[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
  HEARING TO REVIEW THE CHESAPEAKE BAY TMDL, AGRICULTURAL CONSERVATION 
        PRACTICES, AND THEIR IMPLICATIONS ON NATIONAL WATERSHEDS 

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

                                HEARING

                               BEFORE THE

           SUBCOMMITTEE ON CONSERVATION, ENERGY,AND FORESTRY

                                 OF THE

                        COMMITTEE ON AGRICULTURE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 16, 2011

                               __________

                            Serial No. 112-6


          Printed for the use of the Committee on Agriculture
                         agriculture.house.gov

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                        COMMITTEE ON AGRICULTURE

                   FRANK D. LUCAS, Oklahoma, Chairman

BOB GOODLATTE, Virginia,             COLLIN C. PETERSON, Minnesota, 
Vice Chairman                        Ranking Minority Member
TIMOTHY V. JOHNSON, Illinois         TIM HOLDEN, Pennsylvania
STEVE KING, Iowa                     MIKE McINTYRE, North Carolina
RANDY NEUGEBAUER, Texas              LEONARD L. BOSWELL, Iowa
K. MICHAEL CONAWAY, Texas            JOE BACA, California
JEFF FORTENBERRY, Nebraska           DENNIS A. CARDOZA, California
JEAN SCHMIDT, Ohio                   DAVID SCOTT, Georgia
GLENN THOMPSON, Pennsylvania         HENRY CUELLAR, Texas
THOMAS J. ROONEY, Florida            JIM COSTA, California
MARLIN A. STUTZMAN, Indiana          TIMOTHY J. WALZ, Minnesota
BOB GIBBS, Ohio                      KURT SCHRADER, Oregon
AUSTIN SCOTT, Georgia                LARRY KISSELL, North Carolina
STEPHEN LEE FINCHER, Tennessee       WILLIAM L. OWENS, New York
SCOTT R. TIPTON, Colorado            CHELLIE PINGREE, Maine
STEVE SOUTHERLAND II, Florida        JOE COURTNEY, Connecticut
ERIC A. ``RICK'' CRAWFORD, Arkansas  PETER WELCH, Vermont
MARTHA ROBY, Alabama                 MARCIA L. FUDGE, Ohio
TIM HUELSKAMP, Kansas                GREGORIO KILILI CAMACHO SABLAN, 
SCOTT DesJARLAIS, Tennessee          Northern Mariana Islands
RENEE L. ELLMERS, North Carolina     TERRI A. SEWELL, Alabama
CHRISTOPHER P. GIBSON, New York      JAMES P. McGOVERN, Massachusetts
RANDY HULTGREN, Illinois
VICKY HARTZLER, Missouri
ROBERT T. SCHILLING, Illinois
REID J. RIBBLE, Wisconsin

                                 ______

                           Professional Staff

                      Nicole Scott, Staff Director

                     Kevin J. Kramp, Chief Counsel

                 Tamara Hinton, Communications Director

                Robert L. Larew, Minority Staff Director

                                 ______

           Subcommittee on Conservation, Energy, and Forestry

                 GLENN THOMPSON, Pennsylvania, Chairman

BOB GOODLATTE, Virginia              TIM HOLDEN, Pennsylvania, Ranking 
MARLIN A. STUTZMAN, Indiana          Minority Member
BOB GIBBS, Ohio                      KURT SCHRADER, Oregon
STEPHEN LEE FINCHER, Tennessee       WILLIAM L. OWENS, New York
SCOTT R. TIPTON, Colorado            MIKE McINTYRE, North Carolina
STEVE SOUTHERLAND II, Florida        JIM COSTA, California
MARTHA ROBY, Alabama                 TIMOTHY J. WALZ, Minnesota
TIM HUELSKAMP, Kansas                CHELLIE PINGREE, Maine
RANDY HULTGREN, Illinois             MARCIA L. FUDGE, Ohio
REID J. RIBBLE, Wisconsin            GREGORIO KILILI CAMACHO SABLAN, 
                                     Northern Mariana Islands

               Brent Blevins, Subcommittee Staff Director

                                  (ii)





















                             C O N T E N T S

                              ----------                              
                                                                   Page
Holden, Hon. Tim, a Representative in Congress from Pennsylvania, 
  opening statement..............................................     4
    Prepared statement...........................................     5
Thompson, Hon. Glenn, a Representative in Congress from 
  Pennsylvania, opening statement................................     1
    Prepared statement...........................................     3

                               Witnesses

White, Dave, Chief, Natural Resources Conservation Service, U.S. 
  Department of Agriculture, Washington, D.C.....................     6
    Prepared statement...........................................     7
Perciasepe, Bob, Deputy Administrator, U.S. Environmental 
  Protection Agency, Washington, D.C.............................    35
    Prepared statement...........................................    36
    Supplementary information....................................   151
    Submitted questions..........................................   191
Domenech, Douglas W., Secretary of Natural Resources, 
  Commonwealth of Virginia, Richmond, VA.........................    43
    Prepared statement...........................................    45
Shaffer, Carl T., President, Pennsylvania Farm Bureau; Member, 
  Board of Directors, American Farm Bureau Federation, Mifflin 
  Township, PA...................................................    66
    Prepared statement...........................................    67
Hoot, Lynne C., Executive Director, Maryland Association of Soil 
  Conservation Districts and Maryland Grain Producers 
  Association, Edgewater, MD.....................................    70
    Prepared statement...........................................    72
Hebert, Tom, Senior Advisor, Agricultural Nutrient Policy 
  Council, Washington, D.C.......................................    74
    Prepared statement...........................................    76
Bauhan, Hobey, President, Virginia Poultry Federation, 
  Harrisonburg, VA; on behalf of National Chicken Council; 
  National Turkey Federation; U.S. Poultry and Egg Association...   104
    Prepared statement...........................................   105

                           Submitted Material

Curley, Keith, Director of Government Affairs, Trout Unlimited, 
  submitted letter...............................................   119
Devine, Jr., Jon P., Senior Attorney, Water Program, Natural 
  Resources Defense Council, submitted letter....................   120
Hughes, Robert E., Executive Director, Eastern PA Coalition for 
  Abandoned Mine Reclamation, submitted letter...................   123
Hughes-Wert, Melinda, President, Nature Abounds, submitted letter   136
Jarrett, Jan, President & CEO, Citizens for Pennsylvania's 
  Future, submitted letter.......................................   137
O'Leary, Dave, Conservation Chair, Maryland Sierra Club, 
  submitted letter...............................................   138
Siglin, Doug, Federal Affairs Director, Chesapeake Bay 
  Foundation, submitted letter...................................   140
Choose Clean Water Coalition, submitted letter...................   142


  HEARING TO REVIEW THE CHESAPEAKE BAY TMDL, AGRICULTURAL CONSERVATION
        PRACTICES, AND THEIR IMPLICATIONS ON NATIONAL WATERSHEDS

                              ----------                              


                       WEDNESDAY, MARCH 16, 2011

                  House of Representatives,
        Subcommittee on Conservation, Energy, and Forestry,
                                  Committee on Agriculture,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 1300 of the Longworth House Office Building, Hon. Glenn 
Thompson [Chairman of the Subcommittee] presiding.
    Members present: Representatives Thompson, Goodlatte, 
Stutzman, Huelskamp, Hultgren, Ribble, Holden, Schrader, Owens, 
and Peterson (ex officio).
    Staff present: Patricia Barr, Brent Blevins, Tamara Hinton, 
John Konya, Josh Maxwell, Debbie Smith, Nona Darrell, Nathan 
Fretz, Liz Friedlander, Robert L. Larew, Anne Simmons, and 
Jamie Mitchell.

 OPENING STATEMENT OF HON. GLENN THOMPSON, A REPRESENTATIVE IN 
                   CONGRESS FROM PENNSYLVANIA

    The Chairman. Well, good morning everyone. This hearing of 
the Subcommittee on Conservation, Energy, and Forestry to 
review the Chesapeake Bay TMDL, agricultural and conservation 
practices, and their implications will come to order. Good 
morning again. I want to welcome everyone to the first hearing 
of the Conservation, Energy, and Forestry Subcommittee. This 
Subcommittee will hold hearings on many important topics over 
the next 2 years and I believe this topic ranks among the most 
important. There are two purposes for our hearing today. First 
of all, we will review the development and implementation of 
the Chesapeake Bay TMDL by EPA. And our second purpose is to 
consider the role farmers play in ensuring a healthy Bay.
    Let me say up front I know everyone in this room is 
concerned about the health and the well-being of the Chesapeake 
Bay. Now we all recognize that it is a treasure that is 
important to the vitality of millions of people. Everyone, 
including the agricultural community, must play a part in 
ensuring its health. That being said, I am alarmed at the lack 
of transparency by EPA in the development of its model for the 
TMDL. This TMDL is unprecedented in terms of its scope and 
impact on the lives of every day citizens and is based on a 
model that has been questioned by everyone from industry 
stakeholders to colleges.
    Now I am concerned about the lack of a thorough cost-
benefit analysis having been performed by EPA, and further, I 
am concerned that states are being burdened with a non-
permanent, resident-funded mandate at a time when states are 
struggling to balance their budgets. The Federal Government and 
states have, to date, spent billions of dollars on the health 
of the Bay. The 2008 Farm Bill included language in short that 
farmers in the watershed would have access to the resources 
necessary to improve the health of the Bay. The TMDL will have 
a devastating economic impact on my constituents. I am very 
concerned about the burden that this action by EPA will place 
on farmers and citizens in my district and throughout the 
watershed.
    For example the Commonwealth of Virginia has estimated that 
the cost to implement the current plan approved by EPA would 
cost almost $5,000 per taxpayer. Maryland has estimated this 
plan will cost $10 billion over 10 years. The health of the 
Chesapeake Bay is a tremendously important issue for farmers 
and taxpayers in Pennsylvania, the citizens of Washington, and 
the other five states in the watershed, but even if you aren't 
one of the 17 million people living in the Chesapeake Bay 
watershed, or your district is thousands of miles away, this 
process is important to you. The model and the process used to 
develop the Bay TMDL will be replicated by EPA on watersheds 
across the country. So, although this may seem a world away, 
you may see this again in the future.
    We certainly see just this past week in my hours both at 
home in the district and here in Washington just purely by 
happenstance, different agencies coming in that are involved in 
the watershed, the Bay as well. The Army Corps of Engineers are 
meeting with county commissioners to talk about their past use 
of Community Development Block Grant monies specifically to 
assist municipalities that impact the watershed issues.
    And most recently--actually very recently this came out 
today, where we have the Federal court decision that was 
released today from the Fifth District Court I believe. U.S. 
Court of Appeals in the Fifth District in New Orleans 
essentially said that the EPA exceeded its statutory authority 
in requiring concentrated animal feeding operation, CAFOs, that 
propose or might discharge to apply for CWA permits. And the 
fact is that a unanimous decision by that court that the EPA 
cannot require livestock operations to obtain Clean Water Act 
permits unless, and until, they have a discharge into the 
waterways of the United States.
    So I am looking forward to the panel that we have today. I 
want to--really want to thank all the witnesses for coming to 
testify this morning. Our first panel of witnesses will discuss 
the development and the implementation of the TMDL. Our second 
panel will discuss success stories of farmers engaging in 
voluntary conservation practices and how that has made a 
significant improvement in the Bay. This panel will also share 
concerns about the impacts of implementation of the TMDLs on 
the agricultural community.
    Now we will hear stories of farmers who have acted in a 
responsible manner as good stewards, and I am proud of the fact 
that farmers are taking real, on the ground daily steps to 
improve the water quality in the Chesapeake Bay region and 
across the country. And I want to be sure that the agricultural 
community receives the credit it deserves for engaging in 
voluntary practices to reduce nutrient and sediment runoff.
    And I want to extend a warm welcome to Carl Shaffer, the 
President of Pennsylvania Farm Bureau and I am certainly happy 
that Carl drove down here this morning to share his thoughts 
and concerns of my constituents and offer a Pennsylvania 
perspective on this important policy matter.
    [The prepared statement of Mr. Thompson follows:]

Prepared Statement of Hon. Glenn Thompson, a Representative in Congress 
                           from Pennsylvania
    Good morning. I want to welcome everyone to the first hearing of 
the Conservation, Energy, and Forestry Subcommittee.
    This Subcommittee will hold hearings on many important topics over 
the next 2 years, and I believe this topic ranks among the most 
important.
    There are two purposes for our hearing today. First of all, we want 
to review the development and implementation of the Chesapeake Bay TMDL 
by EPA.
    Second, we want to consider the role of farmers in ensuring a 
healthy Bay.
    Let me say up front, I know everyone in this room is concerned 
about the health and well-being of the Chesapeake Bay. We all recognize 
that it is a treasure that is important to the vitality of millions of 
people. Everyone, including the agricultural community, must play a 
part in ensuring its health.
    That being said, I am alarmed at the lack of transparency by EPA in 
the development of its model for the TMDL. I am concerned about the 
lack of a thorough cost-benefit analysis having been performed by EPA.
    Further, I am concerned that states are being burdened with an 
unfunded mandate at a time when states are struggling to balance their 
budgets.
    The Federal Government has spent hundreds of millions of dollars on 
the health of the Bay. The 2008 Farm Bill included language that 
ensured that farmers in the watershed would have access to the 
resources necessary to improve the health of the Bay.
    I am very concerned about the burden that this action by EPA will 
place on farmers and citizens throughout the watershed. The TMDL 
regulations will have a devastating economic impact on my constituents.
    For example, the Commonwealth of Virginia has estimated that the 
cost to implement the current plan approved by EPA would cost almost 
$5,000 per taxpayer. Maryland has estimated this plan will cost $10 
billion over 10 years.
    The health of the Chesapeake Bay is a tremendously important issue 
for farmers and taxpayers in Pennsylvania, the citizens of Washington, 
and the other five states in the watershed.
    But even if you aren't one of the 17 million people living in the 
Chesapeake Bay watershed, or your district is thousands of miles away, 
this process is important to you. The model and the process used to 
develop the Bay TMDL will be replicated on watersheds across the 
country.
    I want to thank our panels of witnesses for coming to testify this 
morning.
    Our first panel of witnesses will discuss the development of the 
TMDL. Our second panel will discuss success stories of farmers engaging 
in voluntary conservation practices, and how that has made a 
significant improvement in the Bay. This panel will also share concerns 
about the impacts of implementation of the TMDL on the agriculture 
community.
    We will hear the stories of farmers who have acted in a responsible 
manner. I am proud of the fact that farmers are taking real, on-the-
ground, daily steps to improve water quality in the Chesapeake Bay 
region and across the country. I want be sure that the agriculture 
community receives the credit it deserves for engaging in voluntary 
practices that reduce nutrient and sediment runoff.
    I want to extend a warm welcome to Carl Shaffer, the President of 
the Pennsylvania Farm Bureau. I am happy he drove down here this 
morning to share the thoughts and concerns of my constituents and offer 
a Pennsylvania perspective on this process.
    I now yield to the gentleman from Pennsylvania, Mr. Holden for his 
opening statement.

    The Chairman. And now I am very pleased to yield to my 
colleague and gentleman from Pennsylvania, Mr. Holden for his 
opening statement.

   OPENING STATEMENT OF HON. TIM HOLDEN, A REPRESENTATIVE IN 
                   CONGRESS FROM PENNSYLVANIA

    Mr. Holden. Thank you, Mr. Chairman, and thank you for 
having this hearing today. Today's hearing focuses on a very 
important topic for farmers and ranchers in the Chesapeake Bay 
watershed, as well as those across the country concerned with 
increased regulation.
    The Chesapeake Bay is the nation's largest and most diverse 
estuary. It is home to more than 3,600 species of plants and 
animals, and is a significant migration and wintering habitat 
in the Atlantic Flyway. The health of this body of water, and 
those contained in the Chesapeake Bay watershed including the 
Susquehanna River that runs through my Congressional district, 
deserve our full attention.
    Farming has always been an important part of the Chesapeake 
Bay's landscape comprising almost \1/4\ of the watershed. 
Agriculture can play a significant role in the protection of 
this ecosystem. Efforts to improve Bay water quality however 
should not impede the livelihood of our family farmers.
    This Subcommittee has worked for a long time to make sure 
Chesapeake Bay farmers, who already face some of the most 
stringent environmental regulations in the United States, are 
put on the same level playing field as those in other regions 
of the country. We have made great progress towards regional 
equity for increased funding for dairy, specialty crops, and 
conservation including the $438 million Chesapeake Bay 
Watershed Program to help reduce nutrients and sediment which 
can flow from farm and forestland into the Chesapeake Bay.
    The ink was barely dry on these new provisions to assist 
producers when EPA announced plans for new regulations and 
increased penalties through the Chesapeake Bay TMDL. My concern 
is that once again we are placing Bay farmers at a financial 
and competitive disadvantage in doing so without knowing or 
having all of the information EPA used to develop the TMDL load 
allocations.
    Despite the lack of information about the data used to 
develop the load reduction allocation, and despite glaring 
discrepancies between data collected by various government 
agencies, EPA has published a final TMDL and is pushing states 
to begin work on Phase II watershed implementation plans which 
will set nutrient sediment goals to more local levels.
    It is important that we allow farmers and ranchers, who 
have always been the best advocates for resource conservation, 
to continue their efforts to further elevate their 
environmental stewardship across the Chesapeake Bay watershed 
before adding increased regulations and threatening harmful 
penalties. Agricultural practices can be some of the most cost 
effective at improving water quality in the region and the 
agricultural community and USDA stand ready to improve water 
quality and wildlife habitat.
    I remain committed to working with NRCS and FSA, as well as 
EPA, to ensure that Chesapeake Bay conservation programs are 
implemented as efficiently as possible while minimizing burdens 
on producers in the states. I look forward to hearing the 
testimony from our witnesses today. Mr. Chairman, thank you.
    [The prepared statement of Mr. Holden follows:]

  Prepared Statement of Hon. Tim Holden, a Representative in Congress 
                           from Pennsylvania
    Thank you, Chairman Thompson. I would also like to thank our 
witnesses and guests for coming today. Today's hearing focuses on a 
very important topic for farmers and ranchers in the Chesapeake Bay 
watershed, as well as those across the country concerned with increased 
regulation.
    The Chesapeake Bay is the nation's largest and most diverse 
estuary. It is home to more than 3,600 species of plants and animals, 
and is a significant migration and wintering habitat in the Atlantic 
Flyway. The health of this body of water and those contained in the 
Chesapeake Bay watershed, including the Susquehanna River that runs 
through my Congressional district, deserve our full attention.
    Farming has always been an important part of the Chesapeake's 
landscape. Comprising almost \1/4\ of the watershed, agriculture can 
play a significant role in the protection of this ecosystem. Efforts to 
improve Bay water quality however should not impede the livelihood of 
our family farmers.
    This Subcommittee has worked for a long time to make sure 
Chesapeake Bay farmers, who already face some of the most stringent 
environmental regulations in the United States, are put on the same 
level of playing field as those in other regions. We have made great 
progress toward regional equity with increased funding for dairy, 
specialty crops and conservation including the $438 million Chesapeake 
Bay Watershed Program to help reduce nutrients and sediment which can 
flow from farm and forestland into the Chesapeake Bay.
    The ink was barely dry on these new provisions to assist producers 
when EPA announced plans for new regulations and increased penalties 
through the Chesapeake Bay TMDL. My concern is that once again we are 
placing Bay farmers at a financial and competitive disadvantage and 
doing so without knowing or having all of the information EPA used to 
develop the TMDL load allocations.
    Despite the lack of information about the data sets used to develop 
the load reduction allocations and despite glaring discrepancies 
between data collected by various government agencies, EPA has 
published a final TMDL and is pushing states to begin work on Phase II 
Watershed Implementation Plans, which will set nutrient and sediment 
goals to more local levels.
    It is important that we allow farmers and ranchers, who have always 
been the best advocates for resource conservation, to continue their 
efforts to further elevate their environmental stewardship across the 
Chesapeake Bay watershed before adding increased regulations and 
threatening harmful penalties.
    Agricultural practices can be some of the most cost-effective at 
improving water quality in the region and the agriculture community and 
USDA stand ready to improve water quality and wildlife habitat.
    I remain committed to working with NRCS and FSA, as well as EPA, to 
ensure that Chesapeake Bay conservation programs are implemented as 
efficiently as possible, while minimizing burdens on producers and the 
states. I look forward to hearing from our witnesses today.

    The Chairman. Thank you. We are also joined in the 
Subcommittee by the Ranking Member, Mr. Peterson, of the full 
Committee. The chair would request that all other Members 
submit their opening statements for the record so that the 
witnesses may begin their testimony and ensure that there is 
ample time for questions. I would like to welcome our first 
panel of witnesses to the table. We have Mr. David White who is 
Chief the Natural Resources Conservation Services, United 
States Department of Agriculture in Washington. Welcome, Chief 
White. We have Mr. Bob Perciasepe, Deputy Administrator, United 
States Environmental Protection Agency based here in 
Washington. And Mr. Doug Domenech, Secretary of Natural 
Resources, Commonwealth of Virginia, Richmond, Virginia. Thank 
you, gentlemen, for joining us and Mr. White, please begin when 
you are ready.

STATEMENT OF DAVE WHITE, CHIEF, NATURAL RESOURCES CONSERVATION 
   SERVICE, U.S. DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C.

    Mr. White. Greetings, Mr. Chairman, Mr. Holden, Mr. 
Goodlatte, Members of the Subcommittee, Mr. Peterson, it is fun 
to be here. I wish you guys would have me up here more often 
because there is so much cool stuff going on with conservation 
that I would really love to share with you.
    I have thought a lot about this oral statement and you have 
12 pages of thoroughly vetted and approved testimony and I will 
talk about a couple of things. Also in your packet we put an 
actual survey copy that farmers filled out for the Chesapeake 
Bay CEAP that we released yesterday. And then I have some 
before and after photos if you want to check them out from 
various conservation practices going on around the Bay area.
    You know, when I think of the Bay I am happy and sad. In 
2002, I was loaned to Senator Luger and helped with the 
conservation title of the 2002 Farm Bill. In 2008, I was loaned 
to Mr. Harkin and helped with the 2008 Farm Bill conservation 
title and many of the more senior staff sitting behind you were 
there too, and I have a lot of respect and admiration for them. 
I kind of know a little bit about what went into crafting the 
2008 Farm Bill. And I kind of know how some of the Members of 
this Committee and Subcommittee fought for conservation dollars 
and fought to create the Chesapeake Bay conservation program, 
and fought to get funding for the Bay. So it grieves me when I 
see accounts that some of these Members went above and beyond 
to get conservation funding are now being characterized as 
somehow being against the Bay.
    When I was a kid I used to read Superman comic books. In 
Superman, although I am more of a Marvel kind of guy, but in 
Superman they had created this bizarro world where everything 
you thought was right, was opposite. And when I read some of 
the statements that were made about some of the Members of this 
Subcommittee it is--I think that is where I have to say it kind 
of grieves me to see that because I know where your hearts are.
    On the positive side the testimony speaks to how we are 
working; how we are implementing the Chesapeake Bay Program 
that you created; how we are using the Conservation Innovation 
Grants to explore new technology; how we created four of the 
new cooperative conservation partnership initiatives; how we 
are working with EPA and the states to try to flesh out the 
concept of certainty where if a farmer is doing some good stuff 
for our water it removes the fear of regulation.
    We are also taking some new approaches in a little 
discussion about the Strategic Watershed Action Teams. So, I 
would like to announce today that we are finalizing the four 
teams in the Bay. There is going to be one in West Virginia, 
one in Delmarva which does part of Delaware and part of 
Virginia. There is one in the Shenandoah Valley. There is one 
in the Piedmont of Pennsylvania. There is about $3 million 
Federal funds. It is coming with about $850,000 matching funds, 
and the partners in these are the State Departments of 
Agriculture and Conservation Districts.
    I would also like to discuss, and you probably know 
yesterday we released the Conservation Effects Assessment 
Project for the Chesapeake Bay. It is based on 700 farmer 
surveys, several world class--three world class models that are 
impeccable, statistical framework provided by the National 
Resources Inventory. Some of the results are astounding. This 
report focuses on crop land. Ninety-six percent of the crop 
land has some conservation on it.
    We have reduced--and I am going to make sure I read this so 
I don't mess it up--edge of field losses by 55 percent 
sediment, nitrogen surface run-off by 42 percent, phosphorus by 
40 percent and this is edge of the field estimates on crop 
land. And it also shows that we need to do more. About 20 
percent of the crop land still needs a high level of treatment, 
but Members of the Subcommittee we can do this.
    The funding that you put into the 2008 Farm Bill, started 
to hit in 2009 so we have 3 years really: 2009, 2010, and the 
current year we are in. If you look at those three fiscal years 
we will have about $\1/4\ billion for conservation in the 
Chesapeake Bay and we are getting results with that funding.
    The CEAP report, it says a lot of good stuff but it is just 
a snapshot in time. It covers 2003 to 2006 and we are going to 
be updating it this fall with some more data points. So I asked 
staff to go back and look in our PROTRACTS database. What have 
we done in 2006, 2007, 2008, 2009, and Fiscal Year 2010? And I 
am going to share that with you now.
    This is kind of rough; needs a little bit more work, but in 
the last five fiscal years, I want you to buckle your 
seatbelts. From the CEAP baseline in 2006 according to our data 
and this is just EQIP and the farm bill programs. It doesn't 
include anything that was done at state or voluntarily. 
Sediment has been reduced by another 20 percent, nitrogen by 
another 17 percent, and phosphorus by another 15 percent. I 
think we can deal with this issue because of the support that 
you have provided, because of our tremendous partners, our 
dedicated employees, because of the commitment of farmers who 
also put in their own money to this and their willingness to do 
their share. I think in a very real sense we are turning the 
conservation challenges into conservation gold for the Bay. 
Thank you, Mr. Chairman.
    [The prepared statement of Mr. White follows:]

Prepared Statement of Dave White, Chief, Natural Resources Conservation 
       Service, U.S. Department of Agriculture, Washington, D.C.
    Good morning, Chairman Thompson, Ranking Member Holden, and other 
Members of the Subcommittee. I am pleased that you have given me the 
opportunity to describe the impressive actions USDA and its customers 
are taking to improve water quality in the Chesapeake Bay and its 
tributaries. At USDA, our efforts are carried out with the 
understanding that how landowners manage their lands will help 
determine the fate of the Chesapeake Bay.
    USDA's National Resources Inventory shows that in the Chesapeake 
Bay watershed, developed land increased by 67 percent between 1982 and 
2007. While a majority of rural lands lost to development during this 
period came from forest land, 30 percent came from cropland. USDA's 
Conservation Effects Assessment Project shows that per-acre nutrient 
and sediment loadings are significantly higher from developed lands 
(point and nonpoint sources included) than from cultivated cropland.
    USDA and other Federal agencies believe that a thriving and 
sustainable agricultural sector is critical to restoring the 
Chesapeake. Agricultural land makes up nearly 30 percent of the area of 
the Chesapeake Bay watershed. The 2007 Census of Agriculture reported 
that the 84,000 farms in the Chesapeake Bay watershed, about four 
percent of the total number of farms in the United States, had sales of 
nearly $10 billion. Investments in private lands conservation are good 
for farmers and ranchers-reduced input costs directly help the bottom 
line, while improved soil and water quality help maintain and even 
enhance long-term productivity while minimizing regulatory pressures. 
These same investments in conservation work for all Americans--a well-
managed farm limits its nutrient and sediment runoff, produces food and 
fiber, helps sustain rural community economies, and contributes to the 
food security of our nation.
    On May 12, 2009, President Obama's Executive Order 13508, 
Chesapeake Bay Protection and Restoration, recognized the Chesapeake 
Bay as a national treasure and called on Federal agencies to work 
cooperatively to protect and restore the Chesapeake Bay watershed. The 
Executive Order also called for a comprehensive approach to Chesapeake 
Bay restoration, including goals for restoring water quality, habitat, 
living resources, and lands. This is consistent with the 
Administration's recently announced plan to conserve and preserve 
America's Great Outdoors. The America's Great Outdoors report announced 
by the President last month gave particular emphasis to protecting 
working lands through partnerships and incentives. The Administration's 
approach to conserving the Chesapeake Bay is an excellent example of 
what is called for in the report. USDA, in collaboration with the 
Environmental Protection Agency (EPA) and other Federal agencies, is 
targeting high-priority watersheds with high-impact practices and using 
the latest science to inform decision making.
Implementing the Chesapeake Bay Watershed Initiative
    At USDA, we understand that the American people and the Federal 
Government are facing challenging economic and budgetary conditions. We 
are fortunate that the 2008 Farm Bill provided funding for USDA to work 
with producers in the Chesapeake Bay watershed. Since we began 
implementation of the Chesapeake Bay Watershed Initiative (CBWI) in 
2009, USDA has worked to balance the program's objectives of (1) 
improving water quality and quantity, and (2) restoring, enhancing, and 
preserving soil, air, and related resources within the Chesapeake Bay 
watershed. CBWI authority, which was provided by Members of this 
Subcommittee, offers USDA an opportunity to leverage information and 
technology to help restore the Chesapeake Bay.
    The additional funding provided by CBWI, over and above our base 
farm bill programs, has allowed NRCS to try some new approaches to 
better target and leverage our funding. In collaboration with EPA, the 
U.S. Geological Survey (USGS), the Fish and Wildlife Service (FWS), 
state governments, State Technical Committees, and conservation 
districts, NRCS used the best available science to identify watersheds 
with the highest nitrogen, phosphorus and sediment delivery to the Bay 
and its tributaries. NRCS continues to work with these partners, 
through a process of adaptive management, to use the latest scientific 
information to inform our program delivery. For example, USGS will 
provide updated information in 2011 on areas delivering high sediment 
loads to the Bay to help prioritize conservation actions.
    NRCS, in partnership with the states, will complete an evaluation 
of the Chesapeake Bay priority watersheds and identify any revisions to 
the priority list by October 2012, and every 2 years thereafter until 
2025. The Strategy for implementing the Executive Order on Chesapeake 
Bay, published in May 2010, identifies the goal of working with 
producers to apply new conservation practices on 4 million acres of 
agricultural working lands in priority watersheds by 2025. While this 
goal is ambitious, NRCS believes that by focusing resources on priority 
watersheds and within those watersheds on priority lands, accelerating 
partnerships, and fully accounting for conservation practices, we can 
achieve a dramatic reduction of nitrogen, phosphorus and sediment.
    A snapshot of CBWI implementation during Fiscal Year 2010 shows 
that Chesapeake Bay watershed producers expressed strong interest in 
conservation. NRCS obligated more than $33 million in CBWI financial 
assistance. NRCS entered into 953 contracts with producers to help 
apply conservation treatment on more than 156,000 acres across the 
watershed. For example, NRCS worked with Pennsylvania producers to 
implement more than 60 square miles of new conservation tillage 
practices on cropland. That's an area equivalent to the size of 
Pittsburgh, Pennsylvania. Forested riparian buffers were planted on the 
equivalent of 714 football fields to help keep soil from entering 
adjacent streams.
    For Fiscal Year 2011, the farm bill authorized $72 million for 
CBWI. Pending outcome of the Congressional budget negotiations, this 
funding, combined with our other mandatory and discretionary accounts, 
would represent a high-water mark for USDA funding in the Chesapeake 
Bay watershed. We have a real opportunity to show that a voluntary, 
site-specific approach to conservation can work in the Chesapeake 
region, coupled with efforts underway across the Federal family.
Leveraging Funding
    CBWI is just one of many USDA activities in the Bay watershed. 
Consistent with the Executive Order on Chesapeake Bay Protection and 
Restoration, USDA is committed to leveraging funding in its watershed 
restoration activities. We are fulfilling this commitment in a number 
of ways:
    The Conservation Innovation Grants (CIG) program funds the 
development of new conservation approaches and technologies. Recipients 
must fund at least 50 percent of the cost of each project. In September 
2010, NRCS joined EPA at an event in Maryland to announce the latest 
recipients of CIG awards in the Chesapeake Bay watershed. NRCS provided 
$2.8 million in CIG grants, while EPA provided $2.7 million for its 
Nutrient and Sediment Reduction grant program. USDA and EPA work 
together in administering these grant programs to reduce duplication 
and to ensure that funding is going to the most meritorious projects: 
2010 CIG projects funded by NRCS are listed below.

Chester River Association was granted $300,000 to demonstrate new 
        approaches to reducing nitrogen loads from cropland in the 
        Upper Chester River watershed of Maryland's Eastern Shore by 
        engaging 20 producers.

University of Maryland Eastern Shore was granted just under $1 million 
        to implement and demonstrate the effectiveness of gypsum 
        curtains for reducing soluble phosphorus on farms in Somerset 
        County, Maryland and to develop a practice standard for 
        installation of gypsum curtains.

World Resources Institute was granted $600,000 to build an online 
        multi-state platform for water quality trading that builds on 
        existing state trading platforms and will include a registry; 
        marketplace; interactive map; calculation tool to estimate on-
        farm nitrogen, phosphorous and sediment losses as well as 
        carbon sequestration rates; and a farm profit calculator to 
        help farmers and aggregators understand potential cost and 
        benefits associated with generating credits in the water 
        quality trading market.

Manure Energy Research Corp. was granted $400,000 to demonstrate the 
        installation and operation of two commercial poultry littler 
        pyrolyzation units, one in the Shenandoah Valley and one in the 
        Delmarva, Peninsula.

    The Cooperative Conservation Partnership Initiative (CCPI) is an 
initiative that enables NRCS and partners to assist producers in 
implementing conservation practices on agricultural and nonindustrial 
private forest lands. NRCS leverages financial and technical assistance 
with partners' resources to install soil erosion practices, manage 
grazing lands, improve forestlands, establish cover crops, reduce on-
farm energy usage and undertake other conservation measures. CCPI is 
open to federally recognized Tribes, state and local units of 
government, producer associations, farmer cooperatives, institutions of 
higher education and nongovernmental organizations that work with 
producers. Nationwide, 26 projects in 14 states were approved for CCPI 
in Fiscal Year 2010. Four of these 14 projects were part of the 
Chesapeake Bay Watershed Initiative (CBWI-CCPI) and were funded at more 
than $1.3 million.
    In Fiscal Year 2011, NRCS will build on the showcase watershed 
projects identified and initiated in 2010: Conewago Creek, PA; Upper 
Chester River, MD; and Smith Creek, VA. The objective of the Showcase 
Watershed Projects is to focus financial and technical assistance on a 
small scale in an effort to demonstrate results through enhanced 
partnerships and targeted water quality monitoring. A key component of 
these work plans is an outreach strategy that reaches all or nearly all 
of the agriculture producers in each watershed and provides an 
inventory of conservation needs. An annual work plan is currently being 
developed for each of these showcase watersheds. As a part of that 
process, NRCS is working with other Federal, state, and non-
governmental partners to identify additional resources to invest in the 
showcase watersheds. Another critical component of the showcase 
watershed is development and implementation of a water quality 
monitoring strategy to measure impacts of our activities. Pending 
appropriations, USGS will provide guidance to develop monitoring 
strategies, as well as equipment and staff time to assist in the 
implementation.
    USDA also supports voluntary Chesapeake Bay restoration efforts 
under the Farm Service Agency's Conservation Reserve Program (CRP). 
Under CRP's Conservation Reserve Enhancement Program, FSA has also 
negotiated Federal-state partnership agreements with all Chesapeake Bay 
area states, which provide targeted assistance to address water 
quality, soil erosion, and wildlife issues.
    Within the Chesapeake Bay Basin, there are about 302,000 acres 
enrolled in the CRP of which about 107,000 acres are devoted to 
buffers. CRP is a voluntary program that helps agricultural producers 
use environmentally-sensitive land for conservation benefits. Producers 
enrolled in CRP plant long-term, resource-conserving covers to control 
soil erosion, improve water and air quality and develop wildlife 
habitat. In return, FSA provides participants with rental payments and 
cost-share assistance. Contract duration is between 10 and 15 years.
New Approaches to Conservation Delivery
    USDA recognized the President's Executive Order on the Chesapeake 
Bay to be in part a call for new approaches and new ideas to Bay 
watershed restoration. Below are several examples of how USDA is 
exploring new ways to engage producers and help them have a positive 
impact on Chesapeake Bay water quality.
Strategic Watershed Action Teams
    In Fiscal Year 2011, NRCS will deploy Strategic Watershed Action 
Teams (SWATs) to work intensively on several landscape conservation 
initiatives, including the Chesapeake Bay. Developing and strategically 
deploying teams with needed expertise will improve the environmental 
cost effectiveness of NRCS technical and financial assistance programs 
by focusing on priority resource concerns within concentrated areas.
    The goal in deploying SWATs is to accelerate conservation adoption 
within a focus area. A concentrated number of additional technical 
specialists delivering technical assistance within landscape 
initiatives will increase the number and extent of conservation 
practices installed through financial assistance programs and private 
landowner investment. Improved outreach and follow-up will also 
accelerate the adoption of conservation practices, which in turn will 
produce faster natural resource improvement.
    In the Chesapeake Bay watershed, SWAT members will work with 
producers in target locations to accelerate conservation implementation 
to improve water quality and simultaneously help achieve the ambitious 
CBWI goal of implementing new conservation practices on 4 million acres 
in priority watersheds by 2025. SWATs will not only help achieve USDA 
goals, but will also support State Watershed Implementation Plan (WIP) 
goals for best management practice (BMP) implementation, as determined 
through the EPA total maximum daily load (TMDL) process. Below is a 
brief outline of how the SWAT approach will work:

Four teams will accelerate conservation activities through outreach, 
        conservation planning, practice implementation, and follow-up 
        in priority watersheds. Specific needs include development of 
        comprehensive nutrient management plans, design and 
        installation of nutrient management practices, design and 
        installation of livestock-related practices, and establishment 
        of riparian buffers.

NRCS will provide overall coordination and technical direction. Local 
        partners will supervise the teams, which will work closely with 
        NRCS staff to address Executive Order Strategy goals and EPA 
        TMDL allocations.

Teams will be located in the Delmarva area (covering Delaware and 
        Maryland), Piedmont area (Pennsylvania), Shenandoah Valley 
        (Virginia), and West Virginia.

    NRCS will invest $3 million in mandatory farm bill funding for the 
SWAT teams and local partners will contribute matching funds.
Certainty
    For a number of months, senior officials from USDA and EPA have 
been working with Chesapeake Bay states to discuss a framework to 
provide certainty to farmers who implement practices that protect water 
quality in the Chesapeake Bay watershed. Certainty programs that states 
develop consistent with the framework could serve as a tool for 
engaging producers in conservation activities while providing some 
certainty to producers who have concerns about how they might be 
impacted by the TMDL.
Nutrient Management Pilot
    In Fiscal Year 2011, NRCS is targeting producers who have not 
adopted nutrient management techniques with a new Nutrient Management 
Pilot effort in Maryland and Pennsylvania. NRCS will provide funding to 
producers to work with certified Technical Service Providers (TSPs) to 
develop nutrient management plans and implement water quality and 
monitoring practices on crop acreage in select watersheds in the 
Chesapeake Bay watershed in Pennsylvania and Maryland. Participating 
producers will establish test strips to demonstrate net income results 
from nutrient management, and obtain additional management guidance 
from their TSP. NRCS will develop ranking criteria that provide 
preference to late-adopting applicants in high priority locations. NRCS 
will use the results from the pilot efforts in Maryland and 
Pennsylvania to inform future iterations of the program.
Environmental Markets
    The Executive Order Strategy on Restoring the Chesapeake Bay 
identified environmental markets as an emerging innovative tool for 
facilitating restoration of the Chesapeake Bay and its watershed. While 
still in their infancy, environmental markets show promise for 
encouraging innovation and investment in conservation, improving 
accountability, reducing costs of restoration, and expanding economic 
opportunities for landowners.
    As directed by the Strategy, USDA has formed and is leading an 
interagency Environmental Markets Team to coordinate among Federal 
agencies and with stakeholders in the development and implementation of 
offsetting and trading provisions for the Bay TMDL as well as 
facilitating work on other market-based approaches in habitat, wetland, 
stream and shoreline restoration, marine markets and other 
applications. We look forward to developing guidance and products that 
can assist Chesapeake Bay states as they look to develop markets or 
build on those already in place.
State-of-the-Art Science
    In June 2010, Secretary Vilsack rolled out the first Conservation 
Effects Assessment Project (CEAP) cropland report, covering the Upper 
Mississippi River watershed. CEAP is a multi-agency effort to quantify 
the environmental effects of conservation practices and develop the 
science base for managing the agricultural landscape for environmental 
quality. In simple terms, CEAP provides both an assessment of the 
impacts of conservation on the landscape and a path forward on how to 
improve implementation of USDA conservation programs and policies.
    Just this week, NRCS released the second CEAP cropland report, this 
one focused on the Chesapeake Bay. The report quantifies the effects of 
conservation practices commonly used on cultivated cropland in the 
Chesapeake Bay watershed, evaluates the need for additional cropland 
conservation treatment in the region, and estimates the potential gains 
that could be attained with additional treatment.
    The CEAP cropland reports are based on a unique methodology--first, 
farmer surveys are used to obtain data on actual farming activities and 
conservation practices. In the case of the Chesapeake Bay watershed, 
the surveys were conducted from 2003 through 2006. The survey 
information is correlated with soils information on National Resources 
Inventory survey sites and statistically expanded to represent all 
cropland in the watershed. The farming and conservation activities and 
soils information are fed into a plant growth assessment model and then 
eventually into a watershed model to simulate downstream outcomes of 
producers' activities. This methodology allows USDA to evaluate the 
cumulative effect of conservation practices in terms of the following:

reductions in losses of sediment, nutrients, and pesticides from 
        fields;

enhancement of soil quality through increases in soil organic carbon; 
        and

reductions in instream delivery of sediment, nutrients, and pesticides 
        to the watershed's rivers and streams, and to the Bay itself.

    The assessment includes all conservation practices undertaken in 
the basin. It is not restricted to only those practices associated with 
Federal conservation programs; the assessment also includes the 
conservation efforts supported by the states, non-governmental 
organizations, and independent actions of individual landowners and 
farm operators.
    The Chesapeake Bay CEAP cropland report included the following 
major findings:

1. Agricultural conservation practices deliver benefits for the Bay.

    In the Chesapeake Bay watershed, most cropland acres have either 
structural and management practices in place to control erosion. Nearly 
half the cropland acres are protected by one or more structural 
practices, such as terraces. Reduced tillage is used in some form on 88 
percent of the cropland. Adoption of conservation practices has reduced 
edge-of-field sediment loss by 55 percent, surface nitrogen losses by 
42 percent, and subsurface nitrogen losses by 31 percent, and 
phosphorus losses by 41 percent, compared to a situation where no 
practices were applied.

2. Inherent soil vulnerabilities in the Chesapeake Bay watershed create 
        a complex environment for agriculture.

    Inherent vulnerability factors such as soils prone to leaching or 
runoff and high precipitation levels amplify potential for nutrients 
and sediment to move from farm fields. At least 44 percent of the 
cropped acres in the watershed are highly erodible land. By comparison, 
only 18 percent of the cropped acres in the Upper Mississippi River 
Basin are highly erodible.

3. Nitrogen loss in subsurface flow is the most critical conservation 
        concern.

    More can be done to reduce nitrogen losses through complete and 
consistent nutrient management (proper rate, form, timing, and method 
of application). About 65 percent of cropped acres need some additional 
nutrient management to address losses of nitrogen through subsurface 
pathways.

4. Suites of conservation practices are needed to manage complex loss 
        pathways.

    A system of conservation practices that includes soil erosion 
control and consistent nutrient management is required to address soil 
erosion and loss of nitrogen through leaching via the numerous 
potential loss pathways.

5. Targeting the most critical acres delivers the largest benefits.

    Targeting the most critical acres delivers significantly more 
benefit. Treating the cropped acres with high need for treatment can 
have twice the impact of treating the acres with low or moderate need 
for treatment. In some areas, the conservation benefits are even 
greater.
    Significant progress in conservation adoption has been made since 
the last phase of the CEAP farmer survey was completed in 2006, 
particularly with respect to cover crop use. Since 2006, implementation 
of cover crops in the watershed has increased significantly, 
particularly where state programs have supported the use of cover 
crops. When used properly, cover crops protect the soil from erosion 
during the winter months, take up nutrients remaining in the soil, and 
release plant-available nutrients slowly over the subsequent cropping 
period, thereby reducing nutrient leaching and runoff during the non-
growing season.
    The CEAP results also reaffirm the importance of maintaining 
working lands in the Bay watershed. That is, working lands develop less 
sediment and nutrients, on average, than developed lands. So while 
NRCS, states, farmers and other landowners work to reduce run-off into 
the Bay, we must also ensure that agriculture and forestry are 
maintained as economically viable land uses.
    Beyond establishing a baseline of conservation programs and 
highlighting continued areas for improvement for the agricultural 
sector, CEAP has the potential to be a key tool supporting our programs 
and policies moving forward. We are incorporating CEAP findings into 
agency standards, program approaches and delivery, and policies.
    The findings confirm that targeting the most vulnerable and least 
protected landscapes is the most effective and efficient path to 
conservation progress. At the same time, we will be on guard to 
maintain gains made in other areas. USDA is also working to incorporate 
soil vulnerability information into more of our targeting efforts. The 
CEAP findings also confirm the wisdom of using systems of practices, 
instead of individual practices, in our planning methodology. And we 
have turned some of our best technical minds toward addressing the 
persistent problem of nitrogen loss through subsurface pathways.
CEAP and the Chesapeake Bay Program Watershed Model
    USDA developed the CEAP model in response to a directive, included 
in the 2002 Farm Bill manager's report, to evaluate the impact of 
conservation practices on the landscape. CEAP was developed to 
estimate, at a large basin scale, the effectiveness of conservation 
activities across the nation to help inform USDA conservation policies 
and programs.
    The Chesapeake Bay Program Partnership's Watershed Model (CBP 
Model) is part of a suite of models designed to account for all 
nutrient and sediment loading sources to the Chesapeake Bay in the 
context of the Bay TMDL and focuses specifically on describing how 
actions on the land from all sources affect nutrient and sediment 
loadings to the Bay and the associated Bay water quality.
    While the CBP Model and CEAP have both been extensively peer-
reviewed and represent state-of-the-art modeling approaches, they were 
developed for different purposes.
    Even though the models serve different purposes, there are 
advantages to be gained from improving and coordinating the input data 
used by the two models, and USDA and EPA will continue to work together 
to that end. Most importantly, both models show that the agricultural 
sector has done much to reduce nutrient and sediment loadings in the 
Bay watershed, and also that there is more to do.
Summary
    There is a sense among the agricultural community that these are 
uncertain times for farmers in the Bay watershed. The Chesapeake Bay 
TMDL and state WIPs have introduced a new dynamic to Bay restoration. 
At USDA, we are taking advantage of the good fortune that the CBWI has 
bestowed upon us to provide Bay watershed producers with historic 
levels of technical and financial assistance. Our CEAP effort will help 
us target those dollars to the places and the practices that have the 
greatest impact on nutrient and sediment loadings. With assistance from 
key partners in the Bay watershed, we have developed new approaches, 
such as SWATs, that we believe will engage additional producers to 
accelerate conservation adoption on private lands. In addition, USDA is 
actively working with EPA and the states to explore a framework for 
engaging producers in conservation activities while providing certainty 
to producers who have concerns about how they might be impacted by the 
TMDL. With our resources, the resources of our partners, and the 
resources of producers themselves all leveraged toward improving water 
quality in the Bay watershed, USDA sees the agricultural community as 
part of the solution, not just part of the problem.
    I appreciate the invitation to be here today and I am happy to 
answer any questions.
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                              Attachment 2
Chesapeake Bay Watershed Conservation Projects: Before-and-After
Delaware
[GRAPHIC] [TIFF OMITTED] T1206.001

        Before: The above photo shows an abandoned poultry house. Over 
        time, buildings like this can build up excess nutrients in the 
        soil under the floor. Water can then flow over and through the 
        soil and into the Chesapeake Bay.
        [GRAPHIC] [TIFF OMITTED] T1206.002
        
        After: Through our efforts in the Chesapeake Bay, NRCS worked 
        with the landowner to demolish the house, grind up the wood, 
        and remove the soil and apply it to cropland where it was 
        needed for fertilizer. Clean soil was placed on the site and it 
        was reseeded with native grasses. These actions benefit water 
        quality in the Bay.
Pennsylvania
[GRAPHIC] [TIFF OMITTED] T1206.003

        Before: A severe storm eroded streambanks along this creek, 
        sending sediment down the waterway that flows into the 
        Chesapeake Bay.
        [GRAPHIC] [TIFF OMITTED] T1206.004
        
        After: Today, a designed rock reinforcement bank has been used 
        to stabilize the streambank. This rock structure keeps 
        streambanks in place and sediment out of the creek, and also 
        works to reinforce the foundations of nearby buildings.
Maryland
[GRAPHIC] [TIFF OMITTED] T1206.005

        Before: At this site, 300 dairy cattle were eroding the 
        streambank and causing nutrients to enter the stream.
        [GRAPHIC] [TIFF OMITTED] T1206.006
        
        After: Working with NRCS, the owners installed stream crossings 
        to allow cattle safe passage, built 2\1/2\ miles of fence to 
        keep cattle out of the stream, and planted conservation buffers 
        along the stream. These actions will reinforce the streambanks 
        and prevent sediment and nutrients from entering the stream.
Virginia
[GRAPHIC] [TIFF OMITTED] T1206.007

        Before: Working with NRCS, a landowner installed fencing and a 
        conservation buffer to exclude his cattle from a stream whose 
        waters feed tributaries of the Chesapeake Bay.
        [GRAPHIC] [TIFF OMITTED] T1206.008
        
        After: Two months later, vegetation has returned to the 
        streambanks, reducing the amount of sediment deposited in the 
        water, while conservation buffers filter out nutrients that 
        could impair water quality in the stream and other Bay 
        tributaries.
New York
[GRAPHIC] [TIFF OMITTED] T1206.009

        Eroding streambanks along this creek were causing problems for 
        water quality and fish habitat. This image show conservation 
        practices installed to address those problems. Control 
        structures direct the flow of the water toward the middle of 
        the stream, preventing streambank erosion. Near the structures, 
        rock reinforces the banks, and also works to prevent erosion. 
        Plantings along the creek sides prevent sediment from entering 
        the water and provide shade for brook trout. Partners in this 
        project include NRCS, the U.S. Fish & Wildlife Service, New 
        York State, 35 landowners, the local conservation district, and 
        local volunteers.
West Virginia
[GRAPHIC] [TIFF OMITTED] T1206.010

        Manure storage facilities like this one allow West Virginia 
        farmers in the Chesapeake Bay watershed to collect poultry 
        litter needed as fertilizer for crop production. Collecting 
        litter in storage facilities prevents nutrients from entering 
        waterways that flow into the Bay.

    The Chairman. Thank you. Deputy Director--Deputy 
Administrator, please go ahead.

    STATEMENT OF BOB PERCIASEPE, DEPUTY ADMINISTRATOR, U.S. 
       ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C.

    Mr. Perciasepe. Good morning, Chairman Thompson, Ranking 
Member Holden, and Members of the Subcommittee. Thank you for 
the opportunity to talk to you today about the Chesapeake Bay 
watershed and the important role the agricultural community 
plays in protecting water quality throughout the region. I have 
been connected to the Bay personally for much of my 
professional life as Secretary of the Environment for the State 
of Maryland, as head of the Water Program at EPA, and involved 
with the early Chesapeake Bay Agreements in the 1980's, and now 
as Deputy administrator at EPA. And I know how important these 
waters are to the people in the region and how important the 
work that the agricultural community does to the long term 
success and the Chief just outlined many of those achievements.
    The Chesapeake Bay and the rivers that feed into it form a 
very unique ecosystem. In addition to being the largest estuary 
in North America, the watershed encompasses 64,000 square 
miles, six states, the District of Columbia, and over 1,000 
local governing bodies. As everyone on the Committee knows the 
Bay is also a major economic engine for the region valued at 
over $1 trillion.
    The collaborative efforts that EPA and the states have been 
engaged in over the last 2 years is nothing new. Our work 
together speaks to a long and rich history of partnership that 
goes back more than 25 years and has led to the development of 
the Chesapeake Bay TMDL. And the agricultural community has 
made significant progress in reducing nutrient and sediment 
loads to the Chesapeake Bay through these conservation 
practices such nutrient management, conservation tillage, and 
livestock exclusion from streams. These practices are good for 
farms and they are good for the Bay.
    Let me take a moment to describe a TMDL, or Total Maximum 
Daily Load. It is simply a scientific determination of the 
total amount of pollution that a water body can handle and 
still meet water quality standards. The states took this 
threshold and figured out ways to reduce the loadings ranging 
from agricultural management and conservation practices to 
technology investments in wastewater treatment plants.
    The Chesapeake Bay TMDL is based on significant interstate 
collaboration. Once the analysis of the data was complete to 
establish the limit on pollution in the Bay, the states then 
developed Watershed Implementation Plans based on their 
knowledge of local needs and priorities to achieve the goals. 
Let me be clear about those watershed plans because we have 
heard a lot of misinformation about how they were developed. 
There was a great deal of interaction with the states 
completing the Watershed Implementation Plans as they sought to 
address all the sources of pollution that impact the Bay--
urban, rural, and suburban and to ensure that the expectations 
for cleanup were shared among all the different sectors.
    When it came to forming the plans for the agriculture 
sector, the states focused on full implementation of their 
existing programs and ramping up of voluntary conservation 
programs. Let me also be clear as the Administrator has stated 
repeatedly: We believe maintaining the viability of agriculture 
is essential to the ecosystem of the Chesapeake Bay. 
Conservation-based farming is a preferred land use in the 
region and we are committed to strong partnerships and 
collaboration with states, and local governments, urban, rural, 
private sector, and the agricultural community to achieve those 
objectives.
    Mr. Chairman, I know that there are also stories and 
narratives out there about EPA's actions with respect to the 
Bay. The truth is EPA has worked collaboratively with the 
states over the past several decades culminating in this basin 
wide diet combined with workable state level plans which will 
reduce pollution and increase economic stability in the region. 
It is neither our intention nor our belief that this will in 
any way endanger the agricultural heritage of this region.
    As Governor McDonnell from Virginia stated so well this 
past December, ``We are pleased that EPA accepted the Virginia 
Watershed Implementation Plan as part of the Chesapeake Bay 
TMDL. Our plan reflects recommendations made by the public and 
Virginia stakeholders and groups and proposes specific actions 
in appropriate timeframes to achieve significant cost effective 
reductions in pollution to the Bay. We feel it is a stringent 
but workable plan that demonstrates Virginia's commitment to 
cleaning up the Chesapeake Bay while providing for a continued 
economic growth in the Commonwealth. After much discussion with 
EPA the approved plan balances important environmental 
protection concerns with the need to protect jobs in 
agriculture and farming.''
    In conclusion, EPA's job is to ensure water quality in the 
Bay and to protect the ecosystem and the industries that rely 
on it. We have worked with our partners in the states, the 
Federal Government, and the Congress to develop a plan that 
does just that. I am happy to take any questions you have and 
thank you very much for inviting me today.
    [The prepared statement of Mr. Perciasepe follows:]

   Prepared Statement of Bob Perciasepe, Deputy Administrator, U.S. 
           Environmental Protection Agency, Washington, D.C.
    Good morning, Chairman Thompson, Ranking Member Holden, and Members 
of the Subcommittee. Thank you for the opportunity to talk to you today 
about the Chesapeake Bay Total Maximum Daily Load (TMDL) and the 
important role that the agricultural community plays in protecting 
water quality throughout the Chesapeake Bay watershed.
    I share the sentiments provided by Administrator Jackson in her 
testimony before the full Committee last week. Administrator Jackson 
and I recognize the invaluable contributions farmers make to our 
economy, the critical work that farmers are doing to protect our soil, 
air, and water resources, and the challenging economic difficulties the 
agriculture community faces.
    Today, I will provide you with an overview of the health of the 
Chesapeake Bay and describe the Total Maximum Daily Load (TMDL) for the 
Bay watershed, issued by EPA on December 29, 2010 to protect and 
restore the Bay highlighting the collaboration and science which 
informed its development. I will also discuss the innovative 
agricultural practices which the states included in their restoration 
plans for the Bay and its tributaries. And finally, I will provide an 
update on the implementation of the Strategy in response to the 
President's Executive Order on the Chesapeake Bay.
The Chesapeake Bay Watershed
    The Chesapeake Bay watershed encompasses 64,000 square miles, parts 
of six states and the District of Columbia. Nearly 17 million people 
live in the watershed. Runoff from the Bay's enormous watershed flows 
into an estuary with a surface area of 4,500 square miles resulting in 
a land-to water ration of 14:1--the largest ratio of any major estuary 
in the world. That large ratio is one of the key factors in explaining 
why the drainage area has such a significant influence on the water 
quality in the Bay. The actions we take on the land have a significant 
impact on the health of our rivers, streams, and the Bay.
    The Chesapeake Bay is the largest estuary in North America and is 
ecologically, economically and culturally critical to the region and 
the country. It is home to more than 3,600 species of fish, plants and 
animals. For more than 300 years, the Bay and its tributaries have 
sustained the region's economy and defined its traditions and culture. 
The economic value of the Bay is estimated at more than $1 trillion \1\ 
and two of the five largest Atlantic ports (Baltimore and Norfolk) are 
located in the Bay.
---------------------------------------------------------------------------
    \1\ Saving a National Treasure: Financing the Cleanup of the 
Chesapeake Bay, A Report to the Chesapeake Bay Executive Council, 
Chesapeake Bay Blue Ribbon Finance Panel, October 27, 2004.
---------------------------------------------------------------------------
    Approximately 84,000 farms are located in the Chesapeake Bay 
watershed and form a vital part of the watershed's economy and way of 
life.\2\ EPA believes that maintaining the viability of agriculture is 
essential to sustaining ecosystems in the Bay. Environmentally sound 
farming is a preferred land use in the Region and EPA is committed to 
working together with the United States Department of Agriculture 
(USDA) and the Bay states to help farmers produce abundant and 
affordable foods while managing nutrients and soils in a manner that 
helps to protect and restore the Bay's water quality and the values and 
benefits that derive from clean water and a healthy, vibrant ecosystem.
---------------------------------------------------------------------------
    \2\ 2007 Census of Agriculture reported 83,775 farms in the 
Chesapeake Bay region.
---------------------------------------------------------------------------
The Health of the Bay
    Each year, the Chesapeake Bay Program issues a health and 
restoration assessment of the Chesapeake Bay and watershed, known as 
the ``Bay Barometer.'' The 2009 Bay Barometer affirmed that ``despite 
the impressive restoration work done by the array of partners, the 
health of the Bay and watershed remains severely degraded.'' The data 
included in the report are sobering. Virtually all of the 13 measures 
which comprise Bay health showed conditions that fall short of 
restoration goals.\3\
---------------------------------------------------------------------------
    \3\ http://www.chesapeakebay.net/content/publications/
cbp_50513.pdf.
---------------------------------------------------------------------------
    Despite some significant progress in reducing pollution level over 
the past several decades, the Bay and many of its tributaries remain in 
poor health, failing to meet water quality standards. Populations of 
key species such as oysters are extremely low, and habitats such as 
underwater grass beds and wetlands are degraded.\4\ The problems facing 
this unique watershed stem from human activity that has transformed the 
natural landscape, the impacts of which have accelerated due to rapid 
growth and development. The physical and scientific challenges facing 
the Bay are wide ranging: population growth, increased development, 
warmer temperatures, increased nutrients, loss of underwater grasses, 
and large dead zones devoid of oxygen.
---------------------------------------------------------------------------
    \4\ Ibid.
---------------------------------------------------------------------------
    The main sources of nutrient and sediment pollution to the 
Chesapeake Bay and its tributaries are urban and suburban discharges 
and runoff, agriculture, wastewater, and atmospheric deposition. The 
agricultural sector has done much to reduce nutrient and sediment 
loadings in the Bay watershed. Both nitrogen and phosphorus loadings 
from agriculture have declined since 1985; however, significant 
additional reductions from agriculture and all sectors are needed to 
meet water quality standards.
    Efforts to restore the Chesapeake Bay and its watershed have been 
underway for over 25 years. The Chesapeake Bay was the nation's first 
estuary targeted by Congress for restoration and protection. In the 
late 1970s, Congress funded a 5 year study, to analyze the rapid loss 
of aquatic life in the Bay.\5\ The report identified excessive 
nutrients (excess nitrogen and phosphorus pollution) as a main source 
of the Bay's degradation. The publication of these initial research 
findings in the early 1980s led to the creation of the Chesapeake Bay 
Program (CBP) as the means to help restore this exceptionally valuable 
waterbody.
---------------------------------------------------------------------------
    \5\ http://www.chesapeakebay.net/historyofcbp.aspx?menuitem=14904.
---------------------------------------------------------------------------
    Since it was established, the CBP has had a long history of 
partnership, science and action to protect and restore the Bay 
watershed. The CBP brings together the intellectual and financial 
resources of various state, Federal, academic and local watershed 
organizations to build and adopt policies that support a unified plan 
for Chesapeake Bay watershed restoration.
    Over the past 3 decades, CBP partners have signed several 
Agreements and directives that unite them in efforts to reduce 
pollutant loadings into the Bay and restore its living resources. In 
2000, the partners signed Chesapeake 2000 (C2K).\6\ This comprehensive, 
ecosystem-based approach set the course for the Bay's restoration and 
protection for the next decade and beyond. When the partners signed 
C2K, they recognized that they would be required to develop a TMDL if 
the actions identified in the Agreement were not successful in 
achieving water quality standards in the mainstem and tidal portions of 
the Bay.\7\ While the partners made some important progress to reduce 
nutrient pollution from agriculture and wastewater treatment plants, it 
was not enough. In October 2007, when it became apparent that water 
quality standards would not be met, the Chesapeake Bay Program's 
Principals' Staff Committee (PSC), a group of state secretary-level 
representatives, requested that EPA establish the multi-state TMDL.\8\
---------------------------------------------------------------------------
    \6\ http://archive.chesapeakebay.net/info/c2k.cfm.
    \7\ Chesapeake 2000 Agreement page 5: http://www.chesapeakebay.net/
content/publications/cbp_12081.pdf.
    \8\ See PSC meeting minutes for October 1, 2007: http://
archive.chesapeakebay.net/pubs/calendar/PSC_10-01-
07_Minutes_1_9029.pdf.
---------------------------------------------------------------------------
    Additional commitments also led to the decision to develop a TMDL 
for the Chesapeake watershed including a number of consent decrees and 
Memoranda of Understanding.\9\ In addition, the Bay TMDL was included 
as a keystone commitment in the strategy developed by 11 Federal 
agencies, including USDA, to restore and protect the Chesapeake Bay and 
its watershed--as directed in President Obama's Executive Order 13508, 
issued on May 12, 2009.\10\
---------------------------------------------------------------------------
    \9\ For a detailed description of EPA's legal authority to issue 
the Bay TMDL including commitments made, see the Final Chesapeake TMDL 
section 1.4.2 on page 1-16 as well as Appendix W Part 1 starting on 
page 264 at: http://epa.gov/chesapeakebaytmdl/.
    \10\ The Executive Order and Strategy are available at: http://
executiveorder.chesapeakebay.net.
---------------------------------------------------------------------------
TMDL Development
    On December 29, 2010, EPA issued the final Chesapeake Bay TMDL 
establishing the maximum amount of pollution the estuary can receive 
and still meet water quality standards. Specifically, the Bay TMDL 
identifies the reductions of nitrogen, phosphorus and sediment from 
point \11\ and nonpoint sources \12\ in Delaware, Maryland, New York, 
Pennsylvania, Virginia, West Virginia and the District of Columbia 
necessary to meet the Bay's water quality standards. It is by far the 
most comprehensive roadmap to water quality restoration for the 
Chesapeake Bay.
---------------------------------------------------------------------------
    \11\ Point sources are discrete sources such as wastewater 
treatment plants and industrial facilities that are regulated under the 
Clean Water Act.
    \12\ Nonpoint sources are diffuse sources such as runoff from land 
and atmospheric deposition not regulated under the Clean Water Act. 
Most agriculture is defined as a nonpoint source. The exception is 
Concentrated Animal Feeding Operations which are included in the 
definition of point source in Section 502(14) of the Clean Water Act.
---------------------------------------------------------------------------
    The Clean Water Act requires states, including the District of 
Columbia, to establish lists of impaired waters that fail to meet water 
quality standards and to establish TMDLs for listed water bodies. A 
TMDL specifies the maximum amount of a pollutant that a water body can 
receive and still meet applicable water quality standards. Typically, 
it includes waste load allocations for point sources and load 
allocations for nonpoint sources and natural background. The 9th 
Circuit Court described TMDLs as ``primarily informational tools'' that 
``serve as a link in an implementation chain that includes federally 
regulated point source controls, state or local plans for point and 
nonpoint source pollutant reduction, and assessment of the impact of 
such measures on water quality, all to the end of attaining water 
quality goals for the nation's waters.'' \13\ EPA and the Bay states 
have extensive experience in developing TMDLs and there are currently 
more than 12,000 TMDLs established within EPA Region III (Mid-Atlantic) 
alone.
---------------------------------------------------------------------------
    \13\ Prosolino v. Nastri, 291 F .3d 1123, 1129 (9th Cir. 2002).
---------------------------------------------------------------------------
    The establishment of the Chesapeake Bay TMDL began in earnest when, 
on September 11, 2008, EPA sent official letters to the states 
detailing a plan for the TMDL, including: criteria for establishing 
nitrogen, phosphorus and sediment allocations; schedules for 
establishing the TMDL and pollution reduction plans; EPA's expectations 
and evaluation criteria for state plans to meet the TMDL pollution 
limits; EPA's expectations for demonstrating reasonable assurance for 
controlling nonpoint source pollution; and contingency actions that EPA 
could take to ensure progress.\14\
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    \14\ Chesapeake Bay TMDL letters to states are available at: http:/
/www.epa.gov/reg3wapd/tmdl/ChesapeakeBay/ResourceLibrary.html#keydocs.
---------------------------------------------------------------------------
Watershed Implementation Plans
    Integral to the Bay TMDL are the state's Watershed Implementation 
Plans (WIPs) or road maps for how and when the seven Bay states, in 
partnership with Federal and local governments, will achieve and 
maintain pollutant allocations (reductions) under the TMDL. EPA worked 
closely with the states to ensure that each WIP achieved the basin-
state pollution allocations and provided reasonable assurance that 
nonpoint source reductions will be achieved and maintained. The states 
were in the lead for developing the WIPs and a significant amount of 
flexibility was afforded to the states. WIPs must include enough detail 
to create a high degree of accountability for reducing water pollution, 
including assurance that point source permits will be issued consistent 
with the TMDL pollution allocations.
    EPA released a draft Chesapeake Bay TMDL on September 24, 2010 and 
began a 45 day public comment period that concluded on November 8, 
2010. After issuing the draft TMDL, EPA continued to work closely with 
each state holding weekly discussions to assist them in revising and 
strengthening their plans.
    In developing the TMDL, our plan was always to have allocations 
based on states' strategies (i.e., WIPs) and to provide the states with 
flexibility to let them lead the way in determining how to reduce 
pollution and from what sectors. The final TMDL is a product of close 
EPA-state collaboration and is largely based on the allocations and 
actions included in each of the state's final Phase I WIPs.
Outreach
    Throughout the 2 year development of the final TMDL, EPA conducted 
an extensive outreach campaign throughout the watershed. Outreach to 
the agriculture community was particularly focused and occurred 
throughout the region. EPA staff met with representatives of the 
American Farm Bureau Federation (national and state level), 
agribusiness organizations, as well as state agricultural agencies and 
conservation districts.
    In 2011, EPA will work with the Bay states on Phase II WIP 
development. Phase II WIPs will include additional detail to facilitate 
implementation of nutrient and sediment controls at the local level. 
The Phase I and Phase II WIPs will inform the 2 year milestones 
established by the TMDL.
Economic Benefits and Financial Assistance
    The implementation of the TMDL is designed to be as flexible as 
possible. EPA allowed and encouraged states to develop a Watershed 
Implementation Plan that meets the TMDL allocations in the best way for 
any given state.
    It is important to recognize that there are economic benefits to 
improving local and Bay water quality and that the agricultural 
practices that states are committing to implement can be very good for 
the producer's bottom line. For example, many farmers implement 
continuous no-till systems without seeking Federal or state cost-share 
funding because it reduces fuel and labor costs from not having to till 
cropland, and long-term, it can improve soil quality. Also, excluding 
livestock from streams is another example of a conservation practice 
that is economically beneficial to the dairy farmer from the standpoint 
of reducing the costs associated with waterborne illnesses, mastitis, 
and foot rot.
    An economic analysis conducted by the University of Virginia this 
year found that implementation of the agricultural practices to reduce 
runoff pollution called for in Virginia's Chesapeake Bay ``tributary 
strategy,'' such as livestock stream exclusion, buffers, and cover 
crops, would generate significant economic benefits. For example, the 
report found that every public dollar spent on implementing the 
practices will produce $1.56 in new economic activity. Further, the 
practices would generate nearly 12,000 new jobs over the course of the 
cleanup effort.\15\
---------------------------------------------------------------------------
    \15\ Economic Impacts of Implementing Agricultural Best Management 
Practices to Achieve Goals outline in Virginia's Tributary Strategy, 
Center for Economic and Policy Studies, Weldon Cooper Center for Public 
Service, University of Virginia, February 23, 2010.
---------------------------------------------------------------------------
    The Fiscal Year 2012 President's Budget includes $25.3 million for 
programmatic and implementation grants to states and $10.0 million for 
innovative and small watershed grants available to states, local 
governments, and other organizations. All told, about $40 million of 
the $67 million request, or about 60 percent, will be available to 
state and local entities. These grants can be used to help producers 
implement key conservation practices that are not only good for the 
Bay, but also for producers' economic bottom-line.
Chesapeake Bay Program Watershed Model
    The Chesapeake Bay Program (CBP) Watershed Model (hereinafter CBP 
Model) was integral to developing the Bay TMDL. The CBP Model, a 
product of the Bay Partnership (not EPA), is actually a suite of models 
developed specifically for the scale of the Chesapeake Bay watershed 
and its 92 major waterbody segments. The CBP Model is a critical tool 
that will help inform the allocation of pollution reductions among 
states and sources of pollution, and help decision makers make informed 
management decisions.
    The CBP Model is well established and an effective means for 
assessing environmental impacts over larger landscapes and watersheds. 
As a sophisticated analytical tool, the CBP Model helps advance our 
ability to understand the effectiveness of actions on the land in 
reducing nutrient and sediment loads to the Chesapeake Bay watershed.
    The suite of models used for the TMDL are among the most 
sophisticated, studied and respected in the world, and represent the 
cutting edge of estuary restoration science.\16\ The models provide a 
comprehensive view of the Chesapeake ecosystem, from the depths of the 
Bay to the upper reaches of the watershed, and from the development 
occurring on land to the air over the region. The CBP Model has gone 
through numerous peer reviews by modeling experts and has been widely 
endorsed as a useful TMDL model--most recently by the Chesapeake 
Research Consortium (CRC), the CBP Scientific and Technical Advisory 
Committee, the Virginia Institute of Marine Science, the University of 
Maryland and others.\17\ In a November 8, 2010 memorandum, the CRC 
stated, ``the substantial majority of knowledgeable environmental 
scientists in the region agree with the premise that the modeling 
framework used to develop the Draft TMDL represents the best current 
incorporation of available science with which to set and allocate 
maximum loads within the watershed.'' \18\
---------------------------------------------------------------------------
    \16\ http://www.chesapeakebay.net/
committee_msc_projects.aspx?menuitem=16525#peer.
    \17\ Ibid.
    \18\ http://cbf.typepad.com/files/scientistletter-2.pdf.
---------------------------------------------------------------------------
    Over the past 20 years, the CBP Model has improved significantly in 
precision, scope, complexity and accuracy. For example, the current CBP 
Model is calibrated to monitoring stations in the region, with the 
number of linked stations expanded from 20 in the previous version to 
nearly 300 in the current version. The segments in the model have grown 
from 94 to 2,157, providing information at the watershed, county and 
conservation district level. The types of land uses that can feed into 
the model were increased from 9 to 25. By working with partners and 
stakeholders, the CBP continues to improve the quality of the data for 
land use, agricultural practices, precipitation, wastewater, urban and 
suburban runoff and air pollution.
    The CBP Model suites have been developed and utilized through 
collaboration with Federal, state, academic and private partners. This 
includes extensive input from agricultural agencies and organizations 
including state agricultural agencies, and agricultural organizations 
on the CBP Agriculture Workgroup. Use and development of the models is 
fully transparent and open. All decisions and refinements to the model 
are made at public meetings of the Chesapeake Bay Program. The CBP 
Model suites undergo extensive independent scientific peer-review by a 
wide spectrum of Federal, state and academic scientists, as well as 
modeling experts. Bay watershed states use the CBP Model to determine 
the appropriate mix of nutrient and sediment reduction practices that 
will achieve their allocations from a suite of management practices 
such as wastewater treatment plant upgrades, urban stormwater controls, 
and implementation of various agricultural conservation practices.
Crediting the Agricultural Community in the Model
    EPA recognizes the agriculture community has done much to reduce 
pollution in the watershed over the last few decades. Since 1985, much 
of the reduction has been achieved through implementation of nutrient 
management and conservation practices, and changes in land use. 
Continued implementation of conservation practices and development of 
new conservation strategies are crucial to restoration of the 
Chesapeake Bay.
    While agricultural lands make up about 22% of the total watershed 
area, current model estimates show that agricultural lands are 
responsible for about 45% of the total N loadings, 44% of the total P 
loadings and 65% of the total sediment loadings entering the tidal 
Chesapeake Bay.\19\
---------------------------------------------------------------------------
    \19\ 2009 data from CBP Watershed Model Phase 5.3.0.
---------------------------------------------------------------------------
    The CBP Model currently credits more than 40 agricultural 
practices. These include such practices as: enhanced nutrient 
management, continuous no-till, conservation tillage, livestock 
exclusion from streams, cover crops, forest buffers, poultry phytase, 
and more. I applaud these and the many other efforts currently being 
implemented by the agricultural community.
    As states work to further reduce nutrients and sediment from 
agricultural operations, they have committed to implement new and 
innovative technologies for achieving the load reduction goals. EPA 
continues to work with the states to add these additional ``new'' 
practices for credit in the Model. Two examples of these are more 
advanced nutrient management technologies and technologies for using 
excess manure nutrients for uses such as energy production.
EPA and USDA Models
    Both USDA and EPA use models to help describe the effectiveness of 
actions on the land and to inform decision making.
    While the Chesapeake Bay Program Partnership's Bay Watershed Model 
(CBP Model) and USDA's Conservation Effects Assessment Project (CEAP) 
have both been extensively peer-reviewed and represent state-of-the-art 
modeling approaches, they were developed for different purposes.
    CEAP was built to give an estimate, at a large basin scale, of the 
effectiveness of conservation activities on the landscape and their 
impact on nutrient loads to the Chesapeake Bay.
    The CBP Model was designed to account for all nutrient and sediment 
loading sources to the Chesapeake Bay in the context of the Bay TMDL 
and focus specifically on describing how actions on the land from all 
sources affect nutrient loadings to the Bay and the associated Bay 
water quality.
    Although these and other technical differences exist in the models, 
they both show that the agricultural sector has done much to reduce 
nutrient and sediment loadings in the Bay watershed, and also that 
there is more to do.
    Now that the CEAP report is completed, USDA and EPA will work 
together to further understand and coordinate the different approaches 
used in the two modeling efforts and to continue improving the data 
available for use by both models.
Executive Order
    USDA and EPA have a long history of collaborating on the Chesapeake 
Bay restoration to ensure both a healthy Bay and viable agriculture in 
the Chesapeake Bay watershed.
    Both agencies agree that maintaining the viability of agriculture 
is an essential component to sustaining ecosystems in the Bay. Both 
acknowledge the enormous contribution that farmers are making to 
improve Bay water quality. And, both are committed to strong 
partnerships and collaboration with states and local governments, 
urban, suburban and rural communities, and the private sector to 
achieve environmental objectives for the Bay.
    For example, senior officials from USDA and EPA met with the state 
agricultural and environmental secretaries several months ago to 
discuss a framework to provide certainty to farmers who implement 
practices that protect water quality in the Chesapeake Bay. Following 
that meeting, in December 2010, USDA Deputy Secretary Kathleen Merrigan 
and I sent letters to each of the State Agriculture and Environmental 
Secretaries asking them to confirm their interest in pursuing a 
certainty program. It is our hope that we have developed a constructive 
framework that states can use in providing to producers incentives and 
recognition that accelerate the adoption of conservation practices and 
advance the objectives of the state Watershed Implementation Plans. We 
are continuing to follow up with interested states to advance this 
concept.
    USDA and EPA have committed to look for opportunities to leverage 
and better align our collective Federal resources to support the states 
in implementing the commitments outlined in their TMDL Watershed 
Implementation Plans. One example of funding coordination is the 2010 
effort to align our agencies' innovation grants programs to support key 
priorities for addressing some of the biggest water quality challenges 
facing agriculture. This resulted in $5.5 million being targeted 
towards innovative agricultural projects in the Bay watershed last 
year. Let me describe two examples:
Reducing Ammonia Emissions and Runoff from Broiler Litter
    EPA is spending $700,000 to fund demonstrations of technologies to 
reduce ammonia emissions and runoff from poultry litter such as (1) 
ammonia scrubbers which are attached to exhaust fans on poultry houses, 
(2) addition of alum to poultry litter inside poultry houses, and (3) 
using a litter incorporator to make litter applications. The project 
team, including personnel from Virginia Tech, Virginia Cooperative 
Extension, Virginia Department of Conservation and Recreation, USDA/
NRCS, Soil and Water Conservation Districts, the University of 
Maryland--Eastern Shore and USDA/ARS, will work with local growers to 
demonstrate the effects of these technologies on ammonia losses to the 
atmosphere, phosphorus runoff and crop growth on two farms in the 
Shenandoah Valley and two farms on the Eastern Shore of Virginia.
Conewago Creek Watershed in Pennsylvania
    As part of the Executive Order described below, EPA is aligning its 
resources with the USDA farm bill funding in priority watersheds to 
accelerate cost-effective nutrient and sediment reductions from 
agricultural areas. EPA has provided $800,000 in the USDA's ``showcase 
watershed'' to support a diverse partnership of Federal, state and 
local government agencies, academics, watershed groups, farmers and 
businesses in comprehensively restoring the Conewago Creek watershed. 
The collaborative partnership has set goals that include:

100% of agricultural producers have current and implemented nutrient 
        management plans;

100% of homeowners have identified and implemented on-site 
        opportunities for improving stormwater retention and 
        infiltration, septic system management, water conservation, 
        riparian buffers, and protection of private drinking water 
        systems;

riparian forest buffers are established for all non-buffered areas of 
        the stream; and

the TMDL for phosphorus and sediment is met.

    The partnership will monitor early signals of changes in stream 
quality, and has committed to transfer this process to other 
watersheds.
    Continued EPA/USDA collaboration will be critical to continue to 
refine modeling tools, improve agricultural conservation tracking and 
verification, and accelerate agricultural nutrient and sediment 
reductions necessary to meet the Bay TMDL.
    Implementing the Strategy for Protecting and Restoring the 
Chesapeake Bay Watershed, is another area of strong collaboration 
between USDA and EPA. On May 12, 2009, President Obama issued Executive 
Order 13508 on Chesapeake Bay Protection and Restoration. The Strategy 
developed in response to the Executive Order ushered in a new era of 
shared Federal leadership, action and accountability. This 
comprehensive and highly coordinated ecosystem-based strategy deepens 
the Federal commitment to improve our results in protecting and 
restoring the Chesapeake Bay and its watershed.
    The strategy includes a number of actions and initiatives related 
to farming and agriculture. For example, EPA will collaborate with 
USDA, other Federal agencies, state governments and conservation 
districts to identify watersheds with the highest nitrogen, phosphorus 
and sediment delivery to the Bay and its tributaries. In addition, EPA 
and USDA committed to develop and implement mechanisms for tracking and 
reporting voluntary, noncost-share practices installed on agricultural 
lands. And, EPA will coordinate funding opportunities with USDA to 
accelerate nitrogen, phosphorus and sediment reductions in priority 
watersheds and tackle key agriculture challenges. To increase 
accountability, the agencies will establish milestones every 2 years to 
ensure progress toward measurable environmental goals.
    In order to provide additional transparency and accountability to 
the work identified in the Strategy and specifically, the Bay TMDL, EPA 
has developed a system to track and verify progress in meeting cleanup 
commitments. At this early stage, the Chesapeake Bay TMDL Tracking and 
Accounting System (BayTAS) displays geographically the 2009 baseline 
levels of nitrogen, phosphorus and sediment pollution and the 
allocations of pollutant reductions called for in the final Bay TMDL--
specifically, allocations by state, by water body segment and by source 
sector.\20\ State specific data reflecting progress, measured against 
the 2009 figures, will be added to the system on an ongoing basis, 
starting in 2011.
---------------------------------------------------------------------------
    \20\ http://stat.chesapeakebay.net/BayTAS.
---------------------------------------------------------------------------
    A tenet of the Executive Order is Federal leadership, action and 
accountability. In developing the Strategy, EPA stated its belief that 
``maintaining the viability of agriculture is an essential component to 
sustaining ecosystems in the Bay. A goal of the Strategy is to work 
with producers to apply new conservation practices on 4 million acres 
of agricultural working lands in high priority watersheds by 2025 to 
improve water quality in the Chesapeake Bay and its tributaries. 
Environmentally sound farming is a preferred land use in the region and 
we are committed to strong partnerships and collaboration with states 
and local governments, urban, suburban and rural communities, and the 
private sector to achieve environmental objectives for the Bay.'' \21\
---------------------------------------------------------------------------
    \21\ The Next Generation of Tools and Actions to Restore Water 
Quality in the Chesapeake Bay: A Revised Report Fulfilling Section 202a 
of Executive Order 13508, November 24, 2009, U.S. Environmental 
Protection Agency.
---------------------------------------------------------------------------
Closing
    In closing, I commend the conservation practices developed and 
implemented by the agriculture community. The efforts have improved the 
health of local streams, rivers and the Bay. Federal agencies and the 
states are relying on the efforts of the agricultural industry in both 
the restoration efforts identified in the Executive Order strategy and 
in the implementation of the states' restoration plans which are the 
basis for the Bay TMDL.
    I appreciate the opportunity to meet with you today, I look forward 
to continuing our work with you and I am pleased to answer any 
questions you might have.

    The Chairman. All right, thank you for your testimony. Mr. 
Secretary, welcome to the panel.

    STATEMENT OF DOUGLAS W. DOMENECH, SECRETARY OF NATURAL 
       RESOURCES, COMMONWEALTH OF VIRGINIA, RICHMOND, VA

    Mr. Domenech. Thank you. Good morning, Mr. Chairman, and 
Members of the Subcommittee. On behalf of Virginia Governor 
Robert F. McDonnell, thank you for inviting me to discuss the 
Commonwealth's Chesapeake Bay Watershed Implementation Plan and 
EPA's TMDL. My written testimony has been submitted for the 
record. I am Doug Domenech, Secretary of Natural Resources for 
the Commonwealth of Virginia. In my Secretariat I oversee six 
state agencies, several of which have responsibilities to 
manage and protect the Chesapeake Bay.
    Mr. Chairman, as you said, the Chesapeake Bay is a national 
treasure and an ecological wonder and we are committed to 
ensuring a clean and vibrant Bay for future generations to 
cherish. We strongly believe a clean Bay is good for the 
economic well-being of the state. That is why its restoration 
is one the Governor's top environmental goals.
    I applaud the dedicated men and women at the EPA who work 
hard every day to improve the state of the Bay. I also 
congratulate Administrator Jackson for selecting Jeff Corbin, a 
Virginian to serve as the new Senior Advisor to the 
Administrator for the Chesapeake Bay or as the state's like to 
call him, the Bay Czar.
    Virginia has been engaged in various Bay cleanup efforts 
for 30 years. During that time we have made significant 
progress in reducing pollutants to the Bay through voluntary 
measures with agriculture, forestry, wastewater treatment, and 
stormwater management even while Virginia's population has 
increased by two million people. Virginia submitted our Phase I 
WIP to EPA on November 29, 2010, and EPA accepted our plan and 
included it in their TMDL with minor modifications, absent 
backstops threatened by EPA last September, in response to our 
draft plan.
    However, as we have stated to EPA directly, Virginia 
continues to have concerns with several aspects of the program. 
Number one, we question the legality and compressed timing of 
some of the EPA actions on the states. There are three reasons 
EPA asserts that they have to develop the Bay TMDL by December 
31, 2010.
    First, they say it was pursuant to the requirements of the 
Consent Decree in the 1999 case American Canoe Association v. 
EPA. Second, because of President Obama's May 2009 Chesapeake 
Bay Protection and Restoration Executive Order, and third, 
because of the EPA's out of court settlement agreement with the 
Chesapeake Bay Foundation. Virginia was not a party to those 
court cases and the President's Executive Order does not apply 
to states, and the Consent Decree established a deadline of May 
1, 2011, for the EPA to establish TMDLs, not December 2010.
    Second, EPA's Bay model is problematic. Virginia is 
concerned with the nearly absolute reliance on management by 
computer model. The Chesapeake Bay model may be a useful tool 
in predicting outcomes on a watershed-wide basis, however, it 
continues to contain fundamental flaws that call its 
credibility into question. We are especially concerned that the 
level of precision EPA assigns to the model is far beyond what 
the model is capable of. This will be a larger problem as we 
develop the more locally based Phase II WIPs. Another concern 
is the apparent discrepancies in agricultural land uses between 
EPA's model and the USDA NRCS figures which is 1.4 million acre 
difference in ag acres. EPA has acknowledged several of these 
technical flaws and has been working to resolve those for 
nearly a year. Finally, Virginia is generally concerned that 
EPA is the only place that houses the model. It is hard to know 
when you are speeding if the only people with the speedometer 
are the police.
    Third, we are concerned about the cost and flexibility of 
the program. It is important to emphasize that this plan has 
been developed during the worst economy in generations. 
Virginians have already invested billions of dollars in 
Chesapeake Bay water quality improvement to date. We estimate 
that full implementation of this plan will likely cost more 
than $7 billion between now and 2025. The cost and pace of this 
mandate on state--on the state localities, private industries, 
farmers, and homeowners in Virginia will be significant. The 
estimated cost for agriculture alone to comply with the WIP 
will be more than $1 billion. While Governor McDonnell included 
$36.4 million in our Water Quality Improvement Fund in his 
budget, this--in this economy we cannot guarantee additional 
funding will be provided by our General Assembly for this 
purpose over the next 15 years.
    Therefore, it is our position that the success of the WIP 
will be largely subject to the provision of sufficient Federal 
funding to assist in covering these massive costs. While we 
have developed an approved plan, Virginia has told EPA that we 
reserve the right to adjust the plan as needed as EPA 
Administrator Lisa Jackson said last week, WIPs are state 
plans. Flexibility is the key to success.
    This water bottle holds approximately 1 pound of nitrogen. 
The cost to remove this much nitrogen can be $6 or it can be 
$6,000 depending if it is removed in a wastewater system or 
with an urban stormwater retrofit. That is why we are studying 
the expansion of our existing nutrient credit exchange to allow 
additional source sectors to participate in a market-based 
program.
    In conclusion, I would add that our General Assembly is 
taking this responsibility seriously and in their last session 
completed significant advances in the management of 
fertilizers, banning phosphorous in most homeowner fertilizer 
products. In addition, with the support of our agricultural 
interests, they passed bills regarding the development of 
resource management plans on farms. Our work does not end with 
the submission of our WIP. We will continue to work with EPA, 
stakeholders, and the public to ensure that our implementation 
improves water quality in a manner that is sensible, fair, and 
cost effective as this process unfolds over the next 15 years.
    Thank you for this opportunity to speak today.
    [The prepared statement of Mr. Domenech follows:]

    Prepared Statement of Douglas W. Domenech, Secretary of Natural 
           Resources, Commonwealth of Virginia, Richmond, VA
    Good morning, Mr. Chairman and Members of the Committee. I am Doug 
Domenech, Secretary of Natural Resources for the Commonwealth of 
Virginia. In my Secretariat, I oversee six state agencies; the 
Department of Environmental Quality, the Department of Conservation and 
Recreation, the Virginia Marine Resources Commission, the Department of 
Historic Resources, the Virginia Museum of Natural History, and the 
Department of Game and Inland Fisheries most of which have some 
responsibility to manage and protect the Chesapeake Bay's natural and 
historic resources.
    Thank you for inviting me to discuss the Commonwealth of Virginia's 
Chesapeake Bay Watershed Implementation Plan (WIP) and the U.S. 
Environmental Protection Agency's (EPA) Total Maximum Daily Load 
(TMDL). On behalf of Virginia Governor Robert F. McDonnell, we have 
worked diligently with stakeholders and constituents to develop 
Virginia's Phase I Watershed Implementation Plan.
    The Chesapeake Bay is a national treasure and an ecological wonder. 
As Virginians, we are committed to ensuring a clean and vibrant 
Chesapeake Bay for future generations to cherish. We strongly believe a 
clean Bay is good for the economic well being of the state.
    I applaud the dedicated men and women at the EPA who work hard 
every day to improve the state of the Bay, and who provide advice and 
counsel to the states on how we can work together toward our common 
interest.
    Virginia has been engaged in Bay cleanup efforts for 30 years. The 
Chesapeake Bay partnership began with a study by the Maryland and 
Virginia Legislative Advisory Commission which was the impetus for the 
Chesapeake Bay Commission (CBC) in 1980. The commission was formed to 
assist legislators in evaluating and responding to mutual Bay concerns 
and intergovernmental cooperation. Pennsylvania joined the Commission 
in 1985.
    The first Chesapeake Bay Agreement was signed by the jurisdictions 
of Virginia, Pennsylvania, Maryland, the District of Columbia and the 
EPA and CBC in 1983. The partners agreed to meet biannually, establish 
an implementation plan, and a liaison office in Annapolis. In 1987 the 
partners agreed to develop, adopt, and begin implementation of a basin 
wide strategy to equitably reduce nutrients by 40% by the year 2000. In 
signing the Chesapeake Bay 2000 Agreement, the partners committed to 
meet water quality standards in the Bay by 2010. In 2003 the partners 
agreed to new allocations that were the basis for the tributary 
strategies as the best way to restore the Bay and those strategies were 
developed and released in 2005.
    The Chesapeake Bay Program has been an effective multi-
jurisdictional effort to reduce pollution loads into the Chesapeake 
Bay. Since the initial Agreement was signed, the partners have 
evaluated progress in the program and adjusted its goals to advance the 
restoration of the Bay. In Virginia, we have been successful in 
reducing nitrogen loads to the Bay by about 20 million pounds per year 
from 1985 through 2009 and an additional 10 million pounds per year 
from 2002 through 2009. Similarly Virginia reduced phosphorus loads by 
4 million pounds per year from 1985 through 2009 even while the 
population has increased by two million people.
    Virginia submitted our Phase I WIP to EPA on November 29, 2010 and 
EPA accepted our plan and included it in their TMDL with minor 
modifications. We crafted a comprehensive and effective plan that 
allows us to achieve EPA's pollution reduction goals absent 
``backstops'' threatened by EPA last September in response to our draft 
plan.
    However, as we have stated to EPA directly, Virginia continues to 
have concerns about the process, legality, allocations, and compressed 
timing in the development of this plan.
Legality
    EPA asserts that it had to develop the Bay TMDL by December 31, 
2010 pursuant to the requirements of the Consent Decree entered in the 
1999 case American Canoe Association et al. v. the United States EPA, 
54 F. Supp. 2d 621 (E.D. Va. 1999), President Obama's May 2009 
Chesapeake Bay Protection and Restoration Executive Order, and the 
EPA's out-of-court ``settlement agreement'' with the Chesapeake Bay 
Foundation. I note that Virginia was not a party to those court cases, 
and the Consent Decree established a deadline of May 1, 2011 for the 
EPA to establish TMDLs--not December 2010. This concern regarding the 
rush to completion is shared by many local governments, industries and 
others as evidenced by the public comment EPA received last fall.
The Model
    Virginia must also state our significant concerns with the nearly 
absolute reliance on management by computer model. As it's been said, 
``All models are wrong, but some are useful'' (George Box). The 
Chesapeake Bay Model may be a useful tool in predicting outcomes on a 
watershed-wide basis, however, while the model has seen years of 
development it continues to contain fundamental flaws--such as under 
estimating the amount of impervious surface--that call its credibility 
into question. We are especially concerned that the level of precision 
EPA assigns to the model is far beyond what the model is capable of. 
This will be a larger problem as we develop the more locally based 
Phase II WIPs. In Virginia, our approach will be to make sure programs 
and practices are effective in the real world, not just the model world 
constructed by EPA.
    These concerns about the model have also been validated by apparent 
gross discrepancies between the loading calculations provided by EPA's 
Bay Model and that of the U.S. Department of Agriculture Natural 
Resources Conservation Service (NRCS). The difference between the EPA 
and NRCS assessments of actual agricultural land uses in the Bay 
watershed amounts to approximately 1.4 million acres. To put that in 
perspective, the two Federal agencies disagree on the amount of ag land 
that's a land mass the size of the State of Delaware. EPA cannot 
credibly demand compliance with a TMDL derived from a model that 
differs so dramatically with that of its sister agency. A sister 
agency, I might add, that is actually charged by law with keeping an 
accurate Census of agricultural uses in the Bay watershed and across 
the country.
    Finally, Virginia is generally concerned that EPA is the only place 
that houses the model. It is hard to know you are speeding if the only 
people with a speedometer are the police.
Timing, Cost and Flexibility
    It is important to emphasize that this plan is being developed 
during the worst economy in generations. Virginians have already 
invested billions of dollars in Chesapeake Bay water quality 
improvement to date. As EPA's numbers demonstrate, significant 
reductions have taken place in Virginia since the advent of the 
Chesapeake Bay program despite a significant increase in population.
    We estimate that full implementation of this plan will likely cost 
more than $7 billion in new dollars between now and 2025. The cost and 
pace of this mandate on the state, localities, private industries, 
farmers, and homeowners in Virginia will be significant.
    Even in these tight times, Governor McDonnell included $36.4 
million new dollars in our Water Quality Improvement Fund in his 2011 
budget amendments which has now been adopted by the General Assembly. 
In this economy, we cannot guarantee additional funding will be 
provided by our General Assembly for this purpose over the next 15 
years. It is our position that the success of the WIP will be largely 
subject to the provision of sufficient Federal funding to assist in 
covering these massive costs.
    While we have developed an approved plan, Virginia has told EPA 
that we reserve the right to adjust this plan based on new information 
such as additional voluntary best management practices currently 
implemented but not accounted for in the EPA model, adverse economic 
impacts on business, funding availability from Federal sources in 
particular, and improved scientific methodologies. As EPA Administrator 
Lisa Jackson said last week, WIPs are state plans.
    Virginia is moving forward with the implementation of this plan 
with a clear focus on flexibility and cost effectiveness. A venti (20 
oz.) size latte holds approximately one pound of nitrogen. The cost to 
remove that much nitrogen can be $6.00 or it can be $6,000 depending if 
it is removed in a wastewater system or an urban stormwater retrofit. 
The removal of nitrogen and phosphorus in different sectors can vary 
that much, therefore it is imperative that our plan provides options 
for localities to meet their reduction goals.
Nutrient Trading
    In our recently concluded General Assembly session a resolution was 
adopted, as was proposed in our WIP, calling for a study of the 
expansion of our existing nutrient credit exchange to allow additional 
source sectors to participate in a market-based program. Virginia's 
nutrient credit exchange program has already allowed for reductions in 
the wastewater sector to be accomplished in an orderly and cost-
effective manner. We believe that expanding that program will afford 
the same approach to other sectors, particularly urban stormwater and 
septic.
The James River
    I would also call your attention to our proposed approach for the 
James River watershed. Due to its proximity to the mouth of the Bay and 
the Atlantic Ocean, the James has less impact on the water quality of 
the mainstem than any other river. The James also is unique because of 
the numeric chlorophyll standards that were adopted in 2005 with the 
concurrence of EPA. We believe that because sufficient new information 
is available for the James River, we should take the time necessary to 
review the James River numeric chlorophyll standards to ensure that 
they reflect the best science and regulatory approaches. Therefore, we 
have included a detailed plan to accomplish this review and amend 
standards if necessary prior to the scheduled revision of the TMDL in 
2017. We will also consider developing a local chlorophyll-based TMDL 
for the James River. Our plan demonstrates that we will meet the 2017 
target loads prescribed by EPA in all basins, including the James.
General Assembly Action
    Our General Assembly recently completed significant advances in the 
management of fertilizers used in urban areas through the passage of 
legislation that will ban phosphorus in most homeowner fertilizer 
products.
    Legislation was passed that prohibits the sale, distribution and 
use of lawn maintenance fertilizers containing phosphorus after 
December 31, 2013. Additionally, the sale of deicing agents containing 
urea, nitrogen or phosphorus, will be unlawful after December 31, 2013. 
The legislation requires golf courses to implement nutrient management 
plans by July 1, 2017. The Commonwealth is developing a cost-share 
program to assist in implementation of the required nutrient management 
plans.
    Legislation was also passed regarding resource management plans. 
This legislation affects both regulated agricultural landowners and 
voluntary participants. Components of a resource management plan, 
depending on the type of farm and crops, may include nutrient 
management plan, forest or grass buffer, soil conservation plan, cover 
crops, and a system that prevents livestock access to streams. Each 
individual farm will be assessed to determine the appropriate 
components and to determine which agricultural best management 
practices are currently being implemented. Cost share funding is 
available through the Virginia Agricultural Best Management Practices 
Cost-Share Program to assist with the implementation and maintenance of 
the resource management plan.
    Resource management plans, if components are fully implemented and 
maintained, will deem the agricultural landowners or operators as 
meeting the requirements of the Chesapeake Bay TMDL.
    To meet the requirements of EPA's TMDL, Virginia's WIP relies on 
95% of all agricultural lands implementing one or more of the following 
best management practices: nutrient management plans, soil conservation 
crops, cover crops, forest buffers and livestock exclusion from 
streams. The estimated cost for agriculture alone to comply with the 
WIP is more than $1 billion. These costs will be borne by the 
agricultural landowner and the state, with the landowner paying for 
approximately 30 percent of the cost of implementation. The 
Commonwealth is working in cooperation with the agricultural industry 
and farmers to increase the reporting of both voluntary and cost-share 
best management practices.
    In the urban sector, estimated costs to meet the urban retrofits 
requirement is $3 billion. The vast majority of this cost will be borne 
by local governments and private developers. It is anticipated that 
Virginia will adopt new stormwater management regulations, which will 
meet the requirements of the WIP, in early fall of this year. The 
regulations will ensure that there is no increase in nutrient loadings 
for new development and ensure that redevelopment improves the current 
nutrient loadings.
    We designed Virginia's WIP to allow the flexibility to implement 
the most cost-effective practices in each watershed using the programs 
that are already in place, programs that will be expanded and new 
programs that we will propose. The plan emphasizes actions with 
appropriate timeframes in each sector to achieve significant cost-
effective reductions in pollution loads to the Bay.
    Our work does not end with the submission of our Watershed 
Implementation Plan. We will continue to work with EPA, stakeholders, 
and the public to ensure that our implementation improves water quality 
in a manner that is sensible, fair and cost effective as this process 
unfolds over the next 15 years.
    Thank you for the opportunity to speak with you today.

Douglas W. Domenech,
Secretary of Natural Resources.

    The Chairman. Thank you, Mr. Secretary. Thanks to the panel 
for your testimony. The chair would like to remind Members that 
they will be recognized for questioning in the order of 
seniority for Members who were here at the start of the 
hearing. After that, Members will be recognized in the order of 
arrival and I appreciate Members understanding. I will begin 
with my own questioning for 5 minutes.
    And once again thank you for the panel for being here. 
Deputy Administrator, I appreciate you being here. I really 
very much appreciated Administrator Jackson coming before the 
full Committee just last week. And you here today it has been a 
chance to talk about a very, very important issue.
    One of the things I had asked Ms. Jackson about and wanted 
to get a follow up and then a confirmation. I had requested to 
see if the EPA has longitudinal studies over the past 30 years 
since we began to invest in a very important initiative in 
cleaning up the Chesapeake Bay. And I had requested that 
whatever longitudinal study may be out there by the EPA in 
terms of showing the trajectory of the health of the Bay over 
time. Is that something that you were able to bring with you 
today?
    Mr. Perciasepe. Mr. Chairman, I don't have it with me 
today. The most up-to-date one will be out in about a month in 
April and I would like it if I can get you last year's summary. 
It is called the Bay Barometer and it is something that all the 
states and the Federal agencies all work on together and they 
track 13 important parameters in the Bay. And there is no doubt 
that many of them have improved over the last 20 years and some 
have stayed static and some have gotten a little worse as you 
might expect from the state of affairs. But the most recent one 
based on 2010 information will be available by April. I think 
what we would make available to the Committee and of course 
this is available on the web, but we will make it available to 
the Committee, the 2009 version and then make sure that you 
have 2010 version.
    [The information referred to is located on p. 151]
    The Chairman. I appreciate that. Is this the same--2009 is 
the same date I looked at. I believe it showed improvement in 
at least eight indicators. And just a confirmation, I had asked 
about it seems that the EPA routinely does cost-benefit 
analysis when it comes to regulations although I was surprised. 
And I just want to affirm the information that Ms. Jackson 
shared that there was no cost-benefit analysis done with the 
TMDL regulations.
    Mr. Perciasepe. Well, first I have to make sure that we are 
clear on the record here that a TMDL itself is really just an 
allocation of the pollution reduction that would be required to 
meet a certain water quality standards, standards that are set 
by the states. The actual practices and reductions from 
different sources come from the state implementation plans and 
as the Secretary pointed out from Virginia as a State 
Representative here they are in the process of doing the more 
detailed implementation plans this year. There are actually 
discussions about the timing on all that underway with the 
states right now.
    Maryland and Virginia have done some good cost estimates 
and you heard some of them here from Doug. I would expect that 
when we have these more detailed plans we will be able to look 
a little more specifically. And we will make sure we get the 
states to work with us on that. On the other side of the coin, 
remember there are a cost and benefits side here. On the other 
side of the coin there has been blue ribbon panels that 
looked--that have gotten together under the auspices of the Bay 
partnership and the executive council and the principle staffs 
committee which are made up of the state Representatives and 
the Federal agencies to look at the economic value of the Bay 
and you know from fishing, from commercial fishing, from sport 
fishing, commercial activities there----
    The Chairman. If I can, because I want to try to limit 
myself----
    Mr. Perciasepe. Yes. Okay. I'm sorry.
    The Chairman.--the same as other Members. And I appreciate 
there are--and I know there are a lot----
    Mr. Perciasepe. So we have those two sides going.
    The Chairman.--of folks looking at it, but the fact is the 
TMDLs, this is something that is EPA driven. I guess we can 
argue about what constitutes a regulation and what doesn't. We 
tend to argue about words in Washington sometimes, but the 
bottom line the EPA has not done a cost-benefit analysis. This 
would--a question to all the panelists. A number of my House 
colleagues and I requested an extension of the comment period 
for the TMDLs but were denied. Do you believe that a 45 day 
public comment period for a topic of this complexity and 
magnitude was sufficient to get the type of input that we 
needed to have? And I will--let me start with Chief White and--
--
    Mr. Perciasepe. Sorry about that. Go ahead.
    Mr. White. No, you go ahead. No, please.
    Mr. Perciasepe. No, no, no. I am fiddling with the buttons.
    Mr. White. I recall that last fall but really, it is out of 
my lane to even comment on that, Mr. Chairman.
    The Chairman. Okay.
    Mr. Domenech. Well, I would just say from the state's 
standpoint there was a lot of discussion about the compressed 
timing. Some of that involved again problems with the model in 
terms of producing for us the numbers that we needed to develop 
our draft plans and that is what compressed the timing which 
started off as a 90 day public comment period was presented to 
us as a 30 day comment period. And we negotiated with EPA to 
make it 45. So there was pressure on the states to comply in a 
quick time.
    The Chairman. All right, thank you. I now recognize the 
gentleman, the Ranking Member from Pennsylvania for 5 minutes.
    Mr. Holden. Thank you, Mr. Chairman. Is it Mr. Perciasepe? 
Is that correct?
    Mr. Perciasepe. Perciasepe.
    Mr. Holden. As you probably or you heard in our opening 
statements from the Chairman and from myself, with what was 
said last week with Administrator Jackson, and things that Mr. 
Goodlatte and I have said over the last year and a half, this 
Committee is very frustrated. As Chief White has said in his 
testimony we really tried in the last farm bill to do something 
for conservation in the Chesapeake Bay watershed and we did. 
And Chief White has done an excellent job administering that 
and we have made a lot of progress.
    But despite that, the ink wasn't even dry on the farm bill 
as I mentioned in my opening statement and our producers were 
faced with this Executive Order and further regulation. And 
even more frustrating there was no consultation with me, no 
consultation with anyone on this Committee that I know of and 
we are faced with this. And I don't think I can repeat that 
enough as I tell you what I hear when I am in Pennsylvania 
talking to my producers. But I have a few specific questions 
for you, sir.
    In your written testimony you mentioned nonpoint sources as 
typically included for a TMDL calculation. However, it was my 
understanding that nonpoint sources were not regulated under 
the Clean Water Act. Can you elaborate how and exactly under 
what authority EPA is moving forward with implementation and 
enforcement over nonpoint sources?
    Mr. Perciasepe. EPA would not be doing enforcement or 
regulation of nonpoint sources that are not covered under the 
Clean Water Act. That would be the responsibility of the states 
if they include them in their state plans. However, when we do 
a TMDL which is a plan to look at all the sources so you know 
how much each one has to do, it allocates what the resulting 
pollution loads might be from all those different sources. So 
therefore, the state would have the information to make those 
choices but EPA would not be regulating nonpoint source 
pollution. That is not covered under the Clean Water Act.
    Mr. Holden. Well, let me see if I understand you. So you 
are saying the state would gather information or regulate it 
and then you would implement it?
    Mr. Perciasepe. Sir, on nonpoint sources, to the extent 
that a state says in their plan that an individual watershed 
will get some reduction from nonpoint sources; therefore, it 
wouldn't have to go to the other sources. That would be the 
requirement of the state to provide the assurance under the 
Clean Air Act--I mean, under the Clean Water Act that that 
would occur. So we would not, EPA would not implement those 
nonpoint source practices.
    Mr. Holden. Would anyone like to comment on the study 
released by the Agricultural Nutrient Policy Council about 
discrepancies in the information and the differences between 
USDA and EPA on pollutant load estimates and about conservation 
practices model, the framework and results and what is being 
done to reconcile the differences?
    Mr. White. Is this the LimnoTech Study?
    Mr. Holden. It is a study by the Agricultural Nutrient 
Policy Council.
    Mr. White. Okay. All right. I am aware of it. I ask our 
techies, do we have any issue with it and they said not really. 
I can't talk about the EPA view, but my understanding is that 
the EPA's going to ask for an independent assessment. I think 
prudence would dictate we wait until that independent review 
occurs before we make any statements.
    Mr. Perciasepe. And I would concur that it would be EPA's 
view that that work would require an independent review. We are 
going to ask the Bay Scientific and Technical Advisory 
Committee a panel of scientists to take a look at it.
    Mr. Holden. Okay. Chief White, as I mentioned you have done 
a wonderful job implementing this program and in your testimony 
you mentioned NRCS has entered into 953 contracts to help 
producers apply conservation treatment on more than 156,000 
acres. The Executive Order identifies a goal of conservation 
practices of 4 million acres by 2025. Given budget and staffing 
constraints, how is NRCS preparing to help states meet these 
goals set by EPA?
    Mr. White. Okay. Well, you, this Committee--Congress gave 
us certain priorities within the Chesapeake Bay Program, the 
identified watersheds. So we are focusing our efforts right 
there and we are working with our state partners, local 
partners to further identify where we target those funds to do 
the most good. I think 156,000 acres is a lot. Four million is 
a lot more, but we have an expanded time frame to do that. I 
think we could do it, Mr. Holden. I think that if we pull 
together working with our partners, the states, the farmers, I 
think this is doable, sir.
    Mr. Holden. From 156,000 to 4 million acres in that time 
period?
    Mr. White. I am not afraid.
    Mr. Holden. I yield back, Mr. Chairman.
    The Chairman. I thank the gentleman. Now I recognize full 
Committee Ranking Member, Mr. Peterson.
    Mr. Peterson. Thank you, Mr. Chairman. Mr.----
    Mr. Perciasepe. I would be okay if the Committee called me 
Bob.
    Mr. Peterson. Well, Bob, I don't know if we want to get 
that intimate, but anyway, my constituents will wonder what 
happened to me. The fellow here from Virginia said that they 
weren't part of this settlement. Were the farmers part of this 
settlement? Were they talked to when you settled with these 
groups that sued you?
    Mr. Perciasepe. I apologize. I didn't hear the last part.
    Mr. Peterson. The groups that sued you, and you settled 
this apparently the states weren't part of that deal. Were the 
farmers talked to? Were they part of it or did you just talk to 
the environmental groups that sued you?
    Mr. Perciasepe. Well, the original settlement that the 
Secretary referred to occurred in 1999.
    Mr. Peterson. No, but this is the--you know I am concerned. 
I have been looking into this deal where people sue you and 
then you end up settling and you--and it looks like you don't 
include anybody else. It almost looks like to me like you are 
asking people to do this and then you settle it so you can do a 
regulation.
    You know, and I have bent into a pretzel to help these guys 
get this money for the Chesapeake Bay in the last farm bill. 
This was not easy and I am not happy with what is going on 
because you have created--these people have created a hornet's 
nest out here. And I don't think, you know, the way I feel, we 
put this money in there, you know these other folks that have 
some kind of ideological viewpoint that things aren't moving 
fast enough. You know what they are going to do is get a 
backlash which they have gotten and they will probably end up 
doing more harm than good out of this whole process.
    Chief White said we have made a lot of progress with what 
we are doing with these program--voluntary programs which is 
how you have to work with agriculture. EPA puts out these 
requirements and you know you don't bring any money to fix it. 
You know, we put the money in. If they don't like what we are 
doing maybe we will take our money back and the EPA can go find 
the money in the Bay Foundation or whoever these other people 
are to fix this.
    I have a problem at home. It is not so much the water 
quality problem but it is a flooding problem. We haven't been 
able to do anything for 20 years because we have been stopped 
by outside environmental groups that don't even live there, 
have no idea what is going on, don't bring any money to the 
table, or any solutions. All they do is bring problems and we 
don't get anything done. You know it almost looks like what is 
going on here in the Bay. You know it--I--so I am frustrated 
with this whole process that is going on in the EPA where you 
guys are settling things and then doing regulations. I just 
don't think that is the right way to do things.
    Mr. Perciasepe. Whatever approach that generates a schedule 
for EPA to do a regulation, we cannot do anything through a 
regulatory process that is not authorized under the Clean Water 
Act in the case of the Chesapeake Bay. And in fact we have not 
done, other than working with the states to do these Total 
Maximum Daily Load pollution diet targets, any specific 
regulation that has gone through the normal notice and comment 
period that you would do resulting from this TMDL process.
    However, in addition to whatever the courts had said or 
whatever settlements might have been made in the courts, the 
actual Bay partnership of the states and EPA, and I think it is 
important for the Members of the Committee to understand this. 
Back in 2000, that group, what is called the Principle Staff 
Committee which is those cabinet level people from the Federal 
and state agencies along with the executive council set a 
schedule themselves in addition to whatever the courts may have 
done that we would do this.
    Mr. Peterson. No, I understand and we have a similar kind 
of process, and it depends on who these people are at the table 
and whether they are bringing ideology and all this other 
stuff. I have been through all of that. But one other question 
I have: are there limitations that you are putting on people, 
individuals, stopping them from fertilizing their lawns, and 
stopping development and so forth so there is an equivalency 
going on? Because in a lot of cases we see that people want to 
pick on the farmers because they are a minority and you know 
there are--a lot of people have an ideology. They don't like--
they don't like farming or they don't like what they do, but is 
there an equivalency going on here? Where, like in my part of 
the world we have some of these issues on lakes and so forth 
and it is caused by--probably more by people fertilizing their 
lawns than it is by farmers, but the farmers get blamed and 
nobody wants to take on these rich lakeshore people because 
they have a lot of political power. Is that going on? Is 
equivalency going on here?
    Mr. Perciasepe. Yes, sir. We--at the EPA level we are 
setting that overall target and then working with the states to 
make sure that all the different sources in those watersheds do 
the share that is required to meet those overall targets. And 
that includes runoff from urban and suburban land through 
stormwater management practices. Every state's plan includes 
those stormwater practices as does the District of Columbia's.
    I want to add, there is another important source of 
pollution of nitrogen pollution in the Chesapeake Bay, and that 
is atmospheric deposition that comes out of the atmosphere. And 
even that is included in the modeling work to make sure that 
what is going to be reduced there from air pollution controls 
that the states are working on and EPA is working on, even on a 
region bigger than the Chesapeake Bay is taken into account in 
the model reduction targets that are put down to the state 
level. So I want to assure you that all of the sources from 
power plants in faraway places like Kentucky perhaps as well 
as----
    Mr. Peterson. As well as----
    Mr. Perciasepe.--the suburban lawns.
    Mr. Peterson. Thank you, Mr. Chairman. I apologize for 
taking extra time.
    The Chairman. I thank the gentleman. Mr. Goodlatte?
    Mr. Goodlatte. Well, thank you, Mr. Chairman. Thank you for 
holding this hearing. I along with Mr. Holden, the Ranking 
Member have grave concerns about what has taken place here. 
Mr.--is it Perciasepe or how do you pronounce your name? Let us 
get it out there.
    Mr. Perciasepe. I really would be willing to accept Bob, 
but this is if you put an h after the c, Perciasepe.
    Mr. Goodlatte. Perciasepe?
    Mr. Perciasepe. Perciasepe, you got it.
    Mr. Goodlatte. I have a name that people struggle with, 
too. They think it is related to coffee and it is not, but I 
thank you for being here and taking our questions. The concern 
I have, and Secretary Domenech has expressed concerns even 
after they submitted a plan that you agreed to, they are very 
concerned about the legality of the pressures that you have 
brought to bear on these states and have not removed from the 
table the possibility that the Virginia Attorney General might 
bring suit against you. The problem is all of these folks don't 
think you are obeying the law. And that, I think, is the number 
one concern.
    We have an Executive order that we think exceeds the 
authority of the Clean Water Act and we had an effort here in 
the Congress by Senator Cardin and Congressman Cummings from 
Maryland to codify that Executive Order, put it into law to 
answer this question, and it went absolutely nowhere. Why? 
Because there is no cost-benefit analysis. You have this model 
that you says takes into account all these different things, 
but if I asked you how much it would cost to implement any one 
of these particular things, you can't answer that question and 
that is the main concern we have.
    And you say well, these are, this is just a TMDL and the 
states go ahead and they implement the watershed plan, but in 
order for the State of West Virginia to get into compliance you 
required them to have \3/4\ of their small animal feeding 
operations, small farms in West Virginia to be treated like 
CAFOs, something that I think exceeds your authority. And yet 
if I asked you right now how much it will cost \3/4\ of those 
operations in the states of West Virginia to comply with this 
requirement that you imposed upon the State of West Virginia in 
order to accept their plan you couldn't tell me how much it 
cost. Could you?
    Mr. Perciasepe. Not at this time until we get the more 
detailed plan from----
    Mr. Goodlatte. And yet the Environmental Protection Agency 
went ahead and rejected every single plan from every single 
state, threatened them with actions of usurping the states 
powers and proceeding if they didn't modify those plans. And lo 
and behold every one of them went ahead and modified the plans, 
and then you went ahead and accepted them. But you can't tell 
me how much additional cost it has, how much additional cost it 
has to farmers, communities--I am not interested in putting 
cities who also are covered by this against farmers. You know I 
have a city in my district that estimates this will cost--a 
city of 75,000 people, it will cost them $150 million or more 
to comply with this. And there are cities like that all across 
this six state region.
    There are homebuilders. There are manufacturing businesses. 
There are other concerns that will increase costs of all kinds 
of things for the taxpayers, for people attempting to create 
jobs, to have jobs in this region, and you can't tell us how 
much all of this is going to cost.
    And here is the even greater concern, Mr. White outlined 
tremendous progress that has been made over the past 25 years 
and continued progress over the last 5 years, 15 to 20 percent 
more reduction in sediment, in phosphorous, in nitrogen. Over 
the last 5 years we are making steady progress, but somebody 
has got it into their head that the system that has worked all 
these years voluntary, incentivized, incentivized by funding 
that Congressman Holden and I worked with the Chairman--the 
last Chairman of this Committee to get substantial sums of 
money. We are not going to be able to sustain that because of 
the dire straits that the Federal budget is in over the next 15 
years, and yet you can't tell us what it is going to cost. Here 
is the clincher though. You also can't tell us what difference 
it will make in improving the Bay. Everyone here wants to 
improve the Chesapeake Bay, but we want to know how much this 
is going to cost in jobs and we want to know what we are going 
to get in exchange for it. And you can't answer that question.
    Mr. Perciasepe. Well, can you--if you would please, sir, I 
would try to answer that right now. We can tell what we are 
going to get from the progress that has been made we can see 
what the results are from many of the practices that have 
already been talked about by Chief White and others. And we do 
know from robust modeling, not only EPA's but USDA's and others 
that at the levels of reduction we are talking about across the 
Bay watershed that the Chesapeake Bay's water quality will 
improve to the level that the states would like to see it 
improved at. We can absolutely know that.
    Mr. Goodlatte. There is no question about it. And the Bay's 
improving now and there is no question that if we spent 
enormous sums of money on all the things that you would like to 
see cities and farmers and others do, it would improve more. 
But you can't tell us what the economic benefit of that would 
be in terms of increased oyster production. What it will be in 
terms of increased recreational values, other uses of the Bay. 
All of which are important and all of which are great 
treasures, but all of this has been done without telling us 
here in the Congress, without telling farmers, without telling 
the people that live in these six states what it is going to 
cost and how much you will get in return in benefit for that if 
we were to go ahead and do what the EPA thinks we all should 
do.
    Mr. Perciasepe. Mr. Chairman, may I just make one last 
point----
    The Chairman. Sure, quickly.
    Mr. Perciasepe.--if it pleases the chair. There have been 
blue ribbon panels on finance that have looked at the overall 
costs of that baseline work that is going on in the Chesapeake 
Bay. That is sewage treatment plants, stormwater management, 
agricultural practices, and the estimates that were made range 
from $2 to $3 billion a year annual cost. These estimates are 
out there and we will have better ability to make finer 
estimates when we have the more detailed plans after the Phase 
II of this water implementation plan.
    On the other side is an oyster industry that is already 
lost. On the other side are a sports fishery that is several 
billion dollars a year of economic benefit to the region. Those 
are the things that are on the other side of that balance and I 
don't disagree that we need to lay those out in a clear form.
    The Chairman. Thank you. The chair now recognizes the 
gentleman from New York, Mr. Owens.
    Mr. Owens. Thank you, Mr. Chairman. I am not going--I am 
going to accept your invitation and ask Bob if he would reply 
to my question.
    Mr. Perciasepe. Yes, sir.
    Mr. Owens. During Phase II of the WIP development, New York 
State must demonstrate that it is working with local 
jurisdictions and I am quoting from your--from the EPA's 
November 4, 2009, letter ``to further divide nonpoint source 
allocations among smaller geographic areas, or facilities, or 
sources where appropriate.'' Because New York's portion of the 
watershed is relatively small and homogeneous with a symbiotic 
agricultural conservation network of resources already in 
place, this finer scale strategy is in our view 
counterproductive for New York agricultural conservation. I 
would like to hear your response to that.
    Mr. Perciasepe. It is--did you say the finer scale was 
counterproductive?
    Mr. Owens. Correct.
    Mr. Perciasepe. Well, we--in the case of New York we have 
basically created a load target at the Susquehanna River as it 
enters Pennsylvania. And what we are trying to do with the 
State of New York and the Department of Environmental 
Conservation is work on how they will distribute the work that 
has to be done in that basin. I think we are--we will be open 
to their approach that they would want to take, but you are 
going to have to get down to some granular level to be able to 
allocate how they go about doing the work.
    Keep in mind that the--the load that--the amount of 
nitrogen or phosphorus, let's just use those two that are 
coming from the New York State part of the drainage area in the 
western part of the state is made up of discharges from sewage 
treatment plants, runoff from urban area, agricultural runoff, 
and deposition on the land from pollution that is coming from 
other parts of the country. So the air pollution, all of that 
together we look at how much the air pollution rules are going 
to reduce the deposition. The state looks at what might happen 
when it--when they make adjustments at the sewage treatment 
plant, and then what their stormwater program would be, and 
then what their agricultural conservation programs would be. We 
think all of those together are going to be needed to make an 
equitable distribution and we certainly would be open to how 
the state would distribute that. But they are going to have to 
get down to some fine level to be able to do a good technical 
job of it.
    Mr. Owens. Thank you. I also want to go back to a statement 
that you made in response to an earlier question regarding the 
fact that other industries have--are adversely impacted by the 
level of pollution in the Chesapeake Bay. And my question 
really goes to when you do this analysis are you in fact 
distributing that information to the public and to Congress in 
terms of laying out here is the process we went through? We are 
balancing for instance the oyster industry, the sport fishing 
industry, and other industries that are impacted, or is this 
something that is kept internal and not necessarily 
distributed?
    Mr. Perciasepe. I believe we are doing a very good job of 
that. I think that the Chesapeake Bay Program that has been in 
existence in its modern from since the 1980's has a good 20 
almost 25 years now of experience and information flow and 
technical information as well as high level planning 
information.
    I think it is really important to note that no one thing 
will solve all the problems of the Chesapeake Bay. Doing 
pollution reduction is an important lynchpin to that or I will 
use the Chairman's term, a keystone to that. And we won't get 
there without that pollution reduction. However, we also have 
to look at how we manage crabs, how we manage rock fish, what 
we can do to get shad back up into New York by working with the 
utilities in Pennsylvania to deal with the dams there. Habitat 
as well as fisheries management, as well as pollution all of 
those are together in the Chesapeake Bay Agreements between the 
states. And I know today we are talking about the pollution 
part, but they do all have to work together.
    Mr. Owens. Thank you and I yield back.
    The Chairman. The gentleman yields back. I now recognize 
the gentleman from Kansas, Mr. Huelskamp, for 5 minutes.
    Mr. Huelskamp. Thank you, Mr. Chairman. In my part of the 
state we don't usually have water problems. But, I find this 
issue I have dealt with at the state level is a reference. TMDL 
is something that impacts many states as well. I had a question 
for the EPA. Under the Clean Water Act who has primary 
authority over implementation of TMDLs?
    Mr. Perciasepe. TMDLs are a part of a multiple step 
process. States have the authority and the responsibility under 
the Clean Water Act to set the water quality standards. That is 
number one. You have to know what is the water quality 
standard. Then the states are responsible to do surveys. Are 
there any waters in their state that are not achieving those 
water quality standards? And those are the waters that are 
required under the Clean Water Act to have a Total Maximum 
Daily Load plan done, a pollution diet as we have called it to 
what pollution reduction would be needed to bring those waters 
into the state identified standards.
    In the case of interstate waters it is not an unknown 
phenomenon for states to ask EPA to provide technical 
assistance and analysis on how you would do that on an 
interstate level. But if it is inside the state it would be 
those requirements. In the Chesapeake Bay situation there are 
watersheds that are completely, obviously, inside states where 
they have done some work already on those, and then there are 
the interstate impacts that we have been talking about.
    I might add in final note on your question is there have 
been many tens of thousands of TMDLs done around the United 
States by states and there are probably dozens where there has 
been an EPA multi-state involvement.
    Mr. Huelskamp. Is the state required to submit its plan to 
the EPA?
    Mr. Perciasepe. Yes, sir.
    Mr. Huelskamp. I find that interesting. I thought the 
correct answer was no. And so if it is submitted to EPA is it 
approved by the EPA?
    Mr. Perciasepe. The TMDLs are--and maybe I should double 
check on this, but I know--I believe the TMDLs that the states 
do to meet the water quality standards are looked at by the 
EPA.
    Mr. Huelskamp. Are they approved by the EPA rather than 
reviewed?
    Mr. Perciasepe. I would like to double check that. If you 
have an uncertainty about it, it makes me want to make sure I 
am giving you the exact right answer.
    Mr. Huelskamp. That goes to the question of regulation and 
the authority of the EPA that the Administrator had indicated 
that I had some questions about. If the state or region does 
not prepare a TMDL implementation plan does the EPA have the 
authority to impose one on the states or the region?
    Mr. Perciasepe. If a state doesn't implement its water 
quality program as delegated under the Clean Water Act there 
are provisions in the Clean Water Act for EPA to carry out some 
of those activities whether it be setting the standards or 
doing some of the permitting for some of the sources. But I 
want to be clear that EPA does not have the authority even in 
those instances to do any kind of pollution control on nonpoint 
sources that are not regulated under the Clean Water Act. And 
in many respects a way to have a more equitable distribution 
and more cost effective distribution of how the water quality 
standards are met by a state is to be able to not only have 
those sources that might be federally regulated but are 
delegated to the states, but also other sources in the state 
that the state may have the ability to work with to achieve 
those balances of pollution reductions.
    Mr. Huelskamp. And last, a question for the gentleman from 
Virginia given his responses. Your thoughts as a state and who 
has the authority and who implements and submits those?
    Mr. Domenech. Well, I would say to answer that I am also 
not an expert in exactly who has the authority, but it feels 
like EPA has that authority. I think the difference is as the 
Deputy Administrator said, Virginia has many, many TMDLs for 
different water--state waters depending on what the pollution 
source is. The Chesapeake Bay being a multi-jurisdictional body 
of water from their perspective of course felt--they felt like 
they had to set that TMDL because multiple states were 
involved. And at least that is how we have approached it.
    Mr. Huelskamp. All right, thank you, Mr. Chairman. I yield 
back my time.
    The Chairman. I thank the gentleman, and I now yield to the 
gentleman from Wisconsin, Mr. Ribble, for 5 minutes.
    Mr. Ribble. Thank you, Mr. Chairman. Good morning, panel it 
is good to have you here today. I am sure that given the tenor 
sometimes in the room it is not always the most fun place to be 
if you are member of the EPA, but I appreciate you coming here 
anyway. Thanks. In your testimony, Bob, you mentioned that this 
whole thing started in 1970 with an Act of Congress and they 
commissioned a study and then over the course of the last 4 
decades EPA along with the states have been working on this. 
How much money have the taxpayers spent on this project?
    Mr. Perciasepe. On the studies?
    Mr. Ribble. None of the studies, but from 1970 to today 
what--how much investment have the U.S. taxpayer put into this 
thing?
    Mr. Perciasepe. In the Chesapeake Bay?
    Mr. Ribble. Yes. Yes, what is a number. Can you get that 
for me?
    Mr. Perciasepe. I don't--I can get that number for you. I 
can get that estimate but it would include things like the 
studies----
    Mr. Ribble. Sure.
    Mr. Perciasepe.--for instance which would probably not be a 
large sum. But it also includes all the investment that the 
U.S. taxpayers have made since the 1970s on building water and 
waste--and particularly in this case wastewater sewage 
treatment plant infrastructure. You know as--in 1972 when the 
Clean Water Act was first enacted it was $5 billion a year and 
then for several years that was a 75 percent Federal grant 
which the states would match with 20 percent and the locals 
would come up with ten percent or 15 and 20. Fifteen and ten--
and so that went on for a number of years. And if you can run 
the numbers back with inflation $5 billion a year in 1972 is 
probably close to over $10--easily over $10 billion a year if 
we were doing it today. Those were big investments that the 
Congress authorized back in--and appropriated back in the early 
1970's to jumpstart getting all of the sewage treatment plants 
in the United States up to a better level. And I would imagine 
and we could find this out that virtually every sewage 
treatment plant in the watershed of the Chesapeake Bay has 
utilized those kinds of funds. So that would probably be where 
the largest investment of Federal funds were.
    Second, or may almost equal will be this significant 
investment that has been made in conservation work on 
agriculture through conservation programs through the farm bill 
that the Congress has authorized. It is a $622,000--622,000 
acre or square mile--I am sorry. Square--I will get this 
right--62,000 square mile watershed with a lot of agriculture. 
About 20, I think, Chief, 20 to 25 percent of that watershed is 
agricultural working land, and I think a significant 
contribution is made by the conservation work on those lands 
through the farm bill. So those probably would be the two 
biggest public investments.
    Mr. Ribble. It is fair to say that the taxpayers spent a 
lot of money? Tens of billions, maybe hundreds of billions of 
dollars so far?
    Mr. Perciasepe. I am not sure about hundreds of billions, 
but certainly on a national level, on water quality there has 
been significant funds spent.
    Mr. Ribble. Based on your history and understanding of the 
improvements in the Bay, how are we doing?
    Mr. Perciasepe. Well, since that time the population of the 
Bay went up quite a bit. It was probably around--I am going to 
say around 11 million people living in the Bay maybe at that 
time and there are almost 20 million living in the Bay now. So 
given the fact that we have had that kind of population 
increase and given the fact that that results in more runoff 
from suburban areas and urban areas and more sewage treatment, 
and those investments in a sewage treatment plant, water 
quality has gotten better in the Bay and it has not gotten 
worse. But we know what we need to do to get it over the hump 
to getting it to a level that the states have identified that 
they would like.
    And I want to be really clear on this. The states asked 
EPA--sorry to go back to this. The states asked EPA to work on 
this interstate TMDL through the Chesapeake Bay Program that we 
are all partners in. But I would think that there has 
definitely been improvement in the water quality over that time 
period even in the fact of that growth in population.
    Mr. Ribble. Yes, but the change in population though would 
be--are you mainly concerned--we are talking about farm runoff. 
Change of growth of an urbanized area should improve it, it 
would seem to me. Not water flowing off from hard surfaces, 
less phosphorus, less nutrients to be picked up. You would 
think that actually more population might actually, along with 
improved water treatment, would actually be better for the 
watershed.
    Mr. Perciasepe. I think it has improved. The Chesapeake Bay 
has improved but there are and there are studies and the Chief 
may have information on this. There are studies that on an acre 
by acre basis. Maybe not on the whole total volume, but on an 
acre by acre basis there is definitely significant impacts of 
nutrients from urban development as it--and in many cases there 
could be more than you might get from agriculture--particularly 
agriculture that is being conducted with the full suite of 
conservation practices that most farmers are in the desire to 
have on their land now.
    Mr. Ribble. Okay. Thank you. Mr. Chairman, I am out of 
time. I will submit any follow-up for question directly to the 
EPA. Thank you.
    The Chairman. Very good. Thank you. I now recognize the 
gentleman from Indiana, Mr. Stutzman, for 5 minutes.
    Mr. Stutzman. Thank you, Mr. Chairman, and thank you, 
gentlemen for being here. I would like to start off first of 
all with the--last week the EPA Administrator, Ms. Jackson, 
testified before this Committee. In her testimony the 
Administrator said that the Bay plan was developed in 
consultation with the agricultural community. What role has the 
ag community played in developing the process?
    Mr. Perciasepe. Well, there have been numerous--over 20 
years of interaction with the agricultural community. There is 
significant input to the Bay program from all the agricultural 
colleges in the region and that has expanded recently. There 
are members of the agricultural community on a number of the 
advisory committees that go to the Bay program, so there has 
been significant involvement back and forth on--with the 
agricultural community over the years. And I can provide for 
the record a much more detailed accounting of that if you would 
like.
    [The information referred to is located on p. 158]
    Mr. Stutzman. Yes, if you could do that because I hear this 
a lot back in Indiana, and I am sure it is very relevant in the 
situation here. You know, that farmers and those in agriculture 
continue to be very frustrated and downright just fearful of 
what your agency has done, what is continually coming out of 
Washington, and how are you and the USDA relating and working 
together on this particular issue?
    Mr. Perciasepe. USDA is a charter member of the Bay Program 
through the principal staff committees and the other programs 
we have. And we rely on a lot of their data to do some of the 
work that is done. We now have some new information and new 
improved information that we will be starting to work through. 
I think it is really exciting to me that with the work that 
Chief White and others have shown is that there is a capacity 
for additional conservation work, and a desire clearly in the 
agricultural community for it. And even at the larger scale 
when we start to look at what our different analyses show which 
it is kind of confirming.
    You know if you are an accountant, sometimes you like to 
add the rows in all the different directions to make sure they 
add up. But when we start looking at a model that runs in one 
way and then a model that runs in the other way and at the 
bottom of the column it is--the numbers start to look pretty 
similar, I find that as very confirming in my--from my 
perspective. So I think that we have work to do.
    I mean clearly on the implementation side one of the 
primary drivers for helping farmers achieve their own on farm 
conservation objectives and also be participants in the overall 
Bay Program, for many, many years now there has been the 
conservation programs of the USDA. And so they are intimately 
involved. The effectiveness of the practices that get applied 
on the land and how they are resulting in pollution reduction--
you talked--the Chief earlier talked about, and it is in the 
written testimony, about how we are now getting more 
information on the effectiveness of the different practices. 
All that feeds into our--we have a 20 year knowledge base that 
we use that is intimately involved with information we also get 
from agriculture.
    Mr. Stutzman. But in going back to my original question, 
how do you feel that you are seeking enough input from the 
agricultural community? I know you have mentioned you are going 
to get me the groups that you have been working with, but is 
this a top down dialogue or is it a bottom up dialogue where 
you are hearing from the groups that are out in the field that 
are living this practically day by day and having to feel the 
effects of the realities of what is coming down from your 
agency and other agencies. I mean, are we--are you 
communicating well enough with the agricultural community?
    Mr. Perciasepe. You know it would never be proper for a 
person in my position to say we could never communicate enough. 
And I mean and so I am--I mean that we are communicating 
enough. I shouldn't--I am sorry I said that wrong. There is 
always room for more communication and I personally would be 
committed to doing anything possible to personally increase 
that level of communication working with USDA or with our state 
partners.
    I mentioned earlier in my testimony that I used to be the 
Secretary of Environment for the State of Maryland and in that 
job I worked very closely with, obviously, the state department 
of agriculture. And we worked together on a whole host of 
issues on agriculture in Maryland and including dealing with 
chicken carcasses when there were big kill-offs or die-offs 
from heat problems, all kinds of problems. We put our sleeves 
up and we solved those problems in a way that was appropriate 
for the farmers in Maryland and the producers.
    So I would personally be interested in anything I could do 
to increase that communication, but I would say it would not be 
ever proper to say that there can't be more.
    Mr. Stutzman. Well, I can tell you this and Mr. Chairman, I 
will wrap this up. I just saw a polling done in a current 
agricultural magazine that asked farmers what keeps them awake 
at night. It is more than taxes, more than machinery costs, 
more than commodity prices. It is government regulation and I 
think that communication is crucial and key. And also the 
practices that you are implementing is detrimental to our 
current agricultural practices. So, I would encourage not only 
better dialogue, but also a more realistic approach to ag.
    Mr. Perciasepe. Well, I am anxious to do that and as my 
colleague here from Virginia is pointing out, both the states 
and EPA did help hold stakeholder hearings throughout the 
watershed on all these TMDL issues. I want to point out that it 
is in all of our interests, EPA's, the states, USDA's, and the 
producers, and the agricultural community, that we are able to 
sit down and talk about the facts. Because the more that we can 
talk about what is really happening and what the implications 
really are and how things will unfold and what the 
flexibilities are--the Deputy Secretary of Agriculture and 
myself signed a letter that we sent to all the states providing 
a framework that they would provide more certainty for the 
agricultural community. We are anxious to continue those kinds 
of processes, but it is--the more we can all sit down and talk 
the more we will be talking on a foundation of a common set of 
knowledge, and I think that that is vitally important. And I 
appreciate this hearing because I think it will help.
    Mr. Stutzman. Thank you.
    The Chairman. The chair recognizes Mr. Hultgren for any 
questions you might have? Okay. No more for this panel? Very 
good. The chair will--before we adjourn we will recognize Mr. 
Goodlatte for some follow-up questions.
    Mr. Goodlatte. Thank you, Mr. Chairman. Secretary Domenech, 
first of all welcome. We are glad to have our Secretary of 
Natural Resources here.
    Mr. Domenech. Thank you.
    Mr. Goodlatte. In November of 2009, the EPA sent a letter 
to the watershed states, including Virginia, requiring them to 
draft Watershed Implementation Plans or WIP's and if plans were 
not developed, the letter stated the EPA would take 
``appropriate independent actions or consequences.'' Is that 
not correct?
    Mr. Domenech. That is correct.
    Mr. Goodlatte. And after Virginia submitted their draft WIP 
to the EPA, the EPA rejected it. Is that correct?
    Mr. Domenech. That is correct.
    Mr. Goodlatte. Would you say that the Agency compelled the 
Commonwealth of Virginia through the ``use of independent 
actions or consequences'' to alter your WIP or through threats 
to do that? Would you have stuck with the first WIP that you 
submitted if you hadn't received those threats?
    Mr. Domenech. We would have stuck with that initial one. 
That is correct. I probably wouldn't use the word threats, but 
consequences.
    Mr. Goodlatte. But let me turn to Bob Perciasepe.
    Mr. Perciasepe. Perciasepe.
    Mr. Goodlatte. Perciasepe. I am getting there. In November 
of 2009 the EPA wrote to Secretary Domenech's predecessor, 
Secretary Bryant and in a enclosure to that you said if any of 
the six watershed states, or the District of Columbia, do not 
develop Watershed Implementation Plans, identify 2 year 
milestone commitments, and/or fulfill those commitments 
consistent with EPA's expectations, EPA will take appropriate 
independent action or consequences to ensure that the necessary 
water quality restoration and protection activities are carried 
out.
    And then I have here a list of eight actions that the EPA 
told the states that they would take including expanding 
permitting requirements which we have heard about, increasing 
oversight of the state issuance of the permits, requiring 
additional pollution reduction from federally regulated 
sources, increasing Federal enforcement and compliance, 
prohibiting new or expanded pollution discharges, conditioning 
or redirecting EPA grants, revising water quality standards to 
better protect local and downstream waters, discounting 
nutrient and sediment reduction progress, and so on and so 
forth.
    Now, can you tell me what section of the Clean Water Act--
we all agree and Secretary Domenech agrees you get to set the 
TMDL. Can you tell us what gives you the authority to threaten 
the states if they don't submit an action or WIP that meets 
your satisfaction? What authority under the law do you have to 
do that?
    Mr. Perciasepe. Well, let me be clear. States have the 
primary responsibility. I think--I believe as I read the 
governor's comments on his plan, I believe that the governor 
believes that he is proud of the plan that the state has 
produced.
    Mr. Goodlatte. That is not the question.
    Mr. Perciasepe. Well, and I--you know the chance of----
    Mr. Goodlatte. The question is what authority do you have--
--
    Mr. Perciasepe. What Title III of the Clean Water Act 
requires the states to implement programs that will meet the 
water quality standards that they set. If they don't have a 
program that meets the water quality standards that they set--
they have probably two outcomes. They can do--they can change 
their water quality standards and in this case they are not 
doing that. Or in the case where they fail to act the EPA can 
act on certain permits that we have the authority to do. We 
cannot do nonpoint sources, but we can look at permits if they 
are not designed to meet the water quality standards that the 
state set. We very rarely do this, but it is in Title III of 
the Clean Water Act.
    Mr. Goodlatte. And your contention is that the Clean Water 
Act gives you authority to supersede the decision of the states 
regarding to the--regarding the Water Implementation Plan? That 
is obviously the subject of at least one lawsuit. You have had 
your ears pinned back on several others in the Ninth Circuit 
and now in the Fifth Circuit. You have been told you don't have 
those authorities. Is it really your contention in spite of 
growing legal decisions that the EPA has this authority? And if 
it has the authority why is it that we have legislation to 
codify it, to codify the President's Executive order? We 
wouldn't need it. If it is already in the law you wouldn't need 
that would you?
    Mr. Perciasepe. I don't have any comment on any 
legislation, but I can tell you that there is a series of 
constructions in the original Clean Water Act of 1972 that once 
we delegate the authorities to the states that they are 
required to set the standards and put the plans in place to 
meet those standards. And the EPA if those are not sufficient 
does have the authority in the Clean Water Act to backstop 
that. We do not want to do that. I want to be clear. We do not 
want to do that.
    [The information referred to is located on p. 174]
    Our objective is to work with the states cooperatively to 
get the work done. We think that the plans that have been 
submitted are excellent and will meet our objectives that we 
have jointly set for each--ourselves and that is what we are 
going to pursue.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    The Chairman. I now recognize the gentleman from Illinois 
for 5 minutes.
    Mr. Hultgren. Thank you, Mr. Chairman, and thank you all 
very much. I just have a quick question and for this panel and 
focus it to Mr. Perciasepe and also Mr. White. There have been 
significant concerns with the assumptions made by the 
Chesapeake Bay model EPA is using to determine allocations for 
the Bay TMDL. There are even inconsistencies within the 
Administration on nutrient load estimates. Given the difference 
between EPA's Bay model and USDA's Conservation Effects 
Assessment Project Study, why has EPA continued to move forward 
with the accelerated TMDL for the Chesapeake Bay? And shouldn't 
the Administration just take a time out and until the load 
nutrient level allocations have been reconciled?
    Mr. White. Thank you, sir. You mentioned discrepancies 
between the CEAP and the Bay model. Sometimes I am not the most 
politically correct and I made a statement out at a Cattleman's 
Association Meeting where I said--I think I said that 
everything in the Bay model isn't 100 percent correct or 
accurate and then I referenced the conservation tillage 
information that we had in our CEAP study are showing 88 
percent of the cropland is conservation tillage and the Bay 
model had 50. And I actually met with Mr. Perciasepe and the 
Deputy Secretary of Agriculture after that and EPA said they 
will take that data. We recognize that and they said they will 
take it. And we actually agreed that over the next 30 days the 
techies on both sides are going to sit down and say okay, what 
in this can you take and what is in the longer term?
    I think we are going to be working together to that end to 
try and reconcile them. There are some real differences. Like 
we are only--our data's only good at the four digit HUC 
(Hydrologic Unit Code). The statistical reliability falls apart 
if you go below that. So there are some differences in 
definition and what we did it for. But I will defer to you for 
the TMDL.
    Mr. Perciasepe. Okay. I will just add a little bit and I 
appreciate the Chief's and the NRCS's willingness to help us 
look at some of that conservation tillage data. But the 
Chesapeake Bay watershed model that is used as part of the TMDL 
is part of a complex set of models. There is the model that 
looks at the water quality in the Bay proper, the actual 
Chesapeake Bay, the largest estuary in the North American 
Continent. And it--or at least in the United States, I should 
be clear. And that model is based on whatever input comes into 
it, will determine what goes on there. But we also have air 
models to look at the deposition on nitrogen on the land and 
then we put that through a watershed model and then figure out 
the changes in the land use and how that will affect the loads 
that go into the main model. So it is that--it is that multiple 
step kind of process.
    The watershed model that EPA is using along with those 
others is in its fifth generation. It has 20 years of 
experience and data. One of the differences that the Chief and 
the NRCS are working on is to increase the survey information 
that they have to increase the veracity of the model that they 
have as well. They are--I think your current version is based 
on 700 surveys of actual producers and we want to see that grow 
a little bit with them as well. Ours is based on 20 years of 
looking at data across the whole watershed.
    They are really two different models, but the thing as I 
mentioned earlier and I think is really confirming to me is 
that at the bottom they are very, very close. So if we can get 
improved data on what practices are actually in place and 
improved data on the effectiveness of those practices, my 
goodness we want that information so that adjustments may be 
made. What needs to go into the main part of the Bay is not 
going to change much. What we need to do to change to improve 
the water quality in the main part of the Chesapeake Bay won't 
change because of this, but how we allocate the 
responsibilities could change over the 15 year period for sure 
and will likely change over the 15 year period as we implement 
different practices. I think we have an ongoing discussion and 
we have a commitment to each other to make sure that we share 
this stuff for the betterment of both of our efforts.
    Mr. White. Again, I should tell you that that 700 points 
that he is talking about we are going to double that this year. 
We have already contracted with National Agricultural 
Statistics Service to go back and look at those 700 which we 
think is rock solid. And in your packet there is a question in 
the survey that an enumerator sits down with the farmer on and 
we are going to add another 700 or 800. We may have data in 
some cases that go to the eight digit HUC level and it is going 
to be rock solid. And we are going to have it about this time 
next year and we are going to----
    Mr. Perciasepe. We will proceed.
    Mr. Hultgren. Okay. Well, again, that is all good. My 
concern is were we still continuing with the acceleration here 
when there is still some admitted discrepancies and desire to 
bring that together. To me it makes sense maybe to slow that 
project down a little bit.
    Mr. Perciasepe. The only thing that again I think is 
important to note that also the work that has been done by NRCS 
shows that there is almost 80 percent of the cropland, for 
instance, still has the capacity to have additional 
conservation practices. So I think we know there is a great 
amount of work to be done and these adjustments are only going 
to continue to refine our work.
    Mr. Hultgren. Thank you, Mr. Chairman. I yield back.
    The Chairman. All right, I thank the gentleman. I thank the 
panel. Gentlemen, thank you for your time, your experience. It 
is very much appreciated and we will look forward to continuing 
to work with you. I would like to welcome our second panel of 
witnesses to the table.
    Mr. Carl Shaffer, President of the Pennsylvania Farm Bureau 
from Mifflin Township, Pennsylvania; Ms. Lynne Hoot, Executive 
Director, Maryland Association of Soil Conservation Districts, 
Maryland Grain Producers Association, Edgewater, Maryland; Mr. 
Tom Hebert, Senior Advisor, Agricultural Nutrient Policy 
Council from Washington, D.C.; and Mr. Hobey Bauhan, President 
of the Virginia Poultry Federation, Harrisonburg, Virginia. So 
as we get in place and we will begin our--begin the testimony.
    All right, once again I would like to thank our--everyone 
on the second panel for joining us. In front of you can see 
there are various lights, buttons for the microphone. We just 
ask that as you present your testimony whether you read it or 
summarize it we will try to keep things within the 5 minute 
range, and we looking forward to hearing the testimony from 
everyone. We will start out with Mr. Carl Shaffer and so, Mr. 
Shaffer, begin when you are ready.

            STATEMENT OF CARL T. SHAFFER, PRESIDENT,
           PENNSYLVANIA FARM BUREAU; MEMBER, BOARD OF
          DIRECTORS, AMERICAN FARM BUREAU FEDERATION,
                      MIFFLIN TOWNSHIP, PA

    Mr. Shaffer. Thank you, Chairman Thompson. And I want to 
thank Ranking Member Holden, and Mr. Goodlatte, and the rest of 
the Committee for convening this hearing and inviting me to 
testify.
    As you said, my name is Carl Shaffer. I am President of the 
Pennsylvania Farm Bureau. I am also on the Board of Directors 
of the American Farm Bureau Federation. I personally am a full-
time farmer. I farm just under 2,000 acres in Columbia County. 
I raise green beans for processing, corn, and wheat for cash 
sales. All the land I farm lays within the Chesapeake Bay 
watershed. Also I am in very close proximity to the Susquehanna 
River. You know, over the years one of the biggest concerns 
facing farmers was Mother Nature. We were worried about too 
much rain, not enough rain, too hot, too cold, things like 
that. Now recently EPA and regulatory uncertainty really haunts 
farmers in Pennsylvania the most. Farmers have never felt so 
challenged and threatened by the onslaught of Federal 
environmental regulations and guidance as they do today.
    It is really impossible to go to any meeting where there 
are farmers gathered and not hear about their fear of the 
Chesapeake Bay regulations. You know recently, as it was stated 
before, the finalized regulation of the Total Maximum Daily 
Load was put out, and our concern is that that will actually 
displace farmers from the Bay watershed. EPA's own numbers 
state that 20 percent of the cropland needs to be converted to 
grasses or trees to be able to meet the water quality goals. 
EPA is basically saying either farm somewhere else or get 
another job.
    Last week there was a high ranking EPA official testifying 
in front of the Agriculture Committee and what she said was 
that facts were very important to the Agency. Well, we really 
consider facts really important in this problem, but facts 
really do matter. But EPA doesn't take them into consideration. 
Under the Bay model as it was stated, EPA's assumption is that 
50 percent of the land is being tilled as it was basically in 
the 1800's. Was put to a moldboard plow, all the residue was 
plowed under and the land was wide open for erosion. Actually, 
USDA and NRCS data shows that 96 percent of the cropland is 
managed with conservation practices such as no-till or strip 
cropping.
    Another fact is EPA said they want to work with farmers. I 
have some personal experience how we worked on our Water 
Implementation Plan in Pennsylvania. Our Department of 
Environmental Protection reached out to us in agriculture to 
try to work on this plan. During that process, we--about two 
farms in Pennsylvania. One, Congressman Thompson, is in your 
district by the way and that is Harpster's Dairy farm, one of 
the largest dairy farms in the Commonwealth. It is a highly 
concentrated animal operation. A lot of manure being produced, 
a lot of manure being spread as fertilizer on that farm.
    Right down through dead center the middle of that farm is a 
also one of the highest quality cold water fisheries in the 
world as designated by the State Department of Environmental 
Protection as one of the best trout streams you can find. Now 
you don't have to ask me. There is an ex-President by the name 
of Jimmy Carter that goes there every year to fish there and he 
is an expert on that and he really thinks it is good.
    The other farm I just want to talk about in one second is 
my farm. I am a third generation farmer. I have been on the 
farm 61 years, my entire life. I have grown up there. As a 
child going down to the bank of the Susquehanna River I can 
remember that vision very vividly. The rocks along the shore 
bank were fluorescent orange. There would be dead things laying 
all over--stuff floating in it. You wouldn't even want to boat 
in that river let alone fish it or swim in it. You know today 
it is one of the best small mouth bass fishing tributaries in 
the world.
    Back then I can remember my father was farming and I was a 
young child. I can remember he had a dairy herd. On hot days 
the cattle out in the pasture would stand in the middle of the 
creek to keep cool. Now, he didn't know any better that that 
was bad for the environment. He sure wasn't a bad man. He just 
wasn't educated enough to know better. Incidentally, a couple 
hundred yards downstream was one of our favorite swimming 
holes, so I guess we didn't know much better either at that 
time.
    But my father used a moldboard plow quite frequently on the 
farm. As I said he really didn't know better at that time. So 
that is over my lifetime. Today, I use no-till practices on a 
large part of the farming operation. I use cover crops to help 
save and hold the soil in place, contour strips. Other 
livestock farmers in Pennsylvania today are using stream bank 
fencing to keep the cows out of the stream. Today, we have 
probably the largest percentage of no-till done in our state as 
any state in the United States. Over 57 percent is no-till and 
there is up to 80 percent of conservation tillage.
    So all I can say is my best recommendation is what has 
worked. What we have seen over my short lifetime has really 
worked and made an improvement. I think it is key to enhance 
the progress we have been making by pursuing Best Management 
Practices. I think the key is to keep funding land-grant 
universities like Penn State University that develops the 
technology to help us stay economically valuable and protect 
the environment together, and pursue with the help of extension 
services delivering that technology to the farm. I think that 
is going to be the secret to clean up the Bay and still produce 
food at a very safe and affordable manner.
    I just want to really thank you for the opportunity to 
testify here today. The comments I gave are just the tip of the 
iceberg. If you would take the time, read my written comments, 
they are more elaborate on some of the things I said. Thank you 
very much, Mr. Chairman.
    [The prepared statement of Mr. Shaffer follows:]

  Prepared Statement of Carl T. Shaffer, President, Pennsylvania Farm
 Bureau; Member, Board of Directors, American Farm Bureau Federation, 
                          Mifflin Township, PA
    Mr. Chairman, my name is Carl Shaffer, and I have the privilege of 
serving on the Board of Directors of the American Farm Bureau 
Federation and as President of the Pennsylvania Farm Bureau. I own and 
operate a farm in Columbia County, Pennsylvania where I raise green 
beans for processing, corn and wheat. All the land I farm is in the 
Chesapeake Bay watershed, and most of the land is within sight of the 
Susquehanna River. I appreciate this opportunity to appear before you 
today and to provide testimony on behalf of farm and rural families 
that belong to Farm Bureau, the nation's largest general farm 
organization.
    Let me begin by saying that farmers have never felt more challenged 
and more anxious about the future of their operations than they do 
today. This is because of the continuous onslaught of regulations, 
guidance and other requirements being issued by the Environmental 
Protection Agency (EPA). Some say EPA simply wants to control how 
individuals farm. EPA claims that is not the case. But whether or not 
this is EPA's intent, it clearly will be the result. The outcome of 
EPA's requirements will be to drive production costs so high that many 
farms face a heightened risk of going out of business. And although EPA 
promulgates regulations in the name of ``environmental protection,'' we 
assert that very little real environmental gain will result.
    Nowhere is the impact of EPA activity more obvious than in the 
Chesapeake Bay watershed (the Bay), where the recently finalized EPA-
issued Chesapeake Bay Total Maximum Daily Load (TMDL) could push 
hundreds of thousands of acres of productive farmland out of cropland. 
EPA itself projects that roughly 20 percent of cropped land in the 
watershed (about 600,000 acres) will have to be removed from production 
and be converted to grassland or forest in order to achieve the 
required loading reductions.
    EPA's focus on agriculture and its over-reaching restrictions are 
particularly troublesome because agriculture has worked successfully 
with the U.S. Department of Agriculture (USDA) to reduce our 
environmental impact on the Bay. Use of crop inputs is declining. No-
till farming has reduced soil erosion and resulted in more carbon being 
stored in the soil. Milk today is produced from far fewer cows. 
Nitrogen use efficiency has consistently improved. Farmers are proud 
that their environmental footprint is dramatically smaller today than 
it was 50 years ago, and we are committed to continuing this progress.
    In the Chesapeake Bay watershed, agricultural practice improvements 
to reduce nutrients are well documented. USDA's National Resource 
Conservation Service (NRCS) is in the process of completing its October 
2010 draft report on the progress made by agriculture in conservation 
and natural resource improvements from 2003-2006.\1\ In its draft 
report, NRCS reports that farmers were actively implementing erosion 
control practices on about 96 percent of the cropland acres in 
production in the watershed. These practices included various forms of 
erosion control involving no-till or minimum tillage, and structural 
and vegetation management practices like contour farming, grass 
waterways and filter strips. As a result of these and other nutrient 
management practices, the NRCS draft report found that sediment 
contributions from cultivated cropland to the Bay's rivers and streams 
are reduced by 64 percent, nitrogen by 36 percent and phosphorus by 43 
percent. The report also found that these practices are responsible for 
reducing total loads of sediment, nitrogen and phosphorus from all 
sources by 14 percent, 15 percent and 15 percent.
---------------------------------------------------------------------------
    \1\ Natural Resource Conservation Service, Assessment of the 
Effects of Conservation Practices on Cultivated Cropland in the 
Chesapeake Bay Region (October 2010) (``NRCS 2010'') (available at 
http://www.regulations.gov/#!documentDetail;D=EPA-R03-OW-2010-0736-
0482.2).
---------------------------------------------------------------------------
    Ignoring the substantial effort and progress of recent years, EPA 
moved forward with an aggressive and unnecessarily inflexible new plan 
to regulate farming practices in the Chesapeake Bay watershed. In the 
last 2 years, EPA has set in motion a significant number of new 
regulations that will fundamentally alter the face of agriculture, not 
just in the Bay, but nationwide. These new regulations will determine 
how farmers raise crops and livestock and will increase the likelihood 
of expensive lawsuits filed by activist organizations.
    Policies already in place, or those being contemplated by EPA, will 
greatly expand Federal control over crop farmers and extend the scope 
of existing regulations to livestock producers, regardless of size or 
footprint. Some examples of how EPA is exerting its authority over 
livestock farms include:

In 2010, EPA released a document, ``Coming Together for Clean Water,'' 
        that proposed new, more stringent regulations for livestock 
        producers. In the document, EPA indicated that it will propose 
        regulations to make it easier to designate small- or medium-
        sized livestock operations as Concentrated Animal Feeding 
        Operations (CAFOs) regardless of whether a farm is actually 
        discharging anything into water. This is in conflict with a 
        2005 ruling by the 2nd Circuit Court of Appeals which said that 
        EPA could only regulate actual discharges, not potential 
        discharges or CAFOs that do not discharge. It is a fact that 
        complying with EPA regulations increases costs which we believe 
        will force small- and medium-sized operations to get much 
        bigger or go out of business just as many have done over the 
        last 20 years.

In addition to new aggressive regulations, EPA has entered into a 
        number of settlement agreements with environmental plaintiffs 
        that all but explicitly commit EPA to finalize additional 
        regulations. One recent settlement agreement resulted in a 
        guidance document that is being used to require permits for 
        dust and feathers blown out of poultry house ventilation fans, 
        regardless of the quantity. Another will allow EPA to collect 
        and post on the Internet personal information about livestock 
        operations, regardless of size. We believe it is wrong for EPA 
        to be able to post livestock producers' personal information, 
        and we question how the action will help improve the 
        environment.

EPA is also proposing regulations that will limit the use of manure 
        nutrients and another to limit a farmer's ability to sell 
        manure nutrient to crop farmers to use in lieu of petroleum-
        based fertilizers.

Last, EPA has a multi-year enforcement strategy that targets livestock 
        operations within the Chesapeake Bay watershed, regardless of 
        their size or whether they contribute to the Bay's pollution.

    Farm Bureau believes that EPA is intentionally working to 
circumvent Congress's deliberate decision to leave regulation of 
nonpoint sources to the states. We offer these examples:

For years, EPA has been narrowing the scope of the agricultural 
        stormwater exemption. As part of the EPA-mandated Watershed 
        Implementation Plans for each Bay state, EPA virtually 
        eliminated the exemption by requiring that the states regulate 
        farmers through enforcement controls.

EPA has entered into settlement agreements with environmental 
        plaintiffs in which EPA agreed to take regulatory actions that 
        have enormous impact on agriculture. For example, EPA agreed to 
        issue (and has now issued) numeric nutrient criteria in Florida 
        that are unrealistic and unattainable. In another settlement 
        agreement, EPA agreed to issue (and now has issued) a TMDL in 
        the Chesapeake Bay watershed, threatening severe ``backstop 
        measures'' to prohibit new and expanding Clean Water Act 
        permits unless states force nutrient reductions from other 
        permittees and sources, such as farmers.

    While many of these regulatory changes are nationwide, one of the 
most extreme examples of EPA over-reaching its authority is in the 
Chesapeake Bay watershed. Farm Bureau believes so strongly that EPA has 
over-reached its statutory authority that the American Farm Bureau 
Federation has initiated a lawsuit against EPA. The outcome of this 
case will not only impact farming in the Bay watershed but across the 
nation, because EPA acknowledges that its strategy in the Bay is a 
template for other major watersheds across the nation, the Mississippi 
River watershed in particular.
    Let me emphasize that our litigation is not about whether or not to 
clean up the Chesapeake Bay. Farmers in the Bay watershed have been 
working diligently for years, if not decades, with local and state 
governments and other organizations, including the Chesapeake Bay 
Foundation, to improve farming practices in order to clean up the Bay. 
Everyone wants a clean and healthy Bay and farmers want to continue to 
be part of the solution to improve water quality in the Chesapeake Bay 
region and across the country. AFBF's lawsuit is about a specific plan 
for achieving clean water and EPA's legal authority to develop and 
implement that specific plan. EPA is imposing an incredibly complex and 
detailed prescription--what EPA calls a ``pollution diet''--for a 
64,000 square mile watershed. While we support the goal of clean water, 
we believe that goal has to be achieved within the confines of the law 
and should consider impacts on the economy.
    Farm Bureau has three basic objections to EPA's actions:
    First, Farm Bureau believes EPA's ``pollution diet'' unlawfully 
micromanages states, as well as the farmers, homeowners and businesses 
within the region. EPA's plan imposes specific pollutant 
``allocations'' on activities such as farming and homebuilding, 
sometimes down to the level of individual operations. The Federal Clean 
Water Act does not authorize such binding allocations. Instead, the 
Clean Water Act requires that states decide how to improve water 
quality, including allocations of loading among sources, and to take 
into account economic and social impacts on local businesses and 
communities. EPA claims to be working in ``partnership'' with the 
states, but by including its own ``allocations'' in the TMDL, it is 
exercising control by unlawfully limiting the states' flexibility to 
change and adapt their plans.
    Second, EPA relied on wrong assumptions and on a scientific model 
that EPA itself admits was flawed. EPA failed to meet a basic level of 
scientific validity that the public expects and that the law requires.
    Third, EPA failed to give the public a meaningful opportunity to 
review EPA's assumed facts. Law requires agencies to disclose their 
methodologies so that the public can review it and comment on its 
accuracy. EPA failed to provide critical information about how it 
determined pollution ``allocations'' and allowed the public only 45 
days to digest and respond to incomplete, highly technical information. 
Because EPA did not allow meaningful public participation, the ``diet'' 
it produced is unlawful.
    Last, EPA's TMDL wrongly establishes binding allocations and 
timelines regardless of cost. Clean Water Act and EPA regulations 
specifically allow states to consider economic consequences and to 
modify water quality goals when necessary to avoid substantial economic 
and social disruption. EPA asserts that the TMDL will restore jobs and 
help the Bay economy, but it has not provided any data to support these 
claims. The Bay states, however, estimate that implementation will cost 
billions of dollars (e.g., $7 billion for Virginia, $3 billion to $6 
billion for New York). Farm Bureau believes the TMDL threatens the 
economic health of businesses, individuals and communities throughout 
the Chesapeake Bay watershed.
    AFBF's suit seeks to restore the states' authority to decide how to 
achieve clean water and to consider economic and social harm in making 
those decisions. AFBF also seeks to affirm basic requirements for sound 
science and transparency with the public. AFBF's lawsuit does not seek 
to benefit agriculture at the expense of others in the watershed. The 
implementation of TMDLs typically involves the allocation of pollutant 
loading among sources. AFBF is not seeking any particular re-allocation 
of responsibilities or to shift clean-up burdens onto other sectors. 
The case is about whether the Federal Government or states set the 
allocations, who sets the timeline, and the basic requirement for valid 
science and public participation. While we all support the goal of 
clean water, Farm Bureau strongly believes that the manner in which EPA 
has determined and prescribed this ``pollution diet'' for the 
Chesapeake Bay watershed is unlawful and ignores the economic and 
social costs to the Bay community.
    Farmers and ranchers across the nation, including those in the 
Chesapeake Bay watershed, want to continue to produce food and fiber 
and to do so in a way that has diminishing impacts on the environment. 
We are deeply concerned that the over-reacting environmental 
regulations issued by EPA for the Chesapeake Bay watershed threaten our 
businesses and circumvent the intent of Congress. We believe EPA should 
be held accountable to the laws that prescribe how it regulates 
production agriculture and that it should rely on sound science in its 
proceedings. The economic impact of how EPA is allowed to proceed in 
the Chesapeake Bay watershed is significant, and the repercussions will 
have a national impact on agriculture.
     Mr. Chairman, I commend you for convening this hearing and for all 
your hard work on behalf of agriculture across the country. I will be 
pleased to respond to questions.

    The Chairman. Thank you, Mr. Shaffer. I assure you we will. 
Ms. Hoot, thank you for joining us today. Go ahead and proceed.

   STATEMENT OF LYNNE C. HOOT, EXECUTIVE DIRECTOR, MARYLAND 
                ASSOCIATION OF SOIL CONSERVATION
             DISTRICTS AND MARYLAND GRAIN PRODUCERS
                   ASSOCIATION, EDGEWATER, MD

    Ms. Hoot. Thank you for inviting me. Chairman Thompson, 
Ranking Member Holden, Members of the Committee, my name is 
Lynne Hoot and I am Executive Director the Maryland Association 
of Soil Conservation Districts and the Maryland Grain Producers 
Association. My task here today is a pleasant one, to discuss 
what Maryland farmers have done to support the cleanup of the 
Chesapeake Bay.
    Over the past 25 years, Maryland agriculture has made 
tremendous progress. As of 2007, with Federal and state 
support, Maryland farmers have reduced nitrogen loads to the 
Bay by 62 percent, phosphorus by 73 percent, and sediment by 59 
percent. We now have fellow farmers across the Bay watershed 
working towards the same common goal. In fact, agriculture has 
consistently outpaced all but sewage treatment plants in 
reducing nutrient loads.
    In 2010 alone, Maryland farmers matched $17 million in 
public cost-share funds with roughly $5 million of their own 
funds to install 2,300 conservation projects. Ninety-nine point 
nine percent of Maryland farmers are in compliance with 
Maryland's Water Quality Improvement Act of 1998 that requires 
farmers to utilize nutrient management plans. And this fall, 
Maryland farmers broke all records and installed close to 
400,000 acres of cover crops. This practice alone will reduce 
nitrogen by 2.4 million pounds.
    Across the Bay watershed, Bay--Best Management Practices 
are installed on--that are installed on farms using Federal and 
state cost-share funds are documented in the Bay model. 
Excluded from the Bay model are BMP's that farmers have 
installed on their own at their own cost as a result of their 
strong stewardship ethic. It is imperative to our farmers that 
the EPA includes this information and provides credit in the 
Bay model to all farm BMP's not just those funded with public 
cost-share, and that they also provide nutrient and sediment 
reduction values for these BMP's.
    We recognize that those BMP's that do not meet NRCS 
standards will have lower nutrient reductions, but they must be 
counted. Without a true counting in the Bay model of what has 
already been done there cannot be an accurate determination of 
what more can or needs to be done.
    We believe that the agricultural BMP's in--identified in 
Maryland's Phase I Watershed Implementation Plan are 
reasonable, but only if we are provided--the farmers and the 
conservation agencies are provided with adequate technical and 
financial resources. But we are worried that current government 
funding will be reduced. What happens then? We have concerns 
that with EPA's indication that if implementation lags they 
will expand NPDES and CAFO requirements to smaller animal 
operations and that they will try to regulate other 
agricultural operations. This will create inequities between 
Chesapeake Bay farmers and farmers in other states and impact 
our competitiveness in national and international markets.
    As we enter Phase II, Maryland must develop the 58 
Watershed Implementation Plans by December 31, 2011, and yet 
EPA has not been provided the necessary allocation information 
to the states and say they won't have that until July. This 
timetable is unrealistic. In the meantime, Maryland's 
conservation districts are establishing agricultural working 
groups to get feedback and develop consensus among farmers on 
reasonable approaches to reach the Bay goals.
    We believe this process is impacting the willingness of the 
next generation to continue farming. As they look at the new 
regulations, development pressure, and the bombardment of 
negative rhetoric in the press, many are deciding against a 
future in agriculture. This is a major concern as farmland 
provides local food security and offers the best and most cost 
effective means of protecting Bay water quality.
    Conservation practices like no-till have both cost and 
benefits to the farmer, but many such as stream buffers, 
diversions, and grass waterways take land out of production and 
add implementation and maintenance costs as well as reducing 
productive land. While farmers are committed conservation 
stewards, expanded efforts will require Federal cost-share 
programs and technical assistance.
    We commend you for your past support and encourage you to 
continue to support allocations for conservation funding in the 
Chesapeake Bay as part of the next farm bill. The country is 
watching us. We want to prove that agriculture can do what is 
necessary as long as it is reasonable, science based, and we 
are provided with adequate technical and financial assistance. 
Thank you.
    [The prepared statement of Ms. Hoot follows:]

   Prepared Statement of Lynne C. Hoot, Executive Director, Maryland
Association of Soil Conservation Districts and Maryland Grain Producers 
                       Association, Edgewater, MD
    Mr. Chairman, Members of the Committee, my name is Lynne Hoot and I 
serve as the Executive Director for the Maryland Association of Soil 
Conservation Districts and the Maryland Grain Producers Association. My 
task here today is a pleasant one--to discuss what Maryland farmers 
have done to support the cleanup of the Chesapeake Bay.
    My time working on this issue goes back to the early 1980's when I 
was working for the Maryland Department of Agriculture and the first 
EPA report on the Chesapeake Bay, commissioned by U.S. Senator Mac 
Mathias, was released. Under the leadership of Governor Harry Hughes 
and Secretary of Agriculture Wayne A. Cawley, the Maryland agricultural 
community came to the table accepted they were part of the problem and 
would be part of the solution. Farmers have been at the table since 
that time with the same mantra and their efforts are evident in the 
landscape.
    If we wind forward 25 years, I am proud to announce the progress 
agriculture has made and is verified in the latest Chesapeake Bay model 
run. With state and Federal support, as of 2007, Maryland farmers had 
reduced nitrogen loads by 62%, phosphorus loads by 73% and sediment 
loads to the Bay by 59%. We know our fellow farmers across the Bay 
watershed have been working towards the same common goal. In fact, the 
agriculture industry has consistently outpaced most other sectors in 
reducing nutrient loads.
    In 2010 alone, Maryland farmers matched $17 millions in Maryland 
Agricultural Cost-Share Program (MACS) funds and $14 million in Federal 
(EQIP & CBWI) cost-share funds with roughly $5 million of their own 
money to install 2,300 conservation projects on their farms to prevent 
1.2 million pounds of nitrogen, 41,000 pounds of phosphorus and 17,000 
tons of sediment from entering the Bay. This fall, Maryland farmers 
broke all records and installed roughly 400,000 acres of cover crops to 
protect water quality. This practice alone will achieve 2.4 million 
pounds of nitrogen reduction, but as with many practices, it is an 
annual practice, and farmers must maintain a significant level of 
performance every year.
    Maryland passed the Water Quality Improvement Act in 1998, 
requiring farms with over $2,500 gross income or more than eight animal 
units to develop and implement a nutrient management plan. Although the 
first deadline for nutrient management planning was 2001, livestock and 
poultry producers had until July 2005 to prepare for nutrient 
applications based on soil phosphorus levels. In 2010, more than 99.9% 
of farmers had nutrient management plans for 1.3 million acres and 
97.2% filed an Annual Implementation Report (AIR?) documenting use of 
nutrients and compliance with the law. Maryland Department of 
Agriculture conducts field audits of 8-10% of regulated farm operations 
annually.
    Best management practices (BMPs) installed on farms are currently 
documented when they are implemented using Federal and state cost-share 
funds. The information we do not have at present relates to the water 
quality benefits of BMPs that farmers across the Bay region have 
installed on their own, at their own cost, as a result of their strong 
stewardship ethic. Not all of these practices meet Natural Resource 
Conservation Service (NRCS) standards and specification and therefore 
they do not have an established nutrient reduction value for purposes 
of EPA Model accounting. For example--a 10 buffer along one of the 
many farm ditches on Maryland's Eastern Shore or an electric fence 
keeping animals out of a Western Maryland stream will both improve 
water quality; but as neither meets NRCS standards and specifications, 
they have not been assigned a nutrient and/or sediment reduction value. 
Why does this matter? EPA does not recognize BMPs that do not meet NRCS 
standards and specifications--in fact at this point, they do not 
recognize any BMPs that were installed without Federal or state 
assistance because currently we have no mechanism by which to collect 
this important contribution to Bay water quality.
    In 2009, the Maryland Department of Agriculture developed 
Conservation Tracker, a geo-referenced database system to record the 
location of BMPs installed on Maryland farms and to calculate the 
nutrient reduction credits. District staff across the state scoured 
every soil conservation and water quality plan (SCWQP) in their offices 
and entered the data into Conservation Tracker on all the BMPs that 
have been installed with public support and are still functional. The 
system has the capacity to track farm data on all BMPs regardless of 
their funding source and whether or not they meet NRCS standards and 
specifications. Maryland is piloting a method to track this information 
with funding from an NRCS Conservation Innovation Grant and is working 
with the National Association of Conservation Districts (NACD), who is 
actively engaged across all six-Bay states, to determine a method to 
collect this data so it meets EPA requirements of accountability and 
verification.
    It is imperative to our farmers that EPA accepts this information 
and provides credit in the Bay model for all farm BMPs, not just those 
funded with public cost-share and that they provide nutrient and 
sediment reduction values for these BMPs. We recognize that BMPs that 
do not meet NRCS standards will have lower nutrient reductions--but 
they must be counted. Without a true accounting in the Bay model of 
what has already been achieved--there cannot be an accurate 
determination of what more can, or needs to, be done.
    Maryland's Phase I Watershed Implementation Plan (WIP) has been 
approved by EPA to meet the Total Daily Maximum Load (TMDL) 
allocations. We believe that the agricultural BMPs identified in 
Maryland's Phase I WIP and the 2 year milestones are reasonable if, and 
only if, farmers and conservation agencies are provided with adequate 
technical and financial resources. We are concerned that the current 
economic decline and its impact on Federal and state budgets will 
reduce the necessary level of support. What happens then? We have 
concerns with EPA's indication that they will expand NPDES/CAFO 
requirements to smaller poultry and livestock producers if 
implementation lags and that they will try to regulate other 
agricultural operations. This creates inequities between Chesapeake Bay 
farmers and farmers in other states and impacts their competitiveness 
in national and international markets.
    As we enter Phase II, Maryland must develop 58 WIPs, for every 
county and for all Bay sub-watersheds in each county. Yet EPA has not 
provided allocation information for these plans to be developed and has 
indicated that this information will not be available until July. 
Allowing less than 6 months to develop Phase II WIPs is unrealistic. In 
the meantime, Maryland's soil conservation districts are establishing 
agricultural working groups to get feedback and develop consensus among 
farmers that any proposed WIP II agricultural BMPs are reasonable.
    We believe this process is impacting the willingness of the next 
generation to continue farming. The average age of farmers is 58; as 
the next generation looks at the new regulations facing their parents, 
the development pressure on farmland, and are bombarded by the negative 
rhetoric in the press, many are deciding against a future in 
agriculture. This is a major concern as farmland provides local food 
security and offers the best and most cost effective means for 
protecting Bay water quality.
    To ensure the viability of agricultural enterprises in the Bay 
region, Maryland grain farmers have spent $2.9 million, of the $12.5 
million Checkoff funds collected since 1991, to fund research on 
projects to explore management, new products and technologies that 
support agricultural production and water quality. The funds are 
collected through the Maryland Grain Checkoff program from farmer 
contributions of half of one percent (\1/2\%) of their net income from 
grain. The Checkoff funded research has enhanced the states cover crop 
program, reduced fall fertilizer use on small grains, assessed the 
value of slow release fertilizers, and evaluated the use of new 
equipment like vertical tillage to incorporate poultry litter in no-
till cropping systems and GPS with variable rate nitrogen applicator 
equipment, such as the GreenSeekerTM to apply crop nutrients 
at different levels throughout each field. This farmer funded research 
shows our commitment to clean water and will help the state reach the 
goals set out in the WIP.
    Conservation practices like no-till have costs and benefits for the 
farmer. Maryland boasts having over 80% no-till cultivation, which is 
one the highest adoption rates of any state in the country. Other 
conservation measures such as stream buffers, diversions and grassed 
waterways take land out of production and add implementation and 
maintenance costs as well as reducing income producing land. While 
farmers are committed conservation stewards, expansion and continuation 
of these efforts will require Federal cost-share programs and technical 
assistance.
    We commend you for your past support and encourage you to continue 
to support the allocation of conservation funding for the Chesapeake 
Bay as well as conservation programs and operating funds to support 
technical staff as part of the next farm bill. The country is watching 
us; we want to prove that agriculture can do what is necessary as long 
as it is reasonable, science-based and we are provided with adequate 
technical and financial assistance. Thank you.

    The Chairman. Thank you, ma'am. Mr. Hebert.

            STATEMENT OF TOM HEBERT, SENIOR ADVISOR,
     AGRICULTURAL NUTRIENT POLICY COUNCIL, WASHINGTON, D.C.

    Mr. Hebert. Chairman Thompson, Ranking Member Holden, 
Members of the Committee, my name is Tom Hebert and I am a 
Senior Advisor to the Agricultural Nutrient Policy Council. I 
am very pleased to be here today testifying before you.
    Started just last year, the Council includes more than 30 
participants from the agricultural and forestry sectors at work 
here in D.C. and across the country brought together to work 
specifically on agriculture, nutrients, and water quality 
issues. The Council has worked on many national issues over its 
short history, but we have worked also a great deal on the 
Chesapeake Bay TMDL because of agriculture's concerns with the 
accuracy and transparency of EPA's efforts, as well as the 
speed of the process. Furthermore, the Council believes that 
the USDA analysis for the Bay under the Conservation Effects 
Assessment Program, the CEAP that we have heard so much about 
this morning merits significant inclusion in EPA's work as they 
move forward.
    The Council retained a nationally recognized firm, 
LimnoTech, to prepare a report comparing the draft USDA Bay 
CEAP that was issued last October to EPA's draft TMDL when it 
was open during the comment period last fall. We did that to 
draw attention to the positive role that the CEAP could play in 
the TMDL itself, and to investigate agriculture's serious 
concerns with the TMDL.
    You have heard a great deal this morning already from Chief 
White, from other members of this panel about the great 
conservation achievements that the CEAP reports on. I am not 
going to repeat those numbers. But, it is important to note 
that it is clear that USDA has documented the really 
tremendously strong foundation of conservation practices that 
farmers have built over the last several decades and are in 
place today to support them moving forward on improving the 
health of the Bay. The CEAP shows also that more can be 
accomplished. We all know that and farmers are ready to do that 
and we know that as well. But there is a tremendously solid 
foundation in place today on farms across the Bay region and 
EPA should be taking all of that foundation into account.
    Turning to the TMDL and the LimnoTech report, we are very 
concerned that EPA has in fact failed to take this foundation 
properly into account. For example, we looked at the loads 
coming from ag lands and being delivered to the Bay as reported 
in the CEAP. We compared the same loads being delivered to the 
Bay in the Bay TMDL and we found some really startling things. 
In terms of the baseline conditions, before the TMDL would be 
implemented we found that EPA sediment baseline loads delivered 
to the Bay were almost three times that estimated by NRCS in 
the CEAP. The difference between 930,000 tons, and 2.6 million 
tons between EPA and USDA: three times more in EPA's baseline. 
That may in part be because as you have heard, EPA assumes that 
only 50 percent of the acres in the Bay are under conservation 
tillage. The rest are under plow while the CEAP shows that 
almost 100 percent either have conservation tillage in some 
form or structural practices in place to control erosion.
    Also we are concerned that EPA may not be accounting well 
for the sediments that are reaching the Bay through steam bank 
erosion and other so called legacy sediments and has instead 
assigned them to agriculture and other nonpoint sources. I--
EPA's nitrogen estimates are about 25 percent lower than USDA's 
perhaps due to the fact that USDA has one million more cropland 
acres under cultivation in their model than EPA, and total of 
about 3 million more crop, pasture, and hay acres in 
agricultural practices in the Bay than EPA.
    Deputy Administrator Perciasepe made a statement that 
despite these differences, at the bottom of the Bay the two 
models are very, very close. We disagree respectfully so. These 
are big, big differences and when you put them into the TMDL 
itself you come up with some startling findings. In the case of 
sediment and phosphorus, USDA's baseline loads are already 
lower than the EPA allocations even without any further 
treatments. In the case of nitrogen, the CEAP makes it very 
clear that nitrogen loads can be reduced in absolute terms as 
much as the EPA requires although the loads don't get below the 
EPA allocation level itself. What do you make of that?
    We are not sure. It is maybe due to the fact that as Mr. 
Shaffer referenced, EPA removes about 630,000 acres out of 
agricultural crop production in the Bay region over the TMDL 
period. Maybe they had to do that in order to reach this water 
quality standard number that Mr. Perciasepe spoke about. USDA 
does not do that in their model. The problem is is that we just 
don't understand. We don't think EPA understands this either. 
Looking at the number differences ranging from 25 percent for 
nitrogen, almost 300 percent for sediments, the accuracy of the 
TMDL has to be examined further and EPA and USDA should 
recognize and reconcile this and work on these numbers 
together.
    EPA did not follow our report's recommendation that they 
not finish the TMDL before this reconciliation has taken place. 
It still needs to be done in our opinion, although we are not 
sure exactly how these changes can get reflected at this point 
in the now final TMDL which is law. Our strong caution though 
is against anyone thinking that the numbers in the TMDL can be 
fixed somehow 5 years down the road, that somehow they can come 
back together, fix this, and in 5 years down the road we will 
fix the TMDL. Everyone in the Bay, not just farmers, everyone 
is going to start spending money today to meet these 
requirements. No one can afford to find out in 5 years that the 
dollars have gone to the wrong issues or in the wrong places, 
or to work on the wrong solutions and that we have to go back 
to the drawing board in any way.
    This will not help restore the health of the Bay. It will 
not help anybody in the watershed. So thank you for the chance 
to present this information to the Committee. The Council hopes 
that this report and our further efforts will help you and 
everyone else get this TMDL right.
    [The prepared statement of Mr. Hebert follows:]

Prepared Statement of Tom Hebert, Senior Advisor, Agricultural Nutrient 
                    Policy Council, Washington, D.C.
    Chairman Thompson, Ranking Member Holden, and Members of this 
Committee, my name is Tom Hebert and I am here today as Senior Advisor 
to the Agricultural Nutrient Policy Council--the ANPC. The ANPC has 
worked on multiple issues in the 6 short months that it has been in 
existence and among these are the topics of this hearing--the 
Chesapeake Bay and the U.S. Environmental Protection Agency's (EPA) 
Total Maximum Daily Load (TMDL) for the Bay and its tidal tributaries. 
Thank you for this opportunity to share some of the ANPC's work on this 
topic. We hope you find this testimony helpful to your deliberations 
concerning policies involving agriculture, nutrient and sediment loss 
and the health of the Chesapeake Bay.
    The ANPC is a new organization, started this past September by five 
agricultural organizations. It has grown to include more than 30 
participants from the agricultural and forestry sectors that share the 
goal of sound Federal policy involving nutrients and environmental 
quality. The purpose of the ANPC is to support participants' efforts to 
achieve that goal by drawing on and applying their expertise in the 
relevant areas of science, technology, law and policy, and coordinating 
those efforts with outside experts on these matters. These are tough, 
highly complicated issues, particularly when considered through the 
lens of the Clean Water Act. The ANPC works to help its participants 
make sense of all that is happening by charting a path forward that is 
informed, thoughtful, and reasoned.
    While the ANPC will speak to the meaning, substance and 
implications of technical, legal or policy matters, the council does 
not serve as the policy voice for its participants. That remains the 
participants' role as individual organizations or in their collective 
efforts as expressed through ad hoc coalitions that they might form 
around specific issues. But in the case of agriculture, forestry, 
nutrients, and water quality, it is fair to say that ANPC participants 
are absolutely supportive of protecting and improving water quality. 
The ANPC members share this view with respect to waters across the 
country, and relative to today's hearing, the Chesapeake Bay and the 
waters of the basin.
    The fact that these organizations and all of agriculture embrace 
this objective can be too often lost in the rancor of debate. Perhaps 
that is because these groups are also unabashed supporters of farmers 
and ranchers as business people, and there are often no easy answers 
able to address the multiple challenges facing agriculture. America's 
farmers and ranchers are committed to doing their part to reduce the 
loss of nutrient and sediment from their land to help improve the 
health of the Bay, though they cannot pursue this to the exclusion of 
the other integral objectives for their operations. The ANPC is proud 
to be part of and contributing their efforts.
The ANPC's Examination of Agriculture's Loadings to the Chesapeake Bay
    The ANPC has spent considerable time examining agriculture's 
contributions of nutrients and sediments to the Chesapeake Bay, its 
tributaries and to the waters of the entire watershed. This is of 
course a critical issue for water quality in the Bay and in the context 
of the Chesapeake Bay TMDL (Bay TMDL) rulemaking and the associated 
state watershed implementation plans (WIPs). Many in the agricultural 
community have been deeply concerned that the process and speed with 
which EPA was moving to conclude the TMDL rulemaking was going to 
encumber sound and accurate supporting analysis.
    These were not just hypothetical concerns. They stemmed directly 
from things we learned in public meetings with EPA staff about how 
agriculture was being addressed in the Chesapeake Bay Model (Bay Model) 
and its associated ``Scenario Builder.'' Scenario Builder is the model 
EPA developed for sectors like agriculture for use in the Bay Model. 
Critically important data about the historical levels of conservation 
practices were, from agriculture's perspective, seriously incomplete. 
Assumptions regarding crop yields, nutrient and manure use levels, and 
how loads not assigned to point sources were to be distributed led to 
enormous concerns.
    EPA was attempting to bring considerable sophistication and 
expertise to the challenge of modeling the hydrology and all of the 
relevant activities in the entire Bay region. The Bay Model represents 
the product of many years of work by qualified people. However, the 
model is unprecedented in its scope and complexity; it is not a single 
TMDL, rather a combination of 92 distinct TMDLs for different segments 
of the Bay. Still, the task given to the model was and remains 
enormously complex and largely untested in the scope of the landscape 
and the level of detail it purported to represent. Agriculture 
expressed our serious concerns with the speed of the process and the 
possible inaccuracy of its estimates regarding agriculture's 
contributions to the Bay.
    Concerns about the accuracy of EPA's estimates for agriculture's 
baseline contributions of nutrients and sediments to the Bay translate 
directly into concerns about the accuracy of the reductions in loads 
EPA would expect of farmers and ranchers under the Bay TMDL. While they 
have and will be committed to reducing nutrient and sediments losses, 
in the case of this particular TMDL it becomes nearly impossible for 
farmers and ranchers to embrace the assigned reductions if they are not 
considered accurate. It is bad enough to be worried that you are being 
relegated to failure before the process even begins. Adding to these 
worries is the knowledge that the load reductions and practices 
required to achieve them are expensive, and perhaps in many instances 
prohibitively so. And yet the Bay TMDL development process lacks 
economic analysis of the costs of what these practices will entail for 
agriculture or any other sector.
    As if those concerns are not enough, EPA has sought to ensure that 
states would adopt ``enforceable or otherwise binding'' measures on row 
crop agriculture to achieve the assigned load reductions, a 
considerable break from the past and the Clean Water Act provisions 
that provide exemptions for discharges associated with agricultural 
stormwater--so-called agricultural nonpoint source discharges. 
Mandating practices of unknown cost and efficacy could spell disaster 
for many farmers and ranchers in the Chesapeake Bay, yet the very 
prospect confronts them in this case.
The USDA-NRCS Conservation Effects Assessment Program Report for the 
        Bay
    The ANPC welcomed the U.S. Department of Agriculture (USDA) Natural 
Resources Conservation Service's (NRCS) release this past October of 
its draft analysis of agriculture in the Bay.\1\ We hoped and still 
hope that it might be able to better quantify agriculture's 
contributions and additional efforts needed and ultimately used in 
conjunction with the Bay Model in the development of load reduction 
expectations for agriculture. This draft report is one of 12 
assessments that USDA-NRCS is conducting of basins nationwide under the 
Conservation Effects Assessment Program (CEAP). The Bay CEAP was the 
second of these assessments and was issued for public comment this fall 
while the proposed Bay TMDL rulemaking was out for public comment.
---------------------------------------------------------------------------
    \1\ Draft Assessment of the Effects of Conservation Practices on 
Cultivated Cropland in the Chesapeake Bay Region, USDA-NRCS, October 
2010.
---------------------------------------------------------------------------
    Because it is an estimate, the Bay CEAP will not be perfect. The 
estimates are based on data and observations collected from 2003 to 
2006 and the conditions it represents are already dated. We have reason 
to expect that it underestimates farmers' use of improved and advanced 
nitrogen management techniques and practices, and therefore over-
estimates the baseline loss of nitrogen from agriculture. As is the 
case with the Bay Model and the Bay TMDL, it lacks estimates of the 
practice costs that it suggests producers could adopt to lower their 
loadings, and it lacks estimates of the economic effects of practice 
adoption. As such, we also have questions about whether the additional 
conservation measures proposed for use on Bay cropland are practical 
and achievable.
    Despite these shortcomings, the Bay CEAP (as well as the other 11 
CEAP analyses that USDA-NRCS is conducting) has many strengths. It is 
based on a thoroughly peer reviewed statistical and modeling process of 
the National Resources Inventory (NRI), one that has been in use for 
several decades and with which agriculture has considerable 
familiarity. It combines the NRI findings in the Bay with detailed 
survey results of farmers and farm operations in the region, allowing 
CEAP to be based on a statistically valid sample of farmland and 
farming practices in use in the Bay. The CEAP is therefore grounded in 
the actual conservation practices, crops and crop rotations, soil 
types, and other land features that directly shape how many nutrients 
and how much sediment leaves farm fields and makes its way into 
waterways that ultimately reach the Bay. For these reasons we welcomed 
the draft Bay CEAP results as a solid contribution to the Federal 
effort to set goals and objectives for load reductions in the 
Chesapeake Bay.
    Before I review the findings of the analysis the ANPC commissioned 
to compare some of the key results of the Bay CEAP to those in the Bay 
TMDL derived from the Bay Model, I would like to share a few of the 
findings from the Bay CEAP itself. The picture it conveys as to what 
farmers have achieved in the Chesapeake Bay is quite remarkable. It is 
a testament to the work farmers in the Bay are doing to reduce nutrient 
and sediment loads, and the success of the partnership of Federal, 
state and local officials that constitutes today's conservation 
delivery system.
    I would like to draw to your attention the following draft CEAP 
findings relative to agriculture's baseline (2003-2006) conservation 
conditions for cropland in the Bay region:

About 88 percent of the crop acres in the Bay region are using 
        conservation tillage, in the form of no-till or mulch till.

63 percent of the highly erodible cropland has structural measures for 
        controlling water erosion, constituting 46 percent of all crop 
        acres.

96 percent of the crop acres have some residue, tillage management, 
        and/or structural practices in use.

    Most crop acres have some nitrogen or phosphorus management, with 
significant percentages having the appropriate rate, timing or method 
of application in use--but most of these acres lack the consistent use 
of all these tools simultaneously.\2\
---------------------------------------------------------------------------
    \2\ See pages 8 and 9 of the draft CEAP report.
---------------------------------------------------------------------------
    The CEAP model shows that as a result of these and other 
conservation practices for cropped acres in the region, the amount of 
nutrient and sediment loss from these acres has been reduced 
significantly from what would be the case if farmers were not using 
these practices. For example, these practices have resulted in:

Reduction in sediment loss from fields by 62 percent;

Reduction in total nitrogen loss from fields by 30 percent and reduced 
        nitrogen lost with surface runoff by 42 percent; and

Reduction in total phosphorus loss from fields by 43 percent.\3\
---------------------------------------------------------------------------
    \3\ See page 11 of the draft CEAP report.

    Clearly, more can be accomplished by farmers and ranchers in the 
Bay region. More practices can be adopted, or those in use today can be 
consistently applied simultaneously. The Bay CEAP estimates what could 
be possible were such practices adopted on all the acres that could 
benefit from their use. While these estimates are not accompanied by 
any cost and economic analysis to indicate how truly feasible they are, 
they are indicative of the further contributions that agriculture could 
be making to water quality in the Bay. Through the adoption of further 
sediment controls and nutrient management practices on some \2/3\ of 
the acres in the region, USDA estimates that the total sediment and 
nutrient loads actually delivered to the Chesapeake Bay from all 
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sources could be reduced (relative to baseline conditions) as follows:

Sediment by 7 percent;

Nitrogen by 16 percent; and

Phosphorus by 17 percent.

    Of course, these are the draft estimates from the October version 
of the report. We understand that NRCS will be issuing in the near 
future their final Bay CEAP report. As such, the numbers above are 
subject to change.
A Comparison of the Draft Bay CEAP Results to those from the Draft Bay 
        TMDL
    Agriculture generally has a significant degree of comfort with the 
NRCS' NRI, as it has been used to report on the conservation efforts of 
farmers for decades. Its coupling with farmer survey results and models 
to make the CEAP analysis possible is a newer effort and agriculture is 
just now becoming familiar with its use. Nonetheless, agriculture is 
given a high degree of confidence in the CEAP analysis by the fact that 
its foundation is the NRI's statistically valid field level 
observations of the actual conservation and nutrient management 
practices, soils and conditions in place. Its statistical validity 
yields confidence because it is representing what is in fact happening 
on the ground.
    It is this physical grounding in actual, observed practices that 
lead the ANPC to want to compare the CEAP loading estimates to those 
from the Bay TMDL. The hope was that the CEAP results would allow 
agriculture to assess the accuracy of the Bay TMDL baseline conditions 
and the load allocations. The CEAP is not the only other sound source 
of data and information that could help Federal policy makers assemble 
an accurate understanding of what is happening on the ground in the Bay 
region. State and local agencies also have good data that could be used 
in the effort. The CEAP information, though, is critical to reaching 
this goal.
    In an effort to highlight the importance of using the CEAP data to 
inform Federal decision making, the ANPC commissioned a study from 
LimnoTech, one of the nation's leading environmental science, 
engineering and modeling firms. The report, Comparison of Draft Load 
Estimates for Cultivated Cropland in the Chesapeake Bay Watershed, was 
completed on December 8, 2010, and a copy of the report was provided 
with this testimony.\4\
---------------------------------------------------------------------------
    \4\ The comparison of the USDA and EPA draft estimates can also be 
found on the ANPC website at http://www.nutrientpolicy.org/
ANPC_News.html.
---------------------------------------------------------------------------
    LimnoTech analyzed the available documentation (both of which were 
draft) and compared the two efforts, looking in particular at:

Land use and total acreage of the Bay watershed;

Hydrology;

Assumptions about conservation practices;

Model frameworks; and

Model results.

    These models were constructed, designed and used for very specific 
yet different purposes. Different modeling techniques are used and the 
data sources vary. That said, it is reasonable to expect that two 
models prepared by two Federal agencies, estimating loads from 
agriculture delivered to the Bay over roughly the same period, could 
very well come up with comparable results--or at least the differences 
in their results could be explained in a straightforward way.
    LimnoTech did not find comparable estimates of the loads delivered 
to the Bay, nor were they able to discern how to reconcile these 
differences. This finding, and several others, led LimnoTech to 
conclude that EPA should not finalize the Bay TMDL until it had 
reconciled these differences in the estimates. I will not detail here 
the differences that LimnoTech found and the questions and concerns 
that were raised. A comparison of the actual estimates of baseline 
loads to the Bay from agriculture should be sufficient to demonstrate 
why these concerns arose.\5\
---------------------------------------------------------------------------
    \5\ These are the results of the analysis of two draft documents--
the proposed TMDL rulemaking, and the draft Bay CEAP report. These 
numbers will certainly change once the final Bay CEAP findings are 
compared to the final Bay TMDL.
---------------------------------------------------------------------------
    Figure 1 below, which is drawn directly from the LimnoTech report, 
graphically compares the EPA (Bay TMDL) and USDA (Bay CEAP) estimates 
of the baseline delivered loads to the Chesapeake Bay from agriculture 
as well as all other sources. Looking at the largest difference (on a 
percentage basis) in estimated loadings from agriculture, those for 
sediments, EPA's estimate is almost three times the size of the USDA 
estimate. The Bay TMDL baseline assigns about 65 percent of all 
sediments reaching the Bay to agricultural sources, while USDA assigns 
only 14 percent of the total. These are enormous differences and give 
many in agriculture cause for serious concerns.
[GRAPHIC] [TIFF OMITTED] T1206.026

Figure 1--Differences in estimates of baseline delivered loads to the 
        Chesapeake Bay from agriculture and all sources.
    Turning to the estimates for nitrogen with the next lower 
differences, USDA's agricultural load estimates are about 25 percent 
higher than EPA's estimates. Although the differences between EPA's and 
USDA's estimates of phosphorus loads are smaller, it is still very 
large. USDA's loads are 25 percent lower than EPA's estimates, 
amounting to some 1.8 million pounds per year. This is a sizable 
amount, given that EPA is holding states accountable for every single 
estimated pound that must be reduced.\6\
---------------------------------------------------------------------------
    \6\ For example, 14 hours before the WIPs were due, EPA reported to 
Virginia that they needed to find an additional one million pounds of 
nitrogen.
---------------------------------------------------------------------------
    Absent full access to EPA and CEAP model inputs, LimnoTech was 
unable to fully explain these differences in baseline estimates, 
although there are some good, educated guesses that could be made. 
First, there are significant differences in the amount of land 
designated as agricultural. USDA's estimate for the amount of crop and 
pasture land in the Bay region is more than 3 million acres greater 
than EPA.
    Second, the draft Bay TMDL assumed only 50 percent of the crop 
acres in the Bay region were farmed under conservation tillage, while 
the draft Bay CEAP used the NRI estimate of 88 percent, with another 
eight percent or so that had structural erosion control measures. 
Having more acres under conventional tillage would certainly translate 
into estimates of greater sediment loss under the Bay TMDL baseline 
than you would from the Bay CEAP. Yet important as this is, it seems 
unlikely it would explain almost a three-fold difference in sediment 
loads.
    The ANPC has no explanation at this point for the 25 percent 
difference in the nitrogen baseline load estimates for agriculture. We 
understand that this difference was far smaller for EPA's 2005 estimate 
of nitrogen loads compared to Bay CEAP's--not an explanation. It just 
raises further questions. In the case of phosphorus, sizable 
differences in sediment load estimates would certainly lead to 
differences in phosphorus load estimates. This is because most 
phosphorus is lost due to erosion, where the phosphorus bonds tightly 
with a soil particle and goes wherever that particle goes. What to make 
of the varying magnitude in percent differences between the sediment 
estimates and those for phosphorus is still unclear.
    Figure 2 below is a graphical representation of LimnoTech's 
assessment of the comparability of the two baseline agricultural load 
estimates and the possible load reductions estimated by the Bay CEAP. 
Four estimates are depicted for loads of nitrogen, sediment and 
phosphorus. The first of the estimates is EPA's baseline number. The 
next is the USDA baseline number. These are the same values depicted 
for agriculture in Figure 1. The next two bars depict the USDA (Bay 
CEAP) estimates of the loads that would result if additional acres were 
to receive more intensive conservation treatments (an additional 2 
million acres and an additional 3.5 million). The horizontal redline 
that accompanies the estimates for nitrogen, sediment and phosphorus 
depicts the allowable level of loads for each pollutant EPA assigned to 
agriculture in the draft TMDL.
    Figure 2 indicates that as more acres receive intensive treatment, 
the estimated loadings of sediments and phosphorus are below the TMDL 
allocation. Interestingly, USDA's baseline loads of sediment and 
phosphorus start out below the TMDL allocation. The pattern is 
different in the case of nitrogen, where USDA's baseline load is 
greater than that for EPA's, and the intensively treated acre scenarios 
do not yield loads below the TMDL allocation. Perhaps this is due to 
the fact that EPA's TMDL scenarios assume that approximately 600,000 
acres leave crop production, about 20 percent of the crop acres in the 
region. USDA has no comparable acres change. We simply do not know the 
reason for these differences.
[GRAPHIC] [TIFF OMITTED] T1206.027

Figure 2--USDA estimates of delivered loads under baseline and two 
        treatment scenarios, compared to EPA's Draft TMDL baseline 
        loads and TMDL load allocations.
Conclusion
    Taken at face value, it appears that in terms of sediment and 
phosphorus, agriculture has already met its TMDL obligations. And in 
the case of nitrogen it might appear that somehow EPA's nitrogen load 
under the TMDL is unachievable for agriculture. Such conclusions, while 
feasible, are probably premature to draw at this point.
    The most reasonable conclusions to draw from the differences 
depicted in Figures 1 and 2, along with the several others LimnoTech 
investigated, is that something important and seriously confounding is 
creating these differences. USDA and EPA should work together to find 
out what this is and reconcile their work. If possible, they should 
include agriculture and other stakeholders fully in that process, and 
as appropriate find ways to incorporate other useful datasets and 
sources of information that can improve the outcomes. The goal would be 
two-fold. First, to understand how the two models operate, reconcile 
their differences in a way that makes sense, and arrive at sound TMDL 
load reductions. The second would be for these reductions to be 
accepted by agriculture and the general public as accurate, fair, 
trustworthy and capable of making a lasting contribution to improving 
the health of the Chesapeake Bay.
    Thank you.
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    The Chairman. All right, thank you. Mr. Bauhan, welcome to 
the panel.

         STATEMENT OF HOBEY BAUHAN, PRESIDENT, VIRGINIA
  POULTRY FEDERATION, HARRISONBURG, VA; ON BEHALF OF NATIONAL 
                CHICKEN COUNCIL; NATIONAL TURKEY
          FEDERATION; U.S. POULTRY AND EGG ASSOCIATION

    Mr. Bauhan. Thank you. Chairman Thompson, Ranking Member 
Holden, and Members of the Subcommittee, thank you for inviting 
me to testify on the Chesapeake Bay TMDL. I am Hobey Bauhan, 
President of Virginia Poultry Federation which represents all 
sectors of the poultry industry in Virginia. I am also 
testifying today on behalf of the National Chicken Council, the 
National Turkey Federation, and the U.S. Poultry and Egg 
Association.
    In Virginia, we are proud of the environmental progress and 
the innovative steps we have taken to protect water quality. 
For well more than a decade, poultry farmers have expanded 
their conservation practices to enhance water quality. The vast 
majority of poultry farms in Virginia use nutrient management 
plans, and a large majority have also constructed litter 
storage sheds. Litter storage sheds which are beyond--above and 
beyond state or Federal requirements are very effective in 
minimizing runoff.
    We have also adopted feed management practices, a natural 
enzyme phytase added to poultry feed has achieved major 
phosphorus reductions in manure more than 25 percent on 
average. We have also collaborated with environmental groups, 
universities, and government agencies on innovative solutions 
for surplus animal manure. In addition, poultry processing 
plants in the Bay have spent millions of dollars to upgrade 
their wastewater treatment facilities with state of the art 
technology. This has reduced wastewater discharges for 
phosphorous and nitrogen to levels that not long ago were 
unheard of.
    The results of these actions are reflected in EPA's own 
estimates that between 1985 and 2005 nutrient loads from 
agriculture decreased in the Chesapeake Bay while load levels 
from developed lands increased by 16 percent. Poultry in the 
Bay has been moving forward, not backwards in improving water 
quality.
    Virginia's experience also shows the effective roles--role 
that states are playing in water quality regulations as opposed 
to the top down approach sought by EPA. My state has adopted 
some of the most expansive regulations in the country for 
poultry farms. These include new plant management plans which 
are required for some 80 percent of poultry growers in the 
state. Only the very smallest growers are not under this 
framework and we also have state requirements for all 
transporters and end-users of poultry litter.
    Yet, despite the steps that we have taken to minimize or 
eliminate water quality impacts the Bay TMDL sets unprecedented 
Federal nutrient reduction targets that could adversely impact 
agriculture. EPA has made it clear that it will tie its strict 
nutrient diet to an aggressive framework of Federal permitting 
and paperwork requirements that expand the Federal CAFO 
universe. The agency supports highly restrictive nutrient 
management standards and seeks costly controls and additional 
enforcement. These additional burdens and bureaucracy are 
counterproductive to environmental progress.
    We are also concerned about the flaws in the data used to 
justify these new Federal mandates, particularly the data used 
in EPA's modeling for Bay. For poultry, EPA's TMDL nutrient 
targets are based on flawed modeling assumptions about manure 
management practices. For example, the agency estimates that 15 
percent of all manure from poultry farms is lost during storage 
and runs off in into the waterways of the Chesapeake. Fifteen 
percent--that is an absurdly large number. We informed EPA over 
a year ago that the number has no basis in actual practice and 
grossly exaggerates EPA's estimated loadings of nutrient runoff 
from poultry farms. EPA has acknowledged this may be an issue 
but has--the agency has never addressed it satisfactorily.
    We have outlined other concerns in 2 years of comments to 
EPA. These includes EPA's methods to justify its nutrient 
reduction mandates, the threat of Federal backstop requirements 
and sanctions against states that don't meet TMDL milestones, 
and EPA's questionable legal authority to promulgate the Bay 
TMDL in the first place.
    To conclude, EPA should recognize the tools and programs 
that are working in Virginia and across the watershed. Imposing 
heavy-handed mandates based on questionable data and modeling 
assumptions burdens family farms with few real benefits for 
water quality. Future progress is best achieved through 
consistent and reliable cost-share funding, more collaboration, 
and strong technical assistance through local conservation 
agencies. We are ready to do more, but we must focus on what 
actually works and what is economically feasible. Thank you and 
I would be pleased to answer any questions you may have.
    [The prepared statement of Mr. Bauhan follows:]

    Prepared Statement of Hobey Bauhan, President, Virginia Poultry
 Federation, Harrisonburg, VA; on Behalf of National Chicken Council; 
      National Turkey Federation; U.S. Poultry and Egg Association
    Chairman Thompson, Ranking Member Holden, and Members of the 
Subcommittee, thank you for inviting me to testify on the Chesapeake 
Bay Total Maximum Daily Load (TMDL). I am Hobey Bauhan, President of 
Virginia Poultry Federation (VPF), a nonprofit, statewide trade 
association representing all sectors of the poultry industry since 
1925. VPF's members include poultry processors, poultry farmers and 
allied companies that provide goods and services to the poultry 
industry. I am also testifying today on behalf of the National Chicken 
Council, the National Turkey Federation and the U.S. Poultry and Egg 
Association, the leading poultry trade associations in the United 
States.
    The National Chicken Council (NCC) represents the vertically 
integrated companies that produce, process and market more than 95 
percent of the young meat chickens (broilers) in the United States. NCC 
serves as the industry's voice in Washington in the development of 
national legislative and regulatory policy.
    The National Turkey Federation (NTF) represents nearly 100 percent 
of the turkeys produced in the United States, including all segments of 
the turkey industry from breeders and hatcheries to growers and 
processors. Like the other poultry organizations, NTF has strong 
membership support from companies allied to the poultry business.
    The U.S. Poultry and Egg Association is the world's largest poultry 
organization, whose membership includes producers of broilers, turkeys, 
ducks, eggs and breeding stock, as well as allied companies. The 
association focuses on research, education and technical services, as 
well as communications to keep members of the poultry industry current 
on important issues.
    Poultry contributes more than $1.5 billion annually to the Virginia 
economy, supports the livelihood of some 1,100 family farms and employs 
more than 10,000 people. The poultry industry, which has an overall 
economic impact in Virginia in excess of $1.5 billion, generates 
significant farm income that helps keep farmland in production and slow 
conversion of farmland for other less environmentally friendly uses, a 
benefit acknowledged by many, including the EPA Administrator.
Poultry Industry Environmental Stewardship
    The Chesapeake Bay is an iconic water body with a rich history. In 
a May 2009 Executive Order, President Obama stated, ``The Chesapeake 
Bay is a national treasure constituting the largest estuary in the 
United States and one of the largest and most biologically productive 
estuaries in the world.'' The Bay is indeed a tremendous natural 
resource. It deserves our active stewardship. However, we believe EPA's 
approach in the Chesapeake Bay TMDL raises significant technical, 
policy and legal questions, and imposes unnecessary costs and burdens 
on agriculture, without generating meaningful results for the 
environment.
    States and the District of Columbia that are part of the Chesapeake 
Bay watershed have worked cooperatively on strategies to improve the 
Bay since the 1980s. Much progress has been made to reduce nitrogen and 
phosphorus discharges from wastewater treatment plants, and in 
implementing agricultural and urban best management practices through 
voluntary and regulatory programs. However, litigation over failure to 
reach certain water quality goals has led EPA to develop a Chesapeake 
Bay TMDL. This strict ``pollution diet'' sets new limits on nutrient 
(nitrogen and phosphorus) and sediment ``loadings'' into rivers and 
streams throughout the 64,000 square mile Bay watershed.
    Through compliance with existing government regulations and the 
implementation of voluntary practices, the poultry industry in 
Virginia, along with other states in the watershed and across the 
country, has been a responsible and proactive environmental steward. 
The industry has long been part of the solution to a cleaner Bay and 
local waterways. It is our hope that the industry continues to be able 
to provide the rural jobs and economic base for years to come. Please 
consider the following:

In 1995, Virginia's poultry industry received a ``Friend of the Bay'' 
        award from the Commonwealth of Virginia for its voluntary 
        initiative to implement Nutrient Management Plans (NMPs) on all 
        Shenandoah Valley poultry farms by the year 2000, a goal 
        largely achieved.

VPF estimates at least 80 percent of poultry producers in the 
        Shenandoah Valley have constructed sheds for storing poultry 
        litter before it is utilized. (Those with or without sheds must 
        store litter according to state regulatory criteria.)

For feed management, the poultry industry has adopted new feed 
        management practices using phytase as an enzyme in poultry feed 
        resulting in a more than 25 percent, on average, reduction in 
        phosphorus in poultry litter.

VPF has also reached out and collaborated with a wide range of 
        organizations to minimize impacts on our water resources. A few 
        examples include:

     VPF participation in the Virginia Waste Solutions 
            Forum, a collaboration of agriculture, environmental 
            groups, academia, government agencies, and others that have 
            worked since 2004 to identify economically viable solutions 
            for surplus animal manure;

     VPF's founding membership of the Shenandoah Valley 
            Pure Water Forum, another group of diverse interests 
            working collaboratively toward improved water quality;

     VPF participation in a coalition of agricultural and 
            conservation groups that worked successfully together to 
            obtain increased funding for the Virginia Agricultural Best 
            Management Program cost-share program.

    The results of these and other actions are reflected in EPA's own 
estimates that between 1985-2005 nutrient loads from agriculture 
decreased to the Chesapeake Bay, while nutrient loadings from developed 
lands increased by 16 percent. The good news is that the poultry 
industry in the Bay watershed has been moving forward, not backward, in 
improving water quality.
    Virginia's experience shows the appropriate role that states are 
already able to play in water quality regulation and progress versus 
that of Federal EPA. In 1999, the Virginia General Assembly enacted the 
Poultry Waste Management Program (House Bill 1207). This law charged 
the State Water Control Board with developing a regulatory program 
requiring a general permit, incorporating a state-approved, phosphorus-
based, nutrient management plan and mandating adequate waste storage 
for growers.
    This program requires tracking and accounting of litter transferred 
off poultry farms. Growers with 20,000 or more broilers or laying hens, 
or 11,000 or more turkeys, are required to obtain a state-approved 
nutrient management plan and file for the general permit. This 
requirement is at nutrient levels far below the threshold at which 
Federal regulations define a Concentrated Animal Feeding Operation or 
CAFO. These nutrient management plans and nutrient controls are in 
place at more than 80 percent of all family farms in the state. Only 
the very smallest growers are not under this framework.
    Furthermore, the State Water Control Board recently adopted 
amendments to the Virginia Poultry Waste Management Program to impose 
additional regulatory requirements upon litter transporters and non-
poultry farmers that receive poultry litter for use on their farm. The 
regulation now imposes enforceable requirements governing ``end-users'' 
land-application and storage of poultry litter.
    In addition, poultry processors are being required, with no cost-
share funding, to spend millions of dollars on wastewater treatment 
plant and stormwater upgrades. New permits must meet close to ``limits 
of technology'' reductions for total nitrogen, in some cases reducing 
nitrogen by 95 percent--99 percent at a cost of up to $3 million per 
plant. This is on top of previous reductions in phosphorus to limits as 
low as 0.1 mg/liter that cost upwards of $2 million for some plants.
    In light of these and other efforts highlighted above, Virginia's 
poultry industry continues to be a responsible and proactive 
environmental steward on a voluntary basis and through compliance with 
government regulations.
Selected Industry Concerns
    Yet, despite the steps the industry has taken to minimize or 
eliminate water quality impacts, the Bay TMDL sets unprecedented 
Federal nutrient-reduction targets for states like Virginia that could 
adversely impact agriculture. EPA has made it clear that it will:

tie its strict nutrient ``diet'' to an extremely ambitious framework of 
        Federal permitting and paperwork requirements that expand the 
        Federal CAFO universe;

make questionable changes to nutrient management plans;

impose more costly controls and additional enforcement.

    This will not necessarily achieve meaningful environmental progress 
in the future.
    We also believe that EPA's approach to the Bay TMDL may exceed the 
authority granted to the agency by Congress. The Clean Water Act 
prescribes specific requirements and procedures for EPA and states to 
develop TMDLs for impaired waters, yet it appears that the agency may 
not have followed them. We will continue to monitor EPA's legal 
authority on this issue.
    With respect to the development of the TMDL, while the poultry 
industry has expressed several of its concerns to the agency in the 
past year, EPA provided very little time to study and provide input on 
the Bay TMDL. A mere 45 days of public notice and comment is inadequate 
and inappropriately brief to receive the critically important input on 
the massive, complex materials with notice posted by EPA in the Federal 
Register on September 22. The draft TMDL document itself was 370 pages, 
with 22 appendices, consisting of 1,672 pages. It contains highly 
technical information that made it impossible for citizens to analyze 
this volume of material and correctly assess its impact within 45 days. 
Even with the short comment period, EPA received more than 1,120 
comments.
    Moreover, the poultry industry believes that the agency's policy of 
threatening TMDL ``backstops'' is counterproductive. The term 
``backstops'' refers to the tightest possible limits on point source 
permits. The agency's proposed backstops called for greater nutrient 
reductions at municipal wastewater treatment facilities and greater 
regulation of Animal Feeding Operations (AFO's), while both wastewater 
plants and poultry AFO's in Virginia have already complied with 
stringent regulatory requirements at considerable expense. There are 
legitimate questions of the authority of EPA to require Clean Water Act 
permits for AFOs.
    The poultry industry is also concerned about the accuracy of EPA's 
``Scenario Builder'' data input tool used to inform the Chesapeake Bay 
Model and the TMDL's targeted nutrient reductions. It is essential that 
the assumptions in these tools are correct so that solutions can be 
tailored to actual problems. Yet EPA's required nutrient reductions 
throughout the watershed are based on flawed assumptions in the 
agency's model regarding manure management practices in the poultry 
industry. In one instance, the agency estimated that 15 percent of all 
manure from poultry farms is lost and runs off into waterways in the 
Chesapeake Bay. This is an absurdly large number and not based on 
actual data. The poultry industry informed EPA that not only did the 
number have no basis in actual practice, but it grossly exaggerates 
EPA's estimated loadings of litter run-off from poultry farms. While 
EPA has recognized its estimate was potentially exaggerated, an entire 
year has elapsed and the agency has failed to address the flawed data. 
Voluntary conservation and nutrient management practices must also be 
accounted for in the Chesapeake Bay Model, and the model must utilize 
up-to-date animal production data. At this point, EPA does not use such 
data.
    Finally, it is important for EPA to obtain all applicable data on 
poultry litter transport and appropriately factor it into the agency's 
modeling efforts and loadings estimates. Now that Virginia has adopted 
its new ``end-user'' regulations, all litter applied on farmland 
anywhere in Virginia must follow management practices that limit 
phosphorus buildup in soils and address other environmental risk 
factors. It is essential that EPA provides industry with proper credit 
in the model for implementing these best management practices.
Cost, Economic and Social Impacts
    Tens of billions of dollars have already been spent on efforts to 
improve the Chesapeake Bay. The poultry industry has been a willing and 
proactive steward of the environment, and allocated millions of dollars 
toward this objective, many directly related to restoration efforts for 
the Bay. The industry will continue to play an active role, guided by 
scientific research, technological advancements and cost-feasibility 
considerations.
    The Chesapeake Bay watershed TMDL and associated mandates will 
require a commitment of tremendous resources at a time when our economy 
is already struggling. Poultry processors and farmers operate on thin 
margins, and cannot bear the burden of substantial new regulatory 
costs, especially if they cannot be scientifically justified. Such 
costs will make the Bay region struggle to be competitive against other 
poultry production regions.
    Causing the poultry industry to shift production to other areas of 
the nation or oversees would be damaging for the Bay area economy. The 
industry currently provides substantial farm income that helps maintain 
well-managed farmland, which is widely recognized as a one of the best 
land-uses for maintaining water quality. Jeopardizing the economic 
viability of the poultry industry will only lead to more farm land 
being converted into municipal development, such as residential 
neighborhoods and shopping malls.
Recognizing Successful State Programs
    Rather than exceed the limits of its regulatory authority, EPA 
should recognize and reward the efficiency and effectiveness of state 
programs. For example, the Virginia Poultry Waste Management Act and 
regulations can in some cases be more effective for water quality 
protection than Federal CAFO permits. Ultimately requiring more farmers 
to be covered under Federal CAFO permits, which are not based on sound-
science, only burdens them with more paperwork and does nothing for 
water quality.
Conclusion
    EPA should do more to recognize the tools and programs that are 
working in Virginia, in other states in the Chesapeake Bay watershed, 
and across the nation. Overrunning states with a heavy handed Federal 
permitting and penalty scheme--using the Federal TMDL's questionable 
data and modeling assumptions--only imposes more costs and paperwork 
for family farms, and achieves marginal benefits at best to water 
quality.
    Future progress is best achieved through consistent and reliable 
cost-share funding, more collaboration and strong technical assistance 
through local conservation agencies. We're ready to do more, but we 
must focus on what actually works and what is economically feasible.
    I'd be pleased to answer any questions. Thank you again for the 
opportunity to share our views.

    The Chairman. Thank you, sir. And now with the consent of 
the Ranking Member we are going to recognize Mr. Goodlatte for 
5 minutes.
    Mr. Goodlatte. Well, thank you for your forbearance, Mr. 
Chairman. I do have to get to something else and I wanted to 
have an opportunity to ask a couple of questions. Mr. Hebert, I 
really appreciate your work on this--the statistical 
information that you have provided is pretty compelling. And 
since you work with many groups that are not solely in the 
Chesapeake Bay watershed I would like to direct this question 
to you.
    The EPA has stated in the documents called, Coming Together 
for Clean Water, EPA's Strategy to Protect America's Waters, 
that ``The Chesapeake Bay watershed will be a model for 
watershed protection in other parts of the country.'' Does this 
statement concern you and do you think that farmers and 
ranchers in other parts of the country would want to abide by 
the Draconian requirements that the Chesapeake Bay producers 
will have to meet under this TMDL?
    Mr. Hebert. Yes, it is--that is a very fair statement and 
the answer is yes. Agriculture as a whole knows what happens in 
the Chesapeake Bay could be facing them throughout the rest of 
the country and very much want to make sure this is done right.
    Mr. Goodlatte. It is really a model in that the EPA has 
said as much. Mr. Bauhan, welcome. It is always good to see you 
and I am glad to have one of my constituents here today. In its 
final implementation plan, Virginia included a new commitment 
to pursue state legislation that would mandate enforcement 
controls on agriculture if an agricultural load target for a 
particular milestone period is not met, provided that 
sufficient funding is provided. The first milestone is in 2013, 
just 2 years from now. Do you have concerns about this 
commitment by the state, and do you think Virginia can achieve 
their load requirement to prevent this new legislation?
    Mr. Bauhan. I think as we heard from the Secretary that 
Virginia worked under extremely difficult circumstances to deal 
with the cards they were dealt with them, yes, I do have 
significant concerns.
    Mr. Goodlatte. And do you think it is likely that Virginia 
farmers can meet the commitments in that short period of time?
    Mr. Bauhan. Well, I--Virginia farmers are committed to 
conservation and in playing their appropriate role, but we have 
to recognize that farmers are operating on very thin margins to 
help feed this country and the world. And that it will impose 
very much difficulty upon them if it comes down to a mandate.
    Mr. Goodlatte. And then I will just go down the row there 
starting with you, Hobey, and following up on that. The EPA has 
stated that the Phase II Watershed Implementation Plans be 
developed by the end of this year. What exactly does that mean 
for you?
    Mr. Bauhan. Well, I am not sure exactly what it means. 
There really hasn't been a whole lot done on that so far as we 
come to the conclusion of the first quarter of the year. I am 
certainly waiting for more information as to the detail of what 
exactly that does mean, but I am concerned that it will mean a 
rationing down of mandates and expectations, and potential 
consequences of----
    Mr. Goodlatte. The rationing up?
    Mr. Bauhan.--mandates. I think that is what I meant to say. 
Rationing up.
    Mr. Goodlatte. Thank you--those regulations tightening 
closer around you and the farmers that your industry relies 
upon.
    Mr. Bauhan. Yes.
    Mr. Goodlatte. Mr. Hebert?
    Mr. Hebert. I think it means that there--that the 
implementation of the numbers in the TMDL, as it is currently 
constituted, which is not just the single number for nonpoint 
sources and point sources at the state level but the TMDL 
allocates them all the way down to the individual farmer level, 
individual community level, and those numbers are going to 
start to be made real right now. And it is a concern.
    Mr. Goodlatte. And the concern that you expressed earlier 
that the costs are going to start hitting now----
    Mr. Hebert. Right now. Right now.
    Mr. Goodlatte. The benefits we are not going to know for 
years.
    Mr. Hebert. Any farmer, any sewage treatment plant that is 
serious about meeting these commitments has to begin planning 
of for the investments to meet them now.
    Mr. Goodlatte. Ms. Hoot?
    Ms. Hoot. I think it is a tremendous task and we really 
don't know what that task is, and we won't know what the final 
figures are until after July. Certainly from an agricultural 
standpoint there are 58 TMDLs to be produced in Maryland, and 
we don't have the staffing level within the soil and 
conservation districts who have the expertise to work with the 
agricultural community. So, what is going to end up happening, 
we either meet the deadline with a rushed product that maybe 
doesn't do as good a job, or we could spend a little bit of 
time and do something that is more accurate and more likely to 
succeed.
    Mr. Goodlatte. Mr. Shaffer?
    Mr. Shaffer. I am not sure we can deal with Phase I. So 
Phase II is way beyond even our comprehension. I would say what 
is happening is when we look at the conservation districts now 
they are spending so much of their time trying to educate 
farmers as far as what the regulations are coming down rather 
than actually doing their prime objective which is to help the 
farmer to become a better environmental steward of the land. I 
think we have proven beyond any doubt that we want to clean up 
the waters of the United States. Just if nothing else for the 
fact the amount of Best Management Practices like cover 
cropping which we aren't mandated to do we do it voluntarily. 
We do it because we care about the environment and we want to 
do a better job in cleaning it up. I think that we have already 
proven that our heart is in the right place on this issue.
    Mr. Goodlatte. Good point. Every farmer has an incentive to 
conserve the use of fertilizer, to preserve their land from 
eroding, from washing away, and we certainly want to support 
that, give good information, and help in any way we can. But 
the mandates have untold consequences. Mr. Chairman and Ranking 
Member, thank you. This has been an excellent hearing and I 
appreciate your allowing me to jump ahead here.
    The Chairman. Thank you, sir. Now I recognize the Ranking 
Member for 5 minutes.
    Mr. Holden. Thank you, Mr. Chairman. Mr. Shaffer, good to 
see you again. Mr. Shaffer, Mr. Perciasepe told the gentleman 
from Indiana that during development of the state plans there 
was consultation with the agricultural community. And in your 
oral remarks you said there really wasn't a dialogue. It was 
just basically my way or the highway. Can you elaborate? Did 
the Pennsylvania Farm Bureau or the Pennsylvania producers try 
to reach out to DEP and EPA to say give us some guidance and 
you were told to submit a plan in its entirety and we will 
either approve it or disapprove it? Is that what you said?
    Mr. Shaffer. That is exactly what happened because there--
it was such a daunting task to come up with this WIP plan to 
begin with. The State DEP's opinion that we ought to ask about 
certain aspects of it so we don't have to repeat ourselves and 
we can do it right. But whenever we would reach out and ask 
about certain aspects of the plan EPA said submit the plan in 
its entirety and we will tell you whether it is acceptable. But 
we found out very quick it wasn't acceptable.
    Mr. Holden. No guidance, no consultation, just my way, or 
the highway?
    Mr. Shaffer. Correct.
    Mr. Holden. I believe Mr. Perciasepe also said that there 
was consultation with the universities. I know you are close to 
Penn State. Do you have any idea if Penn State had any input at 
all or any discussions with the plan?
    Mr. Shaffer. It is--the only role that I know right now 
that Penn State is playing is trying to do, through extension 
service, trying to help conservation districts also educate 
farmers as far as what the regulations are that are coming 
down. Penn State has done a lot of research and has proven over 
a 20 year period how you can clean up a small watershed or 
large watershed with nothing but Best Management Practices. 
They have proven that and they have that documented. It is a 
matter that we have to decide what course we are going to take 
when we do this.
    Mr. Holden. So, but when the state was developing the plan 
you don't think that wealth of knowledge at Penn State was 
used?
    Mr. Shaffer. I don't believe that was used at all because 
the model is so flawed. You know, the only thing I can look at 
is the way this is done, and the only thing I can analyze this 
as--compare it to if I would take a gun and hold it to 
somebody's head and tell them to go rob a convenience store. 
Would that person be thought of as the person responsible for 
voluntarily robbing the convenience store? I don't think so and 
I think that is the way the states are being treated. There is 
a gun being held to their head until they come up with a plan 
that EPA feels is desirable.
    Mr. Holden. And finally, Mr. Shaffer, you worked very 
closely with Mr. Goodlatte and I in the 2008 Farm Bill that we 
put together the Chesapeake Bay Watershed Initiative. How has 
that been working in Pennsylvania? I know Chief White 
elaborated on watershed--why, how successful it has been. How 
have Pennsylvania producers taken advantage of this program?
    Mr. Shaffer. That has been very valuable. I commend the 
whole Committee for the work they did in providing the funds in 
the farm bill because we know how important it is. You can go 
through there. That money through EQIP and things like that has 
put an--manure storage on a lot of farms so that they don't 
have to spread on frozen ground in the winter. They are able to 
hold that liquid manure until spring or fall and apply it on 
the--we need to do it at a pace and in a way that we are going 
to be able to stay on the farms economically. If we can't it 
really doesn't matter.
    Mr. Holden. Thank you. Thank you, Mr. Chairman.
    The Chairman. I thank the gentleman. I recognize the 
gentleman from Indiana for 5 minutes.
    Mr. Stutzman. Thank you, Mr. Chairman, and thank you panel 
for being here. I enjoyed your testimony today and I think it 
is very practical and sometimes when you get outside the 
Beltway you hear more commonsense, and I think that is what we 
need. I am glad you are here today.
    Not every Member on this Subcommittee or even the 
Agriculture Committee represents a district in the Chesapeake 
Bay watershed and someone asked why a Member like myself in 
Indiana would really care about this situation. And I guess I 
would ask, why should I care? And I will just go down the line 
and any one of you can answer that starting with Mr. Shaffer.
    Mr. Shaffer. I think if you look right in where this 
started with the Executive Order, if you read the Executive 
Order it states right in there this could be a model to be used 
across the United States. Whatever is happening to the six 
states in this watershed we have already seen it. The Executive 
Order has now been decreed for the Gulf of Mexico watershed. 
There are 30+ states and yours is one of them that would be 
rolling into that. So as I shared with my colleagues of other 
states a year ago, I said if you snooze on this issue you are 
going to wake up next year and it is going to be the Gulf of 
Mexico watershed. And sure enough that is just what exactly has 
happened.
    Mr. Stutzman. Thank you.
    Ms. Hoot. I would like to agree with that comment that you 
are definitely going to be following in our footsteps not that 
I would like for us to be the guinea pigs, but I do think that 
we are learning ways to do this better. Our showcase 
watersheds, we are learning how to work with every farmer and 
do everything. There are a lot of farmers to work with, and I 
think we will come up with some good models to help you as long 
as you give us the resources so we can learn how to do it 
right.
    Mr. Stutzman. Yes.
    Mr. Hebert. To put a little more fine point on what Mr. 
Shaffer said, it is the dissolved oxygen standards in the deep 
waters of the Chesapeake Bay that are driving EPA to push the 
states to get farmers to do things all the way up in New York 
and throughout Pennsylvania, and beyond the Shenandoahs in West 
Virginia in portions far away from the Bay. It will be the same 
dissolved oxygen concerns in the northern Gulf of Mexico that 
will drive this right up past the Wabash. And I imagine right 
into your farmer's districts and their discharges, whether or 
not the waters that they are actually farming around are 
impaired or not.
    Mr. Stutzman. Yes.
    Mr. Hebert. And it is a model that EPA is trying to use and 
aggressively pursue and it can be done right. We can make this 
work we believe, or it can be done wrong, and we are worried 
about how it is being done in the Bay.
    Mr. Bauhan. Yes, I would like to think there are a lot of 
ancillary issues that go along with this that have national 
impacts. I am well acquainted with my counterpart in Indiana in 
the poultry industry and I understand you have a significant 
poultry industry there. But some of the things that we are 
concerned about are plans for EPA to expand their universe of 
farms that would be covered under CAFOs.
    Now, certainly there was a lawsuit announced yesterday that 
will impact that. Also there are discussions and EPA has 
advocated a very, very stringent level of--for a phosphorous 
standard that could severely restrict the ability of farmers to 
apply manure on farmland. And those efforts, while I think they 
are being driven by the Chesapeake Bay TMDL will have national 
implications.
    Mr. Stutzman. I agree and just kind of a follow-up 
question, as you know the EPA backstopped West Virginia's plan 
to require that 75 percent of West Virginia's small animal 
feeding operations should be treated in the TMDL as if they 
were regulated CAFOs. Do you all have the same concerns EPA 
would take similar backstop actions in your respective states?
    Mr. Bauhan. Well, as I have mentioned in my testimony, 
Virginia already has a permitting program for animal feeding 
operations. It goes down to a very small level of--in terms of 
size. And it has all the BMP's in it that would be in the 
Federal CAFO permit. So really from a water quality protection 
standpoint the CAFO program does not add anything that we don't 
already have in Virginia. It just adds a lot of bureaucracy and 
costly red tape and more severe penalties that could have an 
adverse impact on our producers.
    Mr. Hebert. Yes. EPA has made it very clear that they want 
to amend the CAFO rule so that it is easier nationwide to 
designate smaller AFOs, medium-sized AFOs as CAFOs and subject 
them to the permit requirements, so yes, very much so.
    Mr. Stutzman. And that is my fear is that you know I come 
from the state legislature in Indiana and you--we have varying 
operations across the state. And you know there is--counties 
have different challenges from top to bottom and we are just 
trying to put everybody in the same box that is going to 
continue to squeeze agriculture more and more. So thank you, 
Mr. Chairman. I yield back.
    The Chairman. I thank the gentleman. My Congressional 
district, it speaks to the question of why should somebody else 
outside of the Chesapeake Bay be concerned. And I put it in the 
context of my farmers, the agricultural community. Because my 
district in Pennsylvania I have the Chesapeake Bay watershed. I 
have the Gulf of Mexico watershed. I have the Great Lakes 
watershed. And I don't care where my farmers are, they are 
aware of what is going--you know the ones that are not 
currently impacted by what is going on in the Chesapeake Bay 
they clearly, those other farmers, all the farmers understand 
and they are very concerned. They see these mandates and they 
are all concerned about the environment as well.
    I consider farmers the original environmentalists. They 
live on the land; they love the land. Mr. Shaffer, you talked 
about the dichotomy between the conditions of the Susquehanna 
River when you were growing up versus the state of water 
quality today. Other than your anecdotal evidence are you aware 
of any hard data suggesting that the Susquehanna's water 
quality is actually improving?
    Mr. Shaffer. Yes, sir. The Susquehanna River Basin 
Commission has--I believe it has since in the mid 1980's they 
have had six monitoring stations on the Susquehanna River 
Basin. And what they have shown in their data that all six of 
those stations have shown a very sizable reduction in nitrogen. 
All six of them have shown a very sizable reduction in 
sediment, and four out of the six have shown sizable reductions 
in phosphorus, and the other two have shown no increase. They 
have held their own in those two monitoring stations. So that 
shows me what the progress has been. Also, I can just look at--
this is where I get confused. I read an article just last year 
in the Baltimore Sun that said it is about the Chesapeake Bay: 
it has been the best fishing and crabbing and oyster season in 
30 years. And that is what we seem to keep focusing on or is to 
get the fishing and the oysters back. Well, if it has been the 
best in 30 years it tells me something is being done right. 
Maybe that is just too simplistic, but it is just things like 
that that I look at makes me feel that we are on the right 
track.
    The Chairman. The NRCS draft report found that sediment 
contributions from the--actually I think I am taking this from 
your written testimony, Mr. Shaffer, cultivated cropland from 
the bays, rivers, and streams were reduced by 64 percent 
nitrogen--nitrogen by 36 percent and phosphorus by 43 percent 
and this is for all the members of the panel. Are you--you know 
I--last week when Ms. Jackson was here I really tried to push 
her for data that showed longitudinal studies and analysis that 
showed--you know we know where the Bay was. It was unfortunate. 
It is tragic, but we know for 30 years we have invested 
literally hundreds of billions of dollars. And the EPA is 
involved, the USDA has been key with their work, the Army Corps 
of Engineers and I just had one of the Colonel's in from the 
Baltimore regional office. They have Chesapeake Bay initiatives 
that they have been investing tremendous amounts of money, 
monies that have been flowing. There are municipalities used; 
they are investing and a lot of money coming from all over the 
place. So and I haven't gotten good data from the EPA. I want 
to know are there--what other statistics are you aware of 
showing quantifiable progress in both the Susquehanna River and 
the Bay?
    Ms. Hoot. I certainly, to Mr. Shaffer's point, we have seen 
an increase in oysters and recovery, some in crabs and rock 
fish has been very successful. So we definitely have seen some 
quantifiable areas there and we just know that by the Best 
Management Practices that we are putting on when you plant 
400,000 acres of cover crop, you know there is going to be 
reduction of nutrients getting into the Chesapeake. So we are 
very comfortable that there is progress being made and the 
water quality is improving.
    But one of the things I would like to point out is if you--
the Corsica River watershed is a pretty small watershed over on 
the Eastern Shore and if you look at the work they have done in 
that watershed it shows that even in that small watershed work 
that takes place on the land of some areas of that small 
watershed today it is going to be 20 years before that impacts 
the water quality in the Chesapeake Bay. I think a lot of what 
we have done has not showed up in the watershed yet. So, I 
think there is a lot about to happen and if we continue our 
good work it will continue.
    The Chairman. Allowing time to see some of those 
quantifiable outcomes to occur. I would agree. Mr. Hebert?
    Mr. Hebert. Mr. Chairman, I would just add I am not an 
expert in the data about the Chesapeake Bay. It is clear to me 
though that it is one of the things that we are not lacking 
which is data. And the Chesapeake Bay program will have a lot 
of information about how the quality of the Bay has progressed. 
What we haven't had is a good tool to be able to link up in any 
kind of comprehensive sense what farmers are doing and how that 
is affecting the Bay. And that is why we are very excited about 
this CEAP analysis because now we can say exactly what our 
farmers are doing in a statistically valid way, and link that 
up to reductions and loads leaving their farms and reaching the 
Bay and use the models to predict what that means for water 
quality and ultimately observe it in the way that Mr. Shaffer 
and Ms. Hoot are talking about. And so we are excited about the 
capability that has been developed. But to your basic question 
I believe that with some work we could get you some good 
numbers about how the Bay has progressed over time and it has 
certainly gotten better in many, many ways.
    The Chairman. Very good. Mr. Bauhan, any thoughts?
    Mr. Bauhan. I don't really have anything to add on that 
question. Thank you.
    The Chairman. Okay. Very good. Well, I just want to wrap up 
with one question. Mr. Shaffer and bringing back to my home 
state--no actually let me throw this out because we have a 
number of states represented here: Pennsylvania, Maryland, 
Virginia, with your nutrient policy work impacting all the--
what in your view would be the cumulative result on agriculture 
in your respective states should the TMDL go into effect as it 
is proposed? Start with Pennsylvania and we will work our way 
across.
    Mr. Shaffer. Are you asking what I feel the----
    The Chairman. Yes.
    Mr. Shaffer.--consequence is with?
    The Chairman. Of the TMDL if it goes unchecked and is on 
agriculture.
    Mr. Shaffer. I feel the consequence is it is going to drive 
a lot of the farmers in Pennsylvania just plain out of business 
especially--we have a lot of Plain Sect farmers also in 
Pennsylvania who are very, very concerned because they don't 
know if they are able to cope with what is going on. Understand 
one thing and I don't know if this is their ultimate goal. It 
seems in my opinion it is. They would like to require every 
farmer to get an NPDES permit, a National Pollutant Discharge 
Elimination System. That is a very expensive permit to get. It 
is very expensive to maintain. The paperwork that goes with 
that is tremendous and it really opens you up of a citizen 
suit. So, the bottom line of how it is going to help the Bay it 
is a paper fix in my opinion. I don't think it has anything to 
do with improving the Bay. But what it will do it will put some 
farmers out of business. I am pretty sure about that and if 
that wasn't the case, the members of Pennsylvania Farm Bureau 
wouldn't be nearly as concerned as they are today.
    The Chairman. Very good. Ms. Hoot?
    Mr. Hoot. I think there is a tremendous amount of concern 
amongst the agricultural community about what it may mean. As 
we look at the Phase I WIP in Maryland, the milestones that are 
there for the next 2 years are doable, but it is only if the 
resources are there for technical assistance and financial 
assistance. I think our biggest concern is because it is more 
cost effective to do Best Management Practices on agriculture 
than stormwater, sediment, and all these other urban practices. 
But what happens when they don't do their part? And we have a 
major concern because they certainly haven't done it yet. Those 
areas have gone backwards. I think our biggest concern is what 
happens down the road when the Bay is still not clean because 
agriculture is doing its part but everybody else probably 
isn't. So that is a concern we have.
    The Chairman. All right, thank you. Mr. Hebert?
    Mr. Hebert. I think four things will happen. Farmers are 
going to adopt a lot of practices. We know that and they will 
continue to do that. They will reduce loads. Because the TMDL 
very well might be wrong in terms of the way it has 
characterized agriculture's contribution to the Bay, they still 
might not be able to say using the TMDL and the Bay models that 
agriculture is meeting--helping to meet the water quality 
standards in the Bay. And if that happens under the WIPs the 
states are told, have agreed to, seek, explore seeking 
mandatory controls on farmers under state law to control those 
discharges, all of which may prove to be unnecessary because 
the Bay model as it is applied in this case to agriculture is 
wrong. And we will all be back in this room 2 or 3 years from 
now having to talk about it all again.
    Mr. Bauhan. Someone earlier indicated that farmer's biggest 
fear is not taxes or other issues, but government regulation 
and I think we are in a situation where some farmers are ready 
to hang it up as it is. The talk in the farm community back in 
the Shenandoah Valley, where I come from, is the fact that EPA 
has flown airplanes over the valley, doing surveillance of 
farms and then coming through with inspections of agricultural 
operations. And so the biggest fear is that regulations will 
get ratcheted up as Mr. Goodlatte indicated and this will be a 
tightening noose around operations that are already under very 
thin margins. And you know that it will result in more farmers 
going out of business and conversion of farmland to other less 
environmentally friendly uses, which is not going to be good 
for the Chesapeake Bay.
    The Chairman. Thank you. Well, before we adjourn I invite 
the Ranking Member to make any closing remarks he has. None? 
Well, I want to thank the panel certainly for your expertise, 
your commitment to agriculture, for being here on a very 
important issue. You know, as Mr. Shaffer well remarked, 
America is blessed with the highest quality and the most 
affordable food supply anywhere in the world, and that is 
something we can never take for granted and we have to watch 
where we create regulatory burdens that would prevent that from 
happening. This is--the Chesapeake Bay Initiative, the TMDL is 
something that--cleaning up the Bay is very important but it is 
an issue that needs to be done in a way that is very 
transparent and a way that is accountable and takes into 
consideration that we have to have--always have a balance 
between the environment and the economy. And the economics of 
an affordable food supply, USDA is an important partner in 
that, and frankly, it is a partner that I view and I have 
observed to be a collaborative, progressive problem solver 
working with our agriculture community. On the other hand, my 
observations with Environmental Protection Agency, at least it 
is perceived by many, comes across as a punitive mandate. In 
this situation where the EPA has imposed and have stated with 
no provided cost-benefit analysis, a basic element of any time 
that you are looking at imposing these types of changes. So I 
thank the panel. Under the rules the Committee, the record of 
today's hearing will remain open for 10 calendar days to 
receive additional material and supplementary written responses 
from the witnesses to any question posed by a Member. This 
hearing of the Subcommittee on Conservation, Energy, and 
Forestry is adjourned.
    [Whereupon, at 12:28 p.m., the Subcommittee was adjourned.]
    [Material submitted for inclusion in the record follows:]
      
Submitted Letter by Keith Curley, Director of Government Affairs, Trout 
                               Unlimited
March 15, 2011

Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.;

Hon. Tim Holden,
Ranking Minority Member,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.

RE: Hearing to review the Chesapeake Bay TMDL, agricultural 
conservation practices, and their implications on national watersheds

    Dear Chairman Thompson and Ranking Member Holden:

    I am writing on behalf of Trout Unlimited to express our support 
for finalizing and implementing the Chesapeake Bay Total Maximum Daily 
Load (TMDL). The TMDL would require reductions in nitrogen, phosphorous 
and sediment pollution flowing to the Chesapeake Bay. The health of the 
Chesapeake Bay is dependent upon a steady source of clean, cold water 
from its headwater streams. The TMDL will help reduce pollution 
throughout the Chesapeake Bay watershed, including headwater areas 
where water quality improvements will benefit native brook trout and 
other wild trout.
    Trout Unlimited's mission is to conserve, protect and restore North 
America's trout and salmon fisheries and their watersheds. Trout 
Unlimited has more than 10,000 members living in the Chesapeake Bay 
watershed and a long history of grassroots habitat restoration work in 
the Bay's headwater streams. On average, each Trout Unlimited chapter 
contributes more than 1,000 volunteer hours working with government 
agencies, private landowners, local schools, and others in their 
communities to improve rivers and streams though clean-up days, tree 
plantings and other activities.
    Throughout the 64,000 square mile Chesapeake Bay watershed, 
hundreds of mountain streams and valley spring creeks provide habitat 
for native brook trout and contribute clean, cold water to the 
Chesapeake Bay. However, the same pollutants that plague the Chesapeake 
Bay impair trout habitat in the headwaters. Nutrient pollution fuels 
algal blooms, which deprives the water of dissolved oxygen. Reductions 
in dissolved oxygen negatively affects trout, a species that requires 
relatively high amounts of dissolved oxygen to survive.
    Sedimentation also has serious impacts on trout habitat. Brook 
trout are highly reliant on clean substrate for spawning and rearing, 
and a great deal of their decline is due to increased sedimentation and 
water temperatures.\1\ Increased sediment loads can cause fish 
mortality by ``clogging gills and opercular cavities'' and also create 
distributional changes such as ``avoidance behavior, reduced feeding 
and growth, respiratory impairment, and general physiological stress 
that can lead to a reduced tolerance to diseases and toxicants.'' \2\ 
The negative effects of increased sedimentation on brook trout 
populations in particular are well documented in the scientific 
literature.\3\ Controlling sediment is critical to maintaining habitat 
for brook trout and other coldwater species.
---------------------------------------------------------------------------
    \1\ Eastern Brook Trout Joint Venture, Status and Threats. 
Available at http://www.easternbrooktrout.org/docs/
brookiereportfinal.pdf.
    \2\ Jeffrey W. Lilly, Regulatory Violations in the Mining Industry: 
Mountaintop Removal Mine Valley Fills Violate the Federal Clean Water 
Act. 100 W. VA. L. Rev. 691, 728-29. (1998) (summarizing a telephone 
interview with Dan Ramsey, Environmental Contaminants Specialist, U.S. 
Fish and Wildlife Service).
    \3\ See, e.g., S.M. Reid, S. Stoklosar, S. Metikosh, & J. Evans, 
Effectiveness of isolated pipeline crossing techniques to mitigate 
sediment impacts on brook trout streams, Water Quality Research Journal 
of Canada. Vol. 37, No. 2, pp. 473-88 (2002) (noting that stream 
populations of brook trout are sensitive to sediment-caused changes to 
habitat, including increased embeddedness of bed material); J.P. Hakala 
& K.J. Hartman, Drought effect on stream morphology and brook trout 
populations in forested headwater streams, Hydrobiologia. Vol. 515, pp. 
203-13.
---------------------------------------------------------------------------
    Trout Unlimited is working extensively throughout the Bay watershed 
to restore trout habitat and reduce pollution. In addition to numerous 
grassroots-level projects, TU currently operates three watershed-scale 
conservation efforts in the Chesapeake Bay watershed: instream and 
riparian habitat restoration in cooperation with agricultural 
landowners in the Potomac and Shenandoah River headwaters, and 
restoration of streams impaired by acid mine drainage in Pennsylvania's 
West Branch Susquehanna watershed. For example, in West Virginia's 
Potomac River headwaters Trout Unlimited has worked with the Fish and 
Wildlife Service and private landowners to install between 100,000 and 
120,000 feet of livestock exclusion fencing annually over the past 
several years, helping to stabilize streambanks and filter pollutants.
    These restoration efforts have resulted in real, on-the-ground 
improvements to habitat and water quality. Such restoration work is an 
essential component to bringing back healthy trout populations in 
headwater streams and to meeting pollution reduction goals under the 
TMDL. The TMDL will help concentrate attention and funding on 
successful partnerships so that Trout Unlimited and others can 
dramatically increase the amount of restoration work we accomplish in 
the coming years.
    Given the scale of the challenge, however, restoration alone will 
not succeed. Robust restoration efforts must be accompanied by 
effective regulations that reduce pollution levels and prevent new 
sources from undermining hard-earned water quality gains. The TMDL will 
result in an increased level of focus and accountability that helps 
spur water quality and habitat improvements throughout the Bay 
watershed.
    Trout Unlimited supports the TMDL and looks forward to working with 
state, Federal and private partners in the Chesapeake Bay headwater 
areas to achieve pollution reduction goals.
            Sincerely,
            [GRAPHIC] [TIFF OMITTED] T1206.050
            
Keith Curley.
                                 ______
                                 
Submitted Letter by Jon P. Devine, Jr., Senior Attorney, Water Program, 
                   Natural Resources Defense Council
March 15, 2011

Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.;

Hon. Tim Holden,
Ranking Minority Member,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.

RE: Hearing to review the Chesapeake Bay TMDL, agricultural 
conservation practices, and their implications on national watersheds

    Dear Chairman Thompson and Ranking Member Holden:

    On behalf of its members who reside and recreate in the Chesapeake 
Bay watershed, thank you for the opportunity to submit comments for the 
record of your March 16, 2011 hearing on the Chesapeake Bay total 
maximum daily load (TMDL), the pollution cleanup plan for the Bay and 
its tributaries. The Natural Resources Defense Council (NRDC) is a 
national nonprofit environmental organization with 1.3 million members 
and online activists. NRDC uses law, science and the support of its 
members to safeguard the Earth: its people, its plants and animals, and 
the natural systems on which all life depends. One of NRDC's priorities 
is to protect and restore the integrity of water systems that sustain 
and benefit its members. As part of its efforts to achieve this goal, 
NRDC has undertaken a wide range of activities to stem water pollution 
from numerous sources. NRDC has engaged in advocacy with Executive and 
Legislative Branch officials, has produced material for public 
education, and has participated in litigation, all to promote better 
regulation of water pollution.
The Bay TMDL Is Necessary To Restore Health to the Bay and Overcome 
        Decades of Missed Deadlines and Opportunities
    The Chesapeake Bay is the nation's largest estuary and the third 
largest estuary in the world. Considered a national treasure, the Bay 
drains an immense 64,000 square miles in six states: New York, 
Pennsylvania, West Virginia, Delaware, Maryland and Virginia, as well 
as Washington, D.C. The watershed is not only the largest in landscape, 
but also population. The area's population is growing by more than 
170,000 residents a year, and has surpassed 17 million people.
    For more than thirty years, Federal and state governments have 
sought to reverse the decline of the Bay's water quality through 
legislative, regulatory, and voluntary programs. These efforts have led 
to the creation of inter-governmental working groups, a dedicated EPA 
program office, and the amendment of the Clean Water Act with 
Chesapeake Bay-specific provisions. The lack of progress by the states 
in completing TMDLs for these Bay tributaries eventually led to 
litigation, which in turn led to commitments to develop TMDLs for Bay 
waters and tributaries.
    In June, 2000, after decades of effort and enormous expenditures 
failed to achieve the desired restoration of the Bay's health, the 
Chesapeake Executive Council signed the Chesapeake 2000 Agreement. This 
Agreement created new, stronger nutrient and sediment reduction goals, 
buttressed by a package of regulatory and voluntary actions intended to 
either ensure that the 2010 clean up goals would be met, or that EPA 
issued its own TMDL no later than May 1, 2011. In October 2007, ``the 
seven watershed jurisdictions and EPA reached consensus that EPA would 
establish the Bay TMDL on behalf of the jurisdictions with a target 
restoration date of 2025.'' \1\ EPA's release of its final TMDL in 
December 2010 is the culmination of this lengthy process, and critical 
to the ultimate reduction of the excess nutrients and sediment that 
have diminished the health and productivity of this national treasure.
---------------------------------------------------------------------------
    \1\ U.S. EPA, Draft Chesapeake Bay Total Maximum Daily Load, at p. 
1-5 (Sept. 24, 2010) (hereinafter ``Draft TMDL'') (citation and 
footnote omitted).
---------------------------------------------------------------------------
EPA Has a Legal Obligation To Develop the TMDL and Assure It Will Be 
        Achieved
    The Bay TMDL is premised upon, and is essential to implement, EPA's 
general obligations under the Clean Water Act and its specific duties 
concerning the Chesapeake Bay watershed. We strongly believe that the 
Agency's action in establishing the TMDL and insisting on watershed 
implementation plans (WIPs) from the Bay states is consistent with 
sections 303(d) and 117 of the Clean Water Act, the resolution of a 
number of lawsuits concerning the Bay and its tributaries, and EPA 
regulations and guidance.
    EPA notes that it is appropriate for the Agency to establish a TMDL 
under the authority of section 303 of the Act in a situation like that 
in the Bay region:

        where impaired waters have been identified on jurisdictions' 
        section 303(d) lists for many years, where the states in 
        question have decided not to establish their own TMDLs for 
        those waters, where EPA is establishing a TMDL for those waters 
        at the discretion or, and in cooperation with, the 
        jurisdictions in question, and where those waters are part of 
        an interrelated and interstate water
        system. . . .\2\
---------------------------------------------------------------------------
    \2\ Id. at p. 1-13.

    While this is by no means the only circumstance in which EPA needs 
to act, NRDC agrees that the current situation in the Bay demands EPA 
action.\3\
---------------------------------------------------------------------------
    \3\ See generally 33 U.S.C. 1313(d)(2) (concerning EPA action where 
states fail to submit approvable TMDLs); Dioxin/Organochlorine Center 
v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995) (Oregon, Washington & 
Idaho ``requested the EPA to issue the proposed and final TMDL as a 
Federal action under the authority of  1313(d)(2)'').
---------------------------------------------------------------------------
    In addition, NRDC agrees that section 117 and the Agency's TMDL 
authority provide authority for EPA's ``accountability framework,'' 
which includes submission of WIPs, biennial milestones for progress, 
and Federal actions as a consequence of state failures. First, section 
117 directs EPA to ``ensure that management plans are developed and 
implementation is begun by signatories to the Chesapeake Bay Agreement 
to achieve and maintain,'' among other things, ``the nutrient goals of 
the Chesapeake Bay Agreement for the quantity of nitrogen and 
phosphorus entering the Chesapeake Bay and its watershed [and] the 
water quality requirements necessary to restore living resources in the 
Chesapeake Bay ecosystem. . . .'' \4\ Second, as EPA's TMDL guidance 
discusses:
---------------------------------------------------------------------------
    \4\ 33 U.S.C.  1267(g)(1)(A) & (B).

        When a TMDL is developed for waters impaired by both point and 
        nonpoint sources, and the WLA is based on an assumption that 
        nonpoint source load reductions will occur, EPA's 1991 TMDL 
        Guidance states that the TMDL should provide reasonable 
        assurances that nonpoint source control measures will achieve 
        expected load reductions in order for the TMDL to be 
        approvable. This information is necessary for EPA to determine 
        that the TMDL, including the load and wasteload allocations, 
        has been established at a level necessary to implement water 
        quality standards.\5\
---------------------------------------------------------------------------
    \5\ U.S. EPA, ``Guidelines for Reviewing TMDLs Under Existing 
Regulations Issued in 1992,'' available at http://water.epa.gov/
lawsregs/lawsguidance/cwa/tmdl/final52002.cfm.

    This position is consistent with EPA's TMDL regulations, which 
provide for flexibility in allocating the loads between point and 
nonpoint sources, something that is appropriate only if EPA can be 
equally confident that the more stringent load allocations will in fact 
be realized as EPA can be that wasteload allocations (typically 
embodied in NPDES permits) will be met.\6\ Accordingly, EPA can insist 
that state WIPs' reflect actions that are sufficient to provide 
``reasonable assurance'' that nonpoint source reductions will actually 
occur. Finally, with respect to the signatories to the Chesapeake 2000 
Agreement, section 117's direction to EPA to ``ensure'' that states not 
only plan to make needed reductions, but also implement such 
reductions, empowers the Agency to demand that Maryland, Virginia, 
Pennsylvania, and the District of Columbia provide even more of a 
guarantee that WLAs and LAs will be met. Accordingly, we support EPA's 
expectation that the signatory states will ``develop Plans to achieve 
needed nutrient and sediment reductions whose control actions are based 
on regulations, permits or otherwise enforceable Agreements that apply 
to all major sources of these pollutants, including nonpoint sources.'' 
\7\
---------------------------------------------------------------------------
    \6\ See generally 40 CFR  130.2(i) (``If Best Management Practices 
(BMPs) or other nonpoint source pollution controls make more stringent 
load allocations practicable, then wasteload allocations can be made 
less stringent.'')
    \7\ Letter from William C. Early, Acting EPA Region III 
Administrator, to L. Preston Bryant, Jr., Virginia Secretary of Natural 
Resources, at 16 (Nov. 4, 2009).
---------------------------------------------------------------------------
    EPA also has significant authority to secure reductions in 
nutrients and sediment directly through regulations it promulgates or 
through improved oversight and enforcement of state CWA programs. For 
example, the Agency can expand the universe of sources of runoff 
pollution for which it develops NPDES permit requirements under its 
``residual designation'' authority.\8\ We believe EPA's willingness to 
implement residual designation and other ``consequences'' in the event 
that states do not make expected progress in meeting their reduction 
milestones is critical to ensure success.\9\
---------------------------------------------------------------------------
    \8\ See 33 U.S.C.  1342(p)(2)(E).
    \9\ Letter from Shawn M. Garvin, EPA Region III Administrator, to 
L. Preston Bryant, Jr., Virginia Secretary of Natural Resources, at 3-4 
(Dec. 29, 2009).
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EPA and the States Must Work Together To Reduce Pollutant Loadings to 
        the Chesapeake Bay
    Throughout the TMDL, EPA has expressed its willingness to partner 
with the Bay states in identifying and scheduling specific programs and 
practices to control pollutant loadings. Some measure of deference is 
indeed appropriate, given the need for flexible responses to local 
conditions. However, EPA cannot simply hope the states' nutrient and 
sediment management practices will succeed. The goal of the iterative 
approach embodied in the three phases of WIP preparation is to select, 
prioritize and localize the practices that are most locally appropriate 
to control nutrient and sediment loadings to the Bay.\10\
---------------------------------------------------------------------------
    \10\ See Letter from William C. Early, EPA Region 3 Acting 
Administrator to L. Preston Bryant, Jr., Virginia Secretary of Natural 
Resources, at 4 (Nov. 4, 2009).
---------------------------------------------------------------------------
    Through the WIP process, states are given control to address all 
sources of pollution, developing a plan each state believes will reach 
its targeted pollution reductions. The states are also working 
throughout the region to ensure plans are tailored to each local 
community's needs. Of course, given the reality that nonpoint source 
pollution, including farm runoff, is a major source of pollution to the 
Bay and its tributaries, these sources too will need to contribute to 
the cleanup plan.
    It is likely the valuable agricultural conservation efforts some of 
our region's farmers are implementing will be discussed during your 
hearings. We applaud the farmers who are working hard to preserve their 
lands and their local waters, and support efforts by the agricultural 
community to document these achievements to include in the Bay model.
    We urge you to allow the states to work with the EPA to finish what 
they have started and continue on a path that will provide clean water 
for the region.
            Respectfully submitted,
            [GRAPHIC] [TIFF OMITTED] T1206.051
            
Jon P. Devine, Jr.,
Senior Attorney, Water Program.
                                 ______
                                 
 Submitted Letter by Robert E. Hughes, Executive Director, Eastern PA 
                Coalition for Abandoned Mine Reclamation
March 15, 2011

Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.;

Hon. Tim Holden,
Ranking Minority Member,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.

RE: Hearing to review the Chesapeake Bay TMDL, Watershed Implementation 
Projects, and their implications on national watersheds

    Dear Chairman Thompson and Ranking Member Holden:

    On behalf of the Eastern PA Coalition for Abandoned Mine 
Reclamation (EPCAMR), we would like to thank you for the opportunity to 
submit comments on the record related to your hearing on the Chesapeake 
Bay TMDL.
    As the Executive Director of the Eastern PA Coalition for Abandoned 
Mine Reclamation (EPCAMR) for the last 14 years, who has spent the 
majority of his time working in the Chesapeake Bay watershed on 
abandoned mine reclamation, watershed restoration, environmental 
education, environmental action projects, stream restoration, and 
abandoned mine drainage remediation projects, in partnership with a 
myriad of organizations from the Federal, state, county, and local 
grassroots level, I would like to respectfully submit comments on the 
Pennsylvania Department of Environmental Protection's Draft Chesapeake 
Bay Watershed Implementation Plan (draft WIP) and Draft TMDL. To date, 
our organization has not received any official comment and response 
document to our suggestions that you will see below in the context of 
this testimony, from the U.S. EPA or the PA DEP on whether or not any 
of our positive suggestions would be or could be incorporated into the 
Chesapeake Bay TMDL or Watershed Implementation Plan. Our initial 
public comments to the Water Docket were submitted on October 20, 2010.
    EPCAMR works to provide technical and administrative support to the 
Conservation Districts, coordinate reclamation activities, establish a 
public education outreach program within the schools, and to rejuvenate 
local watershed groups, primarily in those areas where streams are 
adversely affected by abandoned mine siltation and abandoned mine 
drainage. EPCAMR works together with nearly 75 local groups to inform 
and educate the public and to organize environmental interests relative 
to the purpose and value of specific reclamation, remining, and 
remediation techniques being proposed for sites in their local 
community.
    I am a lifelong resident of the Wyoming Valley, and am particularly 
knowledgeable about the past mining impacts on the water quality of the 
Susquehanna River and its tributaries, having an extensive background 
in anthracite mining geology, aquatic biology, history, and underground 
hydrogeology of this area. As the Executive Director of EPCAMR, I have 
had the opportunity for many years to Chair the PA DEP's 319 Non-Point 
Source (NPS) Liaison Resource Extraction Workgroup Subcommittee that 
updated the PA DEP and U.S. EPA Region III on project successes, 
outreach efforts, new innovative treatment technologies, implementation 
plans, watershed assessments, and networking opportunities that were 
convened on a yearly basis. I am also a member of the PA DEP's Mining 
Reclamation Advisory Board, as an Alternate Member appointed by the 
State Conservation Commission and have been a technical advisor and Ad 
Hoc Reclamation Committee member to the full MRAB for over a decade. I 
also sit on the Susquehanna River Basin Commission's Water Quality 
Advisory Committee and have done so for many years. A majority of 
EPCAMR's workload has been contained within the Susquehanna River 
Basin, and therefore, the Chesapeake Bay watershed. EPCAMR Staff have 
assisted County Conservation Districts over the years to develop their 
Chesapeake Bay Tributary Implementation Strategies as well, providing 
statistical analyses of GIS data on stream segment impairments by cause 
and assisting with making recommendations on how to implement best 
management practices (BMPs) for those impairments, be it AMD treatment, 
land reclamation, agricultural impacts, stormwater runoff, streambank 
erosion, and riparian buffer establishment.
    EPCAMR is aware that Pennsylvania's draft WIP was prepared to 
address the EPA's expectations for the Chesapeake Bay Total Maximum 
Daily Load (TMDL), scheduled for publication in December 2010. EPCAMR 
has reviewed many TMDL Reports for watersheds in our region and 
provided water quality data, field reconnaissance support, GIS Mapping 
assistance to staff biologists of the Susquehanna River Basin 
Commission, and recommendations to the PA DEP Section 319 NPS Program 
water pollution biologists on stream segments previously impacted by 
AMD for removal from the Federal List of Impaired Waters due to our 
analyses of water quality improvements and aquatic insect population 
improvements over time, as well as due to the increase in the number of 
AMD remediation treatment systems that were constructed to reduce the 
loading rates of common metals (iron, aluminum, and manganese) found in 
AMD to our impaired watersheds.
    EPCAMR understands that the U.S. EPA directed the states to develop 
a Phase II WIP which will further subdivide the loads by local area 
(county). We also understand that these will NOT be regulatory 
allocations to each of the counties. Rather, they are to inform local 
implementers (e.g., municipal elected officials and planning agency 
personnel, county conservation districts and planning commissions) and 
organizations like ours, or community watershed organizations, of the 
nutrient, metal, and sediment loads generated by their geographical 
area so we can help implement or plan appropriate actions to reduce the 
loads. Local implementation efforts should focus on compliance with 
existing rules and regulations, as well as seeking opportunities for 
additional management actions from EPA's standpoint. Community groups 
are not trying to disobey or break current or existing rules and 
regulations, their watersheds, rivers, and streams, are already in non-
compliance, from the standpoint that they do not have clean water 
available to them for a multitude of uses that others enjoy across the 
Commonwealth in healthier watersheds with minimal impacts.
    AMD is ``abandoned'' mine drainage. Communities are not trying to 
force compliance on anyone; groups like ours are trying to develop 
landowner relationships and agreements to allow for the construction 
and remediation of AMD on parcels of their properties where the 
discharges emanate from, for the betterment of the entire community and 
watershed. However, they need some protections and compensation for the 
perpetual loss of the use of those particular parcels for them to get 
on board with our recommended implementation projects. The Commonwealth 
of PA would be very hard pressed to force a single landowner where an 
AMD discharge comes to the surface and flows across their land into 
compliance, when the underground mine water complexes, from which the 
water flows could be miles away in all directions, and take in many 
additional landowners on the surface. That is why voluntary cooperation 
by landowners is of the utmost importance to our partnerships with 
local community groups and municipalities.
    Community awareness of the problems and the potential solutions to 
the impacts left by past mining practices is needed in our region. Most 
elementary aged school children do not even know what water pollution 
is. Sure they know that the streams are orange, red, and yellow, and 
have been told anecdotal stories by their parents or grandparents about 
the dangers of hanging around the local streams because of the mining 
impacts, but what they do not know is that they can become a part of 
the solution to cleaning up and restoring their own watersheds. EPCAMR 
has made it a point in our environmental education and outreach efforts 
to take school aged children and their teachers in our underserved, 
more impoverished, and underrepresented school districts to the streams 
within their local watersheds to teach them about historical mining 
impacts, water quality, fishery biology, stream ecology, and community 
volunteerism. This is where the focus should be. I've been in the 
schools for over a decade and you would be shocked to find that most 
elementary aged students do not even know the name of the Susquehanna 
River or their home watersheds in which they live. None of them have 
even heard of the Chesapeake Bay. Therefore, EPCAMR believes that a 
placed-based Environmental Education component should be involved in 
the WIP, not just loading reductions. We need increases in awareness of 
the problem in the communities where we want to treat the water.
    EPCAMR is currently working with the SRBC to develop an Anthracite 
Region AMD Remediation Strategy. EPCAMR and the SRBC are in the process 
of developing a strategy to assist in the cost-effective restoration 
efforts for AMD areas by identifying watersheds where reclamation 
activities would result in the greatest water quality improvements. We 
would like to seek additional funding to develop a comprehensive Mine 
Pool Evaluation of the Northern and Eastern Middle Anthracite Coal 
Fields. By June of 2011, EPCAMR will be reporting on and completing a 
comprehensive underground mine pool evaluation report for the Southern 
and Western Middle Anthracite Coal Fields, based on best available 
mapping and water quality resources available. The anticipated 
evaluation would dovetail with the proposed remediation strategy as 
SRBC would be able to assess the potential for augmenting low flows 
during droughts and for the possible use of small-scale hydroelectric 
power production at selected sites to provide revenues that would help 
to offset treatment costs and reduce waste allocation loads. Tom Clark, 
AMD Coordinator for the SRBC is working side by side with EPCAMR on 
these two complimentary efforts and is continuing to seek additional 
funds to complete the work plans.
    EPCAMR's geographic information system (GIS) known as the Reclaimed 
Abandoned Mine Land Inventory System (RAMLIS), based on PA DEP's 
Abandoned Mine Land Inventory System estimates that there are over 
1,920 miles of AMD impacted streams on the Integrated List of Impaired 
waters within the Susquehanna River Basin and there are around 1,924 
designated Problem Areas within the Basin that contain abandoned mine 
land features and polygons that total 12,706 in number and just over 
86,230 acres. Around ten, 417 of those features are unreclaimed for a 
total of 86,232 acres, and around 2,289 features have been reclaimed 
for a total number of 13,144 acres within the Susquehanna River Basin 
alone. Between 27-29% of the Susquehanna River Basin is impaired by 
AMD. Over 530 miles of the impaired miles of streams are within 517 
square mile drainage of the Anthracite Coal Fields.
    EPCAMR believes that the focus should also be on working with the 
local community groups to raise the level of the segments that are 
impaired either by watershed or stream segment to become eligible for 
additional funding through other state agency programs such as the PA 
DEP's Set Aside Program, under the Title IV, Surface Mining Control & 
Reclamation Act (SMCRA), 2006, as amended, as a Qualified Hydrologic 
Unit (Qualified Hydrologic Unit). Currently, throughout the Susquehanna 
River Basin, there are only four watersheds and or segments that 
qualify for additional Federal funding under SMCRA. For instance in 
Luzerne County, there is not a single watershed or stream segment that 
is impaired on the Federal List of Impaired Waters, formerly known as 
the 303(d) List, that is eligible for Federal funding under this Title 
IV Program until a QHU Plan is developed. Our organization would like 
to assist in the development of these QHUs, provided that future 
funding is made available to provide the local community watershed 
associations and local governments with the technical expertise and 
assistance that would qualify segments within their watershed 
boundaries or political jurisdictions for funding. EPCAMR realizes that 
this is a separate funding source and that historically PA Growing 
Greener Funding under the Watershed Environmental Stewardship Fund 
through the Section 319 Program has provided funding for other types of 
projects, including AMD assessment and remediation.
    EPCAMR would like to be more actively involved with the Phase II 
WIP Implementation in partnership with the U.S. EPA from December 2010 
until 2017 and learn about the details on how it will be phased into 
the communities and the watersheds impacted. This involvement by EPCAMR 
is contingent upon being able to secure additional funding to support 
our full-time staff of two to continue providing the expertise and 
community support that we have been doing since 1997 in the 
NorthCentral and NorthEastern parts of PA impacted by past mining. 
While it's formidable that the U.S. EPA has looked ahead towards the 
second stage of implementation that will extend from 2018 to 2025, when 
controls will be implemented to reduce loads from the interim to final 
target levels. EPCAMR does not have the ability to see that far into 
the future.
    EPCAMR wants to believe that Pennsylvania is committed to 
protecting and enhancing our streams and watersheds and that the 
efforts here at home will in turn help in further restoring the 
Chesapeake Bay by 2025. There is no doubt in my mind that over the 
years, significant progress has been made to reduce nitrogen and 
phosphorus pollution of the local waters in the Pennsylvania watershed. 
EPCAMR believes that more attention needs to be paid to metal 
allocation loads in the tributaries of the Chesapeake Bay watershed 
where the AMD impacts are. EPCAMR realizes that it is a difficult 
concept to understand when it comes to relating AMD to the Chesapeake 
Bay, but all you have to do is look at the legacy sediments and coal 
silt that is located behind every dam on the Susquehanna River from 
here to Maryland to realize that if those dams were not in place, that 
the coal fines, silt, acidity levels, and metals contamination would be 
much greater at the mouth of the Bay. In all of the Tributary 
Strategies developed by EPCAMR and our supporting Conservation 
Districts, many recommendations were made to implement strategies to 
remediate AMD problems in the tributaries, but not many were followed 
through on due to lack of funding and or lack of prioritization. More 
needs to be done.
    Why is there not a Phase 5.3 Watershed Model for Metal Loads to the 
Chesapeake Bay throughout PA?
Milestone Implementation and Tracking
    Is the Chesapeake Bay Model incorporating AMD Treatment systems 
constructed as BMPs? Are the state's abandoned mine land reclamation 
projects in terms of acres reclaimed and stream miles restored being 
added to the model? Are the reductions in loadings of metal 
contamination to the streams within the Chesapeake Bay tributaries for 
specific segments being incorporated into the model? If not, they 
should be. Since there is no mechanism for reporting private efforts 
(Anthracite Operators that are remining abandoned mine lands), private 
foundations such as the Foundation for PA Watersheds, or industry 
efforts such as Co-generation Plants that operate within the Basin 
under the trade association of ARIPPA (www.arippa.org).
    In the Anthracite Region, we cannot thank some of our regional co-
generation facilities enough for the great job they do in reclaiming 
abandoned mine lands. These private companies are not obstacles, they 
should be considered one of the greatest assets we have in our region. 
Let us not forget that much of this work has been completed at no cost 
to the state or taxpayers. The backlog of reclamation needed for the 
nearly 190,000 acres of abandoned mine lands left unreclaimed in PA and 
over 5,500 miles of streams impacted by AMD is projected to cost more 
than $3,000,000,000 in PA, and that only includes the Priority 1 and 
Priority 2 Sites. There are still nearly 11 Million Tons of CFB--ash 
has being beneficially used at abandoned mine sites throughout PA. Over 
2 Billion Tons of waste coal has been burned as an alternative energy 
fuel source in PA.
    Approximately 4,500 acres of waste coal piles have been reclaimed 
in the last 20 years. PA DEP estimates that is costs around $20,000 to 
clean up just one acre of abandoned mine lands. This estimate does not 
include the elimination of AMD that has detrimentally impacted our 
streams and rivers.
    For example, in the Wyoming Valley, Luzerne County, PA, hundreds of 
acres of abandoned culm banks have literally disappeared. The once 
dirty, ominous, abandoned mine land features that have dominated the 
landscape for nearly 8 decades and blocked the beautiful view of the 
Susquehanna River from the East side of the Valley from the West, have 
been reclaimed utilizing coal ash for abandoned mine reclamation. 
People can travel the local highways and Interstate I-81 and now see 
clear cross the Wyoming Valley. Northampton Generating Supply Company, 
separated the culm, hauled it away, brought back the ash, compacted in 
lifts on the same site in which it came from, filled the mine voids, 
and reclaimed the site. It was a win-win situation. In the land beneath 
these culm banks, there's economic and environmental value.
    Within the culm banks, there is energy to be recycled, and in the 
continued removal of these eyesores, EPCAMR sees great satisfaction in 
the reclaimed aesthetic look for Northeastern PA and across the State 
of PA as a whole. We should concentrate our efforts on reclamation of 
these undeveloped acres for social, economic, as well as environmental 
uses. Expanding and reconnecting our communities separated by mountains 
of culm, creation of open space areas, wildlife habitat enhancement, 
water quality improvements, improving the areas quality of life, 
recreational opportunities, stream restoration, and economic 
development of these abandoned mine lands should be of the utmost 
importance.
    EPCAMR believes that PA has ample and effective waste disposal and 
management regulations already in place. It is important that we 
continue to support private business and industry that successfully 
balance economic development with environmental protection. Innovative 
solutions to environmental problems should be applauded, not 
restricted, or overly regulated. EPCAMR believes that these successes 
are being under reported and should be added to the Chesapeake Bay 
Model.
    Possibly the PA DEP could fund an AMD BMP tracking pilot projects 
to explore the possibility of doing county ``sweeps'' for BMP 
information. It is widely known that there are over 285 AMD Treatment 
Systems state-wide that have been funded in part, by the Federal Office 
of Surface Mining and the PA DEP. What are not known collectively for 
the Susquehanna River Basin is the impacts and load reductions to the 
Chesapeake Bay from these completed systems. Each one of them is 
retaining metal loadings in their designed ponds that aren't reaching 
the streams and in some cases is being harvested and recycled by groups 
such as Hedin Environmental and EPCAMR. Perhaps a BMP repository can be 
accessed on the EPCAMR and WPCAMR websites for community groups and 
watershed organizations to add their projects in addition to the state 
and federally funded projects.
    EPCAMR is well aware of the West Branch AMD Remediation Strategy 
developed by the SRBC and its partners, but there is no comprehensive 
Strategy completed as of yet to look at the AMD pollution loads to the 
Susquehanna River and the Chesapeake Bay on a whole. There is also the 
West Branch Task Force, under the direction and leadership of Amy 
Wolfe--Abandoned Mine Lands Program Director for National Trout 
Unlimited that could also provide additional insight, data, loadings, 
and numbers to assist with improving the overall Chesapeake Bay Model.
New Technology and Nutrient Trading
    New technologies that can create electrical generation and power 
from AMD should be looked at further. Several of these types of 
projects have been funded in Western PA, but not in the East. The Old 
Forge Borehole, Jeddo Mine Tunnel, Solomon's Creek Boreholes, 
Susquehanna #7 Outfall, and other AMD discharges with high volume flows 
in the other Coal Regions within the Susquehanna River Basin could 
potentially become income generators and opportunities for economic 
redevelopment.
    EPCAMR has been involved with the USDA, Capital Area Resource 
Conservation & Development Council, Pennsylvania Environmental Council, 
Chesapeake Bay Foundation, Foundation for PA Watersheds, Penn-State 
University, Conservation Districts within the EPCAMR Region, and other 
partners a few years ago to locate abandoned mine lands in close 
proximity to the more rural farms that had excess nitrogen and manure 
wastes from their Concentrated Animal Operations (CAOs) and 
Concentrated Animal Feeding Operations (CAFOs). EPCAMR provided all of 
the GIS mapping for the project and conducted the research with 
Conservation District Chesapeake Bay Technicians to obtain the 
necessary information to get the totals on the number of CAOs and CAFOs 
in the EPCAMR Region. Composting facilities and the Co-Generation 
Facilities in Eastern PA were also mapped. The Manure and Minelands 
Project was coordinated to be able to put the farmer and the land 
reclamation entities together to work out some nutrient trading or 
business transactions that would save them time, resources, and money. 
Abandoned mine lands need manure because they lack topsoil for the most 
part and farmers need to dispose of their excess manure to avoid any 
pollution problems to the streams within their farmland properties. 
Mushroom compost, horse manure, chicken manure, all have beneficial 
qualities to land reclamation and AMD remediation, if mixed with the 
proper constituents and are not too wet. Yet another win-win.
    EPCAMR worked with The Conservation Fund and the Keith Campbell 
Foundation for the Environment earlier this year to provide them with 
written examples, photographs, and project successes to inform others 
in the region how they can improve the environment in their communities 
impacted by abandoned mine lands. My co-worker, Mike Hewitt, and I 
provided details on project successes related to the effort mentioned 
in the previous paragraph to Mr. David G. Burke, President of Burke 
Environmental Associates, and Mr. Joel E. Dunn, Program Coordinator, 
for Sustainable Chesapeake--The Conservation Fund. These two 
individuals edited and authored the publication, entitled, A 
Sustainable Chesapeake: Better Models for Conservation (2010). The book 
can be found online on The Conservation Fund website at 
(www.conservationfund.org/sustainable-chesapeake). It is a way to take 
a look at 31 projects that summarizes the principles of sustainability 
illustrated by the profiles contained within each project with 
creativity, outside of the box thinking, a great deal of volunteer time 
and effort, and much needed partnerships and funding sources to make 
them stand out from many others around the Chesapeake Bay.
Compliance
    EPCAMR realizes that construction and post-construction stormwater 
management is being addressed in the recently adopted revisions to 
Chapter 102, erosion and sedimentation regulations and that the PA DEP 
is also developing the next-generation general permit for Municipal 
Separate Storm Sewer System (MS4) communities. EPCAMR was integral to 
authoring a four page section of a guide book (http://
www.stormwaterresourcesformunicipalities.com/) for municipalities on 
Stormwater Management in partnership with the Pocono NE Resource 
Conservation & Development Council that took into consideration the 
post-construction stormwater impacts on downstream areas of recently 
reclaimed abandoned mine lands and on not encouraging the BMP of 
infiltration in areas of the Coalfields that were previously mined due 
to the potential for creating additional abandoned mine drainage (AMD), 
subsurface, in areas that were previously mined. Nearly 400 copies of 
the guidebook were distributed by the Pocono NE RC & DC just a few 
years ago and are still readily available to other municipalities 
online.
Next Steps
    EPCAMR would like to be represented on the WIP workgroup in the 
near future, if you are looking for additional input from another 
organization that has already demonstrated the commitment to help 
protect and restore the Chesapeake Bay. We would hope to think that we 
are a leader in the environmental restoration of AMD impacted 
watersheds in Eastern PA and throughout the Chesapeake Bay watershed.
EPA's Legal Framework for the Chesapeake Bay TMDL
    EPCAMR understands that the Chesapeake Bay TMDL addresses ONLY the 
restoration of aquatic life uses for the Bay and its tributaries that 
are impaired from excess nutrients and sediment. EPCAMR has performed 
biological sampling on stream segments over the years where aquatic 
life has been restored to segments of streams that have been previously 
impaired by AMD and are now being restored due to the implementation of 
AMD remediation strategies and implementation of construction projects. 
Perhaps a more comprehensive biological assessment review needs to be 
completed in the tributaries of the Chesapeake Bay, particularly 
downstream of treated AMD stream segments or pollution sources. Since 
sediment is a major contributor to the problems within the Chesapeake 
Bay, the TMDL should consider that AMD in its iron hydroxide form, and 
in the form of fine coal silt, once it settles out on the streambed are 
sediments that can choke out all aquatic life, stream habitats, 
spawning grounds, promote algal growth, and create areas of low 
dissolved oxygen levels. In areas where the coal silt basins and 
abandoned culm banks are directly along the streambanks of some of our 
rivers and streams, riparian corridor establishment would help to 
prevent further streambank erosion and siltation into the watersheds 
during peak stormflows and flooding events. Air deposition to the 
watershed, particularly in the Northeast Region of the Basin, 
contribute much of the acid impaired headwater streams that lack the 
buffering capacity to handle the acid rain contributions from the 
Western Ohio and Pittsburgh Region that tends to fall over our portion 
of the basin. See http://www.tu.org/conservation/eastern-conservation/
brook-trout/education/threats/acid-deposition for details.
Watershed Implementation Plans
    EPCAMR believes that before some WIPS can be completed that 
watershed assessments still remain to be completed for several 
watersheds in the Basin. Comprehensive watershed assessments should be 
completed before developing implementation plans. In the last round of 
PA's Growing Greener, watershed assessments were not a priority for 
funding, and in order for them to be eligible for other types of state 
and Federal funds they need to be. In the Coal Region, implementation 
plans need to take in to consideration the underground mining 
hydrogeology and complex geology of the Anthracite Region before we can 
jump to conclusions that treating in one location is going to improve 
another that is tied to an underground reservoir that fluctuates 
temporally and seasonally with rainfall and drought conditions. 
Loadings will also fluctuate in this situation. EPCAMR staff has 
assisted the PA DEP and many of our community watershed organizations 
in the completion of Watershed Implementation Plans in the past.
Development of Phase I Watershed Implementation Plan and Public 
        Participation
    EPCAMR had been involved with many of the Conservation Districts in 
the development of their Chesapeake Bay Tributary Strategies and would 
like to continue to do so in the future implementation of the other 
phases. We will keep in touch with our Conservation District Chesapeake 
Bay Technicians within our Region to provide updates to their County 
Implementation Tributary Strategies.
Resource Extraction
    1,575 Resource Extraction operations are within the Susquehanna 
River Basin according to PA DEP's eFACTs tracking system in 2010. The 
resource extraction activities subject to NPDES permitting in the Bay 
watershed include coal mining, noncoal mining and the earth disturbance 
related to abandoned mine reclamation activities. Oil and Gas 
development activities are not subject to NPDES permitting.
    Coal mining permits are typically accompanied by an NPDES permit. 
Most coal mining permit areas include erosion and sedimentation 
controls that are permitted stormwater outfalls under an NPDES permit. 
Some coal mining activity permits include BMPs that are designed to 
prevent a stormwater discharge. A typical example of this is in the 
anthracite coal fields where new mining reaffects abandoned mine lands 
(AML), and all stormwater is contained in the pit. However, an unlined 
pit that is not compacted with a liner or bentonite clay might as well 
have an open conduit to the underground mine pools beneath the mining 
affected regions because without it, promotion of AMD is likely to 
occur in those areas, and an increase in the amount of groundwater 
reaching a subsurface mine pool complex is possible. EPCAMR encourages 
and supports remining of abandoned mine lands by the Anthracite 
Industry and other operators in the Northern Bituminous Region to 
reclaim additional acres of abandoned mine lands and to eliminate 
further generation of pyritic material and AMD from getting into our 
watersheds and underground mine pool complexes.
Current Programs and Capacity
    Resource extraction activities and abandoned mine lands (AML) have 
the potential to release sediment into nearby surface waters. EPCAMR 
firmly believes that abandoned mine drainage (AMD) from AML can impair 
the ability of streams to assimilate these nutrients effectively. My 
reason for repeating some of the information in the draft TMDL WIP 
Report is so that the general public interested in the abandoned mine 
issues can hone in directly on parts of the draft that could 
potentially impact their local watersheds, so I apologize for some 
redundancy, however, in this case I think it is warranted.
    Reclamation methods include PA DEP's primary efforts to improve 
water quality through reclamation of abandoned mine lands (for 
abandoned mining) and through the National Pollution Discharge 
Elimination System (NPDES) permit program (for active mining). EPCAMR 
currently receives the majority of its funding for projects designed to 
achieve water quality benefits from the U.S. EPA Section 319 Grant 
Program and Pennsylvania's Growing Greener Program. Federal funding is 
from the Department of the Interior's Office of Surface Mining (OSM) 
for reclamation and mine drainage treatment through the Appalachian 
Clean Streams Initiative and through Watershed Cooperative Agreements 
have also been a part of EPCAMR's historical funding streams to work 
with community groups to design, build, construct, operate and maintain 
AMD treatment systems within the Chesapeake Bay watershed.
    The DEP Bureau of District Mining Operations (DMO) administers an 
environmental regulatory program for all coal and noncoal mining 
activities. DEP offers remining incentives for coal mining which are 
geared toward reclaiming abandoned mine features and stabilizing the 
areas. Regulatory programs are assisting in the reclamation and 
restoration of Pennsylvania's land and water. DEP has been effective in 
implementing the NPDES program for mining operations throughout the 
Commonwealth. This reclamation was done through the use of remining 
permits that have the potential for reclaiming abandoned mine lands, at 
no cost to the Commonwealth or the Federal Government. EPCAMR is unsure 
if these remining sites are being considered by the Chesapeake Bay 
Model, and if not, they should be.
Programmatic
    The primary concept employed by the mining program in dealing with 
sediment issues is prevention. The permitting process provides the 
framework for the necessary measures, typically collection ditches and 
sedimentation ponds, to have effective controls. Standard BMPs are 
employed on most permits. Coal mining permits and large noncoal permits 
typically include site-specific engineered Erosion and Sedimentation 
control plans.
    There are about 1,750 permitted mine sites in Pennsylvania in the 
Bay watershed. Each of these permits include Best Management Practices 
for prevention of erosion and sedimentation. These permits also include 
revegetation plans to stabilize the post-mining reclamation area. There 
are about 475 mining sites in the Bay watershed for which there are 
NPDES permits. These permits include effluent limits for suspended 
solid and/or settleable solids. These measures prevent contributions of 
sediment in the watershed.
    The point of planning and permitting is to prevent increased 
sediment loads as the level of earth disturbance increases. Mine sites 
and oil and gas development sites are subject to permitting which 
minimizes their impact on loads. In the case of coal mining, most new 
mine permits include some remining where AML is reclaimed in the course 
of mining. While the potential impact of the earth disturbance for 
mining is temporary, the overall improvement (i.e., the reclamation of 
AML) is permanent.
Funding/Staffing
    DEP BAMR, which administers the program to address the 
Commonwealth's abandoned mine reclamation program, has established a 
comprehensive plan for abandoned mine reclamation to prioritize and 
guide reclamation efforts for throughout the Commonwealth to make the 
best use of valuable funds (http://www.portal.state.pa.us/portal/
server.pt/community/
pennsylvania%27s_comprehensive_plan_for_abandoned_mine_reclamation/
13964). In developing and implementing a comprehensive plan for 
abandoned mine reclamation, the resources (both human and financial) of 
the participants must be coordinated to insure cost-effective results.
    EPCAMR and WPCAMR assisted in the development of the PA 
Comprehensive Plan for Abandoned Mine Reclamation. EPCAMR and WPCAMR 
have served as the local liaison for the Commonwealth of PA for more 
than 20 years in WPCAMR's case, and for more than 14 years, in the case 
of my organization. I was previously employed by the PA DEP Bureau of 
Abandoned Mine Reclamation's Wilkes-Barre Office in the Northeast 
Region as a Science Intern in 1993 and as a Hydrogeological Intern for 
the Hawk Run District Mining Office in Western PA, now the Moshannon 
District Mining Office, in 1994 and 1995, prior to graduating from 
Penn-State.
    The following set of principles guides this decision making 
process:

Partnerships between DEP, EPCAMR, WPCAMR, watershed associations, local 
        governments, environmental groups, other state agencies, 
        Federal agencies, & other groups organized to reclaim abandoned 
        mine lands are essential to achieving reclamation & abating 
        acid mine drainage in an efficient & effective manner.

Partnerships between AML interests and active mine operators are 
        important and essential in reclaiming abandoned mine lands.

Preferential consideration for the development of AML reclamation or 
        AMD abatement projects will be given to watersheds or areas for 
        which there is an approved rehabilitation plan.

Preferential consideration for the use of designated reclamation monies 
        will be given to projects that have obtained other sources or 
        means to partially fund the project or to projects that need 
        the funds to match other sources of funds.

Preferential consideration for the use of available monies from Federal 
        and other sources will be given to projects where there are 
        institutional arrangements for any necessary long-term 
        operation and maintenance costs.

Preferential consideration for the use of available monies from Federal 
        and other sources will be given to projects that have the 
        greatest worth.

Preferential consideration for the development of AML projects will be 
        given to AML problems that impact people over those that impact 
        property.

No plan is an absolute; occasional deviations are to be expected.

    Since 2000, new approaches to mine reclamation and mine drainage 
remediation have been explored and projects funded to address problems 
in innovative ways. EPCAMR has been an instrumental partner in the 
development of these new approaches. EPCAMR co-coordinates State-wide 
Conferences on Abandoned Mine Reclamation with its' sister 
organization, WPCAMR, and a Planning Committee made up of state-wide 
regional nonprofits, state representatives, Foundation representatives, 
and Colleges and Universities to network and exchange ideas on these 
new approaches and innovative AMD Treatment technologies. See our 
websites at (www.epcamr.org, www.amrclearinghouse.org and 
www.treatminewater.com).
    These include: Awards of grants for: (1) proposals with economic 
development or industrial application as their primary goal and which 
rely on recycled mine water and/or a site that has been made suitable 
for the location of a facility through the elimination of existing 
Priority 1 or 2 hazards; and (2) new and innovative mine drainage 
treatment technologies that provide waters of higher purity that may be 
needed by a particular industry at costs below conventional treatment 
in common use today or that reduce the costs of water treatment below 
those of conventional lime treatment plants.
    Projects using water from mine pools in an innovative fashion, such 
as the Shannopin Deep Mine Pool (in southwestern Pennsylvania), the 
Barnes & Tucker Deep Mine Pool (the Susquehanna River Basin into the 
Upper West Branch Susquehanna River), EPCAMR's Mine Pool Mapping 
Project and Groundwater Modeling for the Western & Southern Anthracite 
Coal Fields) and the Wadesville Deep Mine Pool (Exelon Generation in 
Schuylkill County) have also been funded.
Current and Future Reclamation Efforts in the Watershed
    EPCAMR agrees that while numerous remediation projects have already 
been completed and others are underway, it will take decades at current 
funding levels until the entire problem areas in the Chesapeake Bay 
watershed are addressed. EPCAMR thinks that Pennsylvania should place 
an even higher priority on efforts throughout the entire Chesapeake Bay 
watershed, particularly in the Anthracite Coal Region. If the 
Chesapeake Bay Tributary Strategy is to be effective, than funding 
needs to be provided to projects in the tributaries. In addition to the 
problems associated with the water quality itself, tremendous amounts 
of recreation and tourism dollars have been lost in the watershed due 
to the mining impacts. EPCAMR feels that additional funding should be 
provided to community groups under the State's Set-Aside Program to 
conduct the necessary watershed assessments to make them eligible for 
the Title IV Funding that is currently being held in an interest 
bearing account while a re-prioritization of the criteria to become 
eligible for the funding is finalized.
Tracking and Reporting Protocol
    EPCAMR's RAMLIS GIS Tool (http://epcamr.org/index.php?name=
Content&pa=showpage&pid=81) can also provide reports that can be 
developed that present data about the number of active mining permits 
and the overall disturbed area associated with these permits. EPCAMR 
uses (lat/long) coordinates to locate projects, however, the 
projections of our data are not tied to the NHD on the larger national 
scale, it is very localized and layered based on much smaller watershed 
units within the Chesapeake Bay watershed, that we believe gives it a 
more accurate reflection of the data and leaves less room for error. 
AML is also tracked in our RAMLIS GIS Tool and is updated by EPCAMR and 
its community partners, in addition to information provided by the 
Commonwealth's Bureau of Abandoned Mine Reclamation. EPCAMR has the 
ability to statistically summarize the percentage of problem areas 
reclaimed in a watershed area, municipal boundary, legislative 
district, and the PA portion of the Chesapeake Bay. Stream miles 
restored can also be provided as well as water quality analyses. Much 
of our current work right now is in developing the Anthracite Region 
AMD Remediation Strategy with the SRBC.
Mining Stormwater General Permit
    EPCAMR supports the PA DEP in developing a stormwater NPDES General 
Permit (GP) for mining activities. The intent of this permit should be 
to manage stormwater from mine sites where the hydrologic impact is 
limited to surface water. The GP requires the use of BMPs to manage 
stormwater to prevent sedimentation. It is anticipated that this GP 
will be finalized during the summer of 2010. However, again, it must be 
stated that the encouragement of infiltration into stormwater detention 
basins that are unlined on abandoned mine lands only encourage surface 
infiltration of runoff into the deeper mine pool complexes and local 
underground groundwater reservoirs. The PA DEP should consider looking 
into the underground effects of infiltration of stormwater runoff from 
abandoned mine sites (http://
www.stormwaterresourcesformunicipalities.com/).
Oil and Gas Development
    While oil and gas development activities are not subject to NPDES 
permitting, EPCAMR understands and is aware that the PA DEP has in 
place an Erosion and Sedimentation Control General Permit (ESCGP-1). In 
response to the EPA's rulemaking and the effect of the Federal Energy 
Policy Act of 2005, DEP issued the ESCGP-1 for oil and gas activities 
that disturb 5 acres or greater at one time over the life of the 
project. This permit applies to earth disturbance activities for oil 
and gas exploration, production, processing, treatment operations or 
transmission facilities (oil and gas industry). The added protection 
gained through this permit will ensure that proper best management 
practices (BMPs) will be planned, implemented and maintained for 
erosion and sediment control and post construction stormwater runoff 
from these activities. In addition, this approach is an incentive for 
the operator to minimize the disturbed area and restore the area 
promptly after completion of the well or installation of the pipeline. 
However, this does not deal with subsurface potential for contamination 
or underground mine pool complexes and the effects the project may have 
on AMD discharges that are not located at the site of the project 
location.
Riparian Forest Buffer Guidance
    In 2009, the Department published the draft Riparian Forest Buffer 
Guidance, Commonwealth of Pennsylvania, Department of Environmental 
Protection, Document #395-5600-001 (2009), as amended and updated. The 
guidance lists various design, construction, and maintenance standards 
for developing a riparian forest buffer.
    If initial WIP results indicate that a change in this approach is 
warranted, these funds can be targeted to specific locations and to 
specific BMPs. PA DEP could also target the specific BMPs identified by 
EPA Region III as their most critical for Bay model loadings. One of 
the five BMPs, which track closely to those that have been given 
priority in the effort, is: riparian buffers. Riparian buffers can 
still be implemented and planted along many of our rivers and streams 
in the Coal Region to reduce the overall sedimentation loads to the 
watershed and can be mapped by EPCAMR based on our RAMLIS GIS tool in 
relation to those abandoned mine lands that are adjacent to rivers and 
streams and have problem areas where sedimentation is prevalent and 
continues to downcut, undercut, and erode the culm banks.
    A good example would be along the Lackawanna River in Lackawanna 
County, where acres of culm banks lay along the streambank of the 
Lackawanna River and during storm events and flooding events, slough 
off into the River and the sediments are carried downstream. Increased 
volume of stormwater runoff results in an increase in the frequency of 
bank full or near bank full flow conditions in stream channels. The 
increased presence of high flow conditions in riparian sections has a 
detrimental effect on stream shaping, including stream channel and 
overall stream morphology. Stream bank erosion is greatly accelerated. 
As banks are eroded and undercut and as stream channels are gouged and 
straightened, meanders, pools, riffles, and other essential elements of 
habitat are lost or greatly diminished.
Laws, Regulations, Funding, Staffing and Technical Capacity
    EPCAMR supports the increase in funding to support and fund the 
Pennsylvania Department of Environmental Protection, Department of 
Agriculture, County Conservation Districts, organizations such as ours, 
and Critical Programs such as Growing Greener and Clean Water Act, 
Section 319 so as to assure robust levels of personnel to provide 
outreach, technical assistance and cost-share funding in the 
implementation of necessary BMPs and to assure, where applicable, 
compliance inspections and enforcement of all existing regulations are 
being adhered to. EPCAMR works to reclaim abandoned mine land and 
watersheds impacted by abandoned mine drainage throughout the North 
Central Bituminous Region and Anthracite Coal Region of Northeastern 
PA, in partnership with our sponsoring Conservation Districts. 
Conservation Districts sustain, protect and restore the natural 
resources for the Commonwealth of Pennsylvania.
    EPCAMR supports Conservation Districts within the EPCAMR Region who 
are seeking dedicated sources of funding to provide 50% cost-share for 
basic staff positions and cost-of-living increases to meet their goals. 
One possible source of dedicated funding for all Conservation Districts 
is through a severance tax in Pennsylvania for extraction of oil and 
gas deposits. Although Pennsylvania has never initiated a severance 
tax, many other states in the country have established this type of tax 
to fund various budgetary items. For instance, Oklahoma has a gross 
production tax on oil, a small portion of which is earmarked for 
natural resource protection. Wyoming has a severance tax that 
subsidizes their state's general fund, thus indirectly partially 
funding Conservation District activities.
    EPCAMR also supports a portion of any severance tax for the 
Environmental Stewardship Fund, which has funded many ``Growing 
Greener'' grant projects that EPCAMR has been awarded in the past or 
where EPCAMR has been a partner. Funding for our organization and our 
sister organization (WPCAMR) is also vital to continue the reclamation 
of abandoned mine lands, remediation of streams and rivers impacted by 
abandoned mine drainage (AMD), and to further the economic 
redevelopment potential of the reuse of underground abandoned mine 
pools throughout PA. Only $6 Million is anticipated to be allocated 
state-wide in the most recent round of Growing Greener for watershed 
restoration projects. EPCAMR firmly believes that a small, predictable 
portion of any state mandated severance tax should be allocated 
directly to the Conservation District Fund to help all Conservation 
Districts across the state maintain their environmental protection 
programs. Using a natural gas severance tax of 5% on the value of the 
natural gas at the wellhead, plus 4.7 cents per 1,000 cubic feet of 
natural gas taken from the ground, $178.6 million would be generated in 
the 2010-2011 Fiscal Year and increase to $475.6 million by 2014-2015. 
We recommend 3% of the severance tax, or approximately $5.358 million 
in the 2010-2011 Fiscal Year, be dedicated to the Conservation District 
Fund.
    By the 2014-2015 Fiscal Year as the severance tax revenue grows, 
approximately $14.3 million would be generated for the Conservation 
District Fund. Obviously this type of dedicated funding would resolve 
many of the financial challenges our Conservation Districts 
collectively face on a daily basis.
    EPCAMR is also in need of additional administrative funds that can 
be found through grant funds under the Environmental Stewardship Fund. 
We are in a position as a regional nonprofit environmental 
organization, founded by Eastern PA Conservation Districts and other 
reclamation related partners and watershed groups that has been 
providing technical assistance, grant writing assistance, project 
coordination, project management, grant administration, Geographic 
Information System mapping assistance, research on AMD Treatment 
technologies, innovative AMD Treatment Design and Construction, 
environmental education, and the continued building of diverse 
partnerships and leveraged funds to reclaim our Commonwealth's 
abandoned mines and watersheds impacted by AMD. For more nearly 15 
years, EPCAMR has been providing support to our Conservation Districts, 
watershed organizations, and local governments within the EPCAMR Region 
on abandoned mine reclamation issues, environmental education, and 
watershed improvement projects.
    It is undisputed that EPCAMR and Conservation Districts provide 
much needed services to Commonwealth citizens to help them identify and 
resolve critical natural resource concerns. EPCAMR and Conservation 
Districts deliver essential services that protect our soil, water and 
air for a reasonable cost. Since there is a direct link between the 
removal of natural resources and natural resource protection 
activities, it makes sense to consider advocating a portion of a 
severance tax for natural resource protection activities. A severance 
tax, a portion of which would be dedicated to the Conservation District 
Fund and to the Environmental Stewardship Fund should be enacted. We do 
not underestimate the power on a local level of other regional 
nonprofits, nor do we claim that we are the only organizations that can 
provide some assistance to the PA DEP and the U.S. EPA. We just want to 
make the Commonwealth and the U.S. EPA Region III know that our 
organization would like to have an integral relationship in the 
protection and restoration of the Chesapeake Bay watershed and that we 
have been supporting such efforts for nearly 15 years. We do not have 
all the answers either, but we are part of the solution.
Urban and Rural Reforestation
    The two additional DCNR-based programs that promote reforestation 
of urban and rural parts of the Bay watershed, TreeVitalize could be 
promoted more widely to our community groups and watershed associations 
in the mining impacted areas to assist with the replanting of riparian 
buffers along our rivers and streams where culm banks are a part of the 
landscape in the urban and rural settings. This program is not often 
promoted to these organizations. The Scranton-Wilkes-Barre Area, 
Pottsville, Shamokin, Mt. Carmel, Hazleton Area, are all urban 
communities that this Program could be expanded into. EPCAMR would be 
willing to promote it within these communities to our partners.
Riparian Forest Buffer Initiative
    EPCAMR in the past had played an important role in implementing 
small riparian forest buffers along stream channels that had been 
recently reclaimed through the construction of rip rap channels to 
control overland flows off of the reclaimed mine sites. In 2005, 
Plymouth Township, Luzerne County, we were able to plant willow sheens, 
native shrubs, viburnum, and other wetland plants donated by the 
Octoraro Nursery in partnership with the Chesapeake Bay Foundation, 
Alliance for the Chesapeake Bay, and the Plymouth Township Planning 
Commission along a 1500' section of an unnamed tributary to the 
Susquehanna River that we called Sickler Run, locally. It is 
anticipated that more of these riparian buffer projects can be 
completed to add to the Stream ReLeaf, or Riparian Forest Buffer 
database in years to come.
Appalachian Regional Reforestation Initiative
    The Appalachian Regional Reforestation Initiative (ARRI), a Federal 
partnership program that supports planting trees for water quality, is 
a coalition of citizens, nonprofit groups, the Federal Office of 
Surface Mining (OSM), and states who are dedicated to restoring forests 
on coal mined lands in the Eastern United States. GIS analysis 
indicates that there are 120,000 acres of abandoned mine lands within 
the Upper Susquehanna-Lackawanna River Basins. These lands represent a 
great opportunity to expand forest cover within the Bay watershed while 
reintroducing native trees to the region. The restoration has already 
begun. EPCAMR, SRBC, Earth Conservancy, and the Lackawanna River 
Corridor already have existing relationships with many landowners, 
community watershed organizations, regional nonprofits, and coal 
operators in this Region. EPCAMR is also already an ARRI partner and 
has signed its Statement of Mutual Intent. EPCAMR is very supportive of 
The American Chestnut Foundation and its mission to help restore the 
American Chestnut propagation back into our landscape, including on 
abandoned mine lands.
    Many of the forested acres are managed with best management 
practices are not currently recognized or counted in the Chesapeake Bay 
model either and should be added to the mix. EPCAMR believes that every 
tree planted on an abandoned mine site, be it by the private coal 
mining industry, or volunteers, or through ARRI should be counted for 
consideration as an innovative approach to sequester carbon. Trees are 
growing on these sites over the years as a part of the reclamation plan 
and are providing additional root zones to fixate nitrogen and to trap 
CO2. Some of the Pennsylvania Game Commission's 1.04 million 
acres of forestland in the Bay watershed, are all well-managed and 
follow multiple best management practices, and do include some 
abandoned mine lands that can fall under the ARRI Initiative. Even 
reclamation mixes of grasses, legumes, and other ground-cover 
vegetation plant species are reducing the runoff from abandoned mine 
sites following the reclamation phase of mining. Vegetated reclamation 
sites should also be included in the Chesapeake Bay Model under number 
of reclaimed acres.
Remediation of Acid Mine Drainage Sites
    EPCAMR agrees that remediation of abandoned mine drainage (AMD) 
sites in forested areas represents an opportunity for increased 
biological activity and algal uptake of nutrients and should be 
accounted for as reductions to the forest load in the Chesapeake Bay 
model. A study completed by Stroud Water Research Center showed that 
``despite near-neutral pH in the AMD-impacted stream (Lorberry Creek), 
iron hydroxide deposition interferes with normal periphyton 
colonization and enzyme activities''. Rattling Run, an Exceptional 
Value stream in the Anthracite region, had chlorophyll a levels nearly 
fifteen times greater than Lorberry Creek. Stroud also stated that the 
``most important implication of these findings is that, although water 
chemistry in a stream might be technically within a range that can 
sustain aquatic life (i.e., circumneutral pH and low dissolved metals 
concentrations), metal deposition on substrata clearly inhibits 
microbial colonization and severely limits phosphorus availability to 
aquatic bacteria, fungi, and algae.'' EPCAMR has numerous other project 
locations within the Anthracite Region that concur with the Stroud 
Water Research Center's example.
    For example, here in Luzerne County, many of the tributary streams 
impacted by AMD are circumneutral with a pH of 6-6.5, are more alkaline 
than acidic, often have high sulfate concentrations, Total suspended 
solids, area large volume flows, and have heavy loadings of suspended 
iron that are severely coating the bottoms of the stream channels for 
miles until reaching the Susquehanna River. This iron hydroxide 
coating, prevents the aquatic populations from reproducing in these 
areas, leaving them with little biological diversity and stagnant. 
However, if additional AMD treatment systems are designed and 
constructed, the metal loadings can be reduced through the use of 
artificially constructed wetland systems, specifically constructed for 
the removal of the iron loadings that will reduce the overall iron 
loadings to the Susquehanna River and eventually the Chesapeake Bay. 
EPCAMR has even found several ways to recycle, harvest, dry, and re-use 
the iron hydroxide from these treatment systems to help fund its 
environmental education programs in the Region.
    We've been doing this for nearly a decade. See our link at (http://
epcamr.org/storage/EnvEdBrochure2010.pdf). EPCAMR has had the iron 
hydroxide tested for pigment quality and it is very high in a number of 
discharges within the Chesapeake Bay, upwards in the range of 92-98% 
pure iron oxide, once dried. EPCAMR makes its own wood stains for 
public recreational and trail projects, iron oxide chalk programs in 
schools, AMD Tie Dye Workshops, Art Shows with various regional Art 
Leagues, mixes its own paint, and has sold it to over ten states to 
community groups interested in utilizing it for similar projects that 
we've initiated in PA. See our link (http://epcamr.org/storage/
iron_oxide_recovery_pamphlet2.pdf).
    There are many uses for iron oxide in the United States and 
worldwide. The current markets for low-grade iron oxides in the United 
States alone is approximately 175,000 tons per year (1995 estimate; 
Hedin Environmental SBIR research), while the current world market for 
a similar grade product is approximately 850,000 tons per year. The 
typical revenue from this quality of material is approximately $0.10-
$0.75/lb (Hoover Color; Bayferrox Corp). Higher value ``specialty'' 
iron oxide products are typically used in the animal vitamin supplement 
or cosmetics markets and have a higher associated economic value, as 
much as $3.00-$4.00/lb. EPCAMR has been able to sell the iron oxide 
that we process in-house in 5 gallon buckets collected by ourselves or 
seasonal interns and dried in a small soil oven, big enough to make 
four batches of cookies for $5.00/oz. and it still does not cover the 
costs of our time to get it to the final form to get it to market. 
However, we are utilizing the iron oxide to support our educational 
programs and not for a profit. These load reductions in terms of pounds 
of iron oxide removed from the AMD treatment systems should also be 
included in the Chesapeake Bay Model.
    EPCAMR totally agrees with the logic presented by the Stroud Water 
Research Center that the nutrients (especially phosphorus) being 
transported to Chesapeake Bay associated with metal hydroxide-based 
sediments, to which dissolved phosphorus has a strong affinity, could 
be reduced through remediation of the mined site and restoration of 
aquatic life to the stream. Similarly, even though the nitrogen species 
do not have the same affinity for sediments as the dissolved 
phosphorus, nitrogen uptake within the watershed by the benthic algae 
would decrease that available to be delivered to Chesapeake Bay. EPCAMR 
agrees that these reductions should be credited to the forested areas 
because the load was probably attributed to forest in the original 
modeling as the calibration gages are downstream of primarily forested 
sites.
    However, EPCAMR does feel that not only should there be an emphasis 
on the restoration of the publicly owned lands, but in the urban 
environments, where the larger number of communities and population 
centers are being directly affected by the AMD pollution problem. 
Funding spent in these areas where there is a much higher incidence of 
local traffic by the local community would not only benefit them in 
achieving a higher quality of life, but it could lead to an increase in 
personal property values, increased recreational opportunities like 
swimming and fishing, economic redevelopment opportunities, conversion 
of abandoned mine lands into recreational spaces like trails 
constructed by the Earth Conservancy and others, an increase in water 
quality and improved aquatic stream health, and an increase in the 
number of visits to their local places as opposed to having to drive 
much further to State Parks and State Game Land areas during economic 
hard times.
    EPCAMR Staff worked and participated with The American Chestnut 
Foundation, the Pennsylvania Game Commission, OSM's Patrick Angel, 
other OSM staff, volunteers from the OSM/VISTA Appalachian Coal Country 
Watershed Team, Schuylkill County Conservation District, and the 
Schuylkill Headwaters Association community volunteers to planted the 
2,500 trees on an abandoned mine land site in Schuylkill County in 2009 
in partnership with a local Anthracite Coal Company Operator. The ACCWT 
is a national team of AmeriCorps VISTA volunteers supported by the 
Corporation for National Service, the Office of Surface Mining, and 
local sponsors, such as EPCAMR and the Anthracite Heritage Alliance. 
They are providing much needed additional on the ground support to 
groups like EPCAMR, Schuylkill Headwaters Association, Schuylkill 
County Conservation District, and other community groups. See more 
details on the ACCWT Team on (www.accwt.org).
    EPCAMR understands that without clean water, land, and water, the 
social, recreational, economic, and environmental vitality of the 
Commonwealth and in the Chesapeake Bay watershed, our children will be 
severely disadvantaged for future generations. PA DEP and the U.S. EPA 
should continue to be the true leader in the continuing efforts to 
research and implement remediation and reclamation techniques on 
abandoned mine lands and the other environmental issues that have 
plagued the Bay for decades. Not all decisions are best made at the 
Federal level or state level through regulations and compliance.
    EPCAMR believes that given the adequate amount of funding, 
expertise, engineering assistance, technical assistance, and guidance 
from the Commonwealth, groups like ours and other community groups and 
municipalities at the local level CAN effectively and HAVE implemented 
many of the ideas presented or suggested in this public comment 
document. Too many stream miles have been on the Federal List of 
Impaired Waters due to AMD for as long as I have been the Executive 
Director for EPCAMR, and slowly some of them are being removed due to 
the hard work and efforts of community volunteers, watershed 
organizations, and assistance from various state, Federal, county, and 
local level partners. Additional funding has to find a way down to the 
local level for implementation. Other states should follow our lead. 
Let's Change the Chesapeake! While I firmly believe the motto that ``We 
All Live Downstream'', I also believe that we need to lead by example 
and take care of PA's watersheds first.
    Article I, Section 27 of the Pennsylvania Constitution provides as 
follows:

        Sec. 27. Natural Resources and the Public Estate

                The people have a right to clean air, pure water, and 
                to the preservation of the natural, scenic, historic 
                and esthetic values of the environment. Pennsylvania's 
                public natural resources are the common property of all 
                the people, including generations yet to come. As 
                trustee of these resources, the Commonwealth shall 
                conserve and maintain them for the benefit of all the 
                people.

    This amendment, which was adopted in 1972, encompasses two basic 
principles. First, Pennsylvanians have a right to a decent environment, 
and second, Pennsylvania government has a trusteeship responsibility to 
protect that environment on behalf of future generations. EPCAMR is 
doing its part to uphold these Constitutional principles. As a public 
citizen, community leader, and active community volunteer, speaking on 
behalf of other Coalfield residents, I feel that I have done my part 
and continue to do so by actively contributing in this democratic 
public participation process of having my voice heard.
    The Chesapeake Bay is an iconic national treasure and an over $1 
trillion resource. The Clean Water Act, three major Bay Agreements and 
scores of minor ones, three consent decrees, dozens of Memoranda of 
Agreement/Understanding (MOA/MOU) and a Presidential Executive Order 
all require development of a Bay-wide TMDL. It is not only legally 
required, but perfectly logical, appropriate and fair for EPA to 
develop this TMDL. Moreover, EPA has used this authority wisely, 
engaging in a transparent public process developing the TMDL (and 
seeking comments on the draft), providing states opportunity to prepare 
and revise draft Watershed Implementation Plans, (WIPs), and seeking to 
implement allocations that are substantially equivalent to those the 
states have had since 2003.
    Through the WIP process states are given control to address all 
sources of pollution, developing a plan each state believes will reach 
its targeted pollution reductions. The reality is that nonpoint source 
pollution is the largest source of pollution to the Bay and its 
tributaries.
    We urge you to allow the states to work with the EPA to finish what 
they have started and continue on a path that will provide clean water 
for the region. EPCAMR is here to help at the local level.
            Sincerely,
            Respectfully submitted,
            [GRAPHIC] [TIFF OMITTED] T1206.052
            
Robert E. Hughes,
EPCAMR Executive Director.

CC:

EPCAMR Region Congressmen, State Representatives, and Senators within 
the Chesapeake Bay Watershed;
Water Docket, Environmental Protection Agency--Region III;
EPCAMR Board of Directors;
Chesapeake Bay Foundation;
Alliance for the Chesapeake Bay;
Susquehanna River Basin Commission;
Lackawanna River Corridor Association;
Sustainable Chesapeake--The Conservation Fund;
Burke Environmental Associates;
PA DEP Office of Policy and Communications;
PA DEP Section 319 Program;
PA DEP Bureau of Abandoned Mine Reclamation;
PA DEP Bureau of District Mining Operations--Pottsville & Moshannon 
Office;
Pocono NE RC & DC;
Capital Area RC & DC;
PA Mining & Reclamation Advisory Board;
PA DCNR Bureau of Forestry;
PA Citizens Advisory Council;
PA Environmental Council;
PA Anthracite Council;
PennFuture;
Office of Surface Mining--Harrisburg Office;
State Conservation Commission;
Appalachian Coal Country Watershed Team;
Earth Conservancy;
National Trout Unlimited;
Appalachian Region Reforestation Initiative (ARRI);
ARIPPA;
WPCAMR.
                                 ______
                                 
   Submitted Letter by Melinda Hughes-Wert, President, Nature Abounds
March 14, 2011

Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.;

Hon. Tim Holden,
Ranking Minority Member,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.

RE: Hearing to review the Chesapeake Bay TMDL, agricultural 
conservation practices, and their implications on national watersheds

    Dear Chairman Thompson and Ranking Member Holden:

    On behalf of Nature Abounds, a national nonprofit located in 
Congressman Thompson's District, we would like to thank you for the 
opportunity to submit comments on the record related to your hearing on 
the Chesapeake Bay TMDL.
    As you know, the Chesapeake Bay is an iconic national treasure and 
an over $1 trillion resource. The Clean Water Act, three major Bay 
Agreements and scores of minor ones, three consent decrees, dozens of 
Memoranda of Agreement/Understanding (MOA/MOU) and a Presidential 
Executive Order all require development of a Bay-wide TMDL. It is not 
only legally required, but perfectly logical, appropriate and fair for 
EPA to develop this TMDL. Moreover, EPA has used this authority wisely, 
engaging in a transparent public process developing the TMDL (and 
seeking comments on the draft), providing states opportunity to prepare 
and revise draft Watershed Implementation Plans, (WIPs), and seeking to 
implement allocations that are substantially equivalent to those the 
states have had since 2003.
    We all must do our part to protect water resources in the region 
because millions of residents pull their drinking water directly from 
the rivers that flow to the Chesapeake Bay--from Richmond and 
Lynchburg, Virginia all the way up to Elmira and Binghamton, New York, 
and many places in between like Washington, D.C. More locally on the 
West Branch of the Susquehanna River, there are 580,000 citizens that 
rely on safe drinking water.
    The reality is that nonpoint source pollution is the largest source 
of pollution to the Bay and its tributaries. Scientists calculate that 
agriculture is responsible for almost half of the nutrient pollution 
discharged into rivers that flow into the Bay watershed, and 60% of the 
sediment pollution. It is likely the valuable agricultural conservation 
efforts some of our region's farmers are implementing will be discussed 
during your hearings. We applaud the farmers who are working hard to 
preserve their lands and their local waters, and we hope the 
agricultural community finds a way to document these achievements to 
include in the Bay model.
    Likewise, in our area located near the headwaters of the West 
Branch of the Susquehanna, in addition to agriculture run off, we are 
once again experiencing more natural resource extraction and timbering 
due to the Marcellus Shale development. This of course is a concern as 
well as the Abandoned Mine Drainage that has already contaminated some 
of our streams.
    Through the WIP process, states are given control to address all 
sources of pollution, developing a plan each state believes will reach 
its targeted pollution reductions. The states are also working 
throughout the region to ensure plans are tailored to each local 
community's needs. For example, each state addresses agriculture 
differently within their WIPs, but the plans would not be successful 
without addressing agriculture in the scope of all pollution sources. 
Allowing the EPA to continue their work with the states allows us all 
to work together towards a healthy economy as well as a healthy 
environment for the Chesapeake Bay region.
    Pollution is affecting the community that we live in. Water 
pollution isn't just dangerous to fish; it can be a detrimental to 
human health. We urge you to allow the states to work with the EPA to 
finish what they have started and continue on a path that will provide 
clean water for the region, not only for the Chesapeake Bay itself, but 
for the people living upstream, as we do in Congressman Thompson's 
District.
            Sincerely,
            [GRAPHIC] [TIFF OMITTED] T1206.053
            
Melinda Hughes-Wert,
President.
                                 ______
                                 
    Submitted Letter by Jan Jarrett, President & CEO, Citizens for 
                         Pennsylvania's Future
Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.;

Hon. Tim Holden,
Ranking Minority Member,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.

RE: Hearing to review the Chesapeake Bay TMDL, agricultural 
conservation practices, and their implications on national watersheds

    Dear Chairman Thompson and Ranking Member Holden:

    On behalf of Citizens for Pennsylvania's Future (PennFuture), we 
would like to thank you for the opportunity to submit comments on the 
record related to your hearing on the Chesapeake Bay TMDL and clean 
water throughout the region.
    The Chesapeake Bay is an iconic national treasure with an estimated 
value of over $1 trillion. The Clean Water Act, three major Bay 
Agreements and scores of minor ones, three consent decrees, dozens of 
Memoranda of Agreement/Understanding (MOA/MOU) and a Presidential 
Executive Order all require development of a Bay-wide TMDL. It is not 
only legally required, but perfectly logical, appropriate and fair for 
EPA to develop this TMDL. Moreover, EPA has used this authority wisely, 
engaging in a transparent public process developing the TMDL (and 
seeking comments on the draft), providing states opportunity to prepare 
and revise draft Watershed Implementation Plans, (WIPs), and seeking to 
implement allocations that are substantially equivalent to those the 
states have had since 2003.
    We all must do our part to protect water resources in the region 
because millions of residents pull their drinking water directly from 
the rivers that flow to the Chesapeake Bay--from Richmond and 
Lynchburg, Virginia all the way up to Elmira and Binghamton, New York, 
and many places in between like Washington, D.C. I'm sure you are aware 
of the many Pennsylvania communities that rely on our local waterways 
for drinking, recreation and tourism.
    Through the WIP process states are given control to address all 
sources of pollution, developing a plan each state believes will reach 
its targeted pollution reductions. The states are also working 
throughout the region to ensure plans are tailored to each local 
community's needs. The reality is that nonpoint source pollution, 
including farm runoff, is the largest source of pollution to the Bay 
and its tributaries. There is no place this is more evident than right 
here in central Pennsylvania. Scientists calculate that agriculture is 
responsible for almost half of the nutrient pollution discharged into 
rivers that flow into the Bay watershed, and 60% of the sediment 
pollution. Each state addresses agriculture differently within their 
WIPs, but the plans would not be successful without addressing 
agriculture in the scope of all pollution sources.
    It is likely the valuable agricultural conservation efforts some of 
our region's farmers are implementing will be discussed during your 
hearing. We applaud the farmers who are working hard to preserve their 
lands and their local waters. Many in the agricultural community have 
taken advantage of the vast state and Federal financial resources 
available to make these upgrades. Others have used personal resources 
to reinvest back into their operations for the sake of sustainability. 
We hope the agricultural community finds a way to document these 
achievements to include in the Bay model.
    Pollution is affecting the community that we live in; for example, 
City Island Beach in Harrisburg experiences beach closures almost every 
summer because of high E. coli levels and poor water quality. Water 
pollution isn't just dangerous to fish; it can be a detrimental to 
human health because of unsafe drinking water and flooding. We urge you 
to allow the states to work with the EPA to finish what they have 
started and continue on a path that will provide clean water for the 
region.
            Sincerely,
            [GRAPHIC] [TIFF OMITTED] T1206.054
            
Jan Jarrett,
President & CEO,
Citizens for Pennsylvania's Future (PennFuture).
                                 ______
                                 
 Submitted Letter by Dave O'Leary, Conservation Chair, Maryland Sierra 
                                  Club
March 14, 2011

Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.;

Hon. Tim Holden,
Ranking Minority Member,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.

RE: Hearing to review the Chesapeake Bay TMDL, agricultural 
conservation practices, and their implications on national watersheds

    Dear Chairman Thompson and Ranking Member Holden:

    On behalf of the 14,000 members of the Sierra Club, we would like 
to thank you for the opportunity to submit comments on the record 
related to your hearing on the Chesapeake Bay TMDL.
    The Chesapeake Bay is an iconic national treasure and an over $1 
trillion resource. The Clean Water Act, three major Bay Agreements and 
scores of minor ones, three consent decrees, dozens of Memoranda of 
Agreement/Understanding (MOA/MOU) and a Presidential Executive Order 
all require development of a Bay-wide TMDL. It is not only legally 
required, but perfectly logical, appropriate and fair for EPA to 
develop this TMDL. Moreover, EPA has used this authority wisely, 
engaging in a transparent public process developing the TMDL (and 
seeking comments on the draft), providing states opportunity to prepare 
and revise draft Watershed Implementation Plans, (WIPs), and seeking to 
implement allocations that are substantially equivalent to those the 
states have had since 2003.
    We all must do our part to protect water resources in the region 
because millions of residents pull their drinking water directly from 
the rivers that flow to the Chesapeake Bay--from Richmond and 
Lynchburg, Virginia all the way up to Elmira and Binghamton, New York, 
and many places in between like Washington, D.C.
    Through the WIP process states are given control to address all 
sources of pollution, developing a plan each state believes will reach 
its targeted pollution reductions. The states are also working 
throughout the region to ensure plans are tailored to each local 
community's needs. The reality is that nonpoint source pollution, 
including farm runoff, is the largest source of pollution to the Bay 
and its tributaries. Scientists calculate that agriculture is 
responsible for almost half of the nutrient pollution discharged into 
rivers that flow into the Bay watershed, and 60% of the sediment 
pollution. Each state addresses agriculture differently within their 
WIPs, but the plans would not be successful without addressing 
agriculture in the scope of all pollution sources.
    It is likely the valuable agricultural conservation efforts some of 
our region's farmers are implementing will be discussed during your 
hearing. We applaud the farmers who are working hard to preserve their 
lands and their local waters, and we hope the agricultural community 
finds a way to document these achievements to include in the Bay model.
    Pollution is affecting the communities that we live in. There are 
countless examples throughout our State of Maryland where nutrient 
pollution is affecting the quality of life of our citizens. The inner 
harbor in Baltimore, for instance, is heavily polluted and its water 
quality is ranked as poor to very poor based on all major water quality 
indicators, including dissolved oxygen, bacterial growth; bio-
diversity; and algae growth. In Anne Arundel County, based on that 
county's own research, all streams are biologically impaired and many 
are impacted by erosion that leads to the destruction of the flood 
plain and requires costly reconstruction. Finally, the Mattawoman creek 
in Charles and Prince George's county is the best and most productive 
tributary to the Chesapeake Bay according to Maryland Department of 
Natural Resources; Mattawoman creek is Chesapeake's Bay most productive 
migratory fish nursery, yet the creek's waters are listed as impaired 
by EPA, and it is at very high risk of further degradation.
    Water pollution is dangerous to all living beings, including 
people; it can be dangerous to humans when flooding occurs and 
detrimental to human health if water quality is impacted by bacteria. 
We urge you to allow the states to work with the EPA to finish what 
they have started and continue on a path that will provide clean water 
for the region.
            Sincerely,

Dave O'Leary,
Conservation Chair,
Maryland Sierra Club.
                                 ______
                                 
 Submitted Letter by Doug Siglin, Federal Affairs Director, Chesapeake 
                             Bay Foundation
March 15, 2011

Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.

    Dear Chairman Thompson,

    On behalf of the Chesapeake Bay Foundation, I respectfully request 
that this letter and the accompanying paper be included in the official 
record of your Subcommittee's March 16, 2011 ``Public hearing to review 
the Chesapeake Bay TMDL, agricultural conservation practices, and their 
implications on national watersheds.''
    Earlier today the USDA's Natural Resources Conservation Service 
(NRCS) released its final Assessment of the Effects of Conservation 
Practices on Cultivated Cropland in the Chesapeake Bay Region (NRCS 
study). As you are well aware, collectively agriculture is the largest 
remaining source of nutrient pollution to the Chesapeake Bay and its 
tributaries. The conservation practices highlighted in the NRCS study 
are critical to achieve the pollution reductions outlined by the states 
in their recently-submitted Watershed Implementation Plans.
    According to the NRCS study, eight out of ten cropped acres in the 
watershed require additional treatment to reduce nutrient and sediment 
losses from farm fields, especially nitrogen in subsurface flows. A key 
finding of the study is that within this 80% of cropped acres, about 
\1/4\ remains critically undertreated:

        ``. . . 19 percent of cropped acres (810,000 acres) have a high 
        level of need for additional conservation treatment. Acres with 
        a high level of need consist of the most vulnerable acres with 
        the least conservation treatment and the highest losses of 
        sediment and nutrients. Model simulations show that adoption of 
        additional conservation practices on these 810,000 acres would, 
        compared to the 2003-06 baseline, further reduce edge-of-field 
        sediment loss by 37 percent, losses of nitrogen with surface by 
        27 percent, losses of nitrogen in subsurface flows by 20 
        percent, and losses of phosphorous (sediment attached and 
        soluble) by 25 percent.''

        Assessment of the Effects of Conservation Practices on 
        Cultivated Cropland in the Chesapeake Bay Region, page 6.

    Further, the NRCS study finds that only 9% of the cropped acres in 
the watershed meet criteria for adequate treatment of both phosphorous 
and nitrogen (page 31.)
    The NRCS study also finds that in the Susquehanna River watershed, 
84% of crop acres are undertreated and 32% of that acreage is 
critically undertreated. This critically undertreated percentage is 
higher than any other cited watershed or region in the Chesapeake Bay 
region. According to NRCS, targeting assistance to these and other 
critically undertreated acres greatly enhances benefits to Chesapeake 
Bay water quality almost two times as much as treating those acres with 
moderate or low conservation need.
    The NRCS report also highlights the extreme vulnerability of the 
Chesapeake Bay watershed to nutrient and sediment losses. In fact, the 
report says ``Because of the higher vulnerability factors, the 
Chesapeake Bay region has higher per-acre average annual losses of 
sediment, nitrogen, and phosphorus from fields than does the Upper 
Mississippi River Basin.''
    We urge you to make it a very high priority in the 2012 Farm Bill 
to focus conservation technical and financial assistance on the \4/5\ 
of cropped acres in the Chesapeake Bay watershed still in need of water 
quality treatment, and within that, to ensure that priority is given to 
the vulnerable acres most in need of one or more additional 
conservation practices. The 2008 Farm Bill took important steps in this 
direction through the creation of the Chesapeake Bay Watershed 
Initiative, which has a $250 million baseline for the next 5 year 
period. We urge you to do all you can to continue this program, expand 
it, and search for ways to make it even more effective on the ground.
    Improving the historically insufficient air and water quality 
performance of agriculture in the Chesapeake Bay region and around the 
nation, while at the same time meeting the world's need for adequate 
and nutritious food, is one of the great challenges that our country 
faces in the coming decades. We ask that you and your colleagues on the 
House Agriculture Committee do all you can to begin to address these 
challenges with singular focus, energy and wisdom in the 2012 Farm 
Bill.
    Thank you for consideration of this request. 
    [GRAPHIC] [TIFF OMITTED] T1206.055
    
Doug Siglin,
Federal Affairs Director.

CC:

Hon. Tim Holden, Ranking Minority Member, Subcommittee on Conservation, 
Energy, and Forestry, House Committee on Agriculture.
                               attachment
The LimnoTech Report: A Faulty and Misleading Distraction
Beth McGee, Ph.D., Senior Scientist, Chesapeake Bay Foundation
    In December 2010, the Agricultural Nutrient Policy Council (ANPC) 
released a report, prepared by LimnoTech, entitled ``Comparison of 
Draft Load Estimates for Cultivated Cropland in the Chesapeake Bay 
Watershed.'' The ANPC is chaired by the American Farm Bureau 
Federation's Director of Regulatory Services, Don Parrish. Other 
steering committee members include: The Fertilizer Institute, the 
National Pork Producers Council, the National Corn Growers Association 
and the Agribusiness Retailers Association.
    The LimnoTech report levied criticisms at the computer model used 
by the Environmental Protection Agency (EPA) to develop the Chesapeake 
Bay `pollution diet' or Total Maximum Daily Load (TMDL). Specifically, 
the report compared the Chesapeake Bay Program (CBP) Partnership's 
Watershed Model to one used by the U.S. Department of Agriculture 
(USDA) in its Conservation Effects Assessment Project (CEAP) report for 
the Chesapeake Bay Region. LimnoTech alleges that differences between 
the two modeling efforts draw into question the validity of using the 
CBP Watershed model to develop the Bay TMDL. This contention is 
completely without merit. Not only is the CBP Watershed Model a fully 
valid basis for the TMDL, the CEAP report reaffirms the need for 
agriculture to do far more to reduce its water quality impacts.
    The CBP Watershed Model and the CEAP model were developed for two 
different purposes. The CBP Watershed Model was created as a management 
decision-making tool to assist with the development of the TMDL and 
includes comparable information about multiple pollution sources. The 
CEAP model is more narrowly focused on evaluating the effects of 
conservation practices on cropland. Because they were developed 
independently to achieve different goals, it is not surprising the 
modeling framework and several model parameters (e.g., hydrology, time 
frame, spatial scale) differ. Hence, comparing the models is like 
comparing apples to oranges.
    At its core, the LimnoTech report is an attempt by national 
agribusiness lobbying groups to discredit the Chesapeake Bay TMDL and 
delay efforts to clean up the region's rivers, streams, and the 
Chesapeake Bay. The Bay TMDL is a scientifically-based tool developed 
over a decade in collaboration with numerous Federal, state, and 
academic partners using a state of the art model that peer reviews have 
validated time and time again. ANPC's efforts to undermine the TMDL by 
attacking the credibility of the CBP Watershed Model distracts us from 
the real issue that agriculture, like all other sources of pollution, 
must do more if we are to restore the Chesapeake and the rivers that 
feed it.
Flaws

1. The LimnoTech report is fundamentally wrong to compare the CBP 
        Watershed Model's estimates of TMDL caps for agriculture with 
        the CEAP model's agricultural pollution loads.

LimnoTech presents, on the front page of its report, graphs that 
        compare pollution load estimates from cropland for the CBP 
        Watershed Model and CEAP model to the Bay TMDL pollution caps 
        or limits for each pollutant that agriculture is responsible 
        for achieving. This comparison is misleading and inappropriate. 
        As noted above, the two models' designs are inherently 
        different.
By way of example, let's say you go shopping for a new suit and are 
        alarmed to find that you no longer fit into a size 8 of your 
        favorite brand. Now you are a size 10. You decide, on the spot, 
        to lose weight so you can fit into a size 8. The same day, you 
        go into another store and try on a size 8 of a different brand 
        and it fits. Does that mean you don't need to lose weight? No! 
        It means the brands are sized differently and to gauge your 
        progress on losing weight, you should compare your ability to 
        fit into your favorite brand.
In the case of the CEAP and CBP Watershed models, differences in things 
        like time frames, rainfall inputs, and averaging period mean 
        that the outputs from the models will be different. Directly 
        comparing the estimated pollution loads from one model, with 
        the TMDL pollution limits estimated by another, is not 
        scientifically valid or appropriate.

2. Differences in land use are explainable.

The LimnoTech report indicates that the CBP Watershed Model assumes 
        there are 41.1 million acres of land in the watershed while the 
        CEAP model uses an estimate of 42.49 million acres. The reason 
        why the CEAP model figure is higher is because it includes 
        areas that are not inside the Bay watershed; e.g., this 
        estimate includes most of the land on the Delmarva Peninsula, 
        only part of which is in the Chesapeake Bay watershed. If one 
        reconciles the differences, the estimates used for each model 
        are very similar.
Furthermore, differences in estimated acreages of cropland are also 
        explainable if one considers the above differences in the 
        acreage estimates for the watershed as well as the fact that 
        LimnoTech compared crop data from the CBP Watershed Model from 
        2009 to data from 2003-2006 in the CEAP model. The LimnoTech 
        report fails to highlight these important differences.

3. The LimnoTech report fails to note that differences in estimates of 
        acreage under conservation tillage are a reporting issue, not a 
        modeling issue.

Some have suggested that agricultural practices that are implemented 
        voluntarily (i.e., without state or Federal cost-share 
        assistance) are not being counted and reported by the states to 
        EPA and thus not included in the CBP Watershed Model. The CEAP 
        report based its rate of practice implementation on farmer 
        surveys; i.e., on what a farmer says he/she is doing in the 
        field. There is great interest from EPA, USDA, and the Bay 
        jurisdictions in better quantification and accounting of 
        implemented practices, particularly cover crops and no-till, 
        that farmers often implement without cost-share assistance. 
        USDA and EPA have agreed to work cooperatively to address this 
        issue. This commitment is also contained within the Strategy 
        for Protecting and Restoring the Chesapeake Bay developed in 
        response to the Chesapeake Bay Executive Order (13508).
Thus, this omission of implementation data in the CBP Watershed Model 
        is a reporting issue, not a flaw in the model as concluded by 
        LimnoTech. As verified implementation data are acquired, the 
        CBP Watershed Model will be updated to include this new 
        information. This omission, however, has no bearing on the TMDL 
        allocations, another point LimnoTech fails to acknowledge.

4. LimnoTech is wrong when it concludes EPA ``moved 20 percent of land 
        out of crop production to pasture or forest to help achieve the 
        allocations in the TMDL.''

This statement typifies a number of inaccuracies found throughout the 
        LimnoTech report. The Bay TMDL was based on the Bay 
        jurisdictions' watershed implementation plans, which detail the 
        management measures those jurisdictions conclude are necessary 
        to achieve the TMDL allocations. The jurisdictions, not the 
        EPA, made the decisions about conversion of cropland to 
        pasture, hayland, forest, or forested buffers. LimnoTech is 
        wrong to state otherwise.
Conclusion
    It is important to note that the overall conclusions drawn from 
both the USDA CEAP report and the CBP Watershed Model about 
agricultural runoff and Bay restoration are entirely consistent. We 
have made progress to date, reducing nitrogen, phosphorus, and sediment 
pollution from agricultural runoff. More is left to be done, and the 
deadline is 2025.
    We can achieve even greater reductions from the agricultural sector 
by implementing basic soil conservation and nutrient management plans 
on the region's cropland. The fact that two entirely different models, 
with different assumptions and inputs, have reached the same overall 
conclusion is quite reaffirming in terms of the management decisions we 
are making to clean up the region's waterways.
                                 ______
                                 
            Submitted Letter by Choose Clean Water Coalition
March 16, 2011

Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.;

Hon. Tim Holden,
Ranking Minority Member,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture
Washington, D.C.

RE: Hearing to review the Chesapeake Bay TMDL, agricultural 
conservation practices, and their implications on national watersheds

    Dear Chairman Thompson and Ranking Member Holden:

    On behalf of the members of the Choose Clean Water Coalition 
(Coalition) listed below, we would like to thank you for the 
opportunity to submit comments on the record related to your March 16, 
2011 hearing on the Chesapeake Bay TMDL.
    The Chesapeake Bay is an iconic national treasure and an over $1 
trillion resource.\1\ Right now is our best opportunity in a generation 
to restore the Bay and all the waters that feed it. While we have made 
progress on a number of fronts, we simply have not done enough thus far 
to stem pollution to our waterways. The U.S. Environmental Protection 
Agency (EPA) and the Bay states collaborated on the issuance of the 
TMDL, and we formally express our strong support to implement the Bay-
wide TMDL.
---------------------------------------------------------------------------
    \1\ 2004 Chesapeake Bay Watershed Blue Ribbon Finance Panel Report, 
``Saving a National Treasure: Financing the Cleanup of the Chesapeake 
Bay''.
---------------------------------------------------------------------------
    We have a moral, economic and legal imperative to protect these 
local waters upon which 17 million people rely. The Clean Water Act, 
three major Bay Agreements and scores of minor ones, three consent 
decrees, dozens of Memoranda of Agreement/Understanding (MOA/MOU) and a 
Presidential Executive Order all required the development of a Bay-wide 
TMDL. It was not only legally required, but perfectly logical, 
appropriate and fair for EPA to develop this TMDL. Moreover, EPA has 
used this authority wisely, engaging in a highly transparent public 
process developing the TMDL (and seeking comments on the draft), 
providing the states opportunity to prepare and revise draft and then 
final Watershed Implementation Plans (WIPs), and seeking to implement 
allocations that are substantially equivalent to those the states have 
had since 2003.
    The decline of this ecological national treasure stems from human 
activity that has altered the landscape throughout the Bay's 64,000 
square mile watershed comprised of parts of Maryland, Virginia, 
Pennsylvania, Delaware, New York, West Virginia and all of the District 
of Columbia (``Bay states''). The population in the watershed has 
doubled since 1950 (now around 17 million), and much of this growth and 
development--leveling trees, forests and wetlands and replacing farms 
with subdivisions and malls--has taken place close to the Bay or to its 
sensitive tributaries, harming natural filters that are critical to a 
healthy ecosystem.
    The Chesapeake has historically been America's great protein 
factory--once producing 25 million bushels of oysters annually and, 
until recently, 50% of the nation's blue crabs. The Bay is the spawning 
and nursery grounds for up to 90% of the Atlantic stocks of striped 
bass. But, the most recent harvest of oysters was down to 200,000 
bushels--far below historic levels--and only about \1/3\ of the 
nation's blue crabs now come from the Chesapeake.
    The most critical measure of the Bay's health is water quality. A 
healthy and productive Bay must be safe for people and support abundant 
aquatic life, such as oysters, fish and crabs. The water should be 
clear enough for underwater grasses, a critical habitat for these 
species, to thrive. The Bay's primary water quality problem is caused 
by excessive amounts of nutrients, specifically nitrogen and 
phosphorus, and sediment that flow from tributaries and lead to murky 
water and algae blooms. Excess algae cloud the water and block sunlight 
from reaching the Bay grasses on the bottom. Decaying algae create low 
oxygen levels for aquatic life throughout the Bay. The latest 
indicators of Bay health from EPA in 2009, showed the Bay to be meeting 
only 24% of its water quality goals.\2\
---------------------------------------------------------------------------
    \2\ Bay Barometer: A Health and Restoration Assessment of the 
Chesapeake Bay and Watershed in 2009, EPA 2010.
---------------------------------------------------------------------------
Origins of Chesapeake Bay Management and Restoration
    In 1972, Tropical Storm Agnes exacerbated the decline of the Bay, 
which led U.S. Senator Charles ``Mac'' Mathias (R-Md) to set out on a 
lengthy tour of the Bay in the summer of 1973. Six years and $27 
million later, the EPA finished the comprehensive study and, in 
September 1983, released a lengthy report, Chesapeake Bay: A Framework 
for Action. The report identified nutrient pollution as the greatest 
threat to the Bay, and recognized that the problem could not be solved 
without addressing the entire watershed--not just the tidal Bay states 
of Maryland and Virginia. The report also provided an innovative 
blueprint for the intergovernmental, inter-jurisdictional ``Chesapeake 
Bay Program'' that was formed in December when the Chesapeake Bay 
Agreement of 1983 was signed by a group that would be known as the 
Chesapeake Executive Council--the Governors of Maryland, Pennsylvania 
and Virginia, the Mayor of the District of Columbia, and the 
Administrator of the EPA.
    In February, 1987 Congress passed the reauthorization of the Clean 
Water Act \3\ (CWA), which included a new section entitled ``Chesapeake 
Bay''. This provision, known as Section 117, basically codified the 
Chesapeake Bay Program and authorized Congress to continue funding the 
restoration effort at $13 million annually.\4\ In December 1987, the 
Chesapeake Executive Council, now expanded to include the chair of the 
Chesapeake Bay Commission, signed the 1987 Chesapeake Bay Agreement, 
which for the first time included specific quantitative goals and 
commitments. The centerpiece of the Agreement was a goal to reduce 
nutrient pollution to the Bay by 40% by 2000. The 1992 Amendments to 
the Chesapeake Bay Agreement was signed by the Council and ``capped'' 
the 40% reduction goal after 2000. In addition, the 1992 Amendments 
recognized the need to reduce nutrients in the tributaries, and called 
for the states to develop ``tributary-specific strategies'' on how to 
meet the nutrient reduction goal. The Amendments also recognized the 
need for ``intensified efforts to control nonpoint sources of 
pollution, including agriculture and developed areas . . .'', as well 
as the need to engage Delaware, New York and West Virginia in the 
efforts to reduce nutrients in the tributaries.
---------------------------------------------------------------------------
    \3\ Water Quality Act of 1987.
    \4\ In 2000, Congress passed a reauthorization of Section 117 of 
the Clean Water Act which increased the authorization level to $40 
million annually.
---------------------------------------------------------------------------
    In 1998, a lawsuit filed by the American Canoe and American 
Littoral Society against EPA alleged Virginia was not timely and 
complete in listing its Clean Water Act Section 303(d) impaired waters 
and preparing TMDLs for those waters, and that EPA failed in its non-
discretionary duty under the Clean Water Act to take over when the 
state had failed to do so.
    Virginia submitted an incomplete list of impaired waters in 1996. 
That list, which included Virginia's portion of the Chesapeake Bay, was 
partially approved by EPA in 1998. The lawsuit was settled with a 
consent agreement in the Federal Eastern District of Virginia court on 
June 11, 1999. Under the terms of the court agreement, EPA would ensure 
that Virginia completed its listing of impaired waters and developed 
TMDLs for all waters on the 1998 list by May 1, 2010. If Virginia did 
not do so, EPA would complete them no later than May 1, 2011. If waters 
met water quality standards any time up to May 1, 2011, they would be 
removed from the list and there would be no need for TMDLs for those 
waters.
    The Chesapeake Executive Council signed the Chesapeake 2000 
Agreement on June 28, 2000. Delaware and New York both signed an MOU 
with the other Chesapeake Bay Program partners and agreed to adopt the 
Water Quality goals of the Chesapeake 2000 Agreement--West Virginia 
followed suit in 2002.
    All of the Bay states developed updated tributary specific 
strategies, most were final in 2004. For the past 7 years all of the 
Bay states have known what their load reduction allocations would be, 
and have developed strategies to meet them, which are now called 
``watershed implementation plans (WIPs)''.
    At the 2007 Chesapeake Executive Council meeting, Maryland's 
Governor Martin O'Malley, chair of the Chesapeake Executive Council, 
formally announced that the Chesapeake Bay Program would not meet its 
water quality goals by 2010. Removing the Bay from the Section 303(d) 
list would have avoided the need for development of a TMDL for the Bay. 
The failure to meet that deadline triggered the court ordered 
obligations found in the American Canoe and Kingman Park consent 
decrees and the MOU with Maryland to develop a Bay TMDL discussed in 
further detail below.
    This failure to meet the 2010 restoration goals was acknowledged 
again in 2008 at the annual Council meeting, when EPA revealed that the 
current restoration pace would not meet the nitrogen goals until 2034 
and the phosphorus goals until 2050. In June 2008, the Principals' 
Staff Committee of the Chesapeake Bay Program formally requested that 
EPA accelerate the Bay TMDL so it takes effect no later than December 
31, 2010--not May 1, 2011.\5\ EPA agreed to the request from its 
partners and pledged to finalize the Bay TMDL by the end of 2010.
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    \5\ PSC Meeting minutes June 18-19, 2008.
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    Congress and the Administration have increased commitments of 
financial and agency support for restoration and protection of the 
Chesapeake Bay watershed since the 1980s. There has been a considerable 
amount of Federal support to states, local governments, farmers and 
others to implement on-the-ground practices that will be needed to 
succeed. This funding support has been increasing over the years as the 
TMDL has gotten closer, including, the 2008 Farm Bill, in which 
Congress allocated $188 million over 6 years in mandatory spending for 
agricultural conservation practices on farms in the Chesapeake Bay 
watershed portion of the six states. This is a critical source of 
substantial funding for farmers to implement practices to support 
efforts to meet the requirements of the TMDL and their state WIPs.
    In May 2009, President Obama issued Executive Order 13508 
``Chesapeake Bay Protection and Restoration,'' which aligned the 
Federal Government with efforts necessary to restore the Bay's water 
quality and other restoration and protection goals. This historic 
effort will ensure unprecedented Federal support for efforts to restore 
the Bay and to meet the TMDL. In September 2009, USDA Secretary Vilsack 
announced that there would be $638 million over 5 years from various 
USDA programs devoted to Chesapeake Bay restoration activities--though 
this is not all directly for water quality.
    The EPA, along with the Bay states, has worked for decades in a 
cooperative manner through a transparent and public process to reduce 
pollution leading to the Chesapeake Bay. Unfortunately, water quality 
goals set in the 1980s and in 2000 have not been met, triggering the 
development of the TMDL. In addition there is a clear and lengthy 
record of EPA, and the Bay states, going to considerable lengths to 
ensure that both technical and economic attainability were addressed 
during this process. The new Chesapeake Bay tidal water quality 
standards are both scientifically valid and protective under the Clean 
Water Act, and at the same time, are economically and technically 
attainable. It is important to note that since the 1999 court agreement 
with EPA over the listing of Virginia's Bay waters as impaired, there 
has been ongoing progress by EPA and the Federal Government to follow 
that agreement, the Chesapeake 2000 Agreement and ultimately the 
development of the Chesapeake Bay TMDL. This progress, though sometimes 
delayed by technical issues, continued unabated through the 
Administrations of Presidents Bill Clinton, George W. Bush, and Barrack 
Obama.
EPA is Legally Obligated To Develop a Bay Wide TMDL
    EPA's statutory authority to develop the Bay-wide TMDL is derived 
from Section 303(d) of the Clean Water Act.

        The CWA required each state, . . . to submit by June 28, 1979 
        (no more than 180 days after the EPA identified certain 
        pollutants, pursuant to  1314(a)(2)(D)) the first of its TMDL 
        calculations to the Administrator of the EPA. Within thirty 
        days after this submission, the Administrator must take one of 
        two actions. She may approve the TMDL, in which case it becomes 
        binding on the states. If, however, she disapproves it, the 
        Administrator must devise her own binding TMDL for the state 
        within thirty days of disapproval. CWA  303(d)(2), 33 U.S.C.  
        1313(d)(2).

    Not only have none of the Bay states developed TMDLs for either 
their portions of the Bay (Maryland and Virginia) or their tributaries 
to the Bay, but they have affirmatively asserted that they were not 
able to develop the TMDL on their own, and invited EPA to assume the 
lead and take over developing the Bay TMDL.\6\ Further, states agreed 
that a ``state by state'' approach to develop the TMDLs was 
scientifically and administratively less desirable than continuing to 
use a regional approach as they did with the water quality criteria. 
The well established doctrine of ``constructive submission'' of an 
inadequate TMDL by a state, which triggers EPA's duty to take over, 
coupled with the states' express request in this case that EPA take the 
lead in developing the Bay wide TMDL, provide ample authority for EPA's 
action in doing so.
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    \6\ This decision was formalized at the meeting of the Principals' 
Staff Committee (PSC) on October 1, 2007. It was agreed that the Bay 
watershed TMDLs would be developed jointly between the six Bay 
watershed states, the District of Columbia and EPA, and then 
established by EPA. It was further agreed that the Water Quality 
Steering Committee would draft nutrient and sediment cap load 
allocations by tributary basin and jurisdiction, and the Principals' 
Staff Committee would formally adopt these allocations.
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    In addition to the request of the states and EPA's legal obligation 
under the constructive submission doctrine, there is a compelling and 
logical reason for EPA to manage or coordinate the development of the 
Bay TMDL. The Bay watershed includes portions of six states, and all of 
the District of Columbia, and it would be impossible for one state to 
develop a TMDL to address more than a small part of the problem. No 
matter how firm Maryland and Virginia are with polluters or dischargers 
in their states, they could not fix the problems alone and could not 
order polluters or dischargers in upstream states, Pennsylvania or New 
York, for example, to cut back on their discharges.
Section 117(g) of the Clean Water Act
    EPA's authority to issue the Bay wide TMDL is enshrined in Section 
117 of the Clean Water Act, which states:

          ``The Administrator, in coordination with other members of 
        the Chesapeake Executive Council, shall ensure that management 
        plans are developed and implementation is begun by signatories 
        to the Chesapeake Bay Agreement to achieve and maintain--

                  (A) the nutrient goals of the Chesapeake Bay 
                Agreement for the quantity of nitrogen and phosphorus 
                entering the Chesapeake Bay and its watershed.
                  (B) the water quality requirements necessary to 
                restore living resources in the Chesapeake Bay 
                ecosystem; . . .''

    EPA is required by this language to ``ensure that management plans 
are developed and implementation is begun'' to, among other things, 
achieve and maintain the nutrient reduction goals of the Chesapeake 
2000 Agreement--40% nutrient reduction and removal of the Bay from the 
Section 303(d) list. The proposed Chesapeake Bay TMDL and accompanying 
state developed WIPs are in fact the Congressionally required 
management plans to ``achieve and maintain . . . the nutrient goals . . 
. [and] water quality requirements'' referred to in Section 117(g) 
because they are tailored to achieving compliance with the water 
quality standards for nutrients and sediment. The TMDL is the principal 
tool provided in the Clean Water Act for this purpose, and therefore is 
precisely what Congress intended that EPA should do in implementing 
Sections 303(d) and 117(g).
    In addition to the statutory requirements that EPA develop a Bay-
wide TMDL, EPA is also required to take this action pursuant to the 
consent decree in the Fowler case. In that case, EPA was sued for 
failing to comply with Section 117(g) and the Bay Agreements. Fowler v. 
EPA, Case No. 09-cv-00005-CKK, D. D.C., January 5, 2009. That matter 
was settled by agreement between the parties. The agreement provides 
that EPA will develop a Bay wide TMDL ``[b]y December 31, 2010, 
pursuant to 33 U.S.C.  1313(d) and 1267 . . .'' Settlement Agreement 
Section III.A.1. That agreement set forth a number of other deadlines 
for submission and completion of state watershed implementation plans. 
Thus, EPA is also required pursuant to the settlement agreement in 
Fowler to develop a Bay wide TMDL.
    In its TMDL document EPA describes, thoroughly and accurately, the 
lengthy history leading to its development of the draft TMDL, including 
the legal framework (Sections 1-3). In Section 8, it describes the 
development by the states of their Watershed Implementation Plans, 
EPA's evaluation of them, and the use by EPA of ``backstop'' 
allocations which EPA developed, based on its exhaustive modeling and 
data-gathering efforts, to ensure that, where the WIPs fail to 
demonstrate eventual achievement of the loading caps, the ``backstop'' 
allocations will do so.
    Consistent with the statutory scheme, binding judicial agreements, 
and at the request of the Bay states, EPA has taken the lead in 
developing and proposing the TMDL, based on years of discussions and 
hard work with representatives of the Bay states, the scientific 
community, members of the public, local officials and other 
stakeholders. Given the multi-jurisdictional nature of the water 
quality problems in the Bay, it also makes immense practical sense for 
EPA to take the lead. EPA's lead role in developing and issuing the 
TMDL and the final deadlines of December 2010 and 2025, for 
implementation, are further supported by the final strategies developed 
pursuant to the President's May 12, 2009 Executive Order.
Chesapeake Bay Program Computer Models
    What is commonly referred to as ``the Bay model'' is actually a 
series of linked three-dimensional models. The suite of Chesapeake Bay 
models has been developed through an extensive peer reviewed scientific 
process over the past 20 to 30 years, with broad-based collaboration 
among Federal, state, academic and private partners. In 2003, the model 
simulations and other data pointed toward a nitrogen allocation of 175 
million pounds annually. Federal and state decision makers ultimately 
allocated 183 million pounds of nitrogen to the seven Bay watershed 
jurisdictions, each of which developed Tributary Strategies, which were 
blueprints on how to meet each state's nutrient and sediment 
allocation. Additional information, including a newer Phase 5 model led 
to a very similar allocation in 2010 of 187.44 million pounds of 
nitrogen to the seven jurisdictions. The allocations in 2010 for the 
TMDL were very close to those that the states were given 6 years 
earlier.
    The Phase 5 Watershed Model has almost 100 collaborators and 
partners led by EPA, Virginia Department of Conservation and 
Recreation, Interstate Commission on the Potomac River Basin, 
University System of Maryland, Maryland Department of the Environment, 
U.S. Geological Survey, Chesapeake Research Consortium, and Virginia 
Polytechnic Institute. Special attention has been paid to the 
agricultural assumptions in the model with specific input from the Bay 
Program's Agricultural Nutrient and Sediment Reduction Workgroup.\7\ In 
addition, the Bay Program partnership recently funded University of 
Maryland's Mid-Atlantic Water Program to complete a 2 year study to 
update the effectiveness estimates of every best management practice in 
the model which resulted in a 900 page report that summarizes for each 
practice, all data evaluated, the technical experts involved in 
developing the recommendation, and all accounting of discussions and 
decisions made.
---------------------------------------------------------------------------
    \7\ http://www.chesapeakebay.net/
committee_agworkgroup_info.aspx?menuitem=16731.
---------------------------------------------------------------------------
    In its April 2007 report, Taking Environmental Protection to the 
Next Level,\8\ the National Academy of Public Administration stated 
that:
---------------------------------------------------------------------------
    \8\ 2007. National Academy of Public Administration. ``Taking 
Environmental Protection to the Next Level: An Assessment of the U.S. 
Environmental Services Delivery System'' 2048.

        EPA's Chesapeake Bay Program has led the way in developing a 
        comprehensive water monitoring and assessment program that 
        tracks and compiles the water quality conditions throughout the 
        Bay. Based on the monitoring data, the CBP has developed 
        sophisticated Chesapeake Bay watershed and airshed models that 
        have enhanced the understanding of the complex problem of 
        nutrient pollution and its effects on the Bay waters. This 
        watershed-wide understanding provided the foundation for the 
        1987 Chesapeake Bay Agreement and helped to coordinate and 
        assign responsibility among the Bay states for achieving water 
---------------------------------------------------------------------------
        quality goals.

    A public criticism of the model has been that many practices, 
particularly agricultural ones, implemented voluntarily, are not being 
accounted for in the model. While this statement is true, in reality, 
it is not a flaw of the model, but rather a failure to collect the 
proper input information to feed into the model. The solution to this 
problem is to provide better accounting, not to change any of the model 
parameters. In addition, this under-counting of implemented practices 
does not affect the TMDL load allocations to the states which were 
based on the relative difference between maximum implementation of 
practices and no-action.
    EPA, in cooperation with its Bay state partners and after years of 
allocation experience, has established sound, supportable rules and 
methods for the Bay TMDL. The Chesapeake Bay Program models are a 
critical tool in the adaptive management framework currently employed 
by the EPA and the Bay states to identify a path forward for 
restoration of the Chesapeake Bay. While water quality data and the 
actual living resources in the Chesapeake Bay will ultimately determine 
when we have restored a clean Bay, the Chesapeake Bay Program models 
help us develop a scientifically valid path to our goals.
The Economic Argument for a Clean Bay
    Congress has recognized that the Chesapeake Bay is a ``national 
treasure and resource of worldwide significance.'' \9\ Valued at over 
$1 trillion, a restored and protected Chesapeake Bay is essential for a 
healthy and vibrant regional economy. Failure to ``save the Bay'' 
threatens this economic driver and, in fact, economic losses have 
already occurred due to water quality degradation throughout the 
watershed. More importantly, investing in clean water technology 
creates jobs, generates economic activity, and can save money in the 
long run.
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    \9\ Chesapeake Bay Restoration Act of 2000, Nov. 7, 2000, P.L. 106-
457, Title II,  202, 114 Stat. 1967.
---------------------------------------------------------------------------
    Perhaps no other creature better exemplifies the Chesapeake Bay 
than the blue crab, Callinectes sapidus. For more than a half century, 
the blue crab has been at the apex of the Bay's commercial fisheries. 
Over \1/3\ of the nation's blue crab harvest comes from the Chesapeake 
Bay. The average annual commercial harvest in Maryland and Virginia 
between 1999 and 2008 was about 55 million pounds.\10\ The dockside 
value of the blue crab harvest Bay-wide in 2008 was approximately $70 
million.\11\ The recreational fishery also provides a significant 
financial off-set for Bay residents--the cost of catching crabs is far 
less than having to buy them.
---------------------------------------------------------------------------
    \10\ NOAA 2008. 2008 Fisheries Economics of the U.S. http://
www.st.nmfs.noaa.gov/st5/publication/econ/2008/MA_ALL_Econ.pdf.
    \11\ NOAA Fisheries: Office of Science & Technology, Annual 
Commercial Landing Statistics website, http://www.st.nmfs.noaa.gov/st1/
commercial/landings/annual_landings.html.
---------------------------------------------------------------------------
    The overall trend, however, since the 1990's has been a decrease in 
landings despite increased crabbing effort.\12\ In addition, the number 
of crabs one year and older dropped from 276 million in 1990 to 131 
million in 2008.\13\ When the broader impact on restaurants, crab 
processors, wholesalers, grocers, and watermen is added up, the decline 
of crabs in the Bay meant a cumulative loss to Maryland and Virginia of 
about $640 million between 1998 and 2006.\14\
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    \12\ Tom Horton. 2003. Turning the Tide: Saving the Chesapeake Bay. 
Second Edition. Island Press. Washington, D.C. 2003.
    \13\ Chesapeake Bay Program. 2010. http://www.chesapeakebay.net/
status_bluecrab.aspx?menuitem=19683.
    \14\ Unpublished data. Dr. James Kirkley, Virginia Institute of 
Marine Science.
---------------------------------------------------------------------------
    In its entirety, the fisheries industry is a significant part of 
local economies. The 2008 Fisheries Economics of the U.S. report by the 
National Oceanic and Atmospheric Administration (NOAA) indicates that 
commercial seafood industry in Maryland and Virginia contributed $2 
billion in sales, $1 billion in income, and more than 41,000 jobs to 
the local economy.\15\ In addition there are indirect benefits to the 
economy in terms of jobs and work created for those who sell fishing 
tackle, maintain and repair boats and equipment and provide other 
related goods and services.
---------------------------------------------------------------------------
    \15\ NOAA 2008. 2008 Fisheries Economics of the U.S. (see 24).
---------------------------------------------------------------------------
    The economic benefits of saltwater recreational fishing are equally 
as impressive, contributing $1.6 billion in sales which in turn 
contributed to more than $ 800 million of additional economic activity 
and roughly 13,000 jobs.\16\ The majority (90-98%) of the commercial 
and recreational saltwater landings in this region come from the 
Chesapeake Bay.\17\
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    \16\ NOAA 2008. 2008 Fisheries Economics of the U.S. (see 24)
    \17\ Lellis-Dibble, K.A., K.E. McGlynn, and T.E. Bigford. 2008. 
Estuarine Fish and Shellfish Species in U.S. Commercial and 
Recreational Fisheries: Economic value as an incentive to protect and 
restore estuarine habitat. NOAA Technical Memorandum. http://
spo.nwr.noaa.gov/tm/TM90.pdf.
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    A 2001 study compared the 1996 water quality of the Bay with what 
it would have been without the Clean Water Act. Results indicated that 
benefits of water quality improvements to annual recreational boating, 
fishing, and swimming ranged from $357.9 million to $1.8 billion.\18\ 
Fisheries declines since the 1990s indicates that early progress 
reducing pollution hasn't been sustained--we must reverse this trend.
---------------------------------------------------------------------------
    \18\ Morgan, et al. 2001. Benefits of water quality policies: the 
Chesapeake Bay. Ecological Economics. Vol. 39: 271-284.
---------------------------------------------------------------------------
    These economic impacts are not restricted to the tidal regions of 
the Bay watershed. According to the Pennsylvania Fish and Boat 
Commission (PFBC), nearly two million people go fishing in Pennsylvania 
each year, contributing over $1.6 billion to the economy. Among the 
most popular species for anglers are smallmouth bass and coldwater 
species, such as brook trout. The PFBC recently passed a proposal to be 
enacted January 1 that mandates total catch-and-release of smallmouth 
bass in certain areas of the Susquehanna River because of population 
declines associated with water quality problems. Degraded stream 
habitat has restricted brook trout to a mere fraction of its historical 
distribution.
    Virginia, and to a lesser extent Maryland, also support significant 
freshwater recreational fisheries, with roughly one million anglers 
participating and contributing millions to local economies.\19\ By way 
of example, a fish kill in the Shenandoah River watershed in 2005, 
likely caused by a variety of factors including poor water quality, 
resulted in roughly a $700,000 loss in retail sales and revenues.\20\
---------------------------------------------------------------------------
    \19\ U.S. Department of the Interior, Fish and Wildlife Service, 
and U.S. Department of Commerce, U.S. Census Bureau. 2006 National 
Survey of Fishing, Hunting, and Wildlife-Associated Recreation.
    \20\ Papadakis, M. 2006. The Economic Impact of the 2005 Shenandoah 
Fish Kill: A preliminary economic assessment. James Madison University. 
www.dep.state.va.us/export/sites/default/info/documents/fishkillReport-
final.pdf.
---------------------------------------------------------------------------
    If pollution to the Bay is left unabated, we will see more 
continued decline of the region's fisheries and the resulting economic 
impacts. In short, we cannot afford not to clean up the Bay.
    Unhealthy waters increase public health burdens associated with 
consuming tainted fish or shellfish or exposure to waterborne 
infectious disease while recreating. For example, one study estimated 
the cost associated with exposure to polluted recreational marine 
waters to be $37 per gastrointestinal illness, $38 per ear ailment, and 
$27 per eye ailment due to lost wages and medical care.\21\
---------------------------------------------------------------------------
    \21\ R.H. Dwight, et al. 2005. Estimating the economic burden from 
illnesses associated with recreational coastal water pollution--a case 
study in Orange County, California. Journal of Environmental 
Management. Vol.: 95-103.
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    Roughly eight million wildlife watchers spent $636 million, $960 
million and $1.4 billion in Maryland, Virginia and Pennsylvania, 
respectively in 2006 on trip-related expenses and equipment.\22\ These 
estimates do not include other economic benefits of these expenditures 
such as job creation and the multiplier effect on local economies. 
Recreational boating is also a strong economic driver in Maryland, 
Pennsylvania and Virginia. The total impact on the Maryland economy 
from recreational boating is estimated to be about $2.03 billion and 
35,025 jobs.\23\ Similarly, Pennsylvania residents spend $1.7 billion 
on boating annually. The average expenditure per recreational boater is 
$274. Of this amount, roughly $113 a year is spent in direct boating-
related expenses and $161 is spent on trip-related expenses, including: 
auto fuel, meals, lodging and admission/entrance fees.\24\
---------------------------------------------------------------------------
    \22\ U.S. Department of the Interior, Fish and Wildlife Service, 
and U.S. Department of Commerce, U.S. Census Bureau. 2006 National 
Survey of Fishing, Hunting, and Wildlife-Associated Recreation.
    \23\ Lipton, D. 2007. Economic Impact of Maryland Boating in 2007. 
University of Maryland Sea Grant Program.
    \24\ http://www.fish.state.pa.us/promo/funding/
fact_economic_impact.htm.
---------------------------------------------------------------------------
    A recent study in Hampton, Virginia found that resident and non-
resident boaters were responsible for $55.0 million in economic impact 
to this city. This impact represents $32.5 million in new value added, 
$22.2 million in incomes and 698 jobs.\25\ The majority of expenditures 
were by out-of-region boating-visitors which represents an inflow of 
``new'' capital into the community. The study also indicated that 
``water quality, fishing quality and other environmental factors'' 
ranked among the most important, in terms of factors that influence a 
boater's decision on where to keep his/her boat.
---------------------------------------------------------------------------
    \25\ Virginia Institute of Marine Science. 2009. Assessment of the 
Economic Impacts of Recreational Boating in the City of Hampton. http:/
/web.vims.edu/adv/econ/MRR2009_2.pdf.
---------------------------------------------------------------------------
    A study by the University of Virginia found that implementation of 
the agricultural practices such as livestock stream exclusion, buffers, 
and cover crops, would generate significant economic impacts.\26\ Every 
$1 of state and/or Federal funding invested in agricultural best 
management practices would generate $1.56 in economic activity in 
Virginia. Implementing agricultural practices, in Virginia, to the 
levels necessary to restore the Bay would create nearly 12,000 jobs of 
approximately one year duration.
---------------------------------------------------------------------------
    \26\ Rephann, T.J. 2010. Economic Impacts of Implementing 
Agricultural Best Management Practices to Achieve Goals Outlined in 
Virginia's Tributary Strategy. Weldon Cooper Center for Public Service, 
University of Virginia. www.coopercenter.org/sites/default/files/
publications/BMP_paper_final.pdf.
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    A recent analysis of the value of investing in water and sewer 
infrastructure concluded that these investments typically yield greater 
returns than most other types of public infrastructure.\27\ For 
example, $1 of water and sewer infrastructure investment increases 
private output (Gross Domestic Product) in the long-term by $6.35. 
Furthermore, adding one job in water and sewer creates 3.68 jobs to 
support that job.
---------------------------------------------------------------------------
    \27\ Krop, R.A., C. Hernick, and C. Frantz. 2008. Local Government 
Investment in Water and Sewer Infrastructure: Adding Value to the 
National Economy. The U.S. Conference of Mayors, Mayors Water Council.
---------------------------------------------------------------------------
    Efforts to delay implementation of the Bay TMDL will only 
exacerbate the economic impacts this region has already experienced due 
to poor water quality. Furthermore, a recent poll in Virginia found 
that an overwhelming majority believe the state can protect water 
quality and still have a strong economy.\28\ Eighty percent of 
respondents agreed with the statement, ``we can protect the water 
quality in rivers, creeks and the Chesapeake Bay and have a strong 
economy with good jobs for Virginians, without having to choose one 
over the other.'' Of those polled, 92% believe the Bay is ``important 
for Virginia's economy.'' Implementation of the TMDL will result in 
clean water, a healthy Bay and a strong regional economy.
---------------------------------------------------------------------------
    \28\ http://www.cbf.org/Document.Doc?id=562.
---------------------------------------------------------------------------
Conclusion
    The voluntary, cooperative efforts to restore the Bay, which began 
in earnest in 1983, did not succeed in meeting any significant water 
quality improvement goals, with only 24% of the Bay's water quality 
goals met in 2009. The latest estimate for meeting the nutrient 
reductions necessary to restore the Bay, at the current pace of the 
voluntary programs, is in 2050. That would be 67 years from when the 
Bay Program was first formed.
    The 1987 Chesapeake Bay Agreement was very specific, laying out the 
purpose of this first historic water quality goal for the Chesapeake, 
``To ensure the productivity of the living resources of the Bay, we 
must clearly establish the water quality conditions they require and 
must then attain and maintain those conditions. Foremost, we must 
improve or maintain dissolved oxygen concentration in the Bay and its 
tributaries through a continued and expanded commitment to the 
reduction of nutrients from both point and nonpoint sources.'' For the 
first time in 24 years this water quality goal has a chance of being 
met because the Chesapeake Bay TMDL addresses everything that was laid 
out in 1987; the establishment of new dissolved oxygen water quality 
standards for the Bay and its tidal tributaries, and nutrient and 
sediment reduction allocations to the states, which will have to 
address both point and nonpoint sources of pollution. The court 
sanctioned Virginia consent agreement in 1999 established the 
requirement and deadlines for the Chesapeake Bay TMDL and was the 
trigger for the water quality section in the Chesapeake 2000 Agreement. 
This fact should rule out any reasonable argument that there has not 
been enough notice that there would be a Chesapeake Bay TMDL. Eleven 
years of consideration is sufficient. Moreover, EPA had no choice but 
to develop a TMDL because the states had failed to do so. This action 
by EPA was required by the CWA and an abundance of other legally 
binding agreements.
    Given the size and complexity of the system and the failure of 
``voluntary'' efforts to restore the Bay, the TMDL issued by EPA is 
consistent with the legislative recognition by the Bay states and 
absolutely essential. The regional commitment to restoring the Bay, and 
the efforts undertaken pursuant to the Executive Order, give us some 
hope that this suite of TMDLs will be more successful in restoring 
water quality than previous efforts. There were a variety of reasons 
for prior failures, including inadequate data, failure to update plans 
when progress lagged, and most especially, the failure to connect to a 
real and enforceable, approved implementation plan. We expect that a 
well implemented TMDL will provide what we have been lacking: strong 
science and implementation plans built on principles of adaptive 
management that can and will be enforced.
            Sincerely,

1000 Friends of Maryland;
Adkins Arboretum;
American Rivers;
American Canoe Association;
Anacostia Watershed Society;
Audubon Maryland-D.C.;
Audubon Naturalist Society;
Chesapeake Bay Foundation;
Chester River Association;
Citizens for a Fort Monroe National Park;
Citizens for Pennsylvania's Future (PennFuture);
Clean Water Action;
Corsica River Conservancy;
Delaware Nature Society;
Eastern Pennsylvania Coalition for Abandoned Mine Reclamation;
Environment America;
Environment Maryland;
Environment Virginia;
Environmental Working Group;
Float Fisherman of Virginia;
Friends of Dyke Marsh;
Friends of Lower Beaverdam Creek;
Friends of Powhatan Creek Watershed;
Friends of the North Fork of the Shenandoah River;
Friends of the Rivers of Virginia (FORVA);
Friends of the Shenandoah River;
Goose Creek Association;
Loudoun Wildlife Conservancy;
Maryland League of Conservation Voters;
Midshore Riverkeeper Conservancy;
National Parks Conservation Association;
National Wildlife Federation;
Peach Bottom Concerned Citizens Group;
PennEnvironment;
Pennsylvania Council of Churches;
Pennsylvania Organization of Watersheds and Rivers;
Piedmont Environmental Council;
Potomac Riverkeeper;
Queen Anne's Conservation Association;
Savage River Watershed Association;
Southern Environmental Law Center;
Virginia Conservation Network;
Virginia League of Conservation Voters;
Virginia Sierra Club;
West Virginia Rivers Coalition;
West/Rhode Riverkeeper;
Western Clinton Sportsmen's Association.
                                 ______
                                 
      Supplementary Material Submitted by Bob Perciasepe, Deputy 
          Administrator, U.S. Environmental Protection Agency
    During the March 16, 2011 hearing entitled, Hearing To Review the 
Chesapeake Bay TMDL, Agricultural Conservation Practices, and Their 
Implications on National Watersheds, requests for information were made 
to EPA. The following are their information submissions for the record.
Insert 1
          The Chairman. . . . One of the things I had asked Ms. Jackson 
        about and wanted to get a follow up and then a confirmation. I 
        had requested to see if the EPA has longitudinal studies over 
        the past 30 years since we began to invest in a very important 
        initiative in cleaning up the Chesapeake Bay. And I had 
        requested that whatever longitudinal study may be out there by 
        the EPA in terms of showing the trajectory of the health of the 
        Bay over time. Is that something that you were able to bring 
        with you today?
          Mr. Perciasepe. Mr. Chairman, I don't have it with me today. 
        The most up-to-date one will be out in about a month in April 
        and I would like it if I can get you last year's summary. It is 
        called the Bay Barometer and it is something that all the 
        states and the Federal agencies all work on together and they 
        track 13 important parameters in the Bay. And there is no doubt 
        that many of them have improved over the last 20 years and some 
        have stayed static and some have gotten a little worse as you 
        might expect from the state of affairs. But the most recent one 
        based on 2010 information will be available by April. I think 
        what we would make available to the Committee and of course 
        this is available on the web, but we will make it available to 
        the Committee, the 2009 version and then make sure that you 
        have 2010 version.
2009 Health & Restoration Assessment of the Chesapeake Bay & Watershed
    Background:
    Since its inception in 1983, the Chesapeake Bay Program (CBP) has 
been providing periodic updates on its progress to the public. Through 
time, the CBP continually improved its science defining the health of 
the Chesapeake Bay and its watershed as well as its ability to set and 
measure goals for its restoration and protection.
    Since 2005, the CBP has annually produced a health and restoration 
assessment of the Bay and watershed, largely using indicators to show 
status and trends related to the health of the bay and its watershed, 
factors affecting that health, and measuring progress toward meeting 
the restoration goals committed to by the CBP partnership.
    While some indicators in the 2009 assessment, released in April 
2010, show considerable progress in partners' efforts since 1985, much 
more work needs to be done to restore the Bay and its watershed. In 
fact, the assessment concluded that the Bay continues to be degraded, 
illustrating a clear need to continue to accelerate restoration efforts 
across the region.
    This briefing paper shows trends for several indicators used in the 
2009 assessment, which we believe would be of interest to your members. 
More information on these and numerous other indicators can be found at 
http://www.chesapeakebay.net/indicatorshome.aspx.

------------------------------------------------------------------------

-------------------------------------------------------------------------
  Restoration and Protection Efforts

  Implementing Efforts to Reduce Nitrogen and Phosphorus Pollution

     In December 2010, the Environmental Protection Agency
     established the Chesapeake Bay Total Maximum Daily Load (TMDL). As
     a result of this new Bay-wide ``pollution diet,'' Bay Program
     partners are revising their goals, schedules and ways to evaluate
     their efforts to reduce nitrogen, phosphorus and sediment
     pollution.

     The Bay TMDL is designed to ensure that all pollution
     control measures needed to fully restore the Bay and its tidal
     rivers are in place by 2025, with at least 60 percent of the
     actions completed by 2017. The 2025 date was established by the
     jurisdictions at the 2009 Chesapeake Executive Council meeting.

     Long-term average hydrology simulations, indicate that
     between 1985 and 2009:

       nitrogen loads decreased 101 million pounds, from 368 to 267
       million pounds/year.

       phosphorus loads decreased 7.6 million pounds, from 24.1 to 16.5
       million pounds/year.

     Pollutant loads to the Bay in any given year are influenced
     by changes in land-use activities and management practices, as well
     as the amount of water flowing to the Bay (hydrology).

       Annual rain and snowfall influence the amount of water in rivers
       flowing to the Bay.

       To understand the effects of management actions on nutrient loads
       (independent of annual variations in hydrology), it is
       appropriate to use climate-adjusted methods, such as watershed
       model simulations.
------------------------------------------------------------------------

Total Pollution Loads to the Bay * in millions of pounds/year 
        (Simulated)
        [GRAPHIC] [TIFF OMITTED] T1206.066
        
        * Loads simulated using 5.3 version of Watershed model. Loads 
        include atmospheric deposition of nitrogen to tidal waters.

------------------------------------------------------------------------

-------------------------------------------------------------------------
  Restoration and Protection Efforts

  Planting Forest Buffers and Restoring Wetlands

     The Bay Program's near-term goals are to plant 10,000 miles
     of forest buffers and to restore 25,054 acres of wetlands in the
     watershed portions of Maryland, Pennsylvania, Virginia and
     Washington, D.C. by 2010.

       Between 1996 and 2009, 6,858 miles of forest buffer were planted,
       achieving 69 percent of the goal.

       Between 1998 and 2009, 13,614 acres of wetlands were established
       or re-established, achieving 54 percent of the goal.
------------------------------------------------------------------------

Restoring Forest Buffers
[GRAPHIC] [TIFF OMITTED] T1206.067

Restoring Wetlands
[GRAPHIC] [TIFF OMITTED] T1206.068


------------------------------------------------------------------------

-------------------------------------------------------------------------
  Watershed Health

  Flow Adjusted Pollutant Trends in Non-tidal Rivers

     Since the 1980s, Bay Program partners have collected data
     on stream flow and water quality at 32 locations throughout the non-
     tidal portions of the watershed.

     Concentrations of pollutants are highly variable, depending
     on the amount of water flowing in streams and rivers throughout the
     Bay watershed. Therefore, scientists calculate flow-adjusted trends
     to determine whether concentrations have changed over time. By
     removing the effects of natural variations in stream flow, resource
     managers can evaluate the changes in stream health that may result
     from pollution reduction actions or other changes in the watershed.

     The majority of long-term stream monitoring sites show
     downward trends in flow-adjusted nitrogen concentrations,
     reflecting an improvement in conditions since the mid 1980s.
------------------------------------------------------------------------

Long-Term Flow-Adjusted Trends for Total Nitrogen for 32 Sites in the 
        Chesapeake Bay Watershed, 1985-2009
Long-Term Trend in Total Nitrogen
[GRAPHIC] [TIFF OMITTED] T1206.069

        Data Sources: The nontidal water quality monitoring network 
        which is a coordinated water quality monitoring program for the 
        nontidal streams and rivers in the Chesapeake Bay Watershed. 
        Monitoring is coordinated by the following partners: USGS, VA 
        DEQ, MD DNR, WV DEP, PA DEP, S RBC, NYSDEC, and DN REC.
        Trends in the Chesapeake Bay may differ from measured values 
        due to downstream ecological processes. For more information on 
        nitrogen trends in the Bay see http://www.chesapeakebay.net/
        status_pollutants.aspx.
        For more information, visit www.chesapeakebay.net.
        Disclaimer: www.chesapeakebay.net/termsofuse.htm.

------------------------------------------------------------------------

-------------------------------------------------------------------------
  Factors Impacting Bay and Watershed Health

  River Flow and Pollutant Loads to the Bay

     The amount of nutrients delivered to the Bay changes
     dramatically from year-to-year, depending on annual hydrological
     conditions.

       2009 river flow levels were less than previous years, resulting
       in less nitrogen and phosphorus reaching the Bay.

       The annual variations complicate efforts to determine trends
       through time.

     It is important to calculate the amount of river flow and
     pollution loads to the Bay in any particular year in order to
     understand and explain changes in Bay water quality conditions.

     To calculate loads of nitrogen and phosphorus reaching the
     Bay, scientists use:

       water samples collected at river input monitoring (RIM) sites to
       estimate loads from the majority of the watershed.

       water samples collected at wastewater treatment facilities
       downstream of the RIM sites.

       computer modeling to estimate loads from nonpoint sources
       downstream of the RIM sites.
------------------------------------------------------------------------

Nitrogen Loads and Annual Average River Flow
[GRAPHIC] [TIFF OMITTED] T1206.070

Phosphorus Loads and Annual Average River Flow
[GRAPHIC] [TIFF OMITTED] T1206.071


------------------------------------------------------------------------

-------------------------------------------------------------------------
  Bay Health

  Underwater Bay Grass Abundance and Chlorophyll a Concentrations

     Underwater bay grasses serve many essential ecological
     functions and are among the most closely monitored habitats in the
     Bay. Their abundance is an excellent barometer of the health of the
     Bay because they depend on good local water quality and provide
     significant benefits to aquatic life.

       Bay grass abundance increased from 38,228 acres in 1984 to 85,899
       acres in 2009 (46% of the 185,000 acre goal).

     Scientists study chlorophyll a to determine the amount of
     algae present in the Bay. Algae are the foundation of the food web
     and are a necessary part of a balanced ecosystem. However, too much
     algae can block sunlight from reaching underwater grasses, reducing
     the habitat and oxygen that underwater life need to survive.

       The goal is for concentrations of chlorophyll a to be below
       certain thresholds acceptable to underwater bay grasses. In 2009,
       29 percent of tidal waters achieved the goal.

       Annual variations complicate efforts to determine trends,
       however, there has been a generally decreasing (degrading) trend
       between 1985 and 2009.
------------------------------------------------------------------------

Bay Grass Abundance
[GRAPHIC] [TIFF OMITTED] T1206.072

Chlorophyll a
[GRAPHIC] [TIFF OMITTED] T1206.073


------------------------------------------------------------------------

-------------------------------------------------------------------------
  Bay Health

  Blue Crab

     Perhaps no species is more closely associated with the
     Chesapeake Bay than the blue crab. It is estimated that \1/3\ of
     the nation's blue crab catch comes from the Bay. Because they
     reproduce by the millions and eat virtually anything, crabs are one
     of the Bay's most hardy species. Good water quality and adequate
     habitat are important for the crab's continued health.

     The interim target is to have 200 million adult (one year
     and older) blue crabs in the Bay.

       In 2009, the population of adult blue crabs in the Bay rose to
       223 million, exceeding the interim target level for the first
       time since 1993.

        u Note, abundance continued to climb in 2010 to 315 million,
         exceeding the interim target for two years in a row.

       Regulatory actions beginning in 2008 are thought to be the
       primary factor in the crab's recent recovery.

       A new benchmark assessment will be completed and reviewed in 2011
       and results may lead to establishing a new target level for the
       future.
------------------------------------------------------------------------

Blue Crab Abundance (Adults)
[GRAPHIC] [TIFF OMITTED] T1206.074

Insert 2
          Mr. Stutzman. . . . I would like to start off first of all 
        with the--last week the EPA Administrator, Ms. Jackson, 
        testified before this Committee. In her testimony the 
        Administrator said that the Bay plan was developed in 
        consultation with the agricultural community. What role has the 
        ag community played in developing the process?
          Mr. Perciasepe. Well, there have been numerous--over 20 years 
        of interaction with the agricultural community. There is 
        significant input to the Bay program from all the agricultural 
        colleges in the region and that has expanded recently. There 
        are members of the agricultural community on a number of the 
        advisory committees that go to the Bay program, so there has 
        been significant involvement back and forth on--with the 
        agricultural community over the years. And I can provide for 
        the record a much more detailed accounting of that if you would 
        like.
EPA Engagement with the Agriculture Community
    EPA, USDA, the state agricultural agencies and the agricultural 
community have a long history of collaborating on Chesapeake Bay 
restoration to ensure a healthy Bay and viable agriculture in the 
Chesapeake Bay watershed. USDA, the state agricultural agencies, and 
agricultural industry groups have been active participants in the 
Chesapeake Bay Program: from helping to inform modeling efforts to 
working together to identify and credit agricultural practices, to 
working with the states on their agricultural commitments in the 
Watershed Implementation Plans and Bay TMDL.
    Continued collaboration with the agriculture community will be 
critical in the coming years to refine modeling tools, improve 
agricultural conservation tracking and verification, and accelerate 
agricultural nutrient and sediment reductions necessary to restore the 
Bay and local waters. This document summarizes EPA's collaboration with 
USDA and the agriculture community on Chesapeake Bay watershed 
restoration efforts.
EPA Outreach During TMDL and WIP Development
    EPA conducted an extensive, two year outreach program to exchange 
information with key stakeholders and the broader public during the 
development of the Chesapeake Bay TMDL. Outreach to the agriculture 
community was particularly focused and occurred throughout the region. 
EPA consulted with the agricultural community through three primary 
forums: stakeholder meetings, meetings with jurisdictions on Watershed 
Implementation Plan development, and meetings with agricultural 
community on Chesapeake Bay Program Watershed Model.
    Stakeholder meetings: The outreach program in 2009 and 2010 
featured hundreds of meetings with interested groups; two extensive 
rounds of public meetings, stakeholder sessions; a series of monthly 
interactive webinars accessed online by more than 2,500 people; three 
notices published in the Federal Register; and a close working 
relationship with Chesapeake Bay Program committees. Many agricultural 
groups and stakeholders participated in these meetings including the 
Farm Bureau, agribusiness organizations, individual farmers, as well as 
state agricultural agencies and conservation districts. In addition, to 
the general TMDL outreach meetings, EPA worked with the states to host 
sector-specific meetings with key stakeholders from the agricultural 
community, the homebuilder community, and conservation groups. EPA 
reached out to key agricultural leaders within each state to co-host 
these meetings in order to give the farming community a chance to ask 
questions, voice concerns, and discuss what the TMDL means for 
agriculture. (See Attachment A for the complete list of public meetings 
and stakeholder meetings held as part of the TMDL outreach effort. 
Actual sign-in sheets from these public meetings and from the separate 
stakeholder meetings are available upon request.)
    In addition to the public outreach and sector-specific meetings, 
many farming groups and regional and national agriculture associations 
invited EPA to brief them on the Bay TMDL. An example of one of the 
earliest outreach efforts is an August 2009 informal ``coffee 
conversation'' with EPA officials, organized by NRCS and the American 
Farmland Trust (see Attachment B for a participants list, a copy of the 
invitation, and prep questions). Other agricultural organizations that 
EPA met with over the past two years to discuss the Bay TMDL include:

National Pork Producers.

National Turkey Federation.

U.S. Poultry & Egg Association representatives.

American Farmland Trust and NRCS organized a meeting between Bay 
        watershed farmers and EPA senior leaders to discuss TMDL and 
        how it relates to farmers. Virginia's Waste Solution Forum in 
        the Shenandoah Valley.

Conservation Technology Innovation Center annual tour 2010--audience: 
        over 100 VA farmers, conservation district, university and NRCS 
        representatives.

Pennsylvania All Bay Day--audience: PA conservation districts and 
        agency representatives.

Mid-Atlantic Certified Crop Advisors Board--crop advisors in VA, MD, 
        DE, and WV.

Governor Harry Hughes Agro-Ecology Center Board.

Maryland Association of Conservation Districts Board.

National Webcast on ``Changing Management of Nutrients in the 
        Chesapeake Bay Watershed'' hosted by the Extension Livestock 
        and Poultry Environmental Learning Center with over 150 
        representatives from agricultural organizations, agencies, and 
        land-grant universities.

WIP development discussions with jurisdictions--In 2010, EPA had 
        extensive formal and informal discussions with the state 
        Watershed Implementation Plan stakeholder teams as the TMDL and 
        Watershed Implementation Plans were being drafted and 
        finalized. Many agricultural groups and stakeholders 
        participated in these teams and were present at these meetings 
        including the Farm Bureau, agribusiness organizations, as well 
        as state agricultural agencies and conservation districts (See 
        Attachment C for lists of WIP teams).

EPA senior leadership also held frequent discussions with state 
        agricultural secretaries on topics such as Ag Certainty and WIP 
        development and participated in key policy discussions with the 
        Chesapeake Bay Program's Principal Staff Committee to the 
        Chesapeake Bay Executive Council throughout the development of 
        the Bay TMDL.

Looking back over the past decades, the agriculture community has been 
        engaged since the development of the Chesapeake Bay Tributary 
        Strategy (started in 1995) that served as a starting point for 
        most WIPs.
Agriculture Participation in CBP Watershed Model
    The suite of models used for the TMDL have been developed and 
utilized over 20 years through extensive collaboration with federal, 
state, academic and private partners. This includes extensive input 
from USDA, state agricultural agencies, and agricultural organizations 
on the CBP Agriculture Workgroup. Use and development of the models is 
fully transparent and open with all decisions and refinements to the 
model made at public meetings of the Chesapeake Bay Program. The 
Agriculture Workgroup holds regular public meetings to provide 
extensive input into all decisions regarding conservation practice 
effectiveness, tracking and verification, and model refinements. The 
Agriculture Workgroup is co-chaired by USDA NRCS and the University of 
Maryland and is comprised of the following organizations:

    Leadership:

--Chair, UMD and Vice Chair, USDA NRCS

    Agricultural Organizations:

--Delaware Maryland Agribusiness Association

--Virginia Poultry Association

--Mid-Atlantic Farm Credit

--U.S. Poultry & Egg Association

--MD Farm Bureau

--Virginia Agribusiness Council

--VA Grain Producers Association

--West Virginia Department of Agriculture

--Delmarva Poultry Industry, Inc.

--VA Farm Bureau

--Delaware Pork Producers Association

--American Farmland Trust

    Federal and State Agricultural Agencies:

--USDA Natural Resources Conservation Service

--Maryland Department of Agriculture

--West Virginia Department of Agriculture--Regulatory and Environmental 
        Affairs Division

--Delaware Department of Agriculture

--Pennsylvania State Conservation Commission

--Maryland Department of Agriculture

    Land-Grant Universities and Extension:

--West Virginia University

--Pennsylvania State University

--University of Maryland--College Park

--University of Delaware

--Cornell University

--University of Maryland Cooperative Extension

    Conservation Districts and Commissions/Coalitions:

--Lancaster County Conservation District

--Cortland County Soil and Water Conservation District

--Madison Co. SWCD

--Chesapeake Bay Commission

--Upper Susquehanna Coalition

--PA No-Till Alliance

--Center for Conservation Incentives at Environmental Defense

    EPA and State Environmental Agencies:

--U.S. Environmental Protection Agency

--Virginia Department of Environmental Quality

--Maryland Department of Natural Resources

--New York State Department of Environmental Conservation

--Virginia Department of Conservation and Recreation

--Pennsylvania Department of Environmental Protection

--West Virginia Department of Environmental Protection

    In addition to extensive agriculture stakeholder involvement in the 
Agriculture Workgroup, EPA has also responded to requests from the 
agricultural community for more comprehensive briefings on the Bay TMDL 
and the CBP Watershed Model. On March 22, 2010, EPA worked with USDA to 
host a webinar on March 22, 2010 to answer the agricultural community's 
questions about the model and to identify opportunities for model 
refinements in the future. Following the webinar, EPA held a session 
with the poultry industry to provide a forum for the poultry industry 
to discuss specific poultry modeling and data issues.
    USDA's Natural Resources Conservation Service (NRCS) has played a 
critical role in reviewing and providing data to the CBP Watershed 
Model, including coordinating the CBP's Nutrient Subcommittee over 
almost a decade, serving on the Agriculture Workgroup (currently vice 
chair) which makes all decisions related to agricultural modeling, 
participating on technical panels to develop conservation effectiveness 
estimates, and collaborating with EPA on USDA Conservation Effects 
Assessment Project and CBP Watershed Model efforts.
EPA-USDA Coordination
    EPA and USDA play an active role in the Chesapeake Bay Program to 
work towards maintaining well-managed farms and restoring the Bay. Both 
agencies agree that maintaining the viability of agriculture is an 
essential component to sustaining ecosystems in the Bay. Both 
acknowledge the enormous contribution that farmers are making to 
improve Bay water quality. And, both are committed to strong 
partnerships and collaboration with states and local governments, 
urban, suburban and rural communities, and the private sector to 
achieve environmental objectives for the Bay. Throughout the TMDL 
process, EPA and USDA had on-going discussions and extensive briefings 
on the TMDL, models, state Watershed Implementation Plans, etc. Recent 
examples of that collaboration include:

Developing and implementing the Strategy for Protecting and Restoring 
        the Chesapeake Bay Watershed pursuant to Executive Order 13508.

Developing a framework to provide certainty to farmers who implement 
        practices that protect water quality in the Chesapeake Bay.

Working with the National Association of Conservation Districts, state 
        agricultural agencies, and agricultural community to ensure 
        that non-cost shared data can be tracked, verified, and 
        credited in the CBP Watershed Model as committed to in the E.O. 
        Strategy.

Supporting the states in implementing the commitments outlined in their 
        TMDL Watershed Implementation Plans.

Aligning innovation grants programs to support key priorities for 
        addressing water quality challenges facing agriculture (EPA's 
        Innovative Nutrient and Sediment Reduction program and NRCS's 
        Conservation Innovation Grants program).

Working together to coordinate respective modeling efforts.
                              attachment a
Washington, D.C.
Wednesday, September 29

1:00 p.m.-3:00 p.m.
Public Meeting and Webinar
Washington National Zoo Visitor Center Auditorium, 3001 Connecticut 
    Avenue, NW,
Washington, D.C.

4:00 p.m.-5:30 p.m.
Stakeholder Outreach--Local Government
Location: Metropolitan Washington Council of Governments, 777 North 
    Capitol Street, NE; Suite 300, Washington, DC 20002, 3rd Floor 
    Board Room
Contact: Ted Graham, Water Resources Program Director, [Redacted], 
    [Redacted].
Virginia
Monday, October 4--Harrisonburg

11:00 a.m.-12:30 p.m.
Stakeholder Outreach--Agriculture
Location: Virginia Cooperative Extension Northwest District Office, 
    2322 Blue Stone Hills Drive, Suite 140, Harrisonburg, VA
Contact: Hobey Bauhan, Virginia Poultry Federation and co-chair of the 
    Waste Solutions Forum, [Redacted], [Redacted].

2:30 p.m.-4:00 p.m.
Stakeholder Outreach--Environmental groups
Location: DEQ Valley Regional Office, 4411 Early Road, Harrisonburg, VA 
    22801 [Redacted]
Contact: Patrick Felling, Policy Director for Virginia & West Virginia, 
    [Redacted], [Redacted]; Leslie D. Mitchell-Watson, Executive 
    Director, Friends of the North Fork of the Shenandoah River, 
    [Redacted], [Redacted].

6:00 p.m.-8:00 p.m.
Public Meeting
Location: Grafton Theatre, James Madison University, 281 Warren Service 
    Drive, Harrisonburg, VA

Tuesday, October 5--Northern Virginia

10:00 a.m.-11:30 a.m.
Stakeholder Outreach--Environmental Groups
Location: Northern Virginia Regional Commission, 3060 Williams Drive, 
    Suite 510, Fairfax, VA 22031
Contact: Stella Koch, Audubon Naturalist Society, [Redacted], 
    [Redacted].

12:30 p.m.-2:00 p.m.
Stakeholder Outreach--Local Government
Location: Northern Virginia Regional Commission, 3060 Williams Drive, 
    Suite 510, Fairfax, VA 22031
Contact: Norm Goulet, [Redacted], Sr Environmental Planner & Occoquan 
    Program Mgr. Phone: [Redacted].

2:30 p.m.-4:00 p.m.
Stakeholder Outreach--Developers and Homebuilders
Location: Dewberry, 8403 Arlington Boulevard, Fairfax, VA (ESI 
    Conference Room)
Contact: Phil Abraham, Director and General Counsel, The Vectre 
    Corporation and Homebuilders Association of Virginia, [Redacted], 
    [Redacted].

6:00 p.m.-8:00 p.m.
Public Meeting
Location: Northern Virginia Community College, Annandale Campus, Ernst 
    Community Cultural Center, 8333 Little River Tpke, Annandale, VA

Wednesday, October 6--Richmond

8:30 a.m.-10:00 a.m.
Stakeholder Outreach--Wastewater
Location: Hunton & Williams, Riverfront Plaza, East Tower, 951 East 
    Byrd Street, Richmond, Virginia 23219-4074--20th floor
Contact: Bobbie Suggs, AquaLaw, [Redacted], [Redacted].

10:30 a.m.-12:00 p.m.
Stakeholder Outreach--Developers and Homebuilders
Location: Homebuilders Association of Virginia, 707 East Franklin 
    Street, Richmond, VA 23219
Contact: Mike Toalson, Homebuilders Association of Virginia executive 
    vice president, [Redacted], [Redacted].

2:30 p.m.-4:00 p.m.
Stakeholder Outreach--state legislators
Location: Room 4 West in the General Assembly Building
Contact: Ann Swanson, Chesapeake Bay Commission executive director, 
    [Redacted], [Redacted].

6:00 p.m.-8:00 p.m.
Public Meeting
Location: Robins Pavilion Jepson Alumni Center, University of Richmond, 
    28 Westhampton Way, Richmond, VA

Thursday, October 7--Richmond and Hampton

9:00 a.m.-10:30 a.m.
Stakeholder Outreach--Environmental Groups
Location: Chesapeake Bay Foundation, 1108 East Main Street, Richmond 
    23219, 2nd floor conference room
Contact: Ann Jennings, Virginia director of CBF, [Redacted], 
    [Redacted].

1:00 p.m.-3:00 p.m.
Meeting and Webinar--Hampton Roads Planning District
Location: 723 Woodlake Drive, Chesapeake, Virginia 23320
Contact: John Carlock, [Redacted].

6:00 p.m.-8:00 p.m.
Public Meeting
Location: Crowne Plaza Hampton Marina Hotel, 700 Settlers Landing Road, 
    Hampton, VA
Delaware-Maryland
Monday, October 11--Georgetown, DE

9:00 a.m.-10:30 a.m.
Stakeholder Outreach--Agriculture
Location: 16686 County Seat Hwy. Georgetown, DE 19947
Contact: Jennifer Volk, Delaware Department of Natural Resources and 
    Environmental Control, [Redacted], [Redacted].

11:00 a.m.-12:30 p.m.
Stakeholder Outreach--Local Government
Location: Seaford City Council Chambers, 414 High Street, Seaford DE
Contact: Jennifer Volk, Delaware Department of Natural Resources and 
    Environmental Control, [Redacted], [Redacted].

2:00 p.m.-3:30 p.m.
Stakeholder Outreach--Developers and Homebuilders
Location: TBD
Contact: Jennifer Volk, Delaware Department of Natural Resources and 
    Environmental Control, [Redacted], [Redacted].

5:00 p.m.-7:00 p.m.
Public Meeting
Delaware Tech, Owens Campus, Arts and Science Center, Theatre, Route 
    18, Georgetown, DE

Tuesday, October 12--Easton

11:00 a.m.-12:30 p.m.
Stakeholder Outreach--Environmental Groups
Location: General Tanuki's restaurant, 25 Goldsborough St. Easton, MD 
    21601
Contact: Ryan Ewing, Choose Clean Water Coalition, [Redacted], 
    [Redacted].

2:00 p.m.-4:00 p.m.
Public Meeting
Location: The Easton Club, 28449 Clubhouse Drive, Easton, MD

Wednesday, October 13--Annapolis

8:30 a.m.-10:00 a.m.
Stakeholder Outreach--Developers and Homebuilders
Location: Fish Shack, Chesapeake Bay Program Office, 410 Severn Avenue, 
    Annapolis, MD 21403
Contact: Katie Maloney, Maryland Homebuilders Association, [Redacted], 
    [Redacted].

10:30 a.m.-12:00 p.m.
Stakeholder Outreach--state legislators
Location: House Office Building, room 250, Annapolis, MD
Contact: Ann Swanson, Chesapeake Bay Commission executive director, 
    [Redacted], [Redacted].

2:00 p.m.-4:00 p.m.
Public Meeting
2010, Sheraton Annapolis, 173 Jennifer Road, Annapolis, MD 21403

Thursday, October 14--Frederick and Hagerstown

8:00 p.m.-9:30 a.m.
Stakeholder Outreach--Local Government
Location: Maryland Municipal League, 1212 West Street, Annapolis, MD 
    21401
Contact: Leslie Knapp, Jr., Maryland Association of Counties, 
    [Redacted], [Redacted]; Candace L. Donoho, Maryland 
    MunicipalLeague, [Redacted], or [Redacted], [Redacted].

11:00 a.m.-12:30 p.m.
Stakeholder Outreach--Agriculture
Location: University of Maryland Cooperative Extension--Frederick 
    County Office, 330 Montevue Lane, Frederick, MD 21702
Contact: Mark Dubin, [Redacted], [Redacted].

2:00 p.m.-4:00 p.m.
Public Meeting
Location: Hagerstown Hotel and Convention Center, 1901 Dual Hwy, 
    Hagerstown, MD
Pennsylvania
Friday, October 15

10:30 a.m.-11:30 a.m.
Media conference call with Pennsylvania press
Radio Talk Show--Guest on live public affairs talk/call-in program 
    heard on two NPR stations covering nearly the entire Pennsylvania 
    portion of the Bay watershed. Radio Smart Talk on WITF, 9 a.m.-10 
    a.m.
Contact: Scott LaMar, director, Radio Smart Talk, [Redacted], 
    [Redacted].

Monday, October 18

8:30 a.m.-10 a.m.
Meet with local government officials in Lancaster, Location: Southern 
    Market Center, 100 South Queen Street, Lancaster.
Contact: Mary Gattis, senior environmental planner, Lancaster County 
    Planning Commission, [Redacted], [Redacted].

11 a.m.-12:30 p.m.
Meet with key agriculture representatives and area farmers, Location: 
    Farm and Home Center, 1383 Arcadia Road, Lancaster.
Contact: Don McNutt, district administrator, Lancaster County 
    Conservation District, [Redacted], [Redacted].
Notes: Attendees will include mix of area farmers and representative of 
    groups and agencies such as the PA Farm Bureau, PennAg Industries, 
    Wenger Feeds, PA Association of Conservation Districts, PA State 
    Conservation Commission and others. Secretary Redding will attend 
    and give remarks. Kelly and Hank will be there to assist.

2 p.m.-4 p.m.
Public Meeting, Lancaster
Location: Best Western Eden Resort, 222 Eden Road, Lancaster.
Media availability--1:30 p.m.-1:50 p.m.

6 p.m.-8 p.m.
Meet over dinner with Pennsylvania legislative delegation and staff
Location: Harrisburg Hilton, Bridgeport Room, 1 North Second Street, 
    Harrisburg.
Contact: Marel Raub, Pennsylvania Director, Chesapeake Bay Commission 
    (CBC), [Redacted], [Redacted].
Notes: Attendees will include the CBC state legislative delegation, 
    area state legislators, majority staff from the House Environment 
    and Energy Committee, and majority and minority staff from the 
    House Agriculture Committee.

Tuesday, October 19

Meet with Pennsylvania Municipal Authorities Association members
Location: PMAA office, 1000 North Front St., Suite 401, Wormleysburg, 
    PA
Contact: John Brosious, deputy director, PMAA, [Redacted], [Redacted].
Notes: More than a dozen attendees confirmed.

9:30 a.m.-11 a.m.
Meet with environment/watershed groups in person and via conference 
    line
Location: PennFuture, 610 North Third Street, Harrisburg.
Contact: Tanya Dierolf, Central Pennsylvania Outreach Coordinator, 
    Citizens for Pennsylvania's Future (PennFuture), [Redacted], 
    [Redacted].
Notes: More than a dozen representatives of environmental groups are 
    expected, including PennFuture, CBF, Clean Water Action, American 
    Rivers, PA Council of Churches, Pennsylvania Environmental Council, 
    Alliance for the Chesapeake Bay, Nature Abounds and Senior 
    Environmental Corps, among others.

2 p.m.-4 p.m.
Public Meeting, State College,
Location: Knights of Columbus, 850 Stratford Drive, State College.
Media availability--1:30 p.m.-1:50 p.m.

5 p.m.-7 p.m.
Meet with Penn State agriculture representatives over dinner.
Location: TBD.
Contact: Kristen Saacke Blunk, senior extension associate and director, 
    Penn State Agriculture & Environment Center, [Redacted], cell: 
    [Redacted], [Redacted].

Wednesday, October 20

8:30 a.m.-10 a.m.
Meet with Pennsylvania Builders Association members,
Location: Lycoming County Executive Plaza Building, 330 Pine St., First 
    Floor Commissioner's Board Room, Williamsport.
Contact: Grant Gulibon, regulatory specialist, PBA, [Redacted], 
    [Redacted].

10:30 a.m.-12 p.m.
Meet with Lycoming County area officials
Location: Lycoming County Executive Plaza Building, 330 Pine St., First 
    Floor Commissioner's Board Room, Williamsport.
Contact: Megan Lehman, environmental planner, Lycoming County, 
    [Redacted], [Redacted].
Notes: Attendees will include members of the Lycoming County Chesapeake 
    Bay Tributary Strategy Advisory Committee: state, county and local 
    officials; and business, environmental, point- and nonpoint source 
    representatives.

12:00 p.m.-1 p.m.
Meet with Commissioner Wheeland and small group
Location: Ross Club, 201 W. 4th Street, Williamsport.

2 p.m.-4 p.m.
Public Meeting/Webinar, Williamsport,
Location: Lycoming College, Wendle Hall, 700 College Place, 
    Williamsport.
Media availability--1:30 p.m.-1:50 p.m.

Thursday, October 21

9:30 a.m.-10:30 a.m.
Meet with Scranton Times Tribune editorial board and reporter Laura 
    Legere.
Location: Scranton Times Tribune office, 149 Penn Ave., Scranton.
Contact: Laura Legere, [Redacted], [Redacted] or Patrick McKenna, 
    [Redacted], [Redacted].

11:30 a.m.-12:30 p.m.
Meet with Wilkes-Barre Times Leader editorial board.
Location: Times Leader office, 15 N. Main Street, Wilkes-Barre.
Contact: Mark Jones, editorial page editor, [Redacted], [Redacted].

2 p.m.-4 p.m.
Public Meeting, Wilkes-Barre
Location: Bentley's, 2300 Route 309, Ashley.
Media availability--1:30 p.m.-1:50 p.m.
New York
Tuesday, October 26

1:00 p.m.-2:00 p.m.
Binghamton Press and Star Editorial Board
33 Lewis Rd., Binghamton, NY 13905-1044

3:15 p.m.-4:15 p.m.
Steel Memorial Library, 101 East Church Street, Elmira, NY 14091
Notes: NY WWTP Operator's Scheduled by DEC, for 27 WWTP in the Upper 
    Susquehanna River Watershed. Congressional Offices (Acuri and 
    Hinchey) maybe in attendance.

6:00 p.m.-8:00 p.m.
Public Meeting Riverview Holiday Inn Elmira
760 East Water Street, Elmira, NY

Wednesday October 27

8:00 a.m.-9:00 a.m.
Chemung County Storm Water Coalition
851 Chemung Street, Horseheads, NY 14845

10:00 a.m.-11:30 a.m.
Upper Susquehanna Coalition
Owego Town Hall,2354 State Route 434, Apalachin, NY, 13732

11:30 a.m.-12:30 p.m.
Farm Bureau
Owego Town Hall, 2354 State Route 434, Apalachin, NY, 13732

2:00 p.m.-4:00 p.m.
Public Meeting Binghamton Regency Hotel
225 Water Street, Binghamton, NY
West Virginia
Wednesday, November 3--Martinsburg, WV

10:30 a.m.-12:00 p.m.
Stakeholder Outreach--Environmental Groups
Location: Freshwater Institute, 1098 Turner Road, Shepherdstown, WV 
    25443
Contact: Michael Schwartz, senior environmental associate, Freshwater 
    Institute, [Redacted], [Redacted].

1:00 p.m.-2:30 p.m.
Stakeholder Outreach--Developers and Homebuilders
Location: Eastern Panhandle Home Builders Association Inc., 430 
    Randolph Street Suite C, Martinsburg, WV 25401
Contact: David Hartley, Eastern Pandhandle Home Builders Association, 
    [Redacted], [Redacted].

3:00 p.m.-4:30 p.m.
Stakeholder Outreach--Local Government
Location: Berkeley County Public Sewer Service District, 65 District 
    Way, Martinsburg, WV 25402
Contact: Carol Crabtree, executive director, Region 9 Eastern Panhandle 
    Regional Planning and Development Council, [Redacted], [Redacted].

6:00 p.m.-8:00
Public Meeting
Location: Comfort Inn, 1872 Edwin Miller Blvd., Martinsburg, WV

Thursday, November 4--Romney, WV

10:00 a.m.-11:30 a.m.
Stakeholder Outreach--Agriculture
Location: NRCS Building, Heritage Hill Complex, 500 East Main Street, 
    Romney, WV 26757. (2nd floor )
Contact: Matt Monroe, environmental programs supervisor, WV Dept. of 
    Ag., [Redacted], [Redacted].

12:30 p.m.-2:00 p.m.
Stakeholder Outreach--Local Government
Location: Old Courthouse, junction of Route 50 or Main Street, with 
    Route 28 or High Street, Romney, WV
Contact: Alana Hartman, West Virginia Department of Environmental 
    Quality, [Redacted] office, [Redacted] cell, [Redacted].

2:30 p.m.-4:00 p.m.
Stakeholder Outreach--Developers and Homebuilders
Location: Old Courthouse, junction of Route 50 or Main Street, with 
    Route 28 or High Street, Romney, WV
Contact: Alana Hartman, West Virginia Department of Environmental 
    Quality, [Redacted] office, [Redacted] cell, [Redacted].

6:00 p.m.-8:00 p.m.
Public Meeting
Location: South Branch Inn, Route 50 East, Romney, WV
                              attachment b
Our Collective Challenge: Viable Ag and Clean Water in the Chesapeake 
        Bay Watershed




Date:                            August 7 Gather at 9 for coffee.
                                 Meeting will go to 12:30. Those who can
                                  to stay for lunch, we will go to a
                                  near by restaurant.

Where:                           Maryland State Highway Administration,
                                 Training Room # 1,
                                 5111 Buckeystown Pike,
                                 Frederick, Maryland 21704 (Directions
                                  below)

Objectives:

    1. Build a relationship and conversation between EPA participants
     and Ag
    leaders;

    2. Understand the real world challenges and concerns in achieving
     viable Ag
    and clean water;

    3. Identify some approaches to moving forward; and

    4. Some possible next steps.

Facilitators: Jim Baird Mid-Atlantic States Director, American Farmland
 Trust and Dana York Senior Advisor to the Bay Program from NRCS.



                             Invitation List
------------------------------------------------------------------------
                                                  Work and Volunteer
 State        County             Name                 Positions
------------------------------------------------------------------------
   MD   St. Marys          Buddy Hance       Secretary, MDA; grain
                                              farmer; Past President
                                              MDFB Grain
   MD   Q. Anne's          Luke Howard       Organic & specialty crop
                                              producer. Former Ag
                                              Commission Chair, County
                                              Farm Bureau Director,
                                              County Planning Commission
   MD   Q. Anne's          Jenny Rhodes      Poultry, grain, Extension
                                              Agent
   MD   Dorchester         Terry Wolf-King   Poultry, Young farmers
                                              Commission
   MD   Montgomery         Robert N.         Grain and beef farmer. Mid
                            Stabler           Atlantic Farm Credit
                                              Maryland Ag Commission
                                              Montgomery County Soil
                                              Conservation (supervisor).
                                              Montgomery County Ag, MD
                                              Cattlemen's Assn, NCBA,
                                              MDGPA, NCGA, MD & County
                                              Farm Bureau Farm Bureau.
   MD   Washington         Don Spickler      Former dairy farmer.
                                              Independent Crop Insurance
                                              business.Active in MACD &
                                              NACD.
   MD   Howard             Bob Ensor         County Conservation
                                              District Manager, retired
                                              NRCS, former head of MD
                                              Water Quality Cost Share
                                              Program
   MD   Frederick          James Stup        Dairy
   PA   State-wide         Russell Reading   PDA Asst. Secretary
   PA   Lancaster          Don McNutt        District Administrator 25
                                              yr career teaching and
                                              advisingHigh School,
                                              college and farmers, 10
                                              years with Lanc Distr 6 as
                                              Administrator. Born and
                                              raised on a dairy farm in
                                              W.
                                               PA . . . Still involved
                                              in the 250 cow operation
                                              remotely.
   PA   State-wide         George Hazard     PAFB Environmental
                                              Coordinator. Former Crop
                                              Consultant
   PA   Lancaster          Ron Kreider       Dairy, private label mink
                                              products and produce.
   PA   York               Jack Dehoff       Dairy farmer, State
                                              Conservation Commission
                                              Member
   PA   Snyder             Jim Brubaker      Swine, Nutrient Mgt
                                              Advisory Board
   PA   Lancaster          Christ Plank      Old Order Amish Steering
                                              Committee Represents,
                                              retired dairy farmer
   PA   Lancaster          J.B. Byler        Retired dairy farmer. Old
                                              Order Amish Steering
                                              Committee
   PA   Dauphin            Keith Oellig      Grain Farmer and PFB member
   VA   Orange             Monk Sanford      Dairy farmer; VA Dairymen's
                                              Association representative
   VA   Montgomery         Bill McKinnon     Cattle farmer; Executive
                                              Director VA Cattlemen's
                                              Association
   VA   ?                  Steve Sturgis     Vegetable and grain farmer;
                                              VA Potato and Vegetable
                                              Grower Association
                                              President
   VA   Cumberland         Will Sanderson    Poultry Farmer; VA Poultry
                                              Federation representative;
                                              Young Farmer
   VA                      Katie Frazier     VA Agribusiness Council
   VA                      Wilmer Stoneman   VA Farm Bureau Federation
   VA                      Christina Hyre    VA Grain Producers
                                              Association,
                                              Communications Director
   VA   Rockingham         Buff Showalter    Beef, poultry, partner in
                                              Poultry Specialties,
                                              Valley Conservation
                                              Council
   VA   Rockingham         Anthony Beery     Dairy and Poultry
                           Chuck Fox         Special Assistant to the
                                              Administrator for
                                              Chesapeake Bay and
                                              Anacostia River
                           Larry Elworth     Agricultural Counselor to
                                              the Administrator; former
                                              Exec. Director of Center
                                              for Agricultural
                                              Partnerships, USDA and the
                                              Domestic Policy Council.
                           Kelly Shenk       EPA Agricultural Policy
                                              Coordinator, EPA
                                              Chesapeake BayProgram
                                              Office
                           Dana York         Special Advisor to the
                                              Chesapeake Bay Program,
                                              NRCS
                           Jim Baird         MidAtlantic States
                                              Director, American
                                              Farmland Trust
------------------------------------------------------------------------

                                 ______
                                 
    American Farmland Trust and the National Conservation Resource 
Service are pleased to invite you to a conversation with 
representatives from the Environmental Protection Agency.
Our Collective Challenge: Viable Ag and Clean Water in the Chesapeake 
        Bay Watershed




Date:                            August 7 Gather at 9 for coffee.
                                 Meeting will go to 12:30. Those who can
                                  to stay for lunch, we will go to a
                                  near by restaurant.

Where:                           Maryland State Highway Administration,
                                 Training Room # 1,
                                 5111 Buckeystown Pike,
                                 Frederick, Maryland 21704 (Directions
                                  below)

Objectives:

    1. Build a relationship and conversation between EPA participants
     and Ag
    leaders;

    2. Understand the real world challenges and concerns in achieving
     viable Ag
    and clean water;

    3. Identify some approaches to moving forward; and

    4. Some possible next steps.

Facilitators: Jim Baird MidAtlantic States Director, American Farmland
 Trust and Dana York Senior Advisor to the Bay Program from NRCS.


Agenda
Viable Farms and Clean Water in the Chesapeake Bay Watershed Producer 
        and Ag Industry Conversation with EPA
---------------------------------------------------------------------------
    * Editor's note: the phone numbers and e-mail addresses have been 
redacted.


    Time                               Activity

       9:30     (1) Welcome, Overview & Participant Introductions


                 (a) Chuck Fox, Senior EPA Advisor to the Chesapeake Bay
                  Program

                (3) Break

                 (a) Bay Farmers from Maryland, Pennsylvania and
                  Virginia

                (4) Moving to Solutions: Identify potential steps to
              achieve clean water and via-
                ble farms.



      12:30   Close

           Jim Baird *                            Dana York *


                                 ______
                                 
Directions to District 7, State Highway Administration, 5111 
        Buckeystown Pike, Frederick, MD 21704
From Western Maryland: (Cumberland/Hagerstown)
1. Follow I-68 East to I-70 East at Hancock, Maryland.

2. Continue on I-70 to I-270 South (Washington) at Frederick, Maryland.

3. Follow I-270 South to Exit 31B (Buckeystown) Route 85 South.

4. Immediately descending the exit ramp will be a Hampton Inn on the 
        left.

5. Continue on through the light at the intersection of Crestwood Blvd.

6. At the next light turn left to the District 7 Office and Frederick 
        Maintenance Facility.

Go straight--training rooms are on the right.
From East of Frederick: (Mount Airy/Columbia) (Baltimore)
1. Take I-70 West to Exit 53 A, this is I-270 South (Washington)

2. Follow I-270 South to Exit 31 B (Buckeystown) Route 85 South

3. Immediately descending the exit ramp will be a Hampton Inn on the 
        left.

4. Continue on through the light at the intersection of Crestwood Blvd.

5. At the next light turn left to the SHA District Office and Frederick 
        Shop Maintenance Facility.

Go straight--training rooms are on the right.
From Washington/Rockville Via I-270: (Gaithersburg/Rockville)
1. Follow I-270 North to Frederick, Maryland. Continue on I-270 to Exit 
        31 (Buckeystown) Route 85 South.

2. Immediately descending the exit ramp will be a Hampton Inn on the 
        left.

3. Continue on through the light at the intersection of Crestwood Blvd

4. At the next light turn left to the District 7 Office and Frederick 
        Maintenance Facility

Go straight--training rooms are on the right.
From Virginia Line:
1. Follow Route 340 to the I-70/I-270 split and take I-270 South 
        (Washington).

2. Proceed on I-270 for approximately 1 mile to Exit 31B (Buckeystown), 
        which is Route 85.

3. Follow Route 85 past the Hampton Inn and Shockley Honda.

4. At the next light turn left to the District 7 Office and Frederick 
        Maintenance Facility.

Go straight--training rooms are on the right.
                                 ______
                                 
American Farmland Trust
    Dear Participant:

    We are asking all participants to think about and respond to 3 
questions to prepare for the meeting:

1. What do you hope to learn at this meeting?

    a. from EPA?

    b. from producers?

2. What are the main challenges that you face in trying to achieve both 
        clean water and viable farms?

3. What the main opportunities that you see to help achieve clean water 
        and viable farms?

    If you send us your responses (soon!) we will compile them and pick 
out the major themes, concerns and ideas prior to the meeting. This is 
voluntary and no names will be used. The point is to get a feeling of 
what the group sees as the priority issues and ensure they get talked 
about. You can send your responses as follows:

1. Send the attached document to [Redacted] or fax to [Redacted] or by 
        letter to the address below.

2. Visit this website and respond electronically.

3. Call Jim Baird at [Redacted] and tell him over the phone.
                              attachment c
State Watershed Implementation Plan (WIP) Teams
Pennsylvania
Chesapeake Bay Watershed Implementation Plan (WIP) Agricultural 
        Workgroup Chair/ Co-Chair: Karl Brown and Mike Pechart, Co-
        Chair: Frank Schneider
    EPA met frequently with the PA WIP Agricultural Workgroup which had 
a number of key agricultural stakeholders represented such as the PA 
Farm Bureau, PennAg Industries, PA Conservation Commission, PA 
Department of Agriculture, PA conservation districts, Pennsylvania 
State University, and individual farmers.

------------------------------------------------------------------------
              Name                             Organization
------------------------------------------------------------------------
 1. Don McNutt                   Lancaster Co. Con. Dist.
 2. Mark Richards                Ag Coalition
 3. John Shuman                  LandStudies--Lycoming County
 4. David Brown (Susan Burky to  USDA-NRCS
 coordinate)
 5. Jennifer Reed-Harry          PennAg Industries
 6. Eric Hershey                 HRG
 7. Paul Lyskava                 PA Forest Products Assn.
 8. Tracey Coulter (alternate)   DCNR BOF
 9. Tanya Dierolf                PennFuture
10. Susan Marquart               PACD
11. Brenda Shambaugh             PACD
12. Kristen Saacke Blunk         PSU
13. Larry Martick Adams          CCD
14. Marel Raub                   Chesapeake Bay Commission
15. Suzanne Hall                 EPA
16. John Dawes                   Foundation for Pennsylvania Watersheds
17. Karl Brown                   SCC
18. Mary Bender                  SCC
19. John Bell (when position is  PA Farm Bureau
 field it will be the Natural
 Resources Director)
20. Sara Nicholas                DCNR
21. Grant Guilbon                Pa Builders Association
22. Kim Snell-Zarcone            PennFuture
23. John Seitz                   York County Planning Commission
24. Grant Guilbon                Pa Builders Association
25. Jeff Wendle                  CET
26. Scott Wyland                 Hawke McKeon & Sniscak
27. Lamonte Garber               Chesapeake Bay Foundation
28. Rebecca Wiser                Cumberland County Planning Dept.
29. Mike Brubaker                Brubaker Farms
30. Matt Ehrhart                 Chesapeake Bay Foundation
31. Pam Eyer                     Cumberland County Conservation Dist
32. Dr. Beegle                   PSU
33. Andy Zemba                   DEP
34. Steve Taglang                DEP
35. Ann Smith Road               DEP
36. Pat Buckley                  DEP
37. Kenn Pattison                DEP
38. Michael Pechart              PDA
39. Frank Schneider              DEP
------------------------------------------------------------------------
Editor's note: the e-mail address column for this table have been
  redacted.
Staff: Andy Zemba, Pat Buckley, Steve Taglang, Kenn Pattison, and Ann
  Roda (please copy on all e-mails sent regarding this workgroup).

Virginia TMDL Stakeholder Group Membership
    The Commonwealth established and engaged this stakeholder group to 
help develop the Watershed Implementation Plan. EPA attended many of 
the meetings to be available to answer questions. EPA also met with a 
subset of this group to discuss the agricultural portion of the plan 
with the Assistant Agriculture Secretary, Virginia Farm Bureau, 
Virginia Agribusiness, Virginia Department of Conservation and 
Recreation, and the Virginia Department of Environmental Quality.

    Ag Industry:

--VA Agribusiness Council--Katie Frazier

--VA Farm Bureau Federation--Wilmer Stoneman

--VA Poultry Federation--Hobey Bauhan

--VA State Dairymen's Association--Eric Paulson

--VA Grain Producers--Molly Pugh

--VA Forestry Association--Paul Howe

    Wastewater:

--VAMWA--Chris Pomeroy & James Pletl

--Virginia Manufacturers Association--Brooks Smith & Tom Botkins

--Navy--DOD--David Cotnoir

    Developed and Developing Lands:

--Homebuilders of Virginia--Mike Toalson

--Virginia Municipal Stormwater Association--Randy Bartlett

--James River Green Builders Council--Richard K. Friesner

--VA Association of Planning District Commissions--Deirdre Clark & 
        Stuart McKenzie (Norm Goulet alternate)

--Fountainhead Alliance--David Anderson

--VA Association for Commercial Real Estate--Phil Abraham

--Wetland Studies and Solutions--Mike Rolband

    Conservation/Environmental:

--Chesapeake Bay Foundation--Ann Jennings (Mike Gerel as alternate)

--James River Association--Bill Street

--Friends of the Rappahannock--John Tippett

--Southern Environmental Law Center--Rick Parrish

--Shenandoah Riverkeeper--Jeff Kelble

--Wetlands Watch--Skip Stiles

    Local/Federal Gov't:

--VML--Joe Lerch

--VaCo--Larry Land

--Rappahannock River Basin Commission--Eldon James

--Rivanna River Basin Commission--Leslie Middleton

--NRCS--Jack Bricker

    Other:

--Virginia Seafood Council--Francis Porter

--Virginia Watermen's Association--Ken Smith

--Virginia Chamber of Commerce--Tyler Craddock

--Virginia Association of Soil and Water Conservation Districts--Wilkie 
        Chafin

--Chesapeake Bay Commission--Suzan Bulbulkaya

--VA CAC Member--Stella Koch

--VA STAC Member--Carl Hershner

--VA LGAC Member--Sally Thomas

    Other Private Sector Stakeholders:

--CDM--Chris Tabor

--PBS&J--Tom Singleton (Chad Smith as alternate)

    Agency Staff to Stakeholder Group:

--VA DCR

--VA DEQ

--VDH

    Agencies to Consult:

--VA DOF

--VDACS

--VDOT
Delaware Phase I Watershed Implementation Plan Agriculture Subcommittee
    EPA met frequently with the Delaware Phase I Watershed 
Implementation Plan Agriculture Subcommittee during the development and 
refinement of the Watershed Implementation Plan. The members of the 
Subcommittee are as follows:
Agriculture Subcommittee Member Organization
    Farmer Representatives:

--David Baker Farmer Representative

--Laura Hill Farmer Representative

    DE Department of Agriculture:

--Mark Davis, DE Department of Agriculture

--Chris Cadwallader, DE Department of Agriculture

--William Rohrer, DE Department of Agriculture

    U.S. Department of Agriculture:

--Dastina Johnson USDA

--Denise Macleis USDA

--Jack Tarburton USDA

--Lynn Manges USDA

--Marianne Hardesty USDA

--Paul Petrichenko USDA

--Robin Talley USDA

    Conservation Districts:

--Debbie Absher Sussex Conservation District

--Kevin Donnelly New Castle Conservation District

--Fred Mott Kent Conservation District

--Paul Morrill New Castle Conservation District

--Timothy Riley Kent Conservation District

    Scientists:

--Dave Hansen University of Delaware

--Judy Denver and Mark Nardi USGS

    DNREC:

--Robert Baldwin DNREC

--Thomas Barthelmeh DNREC

--Bryan Bloch DNREC

--Michael Brown DNREC

--Elizabeth Goldbaum DNREC

--Jennifer Nelson DNREC

--Robert Palmer DNREC

--Jennifer Walls DNREC

--Jennifer Volk DNREC
Maryland Watershed Implementation Plan Action Team and MD Watershed 
        Implementation Plan Stakeholder Advisory Group
    The MD WIP Action team is an internal agency focus group, 
representing the primary state contacts. EPA met frequently with the 
Action Team which included the Maryland Department of Agriculture, 
during the development and refinement of the WIPs. MD also created the 
Watershed Implementation Plan Stakeholder Advisory Group to serve as 
the external focus group. This stakeholder group, along with public 
meetings and the online suggestion box served as the venue for 
soliciting agricultural and other public stakeholder input into the WIP 
development process.

    Action Team:

--Maryland Department of Agriculture

--Maryland Department of Natural Resources

--Maryland Department of the Environment

--Maryland Department of Planning

    Stakeholder Advisory Group:

--Carlton Haywood, Chair--Middle Potomac Tributary Team

--Les Knapp--Maryland Association of Counties (MACo)

--Candace Donoho--Maryland Municipal League (MML)

--Katie Maloney--Maryland State Homebuilders Association

--Jen Aiosa Chesapeake Bay Foundation (CBF)

--Valerie Connelly--MD Farm Bureau

--Bill Satterfield--Delmarva Poultry Industry Inc.

--Bruce Williams--Chesapeake Bay Local Government Advisory Committee

--Lynn Hoot--Maryland Association of Soil Conservation Districts 
        (MASCD)

--Jamie Brunkow--Sassafras River Association

--Terry Matthews--State Water Quality Advisory Committee (SWQAC) (Sarah 
        Taylor)

--Katheleen Freeman--Coastal & Watershed Resources Advisory Committee 
        (CWRAC)

--Lisa Ochsenhirt--Maryland Association of Municipal Wastewater 
        Agencies

--Jim Gracie--Sport Fisheries Advisory Commission

--Richard Young--Tidal Fisheries Advisory Commission

--Tom Filip--P/B Tributary Team

--Jen Dindinger--Choptank Tributary Team

--Julie Pippel--Upper Potomac Tributary Team

--Rupert Rossetti--Upper Western Shore Tributary Team

--Bob Boxwell--Lower Potomac Tributary Team

--Ginger Ellis--Lower Western Shore

--E.B. James--Lower Eastern Shore/Nanticoke River Conservancy

    MD State Staff:

--Beth Horsey--MDA

--John Rhoderick--MDA

--Sara Lane--DNR

--Catherine Shanks--DNR

--Mike Bilek--DNR

--Claudia Donegan--DNR

--Chris Aadland--DNR

--Jim George--MDE

--Maria Levelev--MDE

--Paul Emmart--MDE

--Joe Tassone--MDP

--Jason Dubow--MDP

--Dan Baldwin--MDP

    Others:

--Peter Bouxein--CBF

--Moira Croghan--Sassafras Rive Association
West Virginia Phase I Watershed Implementation Plan Team
    EPA met frequently with the WV Watershed Implementation Plan Team 
which was comprised of key agricultural agencies such as the WV 
Department of Agriculture and WV Conservation Agency.

    WV Department of Agriculture:

--Steve Hannah

--Matt Monroe

    WV Conservation Agency:

--Carla Hardy

--Pam Russell

    WVU Extension Service:

--Rick Herd

--Jeff Skousen

    West Virginia Department of Environmental Protection:

--Theresa Koon

--Dave Montali

    Jefferson County, WV:

--Jennifer Brockman

    Potomac River Keepers:

--Brent Walls
New York Watershed Implementation Plan Team
    EPA met frequently with the NY Watershed Implementation Plan Team 
which was comprised of key agricultural agencies and land grant 
universities such as the Upper Susqhehanna Coalition, the NYS Soil and 
Water Conservation Committee, NRCS, and Cornell University.

--Upper Susquehanna Coalition

--New York Department of Environmental

--NYS Soil and Water Conservation

--Natural Resources Conservation Service

--Cornell University
Insert 3
          Mr. Goodlatte. And your contention is that the Clean Water 
        Act gives you authority to supersede the decision of the states 
        regarding to the--regarding the Water Implementation Plan? That 
        is obviously the subject of at least one lawsuit. You have had 
        your ears pinned back on several others in the Ninth Circuit 
        and now in the Fifth Circuit. You have been told you don't have 
        those authorities. Is it really your contention in spite of 
        growing legal decisions that the EPA has this authority? And if 
        it has the authority why is it that we have legislation to 
        codify it, to codify the President's Executive order? We 
        wouldn't need it. If it is already in the law you wouldn't need 
        that would you?
          Mr. Perciasepe. I don't have any comment on any legislation, 
        but I can tell you that there is a series of constructions in 
        the original Clean Water Act of 1972 that once we delegate the 
        authorities to the states that they are required to set the 
        standards and put the plans in place to meet those standards. 
        And the EPA if those are not sufficient does have the authority 
        in the Clean Water Act to backstop that. We do not want to do 
        that. I want to be clear. We do not want to do that.
Clean Water Act Section 303(d)
    (d)(1)(A) Each State shall identify those waters within its 
boundaries for which the effluent limitations required by section 
301(b)(1)(A) and section 301(b)(1)(B) are not stringent enough to 
implement any water quality standard applicable to such waters. The 
State shall establish a priority ranking for such waters, taking into 
account the severity of the pollution and the uses to be made of such 
waters.
    (B) Each State shall identify those waters or parts thereof within 
its boundaries for which controls on thermal discharges under section 
301 are not stringent enough to assure protection and propagation of a 
balanced indigenous population of shellfish, fish, and wildlife.

    (C) Each State shall establish for the waters identified in 
paragraph (1)(A) of this subsection, and in accordance with the 
priority ranking, the total maximum daily load, for those pollutants 
which the Administrator identifies under section 304(a)(2) as suitable 
for such calculation. Such load shall be established at a level 
necessary to implement the applicable water quality standards with 
seasonal variations and a margin of safety which takes into account any 
lack of knowledge concerning the relationship between effluent 
limitations and water quality.

    (D) Each State shall estimate for the waters identified in 
paragraph (1)(D) of this subsection the total maximum daily thermal 
load required to assure protection and propagation of a balanced, 
indigenous population of shellfish, fish and wildlife. Such estimates 
shall take into account the normal water temperatures, flow rates, 
seasonal variations, existing sources of heat input, and the 
dissipative capacity of the identified waters or parts thereof. Such 
estimates shall include a calculation of the maximum heat input that 
can be made into each such part and shall include a margin of safety 
which takes into account any lack of knowledge concerning the 
development of thermal water quality criteria for such protection and 
propagation in the identified waters or parts thereof.
    (2) Each State shall submit to the Administrator from time to time, 
with the first such submission not later than one hundred and eighty 
days after the date of publication of the first identification of 
pollutants under section 304(a)(2)(D), for his approval the waters 
identified and the loads established under paragraphs (1)(A), (1)(B), 
(1)(C), and (1)(D) of this subsection. The Administrator shall either 
approve or disapprove such identification and load not later than 
thirty days after the date of submission. If the Administrator approves 
such identification and load, such State shall incorporate them into 
its current plan under subsection (e) of this section. If the 
Administrator disapproves such identification and load, he shall not 
later than thirty days after the date of such disapproval identify such 
waters in such State and establish such loads for such waters as he 
determines necessary to implement the water quality standards 
applicable to such waters and upon such identification and 
establishment the State shall incorporate them into its current plan 
under subsection (e) of this section.
    (3) For the specific purpose of developing information, each State 
shall identify all waters within its boundaries which it has not 
identified under paragraph (1)(A) and (1)(B) of this subsection and 
estimate for such waters the total maximum daily load with seasonal 
variations and margins of safety, for those pollutants which the 
Administrator identifies under section 304(a)(2) as suitable for such 
calculation and for thermal discharges, at a level that would assure 
protection and propagation of a balanced indigenous population of fish, 
shellfish and wildlife.

(4) Limitations on revision of certain effluent limitations.--

    (A) Standard not attained.--For waters identified under paragraph 
(1)(A) where the applicable water quality standard has not yet been 
attained, any effluent limitation based on a total maximum daily load 
or other waste load allocation established under this section may be 
revised only if (i) the cumulative effect of all such revised effluent 
limitations based on such total maximum daily load or waste load 
allocation will assure the attainment of such water quality standard, 
or (ii) the designated use which is not being attained is removed in 
accordance with regulations established under this section.
    (B) Standard attained.--For waters identified under paragraph 
(1)(A) where the quality of such waters equals or exceeds levels 
necessary to protect the designated use for such waters or otherwise 
required by applicable water quality standard, any effluent limitation 
based on a total maximum daily load or other waste load allocation 
established under this section, or any water quality standard 
established under this section, or any other permitting standard may be 
revised only if such revision is subject to and consistent with the 
antidegradation policy established under this section.
    (Emphasis added.)
                                 ______
                                 
Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus and 
        Sediment
December 29, 2010
          * * * * *
1.4 Legal Framework for the Chesapeake Bay TMDL
1.4.1 What is a TMDL?
    As discussed more fully in Section 1.1, a TMDL specifies the 
maximum amount of a pollutant that a waterbody can receive and still 
meet applicable WQS. Allocations to point sources are called wasteload 
allocations or WLAs, while allocations to nonpoint sources are called 
load allocations or LAs. A TMDL is the sum of the WLAs (for point 
sources), LAs (for nonpoint sources and natural background) (40 CFR 
130.2), and a margin of safety (CWA section 303(d)(1)(C)). Section 
303(d) requires that TMDLs be established for impaired waterbodies ``at 
a level necessary to implement the applicable [WQS].'' \3\
---------------------------------------------------------------------------
    \3\ 33 U.S.C. 1313(d)(1)(C).
---------------------------------------------------------------------------
    TMDLs are ``primarily informational tools'' that ``serve as a link 
in an implementation chain that includes federally regulated point 
source controls, state or local plans for point and nonpoint source 
pollutant reduction, and assessment of the impact of such measures on 
water quality, all to the end of attaining water quality goals for the 
nation's waters.'' \4\ Recognizing a TMDL's role as a vital link in the 
implementation chain, federal regulations require that effluent limits 
in NPDES permits be ``consistent with the assumptions and requirements 
of any available WLA'' in an approved TMDL.\5\
---------------------------------------------------------------------------
    \4\ Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir. 2002).
    \5\ 40 CFR 122.44(d)(1)(vii)(B).
---------------------------------------------------------------------------
    In addition, before EPA establishes or approves a TMDL that 
allocates pollutant loads to both point and nonpoint sources, it 
determines whether there is reasonable assurance that the nonpoint 
source LAs will, in fact, be achieved and WQS will be attained (USEPA 
1991b). If the reductions embodied in LAs are not fully achieved, the 
collective reductions from point and nonpoint sources will not result 
in attainment of the WQS.
    The Bay TMDL will be implemented using an accountability framework 
that includes the jurisdictions' WIPs, 2 year milestones, EPA's 
tracking and assessment of restoration progress and, as necessary, 
specific federal actions if the Bay jurisdictions do not meet their 
commitments. The accountability framework is being established, in 
part, to demonstrate that the Bay TMDL is supported by reasonable 
assurance. The accountability framework is also being established 
pursuant to CWA section 117(g)(1). Section 117(g) of the CWA directs 
the EPA Administrator to ``ensure that management plans are developed 
and implementation is begun . . . to achieve and maintain . . . the 
nutrient goals of the Chesapeake Bay Agreement for the quantity of 
nitrogen and phosphorus entering the Chesapeake Bay and its watershed, 
[and] the water quality requirements necessary to restore living 
resources in the Chesapeake Bay ecosystem.'' \6\ In addition, Executive 
Order 13508 directs EPA and other federal agencies to build a new 
accountability framework that guides local, state, and federal water 
quality restoration efforts. The accountability framework is designed 
to help ensure that the Bay's nitrogen, phosphorus, and sediment goals, 
as embodied in the Chesapeake Bay TMDL, are met. While the 
accountability framework informs the TMDL, section 303(d) does not 
require that EPA ``approve'' the framework per se, or the 
jurisdictions' WIPs that constitute part of that framework.
---------------------------------------------------------------------------
    \6\ Clean Water Act section 117(g)(1)(A)-(B), 33 U.S.C. 
1267(g)(1)(A)-(B).
---------------------------------------------------------------------------
1.4.2 Why is EPA establishing this TMDL?
    In 1998, data showed the mainstem and tidal tributary waters of the 
Chesapeake Bay to be impaired for aquatic life resources. EPA 
determined that the mainstem and tidal tributary waters of the 
Chesapeake Bay must be placed on Virginia's section 303(d) list. EPA 
therefore added the mainstem of the Chesapeake Bay to Virginia's final 
section 303(d) list. As described in Section 2, each tidal river, 
tributary, embayment, and other tidal waterbody that is part of the 
Chesapeake Bay TMDL is included on a jurisdiction's section 303(d) 
list.
    EPA established the Chesapeake Bay TMDL pursuant to a number of 
existing authorities, including the CWA and its implementing 
regulations, judicial consent decrees requiring EPA to address certain 
impaired Chesapeake Bay and tidal tributary and embayment waters, a 
settlement agreement resolving litigation brought by the Chesapeake Bay 
Foundation, the 2000 Chesapeake Agreement, and Executive Order 13508. 
In establishing the Bay TMDL, EPA acted pursuant to the consensus 
direction of the Chesapeake Executive Council's PSC and in partnership 
with each of the seven Chesapeake Bay watershed jurisdictions.
    The CWA provides EPA with ample authority to establish the 
Chesapeake Bay TMDL. CWA section 117(g)(1) provides that ``[t]he 
Administrator, in coordination with other members of the [CEC], shall 
ensure that management plans are developed and implementation is begun 
by signatories to the Chesapeake Bay Agreement to achieve and maintain 
[among other things] the nutrient goals of the Chesapeake Bay Agreement 
for the quantity of nitrogen and phosphorus entering the Chesapeake Bay 
and its watershed [and] the water quality requirements necessary to 
restore living resources in the Chesapeake Bay ecosystem.'' Because it 
establishes the Bay and tidal tributaries' nutrient and sediment 
loading and allocation targets, the Chesapeake Bay TMDL is itself such 
a ``management plan.'' In addition, the Bay TMDL's loading and 
allocation targets both inform and are informed by a larger set of 
federal and state management plans being developed for the Bay, 
including the Bay watershed jurisdictions' WIPs and the May 2010 
Strategy for Protecting and Restoring the Chesapeake Bay (FLCCB 2010).
    CWA section 303(d) requires jurisdictions to establish and submit 
TMDLs to EPA for review. Under certain circumstances, EPA also has the 
authority to establish TMDLs. The circumstances of this TMDL do not 
necessarily identify the outer bounds of EPA's authority. However, 
where--as here--impaired waters have been identified on jurisdictions' 
section 303(d) lists for many years, where the jurisdictions in 
question decided not to establish their own TMDLs for those waters, 
where EPA is establishing a TMDL for those waters at the direction of, 
and in cooperation with, the jurisdictions in question, and where those 
waters are part of an interrelated and interstate water system like the 
Chesapeake Bay that is impaired by pollutant loadings from sources in 
seven different jurisdictions, CWA section 303(d) authorizes EPA to 
establish that TMDL.\7\
---------------------------------------------------------------------------
    \7\ Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517 (9th Cir. 
1995); Scott v. City of Hammond, 741 F.2d 992(7th Cir. 1984); American 
Canoe Assn. v EPA, 54 F.Supp.2d 621 (E.D.Va. 1999).
---------------------------------------------------------------------------
    On May 12, 2009, President Barack Obama signed Executive Order 
13508--Chesapeake Bay Protection and Restoration. The Executive Order's 
overarching goal is ``to protect and restore the health, heritage, 
natural resources, and social and economic value of the Nation's 
largest estuarine ecosystem and the natural sustainability of its 
watershed.'' The Executive Order says the federal government ``should 
lead this effort'' and acknowledges that progress in restoring the Bay 
``will depend on the support of state and local governments.'' To that 
end, the Executive Order directs the lead federal agencies, including 
EPA, to work in close collaboration with their state partners. To 
protect and restore the Chesapeake Bay and its tidal tributaries, the 
President directed EPA to ``make full use of its authorities under the 
[CWA].'' In establishing the Bay TMDL, EPA is doing no more-or less-
than making full use of its CWA authorities to lead a collaborative and 
effective federal and state effort to meet the Bay's nutrient and 
sediment goals.
    A number of consent decrees, memoranda of understanding (MOUs), and 
settlement agreements provide additional support for EPA's decision to 
establish the Chesapeake Bay TMDL addressing certain waters identified 
as impaired on the Maryland, Virginia, and the District of Columbia's 
1998 section 303(d) lists and on the Delaware 1996 section 303(d) list. 
EPA established the Chesapeake Bay TMDL consistent with those consent 
decrees, MOUs, and settlement agreements, described below.
Virginia-EPA Consent Decree
    The American Canoe Association, Inc., and the American Littoral 
Society filed a complaint against EPA for failing to comply with the 
CWA, including section 303(d), regarding the TMDL program in the 
Commonwealth of Virginia. A consent decree signed in 1999 resolved the 
litigation.\8\ The consent decree includes a 12 year schedule for 
developing TMDLs for impaired segments identified on Virginia's 1998 
section 303(d) list. The consent decree requires EPA to establish TMDLs 
for those waters, by May 1, 2011, if Virginia fails to do so according 
to the established schedule. Virginia has requested that EPA establish 
TMDLs for the nutrient- and sediment-impaired tidal portions of the 
Chesapeake Bay and its tributaries and embayments in accordance with 
the Virginia consent decree schedule (CBP PSC 2007). Table 1-3 provides 
a list of the Virginia consent decree waters that were addressed by the 
Chesapeake Bay TMDLs for nitrogen, phosphorus, and sediment.
---------------------------------------------------------------------------
    \8\ American Canoe Association v. EPA, 98cv979 (June 11, 1999).

  Table 1-3. Virginia consent decree (CD) waters impaired for dissolved
    oxygen (DO) and/or nutrients addressed by the Chesapeake Bay TMDL
------------------------------------------------------------------------
                                      Chesapeake Bay
  Waterbody Name    CD Segment ID       Segment ID       CD  Impairment
------------------------------------------------------------------------
Bailey Bay,        VAP-G03E         JMSTF1             DO
 Bailey Creek--
 Tidal
Broad Creek        VAT-G15E         ELIPH, WBEMH,      DO
                                     SBEMH, EBEMH
Chesapeake Bay     Narrative a      CB5MH, CB6PH,      Nutrients
 Mainstem                            CB7PH
Chesapeake Bay     VACB-R01E        CB5MH, CB6PH,      DO
 Mainstem                            CB7PH
Elizabeth River--  Narrative b      ELIPH, WBEMH,      Nutrients
 Tidal                               SBEMH, EBEMH
Hungars Creek      VAT-C14R         CB7PH              DO
James River--      Narrative c      JMSTF2, JMSTF1,    Nutrients
 Tidal                               JMSOH, JMSMH,
                                     JMSPH
King Creek         VAT-F27E         YRKPH              DO
Mattaponi River--  Narrative d      MPNTF, MPNOH       Nutrients
 Tidal
Messongo Creek     VAT-C10E         POCMH              DO
North Branch       VAT-C11E         CB7PH              DO
 Onancock Creek
Pagan River        VAT-G11E         JMSMH              DO
Pamunkey River--   Narrative e      PMKTF, PMKOH       Nutrients
 Tidal
Queen Creek        VAT-F26E         YRKMH              DO
Rappahannock       Narrative f      RPPMH              Nutrients
 River
Rappahannock       VAP-E25E         RPPMH              Nutrients
 River
Rappahannock       VAP-E25E         RPPMH              DO
 River
Rappahannock       VAP-E26E         RPPMH              Nutrients
 River
Rappahannock       VAP-E26E         RPPMH              DO
 River
Thalia Creek       VAT-C08E         LYNPH              DO
Williams Creek     VAN-A30E         POTMH              DO
York River         Narrative g      YRKMH, YRKPH       Nutrients
York River         VAT-F27E         YRKPH              DO
------------------------------------------------------------------------
Source: American Canoe Association v. EPA, 98cv979 (June 11, 1999).
Notes:
a = Chesapeake Bay Mainstem (VACB-R01E) impaired for nutrients.
b = Elizabeth River (VAT-G15E) impaired for DO, nutrients.
c = James River (VAP-G01E, VAP-G03E, VAP-G02E, VAP-G04E, VAP-G11E, and
  VAP-G15E) impaired for nutrients.
d = Mattaponi River (VAP-F24E and VAP-F25E) impaired for nutrients.
e = Pamunkey River (VAP-F13E and VAP-F14E) impaired for DO, nutrients.
f = Rappahannock River (VAP-E24E) impaired for DO.
g = York River (VAT-F26E) impaired for nutrients.

District of Columbia-EPA Consent Decree
    In 1998 Kingman Park Civic Association and others filed a similar 
suit against EPA.\9\ The lawsuit was settled through the entry of a 
consent decree requiring EPA to, among other things, establish TMDLs 
for the District of Columbia's portions of the tidal Potomac and tidal 
Anacostia rivers if not established by the District of Columbia by a 
certain date.
---------------------------------------------------------------------------
    \9\ Kingman Park Civic Association v. EPA, 98cv00758 (June 13, 
2000).
---------------------------------------------------------------------------
    The impairment of the District of Columbia's portion of the upper 
tidal Potomac River by low pH is directly related to the Chesapeake Bay 
water quality impairments because the low pH is a result of excess 
nutrients causing algal blooms in the tidal river. Establishing a tidal 
Potomac River pH TMDL is directly linked to establishing the Chesapeake 
Bay TMDL because of their common impairing pollutants (nitrogen and 
phosphorus) and the hydrologic connection between the District's 
portion of the tidal Potomac River and the Chesapeake Bay. EPA and the 
Kingman Park plaintiffs jointly sought, and received on February 12, 
2008, a formal extension of the District of Columbia TMDL Consent 
Decree so that EPA could complete the Potomac River pH TMDL on the same 
schedule as the Chesapeake Bay TMDL.\10\ The District of Columbia 
requested that EPA establish the pH TMDL for the District's portion of 
the tidal Potomac River (CBP PSC 2007). Table 1-4 provides a list of 
the District's consent decree waters that were addressed by the 
Chesapeake Bay TMDLs for nitrogen, phosphorus, and sediment.
---------------------------------------------------------------------------
    \10\ Kingman Park Civic Association v. EPA, 98cv00758 (Order 
February 12, 2008).
---------------------------------------------------------------------------
    In addition, Anacostia Riverkeeper and Friends of the Earth filed 
suit against EPA challenging more than 300 TMDLs for the District of 
Columbia, including the Anacostia River TMDLs, because the TMDLs were 
not expressed as daily loads. On May 25, 2010, the District Court for 
the District of Columbia ordered the vacatur of the District of 
Columbia's TMDL for pH for the Washington Ship Channel, with a stay of 
vacatur until May 31, 2011.\11\ With publication of the Bay TMDL, the 
Washington Ship Channel pH impairment has been addressed and the pH 
TMDL for the Ship Channel approved by EPA on December 15, 2004 has been 
superseded.
---------------------------------------------------------------------------
    \11\ Anacostia Riverkeeper, et al. v. Jackson, 1:2009cv00098 
(D.D.C.) (Mem. and Order May 25, 2010).

 Table 1-4. District of Columbia consent decree (CD) waters impaired for
                 pH addressed by the Chesapeake Bay TMDL
------------------------------------------------------------------------
                                      Chesapeake Bay
  Waterbody Name    CD Segment ID       Segment ID       CD  Impairment
------------------------------------------------------------------------
Washington Ship    DCPWC04E_00      POTTF_DC           pH
 Channel
Middle Potomac     DCPMS00E         POTTF_DC           pH
 River
------------------------------------------------------------------------
Source: Kingman Park Civic Association v. EPA, 98cv00758 (June 13,
  2000).

Delaware-EPA Consent Decree
    In 1996 the American Littoral Society and the Sierra Club filed a 
suit against EPA to ensure that TMDLs were developed for waters on 
Delaware's 1996 section 303(d) list, one of which is a tidal Bay 
segment (Upper Nanticoke River). The parties entered into a consent 
decree resolving the lawsuit.\12\ The consent decree required EPA to 
establish TMDLs if Delaware failed to do so within the 10 year TMDL 
development schedule. Although Delaware established TMDLs for the one 
listed tidal Bay segment (DE DNREC 1998), the TMDLs were established to 
meet prior WQS and are insufficient to attain Chesapeake Bay WQS.
---------------------------------------------------------------------------
    \12\ American Littoral Society, et al. v. EPA, et al., 96cv591 
(D.Del. 1997).
---------------------------------------------------------------------------
Maryland-EPA MOU
    In 1998 Maryland and EPA Region 3 entered into an MOU that, among 
other things, established a 10 year schedule for addressing waters on 
Maryland's 1998 section 303(d) list, with completion by 2008 (MDE 
1998). Because of funding constraints, the complexity of some TMDLs, 
and limited staff resources, Maryland determined that it would not be 
able to address all 1998 listed waters by 2008. Further, the Chesapeake 
2000 Agreement established a goal of meeting water quality standards in 
the Chesapeake Bay by 2010 (CEC 2000). Many of the waters on Maryland's 
1998 section 303(d) list were open waters of the Bay or tidal 
tributaries and embayments to the Bay. Maryland determined that 
developing TMDLs for those tidal waters before the deadline established 
by the MOU, as would be required under the schedule established in 
1998, ``would undermine the spirit of the agreement'' because of a lack 
of integration between the CBP partnership and Maryland efforts (MDE 
2004). Therefore, Maryland decided to postpone development of TMDLs for 
Maryland's listed Chesapeake Bay and its tidal tributary and embayment 
waters until the two programs could coordinate efforts.
    In September 2004, Maryland and EPA Region 3 entered into a revised 
MOU that extended the schedule for TMDL development to 13 years (by 
2011) (MDE 2004). Although neither Maryland nor EPA is under a consent 
decree for establishing TMDLs for Maryland waters, the state has 
requested that EPA develop the TMDLs for the Maryland portion of the 
Chesapeake Bay and tidal tributaries and embayments impaired by excess 
nitrogen, phosphorus, and sediment as recognized in the MOU between 
Maryland and EPA (CBP PSC 2007).
Chesapeake Bay Foundation Settlement Agreement
    In January 2009, the Chesapeake Bay Foundation and others filed 
suit against EPA in U.S. District Court for the District of Columbia 
(1:09-cv-00005-CKK) alleging, among other things, that EPA had failed 
to carry out nondiscretionary duties under CWA section 117(g) designed 
to restore and preserve the Chesapeake Bay. In May 2010, EPA signed a 
settlement agreement with the plaintiffs promising to take a number of 
actions to restore and preserve the Bay. In particular, EPA promised 
that by December 31, 2010, it would establish a TMDL for those segments 
of the Chesapeake Bay impaired by nitrogen, phosphorus, and sediment. 
EPA is establishing this TMDL, in part, to meet that commitment.
          * * * * *
Response to Public Comments
Chesapeake Bay TMDL for Nitrogen, Phosphorus and Sediment
December 29, 2010
Docket #: EPA-R03-OW-2010-0736
          * * * * *
Chapter 1--Comments and Responses
Part 1
          * * * * *
Legal Comments
          * * * * *
Comment ID 0288.1.001.036
Author Name: Pomeroy Christopher
Organization: Virginia Association of Municipal Wastewater Agencies, 
    Inc. (VAMWA)
The American Canoe AND Kingman Park Consent Decrees Do Not Address 
        Virginia's Chlorophyll a
    EPA continues to assert in it must complete the Bay TMDL by 2011 
(the December, 2010 deadline is a self-imposed acceleration) because of 
two consent decrees issued in the late 1990/early 2000 timeframe, 
American Canoe Association, Inc., et al. v. EPA, Civil Action No. 98-
99-A (U.S. D.Ct. ED VA, 1999)[FN102] and Kingman Park Civic 
Association, et al. v. EPA, Case No. 1:98CV00758 (U.S. D.Ct. D.C., 
2000). Draft TMDL at 1-14 to 1-16.
    VAMWA submits that EPA's obligations to develop a TMDL by May, 2011 
do not extend to establishing loadings on the James River for 
chlorophyll a. As the earlier discussion of the history of the 
establishment of the standard (see Section VI above) illustrates, the 
James River chlorophyll a standard was not even adopted until 2005. In 
contrast, the American Canoe Consent Decree, was signed and filed in 
Federal Court in 1999 and covers TMDLs on the then-existing 1998/99 
303(d) list for Virginia. It is therefore impossible that EPA's 
obligation from the American Canoe Consent Decree extends to 
chlorophyll a on the James given that the standard did not even come 
into existence until six years later. Although EPA has wrapped the 
James chlorophyll a issue up into this TMDL, it is not obligated to do 
so, and should not have done so in light of the major concerns 
expressed by the State and VAMWA regarding the existing standard.
    [FN102] Attached hereto as Appendix 51. [Comment Letter contains 
additional information in the form of an attachment. See original 
comment letter 0288.A51]
    Response: Thank you for the comment. For a comprehensive discussion 
of legal issues see EPA Essay Response to Legal Issues provided in 
response to comment number 0293.1.001.014.
Comment ID 0293.1.001.014
Author Name: Pomeroy Christopher
Organization: Virginia Municipal Stormwater Association, Inc. (VAMSA)

    VAMSA does not dispute that TMDL implementation planning is 
important for moving clean-up programs ahead after TMDL adoption and 
for illustrating NPS reductions plans. However, because WIPs are not 
derived from CWA section 303(d) authority,[FN30] the details of these 
plans are not subject to EPA approval or control. EPA's decision in its 
Draft TMDL to create ``backstops''--requirements that in effect revise 
the Virginia's Draft WIP--is not supported by federal law.
    In addition to acting without specific authorization from federal 
law, EPA's actions are also inconsistent with state primacy granted by 
Section 510 of the Act:

        ``Except as expressly provided in this Act, nothing in this Act 
        shall (1) preclude or deny the right of any state or political 
        subdivision thereof or interstate agency to adopt or enforce 
        (A) any standard or limitation respecting discharges of 
        pollutants, or (B) any requirement respecting control or 
        abatement of pollution; except that if an effluent limitation, 
        or other limitation, effluent standard, prohibition, 
        pretreatment standard, or standard of performance is in effect 
        under this Act, such State or political subdivision or 
        interstate agency may not adopt or enforce any effluent 
        limitation, or other limitation, effluent standard, 
        prohibition, pretreatment standard, or standard of performance 
        which is less stringent than the effluent limitation, or other 
        limitation, effluent standard, prohibition, pretreatment 
        standard, or standard of performance under this Act; or (2) be 
        construed as impairing or in any manner affecting any right or 
        jurisdiction of the States with respect to the waters 
        (including boundary waters) of such States.'') [FN31]

    Federal law clearly gives Virginia the authority to develop its own 
requirements and programs, so long as they are not less stringent than 
those established under the Act.[FN32] Because EPA has no statutory 
authority to establish WIPs, it is impossible for Virginia's Draft WIP 
to be less stringent.
    For these reasons, Virginia should have the discretion to establish 
its own WIP, without EPA passing judgment and usurping what is 
rightfully the state's role in this process.
    [FN30] Section 303(d) of the Clean Water Act mandates that states 
must prepare TMDLs for impaired waters, and authorizes EPA to approve 
or disapprove the loadings. If EPA chooses to disapprove, it has the 
authority to develop loadings on its own accord (``If the Administrator 
disapproves such identification and load, he shall not later than 
thirty days after the date of such disapproval identify such waters in 
such state and establish such loads for such waters as he determines 
necessary to implement the water quality standards applicable to such 
waters and upon such identification and establishment the State shall 
incorporate them into its current plan under subsection (e) of this 
section.'') 33 U.S.C.  1313. Section 303(e) specifically gives the 
State the authority and responsibility to develop a ``continuing 
planning process'' for addressing navigable waters. A part of this 
planning process is TMDLs (again, TMDL implementation plans are not 
mentioned). Nowhere in the text of Section 303(d) or (e) is EPA 
permitted to pass judgment on state implementation plans.
    [FN31] 33 U.S.C. 1370.
    [FN32] Virginia law (Chesapeake Bay and Virginia Waters Clean-Up 
and Oversight Act) includes a provision for the development of a Bay 
clean-up plan. Va. Code 62.1-44.117.
    Response:
EPA Response to Legal Comments Regarding the Chesapeake Bay TMDL
    EPA received a number of comments that raise legal issues in 
connection with EPA's establishment of the Chesapeake Bay TMDL. 
Identical (or very similar) issues were raised by a number of different 
commenters. In hopes of providing a more readable and understandable 
response to these legal comments, EPA has developed this consolidated 
response, rather than responding ``piecemeal'' to all the individual 
comments raising legal issues. In addition, readers are referred to 
those sections of the draft and final TMDL discussing TMDL's and the 
CWA and the Bay TMDL's legal framework.
A. Comments regarding EPA authority to establish the TMDL and its 
        allocations

1. While some commenters appeared to concede that EPA had authority to 
        establish the Bay TMDL at least for waters covered by the 
        Virginia, D.C., and Delaware consent decrees, other commenters 
        challenged EPA authority to establish the Bay TMDL for any of 
        the Bay's waters.

    Response: As discussed in the draft and final TMDLs, EPA is 
establishing the Chesapeake Bay TMDL pursuant to a number of existing 
authorities, including the CWA and its implementing regulations, 
judicial consent decrees requiring EPA to address certain impaired 
Chesapeake Bay and tidal tributary waters, a settlement agreement 
resolving litigation brought by the Chesapeake Bay Foundation, the 
current Chesapeake Bay Agreement, and Executive Order 13508. In 
establishing the Bay TMDL, EPA has acted pursuant to the consensus 
direction of the Chesapeake Executive Council's PSC and in partnership 
with each of the seven Chesapeake Bay watershed jurisdictions.
    The CWA provides EPA with ample authority to establish the 
Chesapeake Bay TMDL. CWA section 117(g)(1) provides that [t]he 
Administrator, in coordination with other members of the [CEC], shall 
ensure that management plans are developed and implementation is begun 
by signatories to the Chesapeake Bay Agreement to achieve and maintain 
[among other things] the nutrient goals of the Chesapeake Bay Agreement 
for the quantity of nitrogen and phosphorus entering the Chesapeake Bay 
and its watershed [and] the water quality requirements necessary to 
restore living resources in the Chesapeake Bay ecosystem. Because it 
establishes the Bay and tidal tributaries' nutrient and sediment 
loading and allocation targets, the Chesapeake Bay TMDL is such a 
management plan. In addition, the Bay TMDL's loading and allocation 
targets both inform and are informed by, a larger set of federal and 
state management plans being developed for the Bay, including the 
jurisdiction WIPs and the May 2010 Bay strategy.
    CWA section 303(d) requires jurisdictions to establish and submit 
TMDLs to EPA for review. Under certain circumstances, EPA also has the 
authority to establish TMDLs. The circumstances of this TMDL do not 
necessarily identify the outer bounds of EPA's authority. However, 
where impaired waters have been identified on jurisdictions` section 
303(d) lists for many years, where the states in question have decided 
not to establish their own TMDLs for those waters, where EPA is 
establishing a TMDL for those waters at the direction of, and in 
cooperation with, the jurisdictions in question, and where those waters 
are part of an interrelated and interstate water system like the 
Chesapeake Bay that is impaired by pollutant loadings from sources in 
seven different jurisdictions, CWA section 303(d) authorizes EPA 
authority to establish that TMDL. Dioxin/Organochlorine Center v. 
Clarke, 57 F.3d 1517 (9th Cir. 1995); Scott v. City of Hammond, 741 
F.2d 992 (7th Cir. 1984); American Canoe Ass'n. v. EPA, 54 F.Supp.2d 
621 (E.D.Va. 1999).
    On May 12, 2009, President Barack Obama signed Executive Order 
13508--Chesapeake Bay Protection and Restoration. The Executive Order's 
overarching goal is to protect and restore the health, heritage, 
natural resources, and social and economic value of the Nation's 
largest estuarine ecosystem and the natural sustainability of its 
watershed. The Executive Order says the federal government should lead 
this effort and acknowledges that progress in restoring the Bay will 
depend on the support of state and local governments. To that end, the 
Executive Order directs the lead federal agencies, including EPA, to 
work in close collaboration with their state partners. To protect and 
restore the Chesapeake Bay and its tidal tributaries, the President 
directed EPA to ``make full use of its authorities under the [CWA].'' 
In establishing the Bay TMDL, EPA is doing no more-or less-than making 
full use of its CWA authorities to lead a collaborative and effective 
federal and state effort to meet the Bay's nutrient and sediment goals.
    In addition, as discussed in the TMDL itself, a number of consent 
decrees, MOUs, and settlement agreements provide additional authority 
and support for EPA's decision to establish the Chesapeake Bay TMDL 
addressing certain waters identified as impaired on the Maryland, 
Virginia, and District of Columbia's 1998 section 303(d) lists and on 
the Delaware 1996 section 303(d) list. EPA is establishing the 
Chesapeake Bay TMDL consistent with those consent decrees, MOUs, and 
settlement agreements. It is immaterial whether Virginia was a party to 
the litigation that resulted in the Virginia consent decree. The decree 
represents a judicially-enforceable obligation that EPA must fulfill if 
necessary, as is the case here.

2. One commenter said that EPA had inappropriately relied on Dioxin/
        Organochlorine Center v. Clarke, 57 F3d 1517 (9th Cir. 1995), 
        Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) and 
        American Canoe Ass'n v. EPA, 54 F.Supp.2d 621 (E.D.Va. 1999) as 
        support for including Bay TMDL allocations for New York. The 
        commenter said those cases were inapposite because (1) New York 
        (and presumably the other Bay headwaters States) did not have 
        impaired waters addressed by the Bay TMDL and (2) the Bay TMDL 
        (and its headwaters allocations) was based on Bay-State water 
        quality standards and not on water quality standards adopted by 
        New York (and the other headwaters jurisdictions) that already 
        accounted for how local conditions affected the downstream Bay 
        impairments.

    Response: It is true that none of the cited cases had a need (based 
on their facts) to expressly address the issue of whether EPA has the 
authority to establish allocations for upstream States (and sources) in 
a TMDL for an interstate waterbody whose impairments are caused, in 
significant part, by pollutants originating in upstream states. The 
fact that the cited cases did not specifically address the out-of-State 
allocation issue does not make EPA's reliance on them 
``inappropriate.'' Indeed, all three cases clearly support the 
proposition that EPA has authority to establish this watershed TMDL for 
the 92 impaired Bay segments on the four Bay States' 303(d) lists. That 
being the case, it follows logically that--in establishing a TMDL for 
these 92 segments--EPA also must have authority to establish 
allocations within the entire Bay watershed at levels necessary to 
implement the water quality standards ``applicable'' to those 92 
segments. If EPA does not have such authority, it is limited to 
establishing a TMDL for the 92 Bay segments that either (1) makes no 
allocations to (or assumptions about reductions from) the headwaters 
States and, instead, allocates or assumes reductions only from VA, MD, 
D.C., and DE and places the burden on those States alone to meet the 
Bay's water quality standards; or (2) assumes (but does not allocate) 
reductions from the three headwaters States and makes allocations to 
VA, MD, D.C., and DE at a level consistent with the assumed headwater 
State reductions. In the context of this TMDL and this interstate 
waterbody--where a significant portion of the nutrient and sediment 
loads originate in the headwaters States--EPA believes it is 
unreasonable to read the CWA as constraining its authority to make 
allocations only to the four tidal Bay jurisdictions. EPA also believes 
it is unreasonable to interpret the CWA as forcing EPA to establish 
TMDL allocations for the tidal bay jurisdictions that rely only on 
unspecified and unsupported ``assumed'' reductions from the headwaters 
States. In light of the CWA's goals and objectives, EPA believes this 
to be an unnecessarily narrow reading of the Act and--based on past 
history--one not likely to result in attainment of the Bay's applicable 
water quality standards.

3. One commenter says that EPA did not follow the CWA's ``statutory 
        scheme'' for setting the TMDL's allocations for New York 
        because it based those allocations on water quality standards 
        applicable to the tidal Chesapeake and not on New York's own 
        water quality standards.

    Response: EPA did establish New York's (and other headwater 
States') allocations consistent with CWA authority. EPA established the 
Chesapeake Bay TMDL to address 92 impaired segments of the Bay and its 
tidal tributaries within the boundaries of Virginia, D.C., Maryland, 
and Delaware. Section 303(d) requires that the Bay TMDL be established 
at a ``level necessary to implement the applicable water quality 
standards . . .'' For the Bay TMDL, the applicable water quality 
standards are those standards established by Virginia, D.C., Maryland, 
and Delaware (and approved by EPA) for the 92 impaired tidal Bay 
segments. Pursuant to EPA's regulations (130.2(i)), a TMDL is defined 
as the sum of its wasteload allocations and load allocations. 
Accordingly, EPA was required by the CWA and its regulations to 
establish the TMDL's allocations (including allocations for headwater 
States like New York) consistent with implementing water quality 
standards applicable to the tidal Bay waters. This is what EPA did.
    As a legal matter, EPA is authorized to consider downstream water 
quality standards (including those in other states), when establishing 
or approving a TMDL. The U.S. Supreme Court in Arkansas v. Oklahoma, 
503 U.S. 91 (1992), held that EPA has the authority to impose NPDES 
permit limitations and conditions based on downstream water standards. 
At issue in that case was EPA's issuance of an NPDES permit to an 
Arkansas facility that imposed conditions derived from the downstream 
state's water quality standards. Noting that ``the statute clearly does 
not limit the EPA's authority to mandate such compliance,'' the Court 
held, ``The regulations relied on by the EPA were a perfectly 
reasonable exercise of the Agency's statutory discretion. The 
application of state water quality standards in the interstate context 
is wholly consistent with the Act's broad purpose `to restore and 
maintain the chemical, physical, and biological integrity of the 
Nation's waters.' 33 U.S.C.  1251(a). Moreover, as noted above,  
301(b)(1)(C) expressly identifies the achievement of state water 
quality standards as one of the Act's central objectives. The Agency's 
regulations conditioning NPDES permits are a well-tailored means of 
achieving this goal.'' The regulations considered by the court, 40 
C.F.R.  122.4(d), provide, ``No permit shall be issued . . . [w]hen 
the imposition of conditions cannot ensure compliance with the 
applicable water quality requirements of all affected States.''
    The principle articulated by the Supreme Court in the NPDES 
permitting context applies with equal force to TMDLs, which are an 
important tool for implementing section 301(b)(1)(C) with respect to 
point source discharges. As the Supreme Court held, EPA as the 
permitting authority is authorized to consider water quality standards 
in downstream segments (including those in other states) when 
establishing NPDES permit limitations and conditions for sources whose 
discharges ultimately flow to the downstream segments. For sources 
discharging to waters flowing into the Chesapeake Bay, those permit 
limitations would be derived from the TMDL for the Chesapeake Bay. See 
40 C.F.R.  122.44(d)(1)(vii)(B). Therefore, it follows that EPA is 
authorized to establish or approve TMDLs for impaired Bay waters with 
wasteload allocations and load allocations for upstream sources that 
take into account the downstream water quality standards that the TMDL 
is designed to meet.

4. One commenter seemed to suggest that EPA did not have authority ``to 
        establish a Bay TMDL for New York'' because (1) New York had 
        not failed to submit an appropriate TMDL and (2) EPA had not 
        first required New York to revise its State water quality 
        standards.

    Response: EPA disagrees with the comment and its underlying 
assumption that any Bay-related TMDL allocations affecting nutrient and 
sediment pollutant loadings originating in New York (or the other 
headwater States) must be established by those headwaters States and 
based solely on their own State water quality standards. In the 38 
years since passage of the CWA, none of the Bay headwaters States (New 
York, Pennsylvania, and West Virginia) has established or submitted a 
TMDL to EPA that allocates nutrient or sediment loadings in their 
jurisdictions at a level necessary to implement water quality standards 
in the Bay or its tidal tributaries. Moreover, the headwaters States 
requested and collaborated with EPA in the establishment of this Bay 
TMDL and its allocations. Accordingly, EPA has acted within its 
authority under CWA 303(d) to establish allocations to the headwater 
States in the Bay TMDL consistent with the need to implement tidal Bay 
water quality standards.
    Nor was it necessary for EPA to first require that the headwaters 
States revise their own water quality standards to ``take into 
consideration'' the applicable tidal Bay water quality standards and 
``ensure'' that their ``upstream'' standards provide for ``downstream'' 
standards attainment. EPA is establishing the Bay TMDL to implement the 
tidal Bay standards, not the headwater States' own ``upstream'' 
standards. (Reductions made to achieve the Bay TMDL are expected to 
improve the local water quality of the nontidal receiving waters.) The 
fact that a headwater State's standards may not already be stringent 
enough per 131.10(b) to ensure implementation of the tidal Bay 
standards does not constrain EPA's ability and authority under 303(d) 
to establish Bay TMDL allocations that are fully protective of the 
applicable downstream tidal Bay standards. To interpret CWA 303(c) and 
(d) otherwise would turn the Act on its head by subjecting a TMDL's 
ability to protect its targeted waters (and their ``applicable'' water 
quality standards) to limitations contained in upstream water quality 
standards. Likewise, under the framework of the Bay TMDL, EPA need not 
establish TMDLs or allocations for specific waters on New York's 303(d) 
list because they are not meeting local water quality standards. The 
purpose of this TMDL is to achieve the applicable standards for the 92 
impaired Bay segments. New York is free to develop TMDLs for waters 
with local impairments outside the context of this TMDL on an 
appropriate schedule.

5. A number of commenters said that that--rather than ``usurping'' the 
        States' roles--EPA should work ``collaboratively'' with them 
        and recognize their ``environmental stewardship.''

    Response: EPA believes the record of EPA's actions in establishing 
this TMDL clearly demonstrates that EPA has used a collaborative 
process to arrive at the final TMDL, one that has recognized and 
encouraged the environmental stewardship of all the watershed States, 
without whose full cooperation restoration of the Bay will be not 
occur.

6. One commenter said EPA was attempting to expand its CWA authority by 
        referencing a TMDL-establishment MOU with Maryland, the 2010 
        settlement agreement resolving Fowler v. EPA, and the 
        Chesapeake Bay Executive Order.

    Response: EPA agrees that its settlement agreement resolving Fowler 
v. EPA and the Executive Order do not expand its CWA authority to 
establish the Bay TMDL. EPA never said they did. Rather, EPA said it 
was establishing the Bay TMDL by December 31, 2010 to meet a commitment 
it made in the settlement agreement to act by that date. Regarding the 
Maryland MOU, EPA referenced that document (signed in 1998; revised in 
2004) in the draft TMDL because Maryland's commitments in that MOU were 
key to EPA victory (twice) in lawsuits alleging that Maryland was in 
default of its CWA TMDL obligations. Without Maryland's MOU commitments 
(and actions), it is possible the court might have found Maryland in 
default and ordered establishment of TMDLs via an EPA backstop on a 
schedule similar to the Virginia consent decree. If that had happened, 
EPA's authority to establish TMDL's for Maryland's impaired Bay waters 
would be as clear as it is for Virginia. While it is true that an MOU 
cannot by itself enlarge Congressionally-bestowed powers, under these 
circumstances the existence of the Maryland MOU in the context of the 
two Maryland TMDL lawsuits explains why it is reasonable for EPA to 
establish within the Bay TMDL--and with Maryland's full agreement--
``backstop'' TMDLs for Maryland's impaired Bay waters.
B. Comments regarding the Watershed Implementation Plans (WIPs)
1. Some commenters said that implementation plans associated with the 
        TMDL are not part of the TMDL itself and, thus, not subject to 
        EPA approval. More specifically, some commenters claim that 
        EPA's ``rejection'' of Virginia's draft WIP is ``legally 
        objectionable'' because the CWA does not give EPA the authority 
        to review and/or approve WIPs, or to direct their specific 
        terms.

    Response: EPA agrees with the commenters that the CWA does not 
require or authorize EPA to ``approve'' or ``disapprove'' 
jurisdictions' WIPs. And EPA has not done that here. Nor did EPA direct 
their specific terms. Instead, EPA identified expectations and a guide 
for the contours of the WIPs, and asked the jurisdictions to submit 
WIPs to support their recommendations for the decision by EPA in making 
its TMDL allocation decisions for various pollutant loading sectors. 
EPA reviewed the WIPs to determine if they provide adequate 
``reasonable assurance'' to support the jurisdictions' recommended 
allocation scenarios. Where those WIPs were determined to provide 
adequate reasonable assurance and met the respective jurisdictions 
pollutant cap loading, EPA used all (or those parts found adequate) as 
the basis for its TMDL allocations for that jurisdiction. Where 
portions of the WIPs did not provide such assurances, as the CWA 
requires, EPA establishes the backstop allocations in an appropriate 
manner so the resulting TMDL allocations are established at a level 
necessary to implement applicable water quality standards.

2. Some commenters said EPA did not have authority to establish a 2025 
        compliance deadline in the Bay TMDL.

    Response: CWA section 117(g) requires that EPA ``ensure that 
management plans are developed and implementation is begun'' to meet 
the Bay's nutrient goals and water quality requirements. Pursuant to 
that authority, and to support the TMDL EPA is establishing pursuant to 
section 303(d), EPA asked the Bay jurisdictions to develop and submit 
WIPs that provided for 60% implementation by 2017 and 100% 
implementation by 2025. In light of the decades-long history of not 
meeting these goals, a two-phase implementation framework is 
reasonable. EPA recognizes that there is much work to be done to 
restore the Bay; hence the final implementation target extending to 
2025. In light of the Bay's importance, the delays so far in reaching 
those targets, and EPA's belief that this job can be done in the 
projected time, the staged 2017/2025 implementation framework is both 
lawful and reasonable. That being said, the TMDL by itself is not a 
self implementing mechanism and does not contain an implementation 
plan. That plan, or rather plans, are set forth in the State WIPs, the 
two year milestones, and other federal actions--components of the 
broader Chesapeake Bay Restoration Accountability Framework discussed 
in TMDL section 1.2.2 and 7.2.
C. Comments regarding ``Reasonable Assurance''

1. One commenter asserts that ``reasonable assurance'' ``is a concept 
        that does not originate in either the CWA or EPA regulations'' 
        and that EPA ``created'' the concept of reasonable assurance in 
        1997 guidance. The commenter goes on to assert that a TMDL is a 
        ``number'' and ``[n]othing in the statute gives EPA the 
        authority to judge how that number is assigned or divided.''

    Response: EPA disagrees that ``reasonable assurance'' ``is a 
concept that does not originate in either the CWA or EPA regulations'' 
and that EPA ``created'' the concept of reasonable assurance in 1997 
guidance.
    In the first place, EPA explained the concept of reasonable 
assurance as early as its initial TMDL guidance in April 1991, not 
1997. The concept has been further explained in subsequent guidance 
documents.
    More importantly, the commenter is incorrect in asserting that a 
TMDL is merely a ``number'' and ``[n]othing in the statute gives EPA 
the authority to judge how that number is assigned or divided.'' A TMDL 
not just is a number. Rather, it is a collection of numbers 
representing WLAs and LAs assigned to various pollutant sources, all of 
which must add up to a ``total'' loading of pollutants consistent with 
meeting applicable water quality standards. TMDL = WLA(s) + LA(s) + 
MOS. When approving (or in the case of the Bay TMDL) establishing a 
TMDL, EPA has an obligation to ensure that the sum of the WLAs and the 
LAs adds up to a ``total'' number that will implement the applicable 
water quality standards. This is where ``reasonable assurance'' comes 
in.
    While neither the CWA nor EPA's regulations expressly mention the 
phrase ``reasonable assurance,'' the congruent requirements of CWA 
303(d)(1)(C) and 301(b)(1)(C) implicitly require it. Section 
303(d)(1)(C) requires that a TMDL be ``established at a level necessary 
to implement the applicable water quality stand-
ards . . .'' See also 40 C.F.R. 130.7(c)(1). A TMDL calculates the 
maximum amount of pollutant loadings that a waterbody can receive and 
still meet water quality standards, sometimes referred to as 
assimilative capacity. For waterbodies with both point and nonpoint 
sources of pollutants, a TMDL writer must decide how to apportion 
loadings between point and nonpoint sources subject to the TMDL. 
Section 303(d)(1)(C) requires that the point sourcenonpoint source 
allocation split be ``at a level necessary to implement the applicable 
water quality standards.'' Without a demonstration in the TMDL's record 
of ``reasonable assurance'' that the chosen nonpoint source load 
allocations will in fact be met, there is no assurance that the TMDL 
equation will not add up to a sum that exceeds a level necessary to 
implement the applicable water quality standards.
    Section 301(b)(1)(C) and EPA's permitting regulations provide 
additional support for reading a ``reasonable assurance'' requirement 
into a TMDL. Section 301(b)(1)(C) requires that point source permits 
have effluent limits as stringent as necessary to meet water quality 
standards. EPA's permitting regulations echo that requirement and, in 
addition, require that permits include effluent limits ``consistent 
with the assumptions and requirements of any available wasteload 
allocation for the discharge'' approved by EPA. 40 CFR 
122.44(d)(1)(vii)(A) & (B). For WLAs to serve as a basis for a WQBEL, 
they must themselves be stringent enough so that (in conjunction with 
the waterbody's other loadings) they meet water quality standards. In 
the absence of reasonable assurance that a TMDL's LAs will in fact be 
met, the TMDL's WLAs cannot serve as an effective permitting guide. 
That can happen, however, if (1) the TMDL's combined nonpoint source 
load allocations and point source wasteload allocations do not exceed 
the water quality standard-based loading capacity and (2) there is 
``reasonable assurance'' that the load allocation will be achieved. 
Such a demonstration ensures that an effluent limitation that is 
``consistent'' with a TMDL's wasteload allocation pursuant to 122.44 
(d)(1)(vii)(B) will also mees water quality standards as required by 
CWA 301(b)(1)(C) and 122.44 (d)(1)(vii)(A).
D. Comments regarding TMDL's ``Backstop allocations''
1. Some commenters said EPA should ``delay adoption of the TMDL and 
        backstops for at least one year'' because (1) there is no legal 
        authority for the urban/suburban retrofits necessary to 
        implement the TMDL and (2) such measures would be far more 
        expensive and cost-effective than POTW upgrades or agricultural 
        BMPs.

    Response: EPA disagrees with the commenter's assertion about lack 
of CWA legal authority for urban/suburban stormwater controls necessary 
to implement the Bay TMDL. Moreover, these arguments do not support 
delaying the TMDL. It is important that EPA establish the Bay TMDL as 
soon as possible. The TMDL is an important element in Bay restoration, 
and the Bay's waters have been impaired and restoration delayed for 
many years. EPA afforded the Bay jurisdictions two opportunities (draft 
Phase I WIPs and final Phase II WIPs) to describe the mix of 
implementation measures (informed by cost and other considerations) 
they intend to pursue in order to meet the TMDL's nutrient and sediment 
targets. EPA has taken the jurisdiction's WIPs into account in 
establishing allocations in the TMDL. Because this is EPA's TMDL, the 
CWA requires that EPA establish nutrient and sediment allocations at a 
level necessary to implement applicable water quality standards. To the 
extent EPA backstop assumptions serve as a basis for the TMDL's final 
allocations, those assumptions would have been necessitated by 
inadequacies in the jurisdictions' WIPs. That being the case, EPA would 
have been obligated to make allocations stringent enough to meet 
applicable standards sooner or later based, in part, on such 
assumptions. EPA has reasonably decided to establish the Bay TMDL and 
its allocations sooner rather than later. For further information on 
retofits please see response to comment number 0232.1.001.004.
E. Comments regarding James River allocations
1. Some commenters said it was not EPA's responsibility under the 
        Virginia or D.C. consent decrees to establish a TMDL to meet 
        the James River's 2005 chlorophyll standards.

    Response: EPA disagrees. The Virginia consent decree requires EPA 
to establish a TMDL at a level necessary to implement the applicable 
water quality standards for ``each water and pollutant identified in 
Attachment A and C'' of the decree if Virginia has not done so by a 
date certain. The James River's tidal tributaries are identified on 
Attachment A (Part 2) of the 1999 Virginia consent decree as impaired 
by ``nutrients,'' with specific focus on ``aquatic life concerns.'' It 
is immaterial that Virginia did not establish a numeric chlorophyll 
standard for those segments until 2005. The numeric chlorophyll a 
criteria adopted by Virginia specific to the James is to provide 
additional protection to aquatic life uses from the harmful effects of 
excess nutrients. These numeric criteria reinforce and support the 
restoration of those portions of the James River identified on the 1998 
303(d) listing for impaired aquatic life uses. At the time EPA 
established this TMDL, the segments remained listed and impaired, and 
the 2005 chlorophyll standard was an ``applicable'' water quality 
standard for purposes of section 303(d)(1)(C). Accordingly, the 1999 
Virginia consent decree requires that EPA establish a TMDL for those 
segments at a level that implements the applicable chlorophyll 
standard.

2. Some commenters said the James River has ``very little impact'' on 
        the main stem and dead zone of the Bay and achievement of the 
        proposed James River nutrient allocations ``will not improve 
        the Bay water quality.''

    EPA provides responses to that comment elsewhere in this document.

3. Some commentators said the James River chlorophyll standard ``lacks 
        a sound scientific foundation.''

    Response: EPA approved this submission of revised James River 
numeric chlorophyll a criteria (WQS) by Virginia in 2005 as effective 
and applicable water quality standards (WQS) for purposes of the CWA. 
On that basis EPA disagrees with this comment. This comment is outside 
the scope of the TMDL, since the CWA requires TMDLs to be established 
to ``applicable'' WQS, and the numeric chlorophyll a criteria are such 
standards. See above response. EPA suggests the commenter review the 
2005 submission by Virginia and EPA's approval if the commenter has 
further questions.
F. Comments re length of comment period and modeling information
1. Many commenters requested EPA to extend the TMDL's 45 day comment 
        period.

    Response: It is true EPA declined to extend the TMDL's 45 day 
comment period. To do so would have made it impossible for EPA to 
establish the Bay TMDL by December 31, 2010. EPA places a very high 
value on meeting its public commitment to establish the TMDL by that 
date. EPA does not want to break faith with the States who requested it 
or the public who expects it. Moreover, EPA is acting pursuant to 
Executive Order 13508 to ``make full use of its authorities'' to 
protect the Bay, as well as a promise EPA made in a May 2010 settlement 
agreement resolving Fowler v. EPA. While EPA could have attempted to 
negotiate an extension of the Fowler agreement date, EPA believes 
that--under all the circumstances of this TMDL, including the 
considerable transparency of the process to date and EPA's considerable 
efforts to engage in public outreach--its efforts were better spent 
finishing work on the TMDL in order to avoid any further delays in 
implementing EPA's and States' 27+ year old commitment to restore the 
Bay's water quality.
    EPA agrees that its settlement agreement resolving Fowler v. EPA 
and the Executive Order do not expand its CWA authority to establish 
the Bay TMDL. EPA never said they did. Rather, EPA said it was 
establishing the Bay TMDL by December 31, 2010 to meet a commitment it 
made in the settlement agreement to act by that date.

2. Some commenters stated that EPA did not make information on Scenario 
        Builder model available and requested EPA to make more 
        modeling-related information available.

    Response: EPA disagrees that it had not made information on 
Scenario Builder and other essential models available. For example EPA 
posted scenario builder information that was used for all of the 
calibration model inputs (the same thing as SB output) except for the 
acres of BMPs, which was calculated outside of SB in March 2010 at: 
ftp://ftp.chesapeakebay.net/modeling/phase5/Phase%205.3%20Calibration/
Model%20Input/.
    In addition the following information on the Watershed Model 
calibration was posted on the following websites spring of 2010:

http://www.chesapeakebay.net/phase5.htm: Scroll down to Phase 5.3 
        Watershed Model Output Data and Phase 5.3 Watershed Model Input 
        Data

http://ftp.chesapeakebay.net/Modeling/phase5/Phase%205.3%20Calibration/ 


    This information was also available through links provided in 
Section 5 of the draft TMDL, which was released for a 45 day public 
comment period on September 24th. Further, the Watershed Model code and 
calibration data, as well as the Scenario Builder documentation, were 
linked to our website before the draft TMDL was released.
    The Scenario Builder programming codes are available for download 
at: http://ftp.chesapeakebay.net/modeling/ScenarioBuilder/
ScenarioBuilderSource/.
    In response to requests for more specific SB information, EPA also 
made additional information available in November 2010 as discussed in 
e-mails from EPA James Curtin to several persons including Susan Bodine 
dated November 2, 2010. EPA believes it has made sufficient information 
available for the public to reasonably and intelligently comment on the 
Bay TMDL. For a more detailed response on modeling, please see response 
to comment number 379.1.001.006.
G. Comments regarding CWA 117(g)
1. A number of commenters questioned EPA's reliance on CWA section 
        117(g) in support of its authority to establish the Bay TMDL 
        and headwater State allocations.

    Response: EPA disagrees with commenters who believe section 117(g) 
does not provide additional authority for EPA to establish the Bay 
TMDL.
    Specifically, EPA disagrees with the comment that the term 
``management plans,'' as used in section 117(g), may not be interpreted 
to include the Bay TMDL. EPA notes that Congress did not include within 
section 117(g) a definition of the term ``management plans.'' 
Accordingly, there is room for reasonable interpretation of its 
meaning. Webster's defines a ``plan'' as a ``goal; aim,'' or, 
alternatively, ``an orderly arrangement of parts of an overall design 
or objective.'' Defined this way, a section 117(g) Chesapeake Bay 
``management plan'' may reasonably be interpreted to include its goal, 
aim, or objective--in this case, the Bay TMDL and its allocations.
    In section 117(g) Congress directed EPA, in coordination with the 
signatories to the Chesapeake Bay Agreement, to ``ensure that 
management plans are developed and implementation is begun to achieve 
and maintain, among other things (1) the `nutrient goals' of the Bay 
agreement `for nitrogen and phosphorus entering the Chesapeake Bay and 
its watershed' and (2) `the water quality requirements necessary to 
restore living resources in the Chesapeake Bay.' '' In this context it 
is reasonable for EPA to interpret the term ``management plans'' as 
used in section 117(g) to include, not only an identification of the 
actions proposed to be taken by EPA and the other signatories, but also 
the section 303(d)-based identification of the numerically-expressed 
``nutrient goals'' and ``water quality requirements'' [nitrogen, 
phosphorus, and sediment allocations] that would inform those actions. 
The fact that Congress may have used similar terms in wholly different 
contexts, e.g., ``management program'' in section 319, ``management 
plan'' in section 320, ``areawide waste treatment management plan'' in 
section 208, does not mean that--for the purposes of interpreting and 
implementing section 117(g)--EPA may not interpret the section 117(g) 
term ``management plans'' to include that part of the plan that 
identifies its target or goal.
    EPA also disagrees with the comment that EPA may not allocate 
pollutant reductions to New York because it was not a signatory to the 
Bay Agreement but only a ``voluntary partner.'' Even if section 117(g) 
were not part of the CWA, section 303(d) gives EPA all the authority it 
needs to establish this TMDL. Section 117(g) merely underscores that 
authority as well as specifically directing EPA to take such actions to 
further restore Bay water quality. While it is true that New York (as 
well as West Virginia and Delaware) did not sign the 2000 Bay 
Agreement, those States subsequently (in 2000 and 2002) signed a MOU 
with EPA and the other four Bay watershed jurisdictions in which they 
agreed to work cooperatively to meet the Bay Agreement's goals by 2010 
so the Bay's impaired waters could be removed from the States' section 
303(d) lists. Moreover, in 2007 New York, West Virginia and Delaware 
reached consensus with the signatory jurisdictions that EPA should 
establish the Bay TMDL on behalf of them all. By signing the MOU, 
joining the consensus that EPA should establish this TMDL, and 
participating with EPA in the development of the TMDL and their own 
WIPs, New York and the other non-signatory States have made themselves 
functionally and--for the TMDL's purposes--legally equivalent to the 
signatory States regarding their Bay TMDL status.

2. Some commenters said that Congress did not ``provide authority to 
        EPA to achieve the goals set in section 117'' of the CWA and 
        that regulation and enforcement is ``directly in the hands of 
        each signatory.'' Others said Congress did not provide EPA in 
        117(g) with ``regulatory authority'' to achieve those goals, or 
        authority to ``approve, disapprove, or change the state WIPs.''

    Response: CWA section 117(g) requires that EPA ``ensure that 
management plans are developed and implementation is begun'' to meet 
the Bay's nutrient goals and water quality requirements. EPA is not 
sure what the commenter means by saying that Congress did not provide 
EPA with authority (``regulatory,'' or otherwise) to achieve the goals 
of CWA section 117(g). EPA has ample authority in the CWA (see e.g., 
sections 301, 303(c) and (d), 402, 319 and other provisions) to achieve 
the water quality goals of section 117(g). In addition, section 117(g) 
expressly directs (and impliedly authorizes) EPA ``to ensure that 
management plans are developed and implementation is begun'' to meet 
the Bay's nutrient goals and water quality requirements. That direction 
and authorization--even if it arguably does not provide EPA with any 
``additional'' regulatory authorities--surely does not constrain use of 
authorities provided elsewhere in the Act. EPA has not asserted that 
section 117(g) gave it authority to ``approve, disapprove, or change 
the state WIPs,'' and EPA has not done so. EPA has exercised the 
leadership role accorded to it by section 117(g) in a responsible and 
appropriate way by working collaboratively with the Bay jurisdictions 
to ensure that their WIPs are of sufficiently high quality to achieve 
the Bay's water quality goals.
H. Comments regarding CWA 510
1. Some commenters said EPA's disapproval of State WIPs, establishment 
        of replacement WIPs, or establishment of the Bay TMDL is 
        inconsistent with state primacy under CWA section 510.

    Response: EPA disagrees with this comment. In the first place, EPA 
has not ``disapproved'' any State WIPs or established a replacement WIP 
for a State. Instead, EPA asked the jurisdictions to submit WIPs to 
support their recommendations for EPA's TMDL allocation decisions for 
various pollutant loading sectors. EPA reviewed the WIPs to determine 
if they provide adequate ``reasonable assurance'' to support the 
jurisdictions' allocations. Where the WIPs did not provide such 
assurances, the CWA required EPA to adjust the allocations in an 
appropriate manner so they are established at a level necessary to 
implement applicable water quality standards. CWA section 510 preserves 
a State's right to adopt its own standards or limitations regarding 
discharges of pollutants, except that States may not be ``less 
stringent'' than applicable federal requirements. EPA reviewed the WIPs 
to determine if they provide adequate ``reasonable assurance'' to 
support the jurisdictions' recommended allocations scenario. Where 
those WIPs were determined to provide adequate reasonable assurance and 
met the respective jurisdictions' pollutant cap loading, EPA used all 
(or those portions found adequate) as the basis for its TMDL 
allocations for that jurisdiction. Where portions of the WIPs did not 
provide such assurances, as the CWA requires, EPA makes backstop 
allocations in an appropriate manner so the resulting TMDL allocations 
are established at a level necessary to implement applicable water 
quality standards. In so doing, EPA did not act in contravention of 
Section 510 because nothing in section 510 precludes EPA from 
establishing a TMDL at a level necessary to implement the applicable 
State-adopted and EPA-approved water quality standards.

2. Some commenters allege that EPA's establishment of the Bay TMDL is 
        an impermissible intrusion into State authority and an exercise 
        in State ``compulsion'' in violation of the 10th Amendment and 
        principles of federalism.

    Response: EPA disagrees. Taken as a whole, the record of EPA's and 
the Bay jurisdictions' activities over the past decade demonstrates 
that EPA has established he Bay TMDL in collaborative partnership with 
the Bay jurisdictions and not through compulsion of them. EPA is under 
legal obligation to establish the Bay TMDL for certain waters in 
Virginia, D.C., and Delaware.
    Each of those jurisdictions has collaborated with EPA in 
establishing the TMDL. In a similar manner, Maryland (pursuant to its 
MOU) and the headwaters states of New York, Pennsylvania, and West 
Virginia have also collaborated with EPA, the Chesapeake Executive 
Council and the PSC in developing the Bay watershed TMDL. EPA has 
neither impermissibly intruded into State authority nor compelled the 
jurisdictions in violation of the 10th Amendment or principles of 
federalism. Indeed, EPA has invited the jurisdictions to take the lead 
in developing WIPs for their own States designed to inform EPA's TMDL 
allocations decisions and thereafter implement the TMDL's loading 
targets. In doing so, EPA demonstrated its respect for our federal 
system and the priority of the States to determine how the TMDL will be 
implemented.
    While it is true that EPA on a number of occasions provided the 
jurisdictions with its ``expectations'' regarding their implementation 
efforts, EPA died not ``compel'' any particular outcomes. The 
jurisdictions' discretion was bounded only by the statutory requirement 
that their implementation proposals provide EPA with sufficient 
``reasonable assurance'' that the TMDL allocations are established at a 
level necessary to implement the applicable Bay-wide water quality 
standards. To the extent a jurisdiction's WIP did not do that, EPA was 
compelled by the CWA to establish allocations in the TMDL to meet 
standards. While some of those allocations may have been based on 
assumptions about additional implementation and oversight by EPA, that 
is nothing more (under the circumstances) than the federal-state scheme 
established by the Act contemplates and requires. This approach is 
fully consistent with CWA, the Constitution, and principles of 
federalism. It is also consistent with the Ninth Circuit's 2002 
decision in Pronsolino v. Nastri, 291 F.3d 1123. As in Pronsolino, EPA 
recognizes that implementation of the Bay TMDL is primarily a state 
responsibility. Here--as in Pronsolino--EPA did not require or include 
implementation plans ``within the TMDL.'' EPA asked for them--in part 
pursuant to section 117(g)--to inform and support the allocation 
setting process. As with the Garcia River TMDL, the Bay TMDL ``serves 
as an informational tool for the creation of the state's implementation 
plan.'' It is not a substitute for it.
    Nor is it the case that assumptions about future EPA regulatory or 
NPDES oversight authority that support any EPA allocation decisions 
``commandeer'' State legislative processes in violation of the 10th 
Amendment to the Constitution. During the TMDL development process, EPA 
invited the jurisdictions to make the difficult legal, policy, and 
budgetary choices necessary to implement the pollution reductions 
needed to meet applicable Bay water quality standards. The Chesapeake 
Bay Commission (CBC), a member of the Chespeake Executive Council, 
represents the legislatures of the three signatory states. The CBC has 
been an active participant in this process. The States have also made 
such hard choices in their WIPs. If EPA believes some of those measures 
are insufficient in the aggregate to meet those standards, it must 
establish TMDL allocations that it believes (``reasonable assurance'') 
can, and will, meet standards. The Bay jurisdictions have choices and 
discretion regarding how to implement their WIPs in service of the 
TMDL. EPA has not--and will not--``commandeer'' their legislative and 
administrative processes. However, EPA does reserve the right to 
exercise its own federal authorities and prerogatives in an appropriate 
manner (either through rulemaking, enforcement, NPDES oversight, or 
other means) to ensure that the TMDL's and CWA's goals are met. In 
relying on assumptions about potential future federal actions, EPA is 
not ``prejudging'' the outcome of future rulemakings or other actions. 
The exact scope and design of any such rulemakings must of necessity 
await the conclusion of the APA rulemaking process, including the 
opportunity for public comment, or in the case of a designation 
process, as provided by the CWA and its implementing regulations. 
However, in assessing and providing ``reasonable assurance'' to support 
the TMDL's allocations, it is appropriate for EPA to make allocations 
based on certain assumptions about what ``backstop'' actions are 
available to it in the event the jurisdictions' WIPs (or their 
implementation) are not sufficiently robust to meet the Bay's water 
quality standards.
H. Miscellaneous Legal Issues
1. One commenter asked whether EPA considered how the TMDL might impact 
        environmental justice, especially with regard to its impacts 
        within densely populated watersheds.

    Response: EPA believes the Bay TMDL and Bay restoration in general 
is fully consistent with its broader efforts to promote environmental 
justice. Around the watershed there are many disadvantaged and minority 
communities whose lives and livelihoods are closely tied to a healthy 
Bay: as a source of employment, recreation, food, and quality of life. 
EPA recognizes that restoring Bay water quality will not be cheap and 
that the costs may have to be borne broadly. However, on balance, EPA 
believes restoring Bay water quality is fully consistent with 
environmental justice principles.

2. Some commenters assert that the high estimated costs of stormwater 
        retrofits ``approach'' a ``taking'' without compensation 
        prohibited by State and the U.S. Constitution.

    Response: EPA disagrees. EPA's Bay TMDL is not a federal or state 
regulation, and its wasteload and load allocations do not as a matter 
of law effect an unconstitutional ``taking'' of private property. Nor 
is the TMDL a permit that requires a private property owner to retrofit 
his or her property. The TMDL and its allocations are, instead, a 
reasonable and lawful exercise of EPA's authority under CWA 303(d) to 
establish pollutant loading targets that guide the jurisdictions' and 
EPA's efforts to implement measures designed to implement the Bay's 
water quality standards. See also response to Comment number 
0232.1.001.004 for more discussion of the takings issue.

3. One commenter [0533.1.001.001] questioned whether EPA's TMDL is 
        based on data EPA collected from survey's of communities, 
        wastewater treatment plants, and other regulated entities 
        without the proper OMB clearance.

    Response: EPA disagrees. While EPA used information from a great 
number of sources, to the best of EPA's knowledge, EPA used the OMB 
clearance numbers associated with general TMDL development and 
establishment as authorized. For some information, EPA relied on 
responses from entitles already required to submit information under 
such instruments as NPDES permits and/or other federal requirements.
Comment ID 0293.1.001.026
Author Name: Pomeroy Christopher
Organization: Virginia Municipal Stormwater Association, Inc. (VAMSA)
The American Canoe and Kingman Park Consent Decrees Do Not Address 
        Virginia Chlorophyll a
    EPA continues to assert in it must complete the Bay TMDL by 2011 
(the December, 2010 deadline is a self-imposed acceleration) because of 
two consent decrees issued in the late 1990/early 2000 timeframe, 
American Canoe Association, Inc. v. EPA, Civil Action No. 98-99-A (E.D. 
Va. 1999) [FN43] and Kingman Park Civic Association v. EPA, Case No. 
1:98CV00758 (E.D. Va. 2000). Draft TMDL at 1-14 to 1-16.
    VAMSA submits that EPA's obligations to develop a TMDL by May, 2011 
do not extend to establishing loadings on the . . . .
          * * * * *
                                 ______
                                 
                          Submitted Questions
Response from U.S. Environmental Protection Agency
May 9, 2011

Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry, House Committee on 
Agriculture,
Washington, D.C.

    Dear Mr. Chairman:

    Thank you for the opportunity to respond to questions for the 
record that followed the March 16, 2011 hearing before the Subcommittee 
on Conservation, Energy, and Forestry regarding the Chesapeake Bay 
Total Maximum Daily Load (TMDL). I hope this information will be useful 
to you and the Subcommittee.
    If you have any further questions, please contact me or your staff 
may contact Greg Spraul in my office at [Redacted].
            Sincerely,
            [GRAPHIC] [TIFF OMITTED] T1206.075
            
Arvin R. Ganesan,
Deputy Associate Administrator,
Office Of Congressional and Intergovernmental Relations,
U.S. Environmental Protection Agency.
Question Submitted by Hon. Tim Holden, a Representative in Congress 
        from Pennsylvania
    Question. The Commonwealth of Pennsylvania has developed a system 
for certifying permanent verifiable reductions in nitrogen and other 
nutrients. This effort has helped to encourage low-cost solutions to 
limiting run-off from farms and other nonpoint sources. Pennsylvania 
has been rigorous in its requirements for these credits, and has 
instituted robust and ongoing reporting requirements on those entities 
generating the credits.
    Would the EPA support intra-basin trading of those credits (or 
verifiable credits that have been certified in other states)? For 
example, if other states in the Chesapeake Bay basin purchased 
Pennsylvania-approved credits, would the EPA allow those credits to be 
used to meet their TMDL requirements?
    Answer. EPA believes nutrient credit trading can be an important 
part of achieving water quality standards in the Chesapeake Bay and is 
working with the jurisdictions and with its Federal partners to advance 
this approach. EPA would support inter-jurisdictional, intra-basin 
trading of nutrient credits, assuming that such trading is consistent 
with the Clean Water Act and the trading-related definitions, elements 
and safeguards in Appendix S of the TMDL. These definitions, elements 
and safeguards are designed to facilitate nutrient credit trading, 
including inter jurisdictional trading, as a means of improving the 
water quality of the Chesapeake Bay and its tributaries.
    EPA is currently initiating a review of the jurisdictions' trading 
programs to determine the consistency of those programs with the TMDL 
and the Clean Water Act. The results of that review will be shared with 
the jurisdictions in the hopes that they will make any necessary 
adjustments to the programs to achieve consistency with the TMDL and 
the Clean Water Act. Until that review is complete, EPA is not in a 
position to comment on the viability of a specific jurisdiction's 
credits for inter-basin or interstate trading.
Question Submitted by Hon. Reid J. Ribble, a Representative in Congress 
        from Wisconsin
    Question. In his testimony, Mr. Domenech highlighted a significant 
discrepancy between the loading calculations from EPA's Bay Model and 
those from USDA's Natural Resources Conservation Service. Can you 
comment on this?
    Answer. Both USDA and EPA use models to help describe the 
effectiveness of actions on the land and to inform decision making.
    While the Chesapeake Bay Program Partnership's Bay Watershed Model 
(CBP Watershed Model) and USDA's Conservation Effects Assessment 
Project (CEAP) have both been extensively peer-reviewed and represent 
state-of-the-art modeling approaches, they were developed for different 
purposes.
    The CEAP Chesapeake Bay report provides estimates, at a large basin 
scale, of the effectiveness of conservation activities on cultivated 
cropland in reducing field-level nutrient and sediment losses to the 
Chesapeake Bay.
    The CBP Watershed Model was designed to account for all nutrient 
and sediment loading sources to the Chesapeake Bay in the context of 
the Bay TMDL, and focus specifically on describing how actions on the 
land from all sources affect nutrient loadings to the Bay and the 
associated Bay water quality.
    Although these and other technical differences exist in the models, 
they both show that the agricultural sector has done much to reduce 
nutrient and sediment loadings in the Bay watershed, and also that 
there is more to do.
    It is very affirming to have two different models, built for two 
different purposes, give us similar findings at the large basin scale 
in terms of relative nutrient loads from agricultural lands in the 
Chesapeake Bay watershed, and where we need to head next.
    EPA and USDA are committed to continuing collaboration on their 
respective modeling efforts and are developing a joint workplan that 
outlines short- and long-term activities for this continued 
collaboration.

                                  
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