looks better and is much better for
the environment. I personally believe the Federal Government
has got to be a leader here in the way that we do our
construction, whether it is roads or buildings, that we have a
clear policy on minimizing the negative impact on the bay and
that we lead by example and then show the right practices that
can be economically achieved.
In your experience, can you tell us what could be the best
policies to try to make this as economically feasible as
possible, achieving our environmental results? Any lessons
learned from what you did in Virginia?
Mr. Connolly. I think there are, Mr. Chairman, and I hinted
at it a little bit earlier with our exchange with Mr. Fox. I do
think that some kind of standard set by the EPA on low-impact
development could make a difference because you made the point
that you do not want to do an undue burden on business, but if
one locality wants to do the right thing and have certain
requirements of businesses as they are doing new development or
retrofitting existing development, and the neighboring
jurisdiction has none, you have put yourself, trying to do the
right thing, at a competitive disadvantage. And so having a
uniform standard on low-impact development I think can make a
difference.
We put up some pictures here, Mr. Chairman, of three
examples in Fairfax County we did as a government that were not
terribly expensive and they had very dramatic improvements in
the treatment of runoff.
This first one was a recreation center where in the
drainage area, about 23-24 percent of the drainage area we
turned into a rain garden and got very dramatic improvements in
terms of the runoff that was retained, about 47 percent.
The second picture is an example of a roof garden where we
took an impervious surface on a parking garage on a roof and
basically turned it into a rain garden that has, in one case,
retained 100 percent of the estimated runoff. I mean, really a
dramatic improvement.
And the third example was a parking lot where we replaced
asphalt with porous pavers and we instituted a retention trench
that has also had a dramatic improvement. This is a government
center and a fire station, heavily trafficked, and we have made
a big difference. We are over 40 percent now of runoff being
treated and retained.
So these were just three examples of LIDs. You know, we are
practicing what we are preaching, and we are finding developers
more than happy to try to replicate this with a little bit of
encouragement.
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Senator Cardin. As far as the cost differential, have you
been able to document the extra costs?
Mr. Connolly. It is hard to get at that delta, Mr.
Chairman. Obviously, we have looked at, for example, in the
replanning of Tysons7, that 3-year effort, the business
community sat at that table, and to a person, the developers
and the owners, including the largest single owner of property
in Tysons, unanimously endorsed the LIDs that we put in the
plan that would require 100 percent treatment of stormwater and
would implement these kinds of measures to try to make for a
more efficient and environmentally sensitive Tysons Corner. So
I cannot give you a delta just yet, but I can tell you that we
are not finding a lot of resistance from the business
community.
Senator Cardin. And in some cases, the maintenance costs
are going to be less.
Mr. Connolly. Absolutely.
Senator Cardin. We saw that in legislation that I was
working on on GSA buildings that the cost issues really were
not there. I mean, it is not extra cost. It is just paying
attention to the environment and doing it the right way.
Mr. Connolly. In public buildings, Mr. Chairman, what we
found in the public sector, roughly the life of a building is
somewhere around 40 to 50 years, and we find the break-even
point with these investments is around year 11. So after that,
you are actually net making money in terms of savings and
maintenance and operation.
Senator Cardin. And Mr. Fox, looking again at your pie
chart, all three, nitrogen, phosphorus, and sediments, are very
much impacted by runoff. So it seems to me this is one that we
could make some significant progress.
Mr. Fox. Absolutely, and my hope is that with the emergence
of this next generation of stormwater permits for urban and
suburban areas, we will see an increasing tightening of these
permit conditions and higher performance of precisely these
kinds of things.
Senator Cardin. Well, let me thank our witnesses, all four
of you. This is the first of a series of opportunities we are
going to have to try to deal with the Clean Water Act, deal
with the Chesapeake Bay Program, to try to develop the right
governmental structure, and working with this administration,
which we believe is very much in step with what we are trying
to accomplish in Congress on the Chesapeake Bay.
There has been a lot of effort put into the bay--there is
no question about it--by the agricultural community, by local
governments, by the private interest groups, by children who go
out on the weekends to clean up the bay, and it has made a
difference, as I said in my opening statements. But we are at a
D in our grading system and that is not acceptable. We are in
poor quality. That is not acceptable.
So we need to look at ways to do it consistent with what
Mr. Hutchison said. We want it to be based upon good science.
We want it to be fair. We do want to create an undue burden on
our economy. We think we can achieve those goals. But I really
do think we need the help of all of you, all the stakeholders,
in order to achieve that objective. I can tell you that this
committee is very much interested in working with each of you
to develop legislation and try to move legislation through
Congress and to give the administration the tools they need,
whether they are financial or regulatory, to achieve these
objectives.
The record will be open for 2 weeks for additional comments
that any of you would like to add or by members of our
committee. Again, I thank you all for your participation.
With that, the hearing will stand adjourned.
[Whereupon, at 11:43 a.m., the hearing was adjourned.]
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