October 19, 2009

CARDIN, O'MALLEY, CUMMINGS, VAN HOLLEN AND REGIONAL PARTNERS DETAIL NEW LEGISLATION TO RESTORE THE CHESAPEAKE WATERSHED

Amendment to the Clean Water Act bolsters clean-up efforts with $1.5 billion in new grant authority and strong enforcement

Annapolis, MD - Standing steps from the shore of the Chesapeake Bay at Sandy Point State Park, U.S. Senator Benjamin L. Cardin (D-MD), joined with Maryland Governor Martin O'Malley, Congressman Elijah Cummings (MD-7), Congressman Chris Van Hollen (MD-8), and Virginia Secretary of Natural Resources L. Preston Bryant who represented Virginia Governor Timothy M. Kaine, Chair of the Bay Program's Executive Council, to outline the details of federal legislation to greatly expand federal resources available for restoring the health of the Chesapeake Bay Watershed. Also participating in today's announcement were National Wildlife Federation's Tony Caligiuri, a co-chair of the 103-group strong Chesapeake Bay Watershed Coalition, and Luke Brubaker, owner of Brubaker Farms of Mt. Joy, PA. 
 
The Chesapeake Clean Water and Ecosystem Act of 2009 , which will be introduced in the U.S. Senate by Senator Cardin with original co-sponsor Senator Barbara A. Mikulski (D-MD), reauthorizes the Environmental Protection Agency's (EPA) Chesapeake Bay Program and gives state and local governments of the Chesapeake Bay Watershed expanded authority, $1.5 billion in new grant authorization, and strong new enforcement tools, to help restore the Bay's health. Congressman Cummings plans to introduce companion legislation in the House of Representatives later this week.
 
"Today we take a major step forward in writing the next chapter in the history of one of America's most cherished and celebrated bodies of water - the Chesapeake Bay.  In developing this important legislation, we listened carefully to our watershed partners, our watermen, our farmers, and others whose livelihood depends on a viable Chesapeake. The result is a robust plan that will put us on a realistic but aggressive path to restoring the Bay to a healthy state that can sustain native fish, wildlife, farmland, and our regional economy," said Senator Cardin, chairman of the Senate Environment and Public Works Water and Wildlife Subcommittee. 
 
"We must do all we can to protect our natural resources, particularly Maryland's treasured Chesapeake Bay," said Governor O'Malley.  "Senator Cardin's leadership on this issue is exemplary, and this bill will bring a new level of accountability and efficiency to our clean-up efforts in order to restore the Bay for future generations of Marylanders."
 
"It is my pleasure to sponsor the bill complementing Senator Cardin's in the House. The Chesapeake Bay is the dominant natural feature and natural resource in our area and every effort we can put forth, toward cleaning and restoring the waters of the Bay, is critical. The efforts in this bill to create an equitable reduction of pollution will help achieve that goal by our target date of 2025," said Congressman Cummings. "I often say that our children are the living messages we send to a future we will never see. This cleanup effort will be our message to those children. We cared enough about their future to ensure a cleaner, more pristine environment in which they could live."
 
"The Chesapeake Bay is the most studied body of water in the world. As a result, we know what the problem is, where it comes from, and what we need to do to correct it. Yet we continue to devise restoration plans and consistently fail to adhere to them. To really have a meaningful impact on the Bay we must have the resolve to take aggressive action. This legislation provides both the carrots and the sticks that will enable us to meet our goals, and I strongly endorse it and applaud my colleagues for their work," said Congressman Chris Van Hollen.
 
"The Chesapeake Bay is a national treasure - and Maryland's greatest natural resource. For 20 years, I've been fighting to restore the health of the Bay. This legislation will ensure accountability and efficiency as we speed Bay clean-up, and help bring us closer to all we've worked for - a brighter day for the Bay. I will always fight for the Bay and the lives and livelihoods that depend on it," Senator Mikulski said.
 
"I'm proud of what the Chesapeake Bay Program partners have accomplished in the past year -- including setting aggressive two-year milestones to accelerate our progress in improving the health of Bay waters and committing to completing our restoration efforts by no later than 2025," said Governor Kaine. "I applaud Senator Cardin's leadership on this legislation and his willingness to work so closely with the Commonwealth. This bill will take our collective Bay restoration effort to the next level by holding states accountable for progress -- while providing new tools to accomplish our clean-up goals in the process."
 
With generous federal assistance, states will have the ability to set and meet enforceable targets of success by 2025. The bill also establishes a flexible pollution trading program that is designed to lower compliance costs while also providing Bay watershed farmers with added financial incentives to implement conservation practices on their lands. In addition, the bill puts the force of law behind a recent Executive Order from President Obama that requires every federal department to work toward Bay restoration.  
 
The Chesapeake Bay is the largest estuary in North America, with a length of 200 miles and 11,684 miles of tidal shoreline, more than the entire U.S. West Coast. About 100,000 streams and rivers thread through the Chesapeake's 64,000-square-mile watershed, which is home to almost 17 million people across Maryland, Virginia, Pennsylvania, Delaware, New York, West Virginia and the District of Columbia. The Chesapeake Bay supports more than 3,600 species of plants, fish and animals.
 
###
 
BILL SUMMARY

The bill replaces section 117 of the Clean Water Act, which governs the EPA Chesapeake Bay Program. Key provisions of the bill are -
 
·          The legislation gives the states of the Chesapeake Bay strong new tools to restore the Bay and for the first time sets a firm deadline of 2025 for all restoration efforts to be in place. The internal and final deadlines for action coincide with the Executive Council's timeline for Chesapeake restoration. Unlike earlier, missed deadlines, this one will become a legally binding part of the Clean Water Act.
 
·          The bill also significantly expands federal grants. The Chesapeake Restoration bill authorizes a new $1.5 billion grants program to control urban/suburban polluted stormwater , the only pollution sector that is still growing. Grants to the states, small watershed organizations, and for comprehensive monitoring programs are all newly created or expanded in the draft bill.
 
·          At least 10% of state implementation grants are set aside for NY, DE and WV .  These headwater states have never been guaranteed any access to these funds in the past.
 
·          At least 20% of the implementation grants are allocated for technical assistance to farmers and foresters to help them access Farm Bill funds and implement conservation practices on their farms. 
 
·          The bill codifies President Obama's Chesapeake Bay Executive Order , which requires annual Federal Action Plans across all federal departments to restore the Bay.
 
·          Other Provisions: makes the ban on the introduction of Asian oysters statutory, but allows them to be studied in the Bay; continues and expands the nutria eradication program on the Delmarva; requires a study of the relationship between commercial menhaden fishing and water quality; and allows for citizen suits
 
·          The basic structure of the Bay Program (a federal-state partnership governed by the Executive Council and administered by EPA's Chesapeake Bay Program Office in Annapolis) is retained .
 

 

SECTION-BY-SECTION
 

SECTION 1. SHORT TITLE.

This Act may be cited as the Chesapeake Clean Water and Ecosystem Restoration Act of 2009.

SEC. 2. FINDINGS.

SEC. 3. CHESAPEAKE BAY PROGRAM.

This Section replaces the current Section 117 of the Federal Water Pollution Control Act, making the following changes:

(a) Definitions. [ replaces and expands the current definitions at 117(a)].

[ Current subsection 117(b) "Continuation of the Chesapeake Bay Program" and subsection 117(c) "Interagency Agreements" are both restated and unchanged.]

(d) Technical Assistance and Assistance Grants.

This subsection retains the same language as in current subsection 117(d) but is amended by renaming the "Small Watershed Grants Program" in 117(d)(2)(B) the " Chesapeake bay stewardship grants program."

(e) Implementation and Monitoring Grants.

Current Section 117(e) is replaced with this new subsection (e) providing for implementation and monitoring grants. Headwater states (DE, NY and WV) are made eligible for implementation grants for the first time, and are allocated at least 10 percent of implementation grants. 20 percent of implementation grants are set aside so farmers and foresters can receive technical assistance that will help them access Farm Bill funds for implementing conservation practices.

The monitoring program is broken into two parts: one for freshwater and one for estuarine. USGS and NOAA are given roles in planning the monitoring programs, and the Administrator must also consult with the Chesapeake Bay Program Scientific and Technical Advisory Committee, the river basin commissions, other Federal departments and agencies, certain local universities, and the states. States and basin commissions implement the monitoring programs, supported by grants.

(f) Federal Annual Action Plan and Progress Report.

Current Section 117 (f) is replaced with this new subsection (f) codifying the actions in President Obama's Executive Order of May 12, 2009. The Administrator must provide an annual action plan and progress report, and by December 31, 2010, create and maintain a Bay-wide database on the implementation of conservation management practices. 

(g) Chesapeake Bay Program.

Current Section 117(g) provides for the Management Strategies and Small Watershed Grants Program. The Management Strategies subsection, (g) (1), is amended to include all Chesapeake Bay States. The Small Watershed Grants Program name is updated to Chesapeake bay stewardship grants program and the program is expanded to include activities now covered by the "large watershed grants" program, as well as innovative pollution reduction efforts. In addition, Stewardship Grants will give preference to cooperative projects involving local governments. This subsection also specifies that local Soil Conservation Districts are also eligible for technical assistance and assistance grants.

 

(h) Total Maximum Daily Load.

Current Section 117 (h) is replaced with this new subsection (h), Total Maximum Daily Load, requiring EPA to establish a Total Maximum Daily Load (TMDL) for the Bay no later than December 31, 2010.   The TMDL must be designed to implement applicable water quality standards in the watershed and achieve those standards in the Bay and its tidal tributaries. The TMDL may not include any net increase in pollutant load from new/increased impervious surfaces, CAFOs, transportation systems and septic systems. This subsection further specifies that all Section 402 permits must include limits consistent with the TMDL, and requires each Chesapeake Bay State to submit to the Administrator copies of any permit for discharges of nitrogen, phosphorus, or sediment into the Chesapeake Bay watershed that is allowed to continue beyond 5 years.

(i) Actions by States.

Current Section 117 (i) is replaced with this new subsection (i) outlining specific state actions in four parts:

(1)             Watershed implementation plans. To implement the TMDL, each state must adopt and submit to the Administrator for approval a Watershed Implementation Plan (WIP) for each of the tidal water segments comprising the Bay within their jurisdiction. WIPs shall apply to agricultural runoff, point sources, nonpoint stormwater runoff, and septic and other sewage disposal systems. Each WIP must specify pollution reduction targets and schedules, and be enforceable. States are required to submit biennial progress reports starting in 2014. Each State is required to fully implement the WIPs by 2025, and is required to implement adaptive management principles to ensure that that deadline is met.

(2)             Issuance of permits. Chesapeake Bay States may issue permits in accordance with section 402 for any pollution sources the States determine are necessary. Any permits issued under a WIP will be enforced in the same manner as other Section 402 permits.

(3)             stormwater permits. After January 1, 2013, Chesapeake Bay States must assure the Administrator that any owner or operator of any development or redevelopment project with an impervious footprint that exceeds a threshold determined by the Administrator shall to the maximum extent feasible maintain the predevelopment hydrology of the property, and compensate for any unavoidable impacts to the predevelopment hydrology of the property.

(4)             Phosphate ban. Within 3 years of enactment, states must implement a ban on cleaning agents with more than 0.0 percent phosphorus by weight, except for quantities not exceeding 0.5 percent that are incidental to the manufacture of the cleaning agent.

(j) Action by Administrator.

Current Section 117 (j) "Authorization of Appropriations" is moved to a new Section (p), and replaced with this new subsection (j). This new subsection (j) outlines a series of actions EPA must take to improve water quality. They include:

           (1) Establish minimum criteria for the Watershed Implementation Plans

           (2) Approve, disapprove, or require updates to State WIPs to ensure their compliance with the minimum criteria

           (3) Provide for federal implementation if a Chesapeake Bay State fails to act, including the implementation of a federal WIP and the withholding of certain federal funds from the State

           (4) Establish a nitrogen and phosphorus trading program by May 12, 2012 that includes standards for the generation, quantification, and trading of credits; ensures that credits are used in accordance with NPDES permits and do not cause or contribute to the impairment of receiving waters; and facilitates credit trading by minimizing risk and uncertainty and ensuring administrative efficiency

           (5) Establish guidance and model ordinances for managing stormwater runoff, as well as a grants program for municipalities to meet those requirements

           (6) Report to Congress on commercial products that impact the water quality of the Chesapeake Bay

(k) Prohibition on Introduction of Asian Oysters.

This new subsection bans the introduction of Asian Oysters into the Bay, and requires the Administrator to specify conditions for how these oysters may be studied within the Chesapeake Bay.

(l) Chesapeake Nutria Eradication Program.

This new subsection authorizes the Secretary of the Interior to provide financial assistance to Delaware, Maryland and Virginia to carry out a program to eradicate non-native, invasive nutria and restore marshland damaged by nutria.

(m) Study on Impacts of Commercial Harvesting of Menhaden.

This new subsection requires the Administrator to participate in ongoing NOAA research and submit to Congress a study to determine the relationship between commercial menhaden fishing and water quality.

(n) Effect on Other Requirements.

This new subsection states that all other Clean Water Act provisions remain in effect and authorizes citizen suits for violations by states or EPA

(o) Evaluation by Inspector General.

This new subsection requires the EPA Inspector General to evaluate the implementation of the Program on a regular basis.

(p) Authorization of Appropriations.

This subsection, formerly 117 (j), is amended to authorize the following appropriations:

           (1) Implementation Grants: $80 million annually

           (2) Monitoring Grants: $5 million annually each for freshwater and estuarine

           (3) Stewardship Grants: $15 million annually

           (4) Stormwater Pollution Abatement Planning Grants for municipalities: $10 million

           (5) Stormwater Pollution Abatement Implementation Grants for municipalities: $1.5 billion

           (6) Nutria Eradication Grants: $4 million annually