[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
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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.
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\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.
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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.
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\2\ 2007 Census of Agriculture reported 83,775 farms in the
Chesapeake Bay region.
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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\
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\3\ http://www.chesapeakebay.net/content/publications/
cbp_50513.pdf.
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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.
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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.
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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.
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\1\ Draft Assessment of the Effects of Conservation Practices on
Cultivated Cropland in the Chesapeake Bay Region, USDA-NRCS, October
2010.
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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\
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\2\ See pages 8 and 9 of the draft CEAP report.
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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\
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\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\
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\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.
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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\
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\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.
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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\
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\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.
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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.
Attachment
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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).
---------------------------------------------------------------------------
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.
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\1\ 2004 Chesapeake Bay Watershed Blue Ribbon Finance Panel Report,
``Saving a National Treasure: Financing the Cleanup of the Chesapeake
Bay''.
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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\
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\2\ Bay Barometer: A Health and Restoration Assessment of the
Chesapeake Bay and Watershed in 2009, EPA 2010.
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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.
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\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.
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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.
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\7\ http://www.chesapeakebay.net/
committee_agworkgroup_info.aspx?menuitem=16731.
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In its April 2007 report, Taking Environmental Protection to the
Next Level,\8\ the National Academy of Public Administration stated
that:
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\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
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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.
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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.
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\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.
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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.
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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.
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\15\ NOAA 2008. 2008 Fisheries Economics of the U.S. (see 24).
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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.
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\18\ Morgan, et al. 2001. Benefits of water quality policies: the
Chesapeake Bay. Ecological Economics. Vol. 39: 271-284.
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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\
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\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.
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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\
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\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\
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\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.
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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.
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\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.
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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.
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\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.
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\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.
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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.
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\28\ http://www.cbf.org/Document.Doc?id=562.
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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.
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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.
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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.
------------------------------------------------------------------------
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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.
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Restoring Forest Buffers
[GRAPHIC] [TIFF OMITTED] T1206.067
Restoring Wetlands
[GRAPHIC] [TIFF OMITTED] T1206.068
------------------------------------------------------------------------
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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.
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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.