[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

                              ----------                              


                         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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