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HEARING TO REVIEW THE IMPLEMENTATION 

OF PHASE II OF THE CHESAPEAKE BAY 

TMDL WATERSHED IMPLEMENTATION PLANS 

AND THEIR IMPACTS ON RURAL 

COMMUNITIES

HEARING

BEFORE THE

SUBCOMMITTEE ON CONSERVATION, ENERGY,

AND FORESTRY

OF THE

COMMITTEE ON AGRICULTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

NOVEMBER 3, 2011

Serial No. 112–26

(

Printed for the use of the Committee on Agriculture 

agriculture.house.gov 

COMMITTEE ON AGRICULTURE 

FRANK D. LUCAS, Oklahoma, Chairman 

BOB GOODLATTE, Virginia, 

Vice Chairman 

TIMOTHY V. JOHNSON, Illinois 

STEVE KING, Iowa 

RANDY NEUGEBAUER, Texas 

K. MICHAEL CONAWAY, Texas 

JEFF FORTENBERRY, Nebraska 

JEAN SCHMIDT, Ohio 

GLENN THOMPSON, Pennsylvania 

THOMAS J. ROONEY, Florida 

MARLIN A. STUTZMAN, Indiana 

BOB GIBBS, Ohio 

AUSTIN SCOTT, Georgia 

SCOTT R. TIPTON, Colorado 

STEVE SOUTHERLAND II, Florida 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

MARTHA ROBY, Alabama 

TIM HUELSKAMP, Kansas 

SCOTT DESJARLAIS, Tennessee 

RENEE L. ELLMERS, North Carolina 

CHRISTOPHER P. GIBSON, New York 

RANDY HULTGREN, Illinois 

VICKY HARTZLER, Missouri 

ROBERT T. SCHILLING, Illinois 

REID J. RIBBLE, Wisconsin 

KRISTI L. NOEM, South Dakota 

COLLIN C. PETERSON, Minnesota, Ranking 

Minority Member 

TIM HOLDEN, Pennsylvania 

MIKE MCINTYRE, North Carolina 

LEONARD L. BOSWELL, Iowa 

JOE BACA, California 

DENNIS A. CARDOZA, California 

DAVID SCOTT, Georgia 

HENRY CUELLAR, Texas 

JIM COSTA, California 

TIMOTHY J. WALZ, Minnesota 

KURT SCHRADER, Oregon 

LARRY KISSELL, North Carolina 

WILLIAM L. OWENS, New York 

CHELLIE PINGREE, Maine 

JOE COURTNEY, Connecticut 

PETER WELCH, Vermont 

MARCIA L. FUDGE, Ohio 

GREGORIO KILILI CAMACHO SABLAN, 

Northern Mariana Islands 

TERRI A. SEWELL, Alabama 

JAMES P. MCGOVERN, Massachusetts 

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 

MARLIN A. STUTZMAN, Indiana 

BOB GIBBS, Ohio 

SCOTT R. TIPTON, Colorado 

STEVE SOUTHERLAND II, Florida 

MARTHA ROBY, Alabama 

TIM HUELSKAMP, Kansas 

RANDY HULTGREN, Illinois 

REID J. RIBBLE, Wisconsin 

KRISTI L. NOEM, South Dakota 

TIM HOLDEN, Pennsylvania, Ranking 

Minority Member 

KURT SCHRADER, Oregon 

WILLIAM L. OWENS, New York 

MIKE MCINTYRE, North Carolina 

JIM COSTA, California 

TIMOTHY J. WALZ, Minnesota 

CHELLIE PINGREE, Maine 

MARCIA L. FUDGE, Ohio 

GREGORIO KILILI CAMACHO SABLAN, 

Northern Mariana Islands 

BRENT BLEVINS, Subcommittee Staff Director

(II) 

(III)

C O N T E N T S 

Page 

Holden, Hon. Tim, a Representative in Congress from Pennsylvania, opening 

statement .............................................................................................................. 4

Peterson, Hon. Collin C., a Representative in Congress from Minnesota, prepared statement ................................................................................................... 5

Thompson, Hon. Glenn, a Representative in Congress from Pennsylvania, 

opening statement ................................................................................................ 1

Prepared statement .......................................................................................... 3

Submitted letter ................................................................................................ 63

WITNESSES

Garvin, Hon. Shawn M., Regional Administrator, Environmental Protection 

Agency, Region 3, Philadelphia, PA ................................................................... 6

Prepared statement .......................................................................................... 7

Supplementary material .................................................................................. 83

Submitted questions ......................................................................................... 84

Krancer, Hon. Michael L., Secretary, Pennsylvania Department of Environmental Protection, Harrisburg, PA ..................................................................... 24

Prepared statement .......................................................................................... 26

Brubaker, Hon. Michael, Chairman, Chesapeake Bay Commission; Senator, 

Commonwealth of Pennsylvania, Annapolis, MD ............................................. 38

Prepared statement .......................................................................................... 6040

Shaffer, Carl, President, Pennsylvania Farm Bureau Federation; Member, 

Board of Directors, American Farm Bureau Federation, Camp Hill, PA ........ 43

Prepared statement .......................................................................................... 44

Perrow, Jr., Hon. Edgar J.T., Ward IV Representative, Lynchburg City Council, Lynchburg, VA ............................................................................................... 51

Prepared statement .......................................................................................... 52

(1)

HEARING TO REVIEW THE IMPLEMENTATION 

OF PHASE II OF THE CHESAPEAKE BAY 

TMDL WATERSHED IMPLEMENTATION PLANS 

AND THEIR IMPACTS ON RURAL 

COMMUNITIES 

THURSDAY, NOVEMBER 3, 2011

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CONSERVATION, ENERGY, AND FORESTRY, COMMITTEE ON AGRICULTURE, Washington, D.C. 

The Subcommittee met, pursuant to call, at 10:04 a.m., in Room 

1300 of the Longworth House Office Building, Hon. Glenn Thompson [Chairman of the Subcommittee] presiding. 

Members present: Representatives Goodlatte, Gibbs, Huelskamp, 

Hultgren, Thompson, Holden, Owens, and McIntyre. 

Staff present: Brent Blevins, Debbie Smith, Lauren Sturgeon, 

Heather Vaughn, Suzanne Watson, Nona McCoy, Liz Friedlander, 

Anne Simmons, John Konya, and Caleb Crosswhite. 

OPENING STATEMENT OF HON. GLENN THOMPSON, A 

REPRESENTATIVE IN CONGRESS FROM PENNSYLVANIA 

The CHAIRMAN. Good morning, everyone. I want to welcome everyone to this morning’s hearing to review implementation of 

Phase II of the Chesapeake Bay TMDL Watershed Implementation 

Plans and their impacts on rural communities. This hearing is the 

second hearing this Subcommittee has held to provide oversight of 

the Chesapeake Bay TMDL process. 

In March, we reviewed the productive conservation work that our 

farmers are engaging in throughout the watershed, and at that 

hearing, I stated that I believe this topic is one of the most important matters this Subcommittee will examine, and nothing has 

changed my mind on that. 

Today’s hearing will examine the TMDL with a different focus. 

We are going to examine the impacts the TMDL will have on states 

and localities within the Chesapeake Bay watershed. More specifically, we will be considering Phase II and the practical effects this 

period of the TMDL will have on states, regulatory bodies, our 

farmers, and communities. 

By way of review, the TMDL was published in the Federal Register last December. The states had to submit their plans for Phase 

I Watershed Implementation Plans, or WIPs, to EPA prior to that 

date. These WIPs outline the targets for each state in reducing nitrogen, phosphorous, and sediment. The states are now required to 

2

submit their Phase II WIPs to EPA next month. That is why the 

time of this hearing is so important. Because the TMDL for the 

Chesapeake Bay is such a broad effort, and because of the cost imposed on local governments within the watershed, it is imperative 

for Members of this Subcommittee to understand what is being 

asked of the counties, cities, and towns that are covered by the 

TMDL. 

For the second phase, these plans must go into greater detail 

than the initial WIPs and outline each state’s efforts to engage localities and all government organizations in the nutrient reduction 

process. States are being asked to formulate these draft plans 

while they are in the process of implementing the first phase of 

these plans approved by EPA last year. 

Agriculture plays a large role in that process. Our March hearing 

showcased the good work producers are doing on the ground every 

day, but it is no secret that I have serious concerns about the 

TMDL both in terms of process and the likely impacts on our farms 

and communities. As laid out by EPA, this plan may result in a 

cleaner Bay. However, it will certainly come at an incredibly high 

price to the 17 million residents in the watershed. What is most 

problematic is that no one can say with certainty whether the cost 

is worth the effort, as we still do not have a cost-benefit analysis. 

For this process, I do understand from the Administrator’s report 

that the one in May may be in process, I look forward to hearing 

more about that. 

We addressed this in our March hearing, and I am aware that 

EPA has taken steps to address these concerns. I am pleased to 

hear that and I look forward to seeing the final analysis. But the 

longer we wait for the final analysis, the more difficult it will be 

to change directions if necessary. We are in the midst of a process 

that could cost individual states like Virginia, Maryland, and Pennsylvania more than $10 billion per state. Even in the best of economic times, that figure would be a crushing burden on the states. 

My home State of Pennsylvania had considerable budget struggles 

in recent years. That is why it is so important to be sure of the 

costs and the benefits ahead of us. 

Frankly, I am alarmed at the potential economic impact that this 

will have on states and municipalities in the watershed. I am worried that our rural communities will be faced with the difficult 

choice of either raising taxes or slashing other spending in order 

to comply with these requirements. I also have reservations about 

the Bay model that the EPA is using in making allocations. Several 

states, as well as outside groups, have raised issues about the accuracy of the watershed model used for nutrient allocation purposes. 

These concerns are addressed in a letter from Virginia Secretary of 

Natural Resources to Administrator Garvin that I am submitting 

for the record. 

[The document referred to is located on p. 63.] 

The CHAIRMAN. There is too much at stake for the use of an inaccurate model, and I hope to hear from EPA about steps it is taking 

to address these questions and concerns. I think I speak for Members of the Subcommittee when I say that we must be certain that 

this entire process is carried out in an open and transparent manner. We must also be certain that our Federal Government is not 

3

carrying out the requirements of this plan in a heavy-handed manner and placing an undue burden on states and localities at a time 

when we need fewer regulations, not more. 

I want to welcome our panel of witnesses. I thank them for 

agreeing to testify today. I want to welcome Region 3 Administrator Shawn Garvin. I want to thank you for coming down from 

Philadelphia for this hearing, Mr. Garvin. I look forward to hearing 

your testimony on how EPA is assisting states in complying with 

the TMDL. I also want to thank our second panel of witnesses for 

agreeing to be here today. The Subcommittee will benefit from 

hearing the regional, state, and local perspectives that each of you 

offer. 

[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 this morning’s hearing to review 

implementation of Phase II of the Chesapeake Bay TMDL Watershed Implementation Plans and their impacts on rural communities. 

This hearing is the second hearing this Subcommittee has held to provide oversight of the Chesapeake Bay TMDL process. 

In March, we reviewed the productive conservation work that our farmers are engaging in throughout the watershed. 

At that hearing, I stated that I believed that this topic is one of the most important matters this Subcommittee will examine and nothing has changed my mind. 

Today’s hearing will examine the TMDL with a different focus. 

We are going to examine the impacts the TMDL will have on states and localities 

within the Chesapeake Bay watershed. 

More specifically, we will be considering Phase II and the practical effects this period of the TMDL will have on the states, the regulatory bodies, and our farmers 

and communities. 

By way of review, the TMDL was published in the Federal Register last December. 

The states had to submit their plans for Phase I Watershed Implementation 

Plans—or WIPs—to EPA prior to that date. 

These WIPs outlined the targets for each state in reducing nitrogen, phosphorous 

and sediment. 

The states are now required to submit their Phase II WIPs to EPA next month. 

That’s why the timing of this hearing is so important. 

Because the TMDL for the Chesapeake Bay is such a broad effort, and because 

of the costs it imposes on the local governments within the watershed, it is imperative for Members of this Subcommittee to understand what is being asked of the 

counties, cities, and towns who are covered by the TMDL. 

The second phase of these plans must go into greater detail than the initial WIPs 

and outline each state’s efforts to engage localities and non-governmental organizations in the nutrient reduction process. 

States are being asked to formulate these draft plans while they are in the process of implementing the first phase of these plans approved by EPA last year. 

Agriculture plays a large role in that process. 

Our March hearing showcased the good work that our producers are doing on the 

ground every day. 

But it is no secret I have serious concerns about the TMDL—both in terms of 

process and the likely impacts on our farms and communities 

As laid out by EPA, this plan may well result in a cleaner Bay. 

However, it will certainly come at an incredibly high price to the 17 million residents in the watershed. 

What’s most problematic is that no one can say with certainty whether the cost 

is worth the effort, as we still do not have a cost-benefit analysis of this process. 

We addressed this in our March hearing, and I am aware that EPA has taken 

steps to address these concerns. 

I’m pleased to hear that, and I look forward to seeing the final analysis. 

But the longer we wait for the final analysis, the more difficult it will be to 

change directions if necessary. 

4

We are in the midst of a process that could cost individual states like Virginia, Maryland, and Pennsylvania more than $10 billion per state. 

Even in the best of economic times, that figure would be a crushing burden on 

states. 

My home state of Pennsylvania has had considerable budget struggles in recent 

years. 

That’s why it’s so important to be sure of the costs and benefits ahead of us. 

Frankly, I am alarmed at the potential economic impact this will have on states 

and municipalities in the watershed. 

I am worried that our rural communities will be faced with the difficult choice 

of either raising taxes or slashing other spending in order to comply with these requirements. 

I also have reservations about the Bay model that EPA is using in making allocations. 

Several states—as well as outside groups—have raised issues about the accuracy 

of the Watershed Model used for nutrient allocation purposes. 

These concerns are addressed in a letter from Virginia’s Secretary of Natural Resources to Administrator Garvin that I am submitting for the record. 

There is too much at stake for the use of an inaccurate model. 

I hope to hear from EPA about steps it is taking to address these questions. 

I think I speak for Members of this Subcommittee when I say that we must be 

certain that this entire process is carried out in an open and transparent manner. 

We must also be certain that our Federal Government is not carrying out the requirements of this plan in a heavy-handed manner and placing an undue burden 

on states and localities at a time when we need fewer regulations, not more. 

I want to welcome our panel of witnesses and thank them for agreeing to testify 

today. 

I want to welcome Region 3 Administrator Shawn Garvin. 

I want to thank you for coming down from Philadelphia for this hearing, Mr. Garvin. 

I look forward to hearing your testimony on how EPA is assisting states in complying with the TMDL. 

I also want to thank our second panel of witnesses for agreeing to be here today. 

The Subcommittee will benefit from hearing the regional, state and local perspectives each of you offer. 

I now recognize Mr. Holden for his opening statement.

The CHAIRMAN. And I now recognize Mr. Holden for his opening 

statement. 

OPENING STATEMENT OF HON. TIM HOLDEN, A 

REPRESENTATIVE IN CONGRESS FROM PENNSYLVANIA 

Mr. HOLDEN. Thank you, Mr. Chairman. Thank you for having 

this hearing today. 

The health of the Chesapeake Bay and those bodies of water contained in the Bay watershed, including the Susquehanna River 

that runs through my Congressional district, deserves our full attention. I want to thank our witnesses and guests for coming today 

to speak on a very important topic for farmers and ranchers not 

only in the Chesapeake Bay watershed, but also those across the 

country concerned with increased regulation. 

Farming has always been an important part of the Chesapeake 

Bay’s landscape. Comprising almost 1⁄4 of the watershed, it is often 

noted that agriculture can play a significant role in the protection 

of this ecosystem. Efforts to improve Bay water quality, however, 

should not impede on 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. Yet it feels like every time we take a step forward, we are 

pushed two steps backwards. EPA has singled out producers in the 

5

Chesapeake Bay states for new regulations and increased penalties 

through the Chesapeake Bay TMDL; once again placing Bay farmers at a financial and competitive disadvantage. Despite lack of information about the data sets used to develop the TMDL reduction 

allocations and despite glaring discrepancies between data collected 

by various government agencies, EPA has pushed forward with 

Phase II Watershed Implementation Plans which set nutrient and 

sediment goals to more local levels. 

In the 2008 Farm Bill, Congress—at the recommendation of this 

Subcommittee—established a new Chesapeake Bay Watershed Program to give farmers from the Chesapeake Bay states a guaranteed 

source of funding for the tools they need to implement land management practices that help reduce nutrients and sediment that 

can flow into the Bay. The increase in regulatory action by EPA 

makes targeted conservation funding even more essential. It is important we keep the Chesapeake Bay Watershed Program and 

what it does for producers in mind as we work to reauthorize farm 

bill conservation programs, especially when discussing potential 

program reductions and consolidation. 

We must continue to do everything we can to protect our agriculture producers and preserve the integrity of this essential program. Agriculture practices can be some of the most cost-effective 

at improving water quality in the region. It is important that we 

encourage our farmers, 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 without threatening harmful penalties. 

I look forward to learning more about the development of the 

draft WIPs produced and the impact on agriculture from our witnesses today. Thank you, Mr. Chairman. 

The CHAIRMAN. All right. I thank the Ranking Member. The 

chair would request that other Members submit their opening 

statements for the record so the witnesses may begin their testimony to ensure that there is ample time for questions. 

[The prepared statement of Mr. Peterson follows:]

PREPARED STATEMENT OF HON. COLLIN C. PETERSON, A REPRESENTATIVE IN

CONGRESS FROM MINNESOTA

Good morning. Thank you Chairman Thompson and Ranking Member Holden for 

holding today’s hearing. I am pleased that we are closely tracking the TMDL process for the Chesapeake Bay watershed and monitoring EPA’s actions as the Watershed Implementation Plans move forward. 

The impact the Chesapeake Bay TMDL could have on producers is of particular 

concern to this Committee and something we have been closely following. This oversight is important not only because of the effects it could have on those near the 

Chesapeake Bay but the potential ramifications it could have on producers nationwide. 

I’ve made no secret about my concerns with some of these regulations. Chesapeake Bay producers already face some of the most stringent environmental regulations in the country. The additional costs that producers will incur to meet these 

requirements could potentially put these producers at a competitive and financial 

disadvantage, potentially forcing some out of business. 

I think we need to continue looking very closely at these issues to ensure that 

EPA’s policy and procedure is being developed in an open and transparent manner 

by taking into account input from all interested organizations and not basing important decisions based on some ideological viewpoints. 

Again, I thank the chair for holding today’s hearing and look forward to hearing 

from our witnesses.

6

The CHAIRMAN. And I would like to welcome our first panel to 

the table. And as I mentioned before, it is the Honorable Shawn 

M. Garvin, Region 3 Administrator, the Environmental Protection 

Agency Region 3, Philadelphia, Pennsylvania. 

Administrator Garvin, please begin when you are ready. 

STATEMENT OF HON. SHAWN M. GARVIN, REGIONAL

ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, 

REGION 3, PHILADELPHIA, PA 

Mr. GARVIN. Good morning, Chairman Thompson, Ranking Member Holden, Members of the Subcommittee. Thank you for the opportunity to talk with you today about efforts to clean up local rivers and streams and the Chesapeake Bay, and specifically to discuss the developments of the Phase II Watershed Implementation 

Plans and their impacts on rural communities. 

Agriculture is a key part of the American economy and way of 

life and plays an important role in watershed restoration. We believe environmentally sound farming is truly a preferred land use 

in the region. State WIPs are the roadmaps for how and when 

states will reduce pollution in order to achieve the local and regional water quality goals set by the Bay Total Maximum Daily 

Load, or TMDL. 

In developing their WIPs, states have the flexibility to decide 

how to reduce pollution and from what sectors. The TMDL establishes the targets and the states through their WIPs describe how 

they will meet those targets. Since the final TMDL was signed in 

December 2010, EPA and the states have turned our focus to 

TMDL implementation and development of those WIPs. Phase I 

WIPs describe the restoration action at the state level, whereas the 

Phase II WIPs zoom in a little more and explain how states will 

work with their localities to get on-the-ground restoration practices 

in place. 

In recent weeks, we have had very productive conversations with 

the states resulting in a shift in our Phase II approach. Our revised 

thinking is described in an October 5 letter I sent to the states. In 

this letter, we clarified that local targets do not have to be expressed in pounds of pollution but instead can be expressed as programmatic actions or the number of practices needed for restoration. These local targets should be based on what makes the most 

sense to the states and their local partners. 

Right now, states are engaged and are working with the localities on these Phase II plans. We recognize that the agricultural 

sector has done much to reduce nutrient and sediment loadings in 

the Bay watershed, and we participated in discussions with states 

about certainty programs that recognize those contributions. The 

bottom line is that conservation practices work and additional opportunities exist to make further progress. 

I was able to view these practices firsthand when I visited a 

dairy farm in Lancaster County this past summer with Administrator Jackson. State officials including Senator Brubaker and Secretary Krancer joined us on that visit. During our time on the 

farm, we got to see the use of field practices and manure handling 

that are benefitting the farm operations and improving water quality. In a roundtable discussion hosted by Senator Brubaker, we had 

7

a chance to hear directly from the farmers about the valuable work 

they are doing and to hear about their concerns. These kinds of 

interactions are incredibly useful and we will continue to rely upon 

them as key ways of hearing from the agricultural community. 

Last, I want to point out the work EPA has done following the 

March hearing where Deputy Administrator Bob Perciasepe testified. At the hearing, there were discussions about both costs and 

the benefits of implementing the Chesapeake Bay TMDL. Following the hearing, Mr. Perciasepe directed EPA staff to develop 

an estimate of the costs associated with the WIPs and the analysis 

of the benefits associated with achieving water quality standards. 

This work is well underway and EPA has been consulting with 

USDA and the states on this analysis. 

You also asked us at the hearing about what is commonly known 

as the LimnoTech Report. As we stated at the hearing, we asked 

that an independent panel of scientists be convened to review the 

report. The panel recently published their review and found that 

the CEAP study and the Chesapeake Bay watershed partnership 

model are in approximate agreement on both the nutrient and sediment loadings from agricultural lands at the large basin scale. 

Again, this confirms that conservation works and more conservation will help us restore local waters in the Bay. 

Last, at the hearing USDA and EPA pledged to work together on 

conservation practices data. Since the hearing, we have developed 

a joint work plan which we provided to the Subcommittee in June 

that further refines our counting of conservation practices, bolsters 

the scientific defensibility of these practices, and improves data 

consistency between the two agencies. 

To conclude, farming is indeed a vital part of the Chesapeake 

Bay watershed. Thriving agriculture is essential to the long-term 

sustainability of the Chesapeake Bay and I commend the farming 

community for the hard work they have done. The work we are all 

undertaking now is not new. Although the TMDL may be new, the 

level of efforts to meet the goals have been nearly the same for 

more than a decade. Implementing the TMDL is simply the next 

step. 

We look forward to continuing to work with this Subcommittee 

and the agricultural community to protect and restore local waterways and the Chesapeake Bay. Thank you for the opportunity to 

testify, and I am pleased to answer any questions. 

[The prepared statement of Mr. Garvin follows:]

PREPARED STATEMENT OF HON. SHAWN M. GARVIN, REGIONAL ADMINISTRATOR, 

ENVIRONMENTAL PROTECTION AGENCY, REGION 3, PHILADELPHIA, PA 

Good morning, Chairman Thompson, Ranking Member Holden, and Members of 

the Subcommittee. Thank you for the opportunity to talk with you today about efforts to clean up the rivers and streams flowing to the Chesapeake Bay and the development of Phase II of the Chesapeake Bay Watershed Implementations Plans 

(WIPS) and their impacts on rural communities. 

EPA has great respect for our rural communities and farmers in particular. Agriculture is a key part of the American economy and way of life, and has an important 

role in watershed restoration efforts. We value the critical work that farmers are 

doing to protect our soil, air, and water resources and believe that environmentally 

sound farming is essential to a thriving agricultural community and a sustainable 

Chesapeake watershed and ecosystem. Moreover, we believe environmentally sound 

farming is truly a preferred land use in the Region. 

8

1http://archive.chesapeakebay.net/info/c2k.cfm. 2 Chesapeake 2000 agreement page 5: http://www.chesapeakebay.net/content/publications/

cbpl12081.pdf. 3See PSC meeting minutes for October 1, 2007: http://archive.chesapeakebay.net/pubs/calendar/PSC—10-01-07lMinutesl1l9029.pdf. 

I am pleased to be here today to talk with you about the work we are doing—

in collaboration with our state partners and other Federal agencies—to restore local 

waterways and the Chesapeake Bay. I look forward to an open discussion with you 

about the Phase II WIP development and hope that I can answer any questions you 

may have about our work. 

Chesapeake Bay TMDL 

For nearly 3 decades, the Chesapeake Bay Program (CBP) partners have had a 

clear understanding of the efforts needed to restore water quality in the Bay. In 

1983, the Governors of Virginia, Pennsylvania and Maryland, the Mayor of the District of Columbia, the Chair of the Chesapeake Bay Commission, and the Administrator of EPA signed the first Chesapeake Bay Program agreement to work together 

to restore the Chesapeake Bay. They have since renewed that commitment through 

annual meetings and periodic agreements and directives. In addition, the states of 

Delaware, New York and West Virginia signed a multi-jurisdictional Memorandum 

of Understanding committing to the restoration of the Chesapeake Bay. 

The idea for a Bay TMDL is not a new or recent idea; it is merely the next step 

in this decades-long restoration partnership effort. In June 2000, when the CBP 

Partners signed the Chesapeake 2000 (C2K) agreement,1 they committed to meeting 

water quality standards in the tidal waters of the Bay by 2010. Since then, the Partnership continuously developed and refined models to allocate pollution reduction 

responsibility between the states and developed tributary strategies to implement 

the pollution reduction actions necessary to restore the tidal waters of the Chesapeake Bay. The targets established in 2000, and the level of effort to meet those 

targets, have changed very little when compared to the Bay TMDL. 

When signing the C2K agreement, the partners recognized that a TMDL would 

need to be developed if the actions identified in the agreement were not successful 

in achieving water quality standards in the mainstem and tidal portions of the 

Bay.2 Despite some significant progress in reducing pollution levels, the partners 

were not successful in meeting water quality standards by 2010. Our latest 2009 

Bay Barometer report affirmed that despite the impressive restoration work done 

by the array of partners, the Bay continued to have poor water quality, degraded 

habitats, and low populations of some fish and shellfish species. 

So, in October 2007, when it became apparent that water quality standards would 

not be met by 2010, the Chesapeake Bay Program’s Principals’ Staff Committee 

(PSC), a group of state secretary-level representatives, requested that EPA begin to 

work with them to establish a multi-state TMDL.3

After more than 2 years in development, EPA issued the final Chesapeake Bay 

Total Maximum Daily Load (TMDL), or pollution diet, on December 29, 2010 which 

established the maximum amount of pollution the estuary can receive and still meet 

water quality standards. The Bay TMDL is unique because of the measures EPA 

and the states adopted to ensure accountability for reducing pollution and meeting 

deadlines for progress. The final TMDL is based on the states’ Phase I Water Implementation Plans (WIPs) and the input we received through our outreach effort 

across the watershed. That effort included hundreds of meetings with interested 

groups (including the agriculture community); two rounds of public meetings in all 

states, stakeholder sessions and media interviews; a series of monthly interactive 

webinars; notices published in the Federal Register; and a close working relationship 

with Chesapeake Bay Program committees representing citizens, local governments 

and the scientific community. 

President Obama’s Chesapeake Bay Executive Order 

The TMDL is a part of a broader effort by the Obama Administration to restore 

the Chesapeake Bay. On May 12, 2009, President Obama issued Executive Order 

13508 on Chesapeake Bay Protection and Restoration. In the Executive Order, 

President Obama declared the Chesapeake Bay a ‘‘national treasure’’ and ushered 

in a new era of Federal leadership, action and accountability. The purpose of the 

Executive Order was ‘‘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 established the Federal Leadership Committee (FLC) for the Chesapeake Bay, which is chaired by the 

EPA Administrator and includes senior representatives from the departments of AgVerDate 0ct 09 2002 15:00 Feb 14, 2012 Jkt 041481 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 I:\DOCS\112-26\71237.TXT BRIAN
9

4http://www.nrcs.usda.gov/Internet/FSElDOCUMENTS/stelprdb1042076.pdf. 

riculture, Commerce, Defense, Homeland Security, Interior and Transportation. The 

Executive Order charged the FLC with developing and implementing a new Strategy for protection and restoration of the Chesapeake region. 

The new Federal Strategy for the Chesapeake region, released in May 2010, focuses on protecting and restoring the environment in communities throughout the 

64,000 square mile watershed and in its thousands of streams, creeks, and rivers. 

The Strategy includes implementing new conservation practices on 4 million acres 

of farms and conserving 2 million acres of undeveloped land. To increase accountability, Federal agencies will establish milestones every 2 years for actions to make 

progress toward measurable environmental goals. These will support and complement the states’ 2 year milestones. 

Watershed Implementation Plans (WIPs) 

State WIPs are the road maps for how and when, in partnership with Federal and 

local governments, states will reduce pollution in order to achieve and maintain pollutant allocations under the Bay TMDL. In developing the TMDL, our plan was always to have the pollution allocations based on state WIPs and to provide the states 

with flexibility to let them lead the way in determining how to reduce pollution and 

from what sectors. 

TMDL implementation includes check-ins along the way to assure progress—a series of 2 year milestones in which states, EPA, and other Federal agencies are setting incremental commitments for specific practices and programs to be implemented. 

Since the final TMDL was published in December 29, 2010, EPA and the states 

have turned our focus to TMDL implementation and developing Phase II WIPs. 

Phase II WIPs explain how states will work with their localities to get 60% of the 

needed restoration practices in place by 2017 and 100% of the practices in place by 

2025. 

Because implementation of the TMDL is designed to be as flexible as possible, 

EPA encouraged states to develop Phase II WIPs to meet the TMDL allocations in 

the best way for any given state. States are expected to develop draft Phase II WIPs 

by December 15, 2011 with final Phase II WIPs by March 30, 2012. 

In recent weeks, we have had very productive conversations with the states that 

have allowed EPA to better understand how to adapt our collective approach toward 

cleaning up the region’s waterways. A shift in EPA’s focus for Phase II WIPs was 

announced in an October 5, 2011 letter to the state secretaries. Specifically, we have 

clarified that ‘‘local area targets’’ may be expressed in terms other than pounds of 

pollutant reductions by county. Instead, Phase II WIPs could identify ‘‘targets’’ or 

actions that local and Federal partners would take to fulfill their contribution toward meeting the Chesapeake Bay TMDL allocations such as programmatic actions, 

pollutant reductions to be achieved by individual counties, or the number of BMPs 

that need to be implemented. These targets or actions should be based on what 

makes the most sense to the states and their key local partners. EPA agrees with 

the states that we need to place greater emphasis on increasing actions on the 

ground to restore the Bay. 

States are now engaged in working with local governments, conservation districts, 

planning commissions, watershed groups, the public, and other key stakeholders to 

help refine strategies to clean up local waters and the Bay and to provide further 

assurance that the allocations will be met on schedule. In their Phase II WIPs the 

states will demonstrate that local partners are aware of the WIP strategies; understand their contribution to meeting the TMDL allocations; and have been provided 

the opportunity to suggest any refinements to the states WIP strategies. 

Phase III WIPs, which states will develop by 2017, are expected to provide additional detail on restoration actions beyond 2017 and to ensure that the 2025 goals 

are met. 

Engagement with the Agriculture Community 

We recognize that 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 all sectors, including agriculture, are needed to meet water quality standards. The recent USDA Natural Resources Conservation Service assessment of the 

effects of conservation practices on cultivated cropland in the Chesapeake Bay region shows that conservation works. However, opportunities exist to make further 

progress in reducing nutrient and sediment loads from agricultural cropland.4

10

I have had a number of opportunities to talk directly with people in the agriculture community, including a visit to a Lancaster county, PA dairy farm this past 

summer when I accompanied Administrator Jackson. During our time on the farm, 

we got to see the use of field practices and manure handling practices that are benefiting the farm operation and improving impacts on water quality. In a roundtable 

discussion, hosted by Senator Brubaker, we had a chance to hear directly from 

farmers about the valuable work they are doing with their conservation district and 

to hear about their concerns about the process by which Bay protections are being 

implemented. These kinds of interactions are incredibly useful for us and we will 

continue to rely upon them as a key way of hearing from the agriculture community. 

Agriculture Certainty 

EPA has been involved in a number of discussions, along with USDA, state officials, and stakeholders to explore the option of state agricultural certainty programs. The idea of such state programs would be to increase producer interest and 

willingness to adopt systems of conservation practices based on farm-specific conservation planning, with incentives that provide assurances for farmers and increase the pace and extent to which resource conservation and verifiable water quality improvements are achieved. The Commonwealth of Virginia is leading the way 

with its enabling statute for a certainty program and plans to promulgate a regulation to implement its program within the next year or so. On October 6, EPA and 

USDA officials met with the Chesapeake Bay states in Annapolis, Maryland to further discuss key elements and principles of an agriculture certainty program. More 

than 40 state representatives attended the very productive 6 hour meeting. In addition, the states will hold another meeting this month to seek input from non-government stakeholders from both the agricultural and environmental communities as 

states move forward with developing these programs. We believe that certainty programs are best carried out by the states and we have offered our support to states 

in the Bay region and other parts of the country as they think through the development of these programs. 

Financial and Technical Assistance 

EPA provides funds to states to help with conservation implementation, technical 

assistance, tracking conservation, and compliance/enforcement activities. Our 

Chesapeake Bay Implementation Grants (CBIG) and Chesapeake Bay Regulatory 

and Accountability Program (CBRAP) provide $20.3 million to the states for programs that improve water quality in the watershed. EPA funding helps with WIP 

development and implementation, including conservation implementation, technical 

assistance, tracking conservation, and compliance activities. 

EPA’s Innovative Nutrient and Sediment Reduction Grants Program, administered by the National Fish and Wildlife Foundation, provides grants for innovative, 

cost-effective projects that reduce agricultural and urban nutrient and sediment pollution in local and Bay waters. Since 2007, EPA has provided $26.8 million to support 54 projects in the Bay watershed. This year alone, EPA awarded $8.2 million 

to 19 projects in the Chesapeake Bay. 

Two examples of projects we are funding through this grant program are:

• Transitioning Small Dairies to Phosphorus Balance in the Shenandoah Valley, 

VA—We are providing $600,000 to Virginia Tech to work with small dairies in 

the Shenandoah Valley to help Virginia dairy farms achieve on-farm phosphorus balances over time. VA Tech will provide technical assistance to dairy 

farmers to help them develop a plan to achieve phosphorus balance over time, 

and financial incentives to install practices and technologies to address these 

imbalances. With matching funds, the total funding level for this project is $1.4 

million.

• Testing Manure Injection Technologies to Reduce Nutrient Losses—We are providing $786,000 to evaluate manure injection technologies on no-till systems to 

reduce ammonia emissions and nutrient runoff from dry poultry and dairy manure, while improving nutrient up-take by crops in south central PA, the Shenandoah Valley VA, the Delmarva Peninsula, and NY.

We are pleased to see many states making a commitment to learn from these 

projects and advance technologies for finding alternative uses for excess manure nutrients. These innovations will keep farmers in business over the long-haul by moving them to a more sustainable way of managing manure. We are working with our 

state partners to credit the nutrient reduction benefits of these technologies. 

EPA also recognizes that it is important for partners to have access to the tools 

and data we are using for the TMDL. In response to this need, EPA has provided 

workshops for each state on how the decision support tools work and how to submit 

11

data on nutrient and sediment controls to assess impacts of various management 

actions on Bay water quality. EPA also helped to create and provide training for 

tools that allow states to quickly and easily assess various pollution reduction strategies for their Bay cleanup plans. 

Follow up from the March 16, 2011 Hearing 

Data Coordination 

At the March 2011 Subcommittee hearing, USDA and EPA pledged to continue 

their joint efforts to refine and increase the level of data available for understanding 

the implementation of conservation practices by farmers in the Chesapeake Bay region. Since the hearing, we have developed a joint workplan that outlines the actions we will be taking with USDA to continue our data collaboration. We provided 

this workplan to Chairman Thompson in June. Implementation of this workplan 

will further refine our accounting of agricultural conservation practices throughout 

the Bay watershed, bolster the scientific defensibility of the benefits of agricultural 

conservation practices, and improve consistency of data used in our agencies’ respective decision support tools. 

Agricultural Nutrient Policy Council (ANPC) Report Review 

There was also discussion at the March 2011 hearing about the Agricultural Nutrient Policy Council (ANPC) report that claimed discrepancies between the CBP 

Watershed Model and USDA’s Conservation Effects Assessment Project (CEAP) 

study. Earlier this year, the Chesapeake Bay Program’s Scientific & Technical Advisory Committee (STAC), brought together a group of independent scientists to review the findings of the ANCP report. Reviewers included representatives from the 

U.S. Geological Survey, Virginia Tech University, Penn State University, University 

of Maryland and the Maryland Agricultural Experiment Station. 

The STAC found that the CEAP study and the Watershed Model developed by the 

Chesapeake Bay Partnership are in approximate agreement on both the nutrient 

and sediment loadings from agricultural lands in the Chesapeake Bay watershed at 

the large-basin scale and that there is more work to do in reducing nutrient and 

sediment loads on cropland. This affirms that conservation works and more conservation will help improve the health of local waters and the Bay. 

Economic Analysis 

Last, when EPA Deputy Administrator Bob Perciasepe testified before this Committee in March 2011, there was discussion about both the costs and the benefits 

of implementing the Chesapeake Bay TMDL. Following the hearing, Mr. Perciasepe 

directed EPA’s Chesapeake Bay Program Office to develop an estimate of the costs 

associated with the WIPs. In addition, he directed EPA’s National Center for Environmental Economics to develop an analysis of the benefits associated with achieving water quality standards in the Chesapeake Bay. We are currently working closely with both Federal and state partners to develop these analyses. For example, the 

costs of individual practices to be implemented in the watershed have been provided 

to all Bay watershed states for review. EPA also sponsored a 2 day workshop on 

October 31 and November 1, 2011 to discuss approaches to the estimation of TMDL 

benefits with national and regional experts on these topics. EPA’s Chesapeake Bay 

Program Office and National Center for Environmental Economics are scheduled to 

complete their initial analyses of costs and benefits by mid-late 2012, following completion of the Phase II WIPs. At that time, the costs analysis is expected to be complete, as will significant components of the benefit analysis. Some parts of the benefits analysis, however, require more laborious methodological approaches. Those 

parts of the analysis will be completed by the summer of 2013. Both studies will 

incorporate the final Phase II WIPs, due in March 2012. 

Conclusion 

Rural communities and farming are indeed a vital part of the Chesapeake Bay 

watershed’s culture, economy and way of life. Maintaining a thriving agricultural 

community is essential to the long term sustainability of the Chesapeake Bay watershed and its ecosystems. I commend the farming community for the hard and innovative work that they have done in the past years. 

The work we are undertaking is not new. Although the process and framework 

of the Chesapeake Bay TMDL may be new, the level of effort to meet the goals has 

been nearly the same for more than a decade. Implementing the Bay TMDL is simply the next step in this long term effort. 

We look forward to continuing to work with this Subcommittee and the agricultural community to protect and restore local waterways that feed into the Chesapeake Bay. 

12

Thank you for the opportunity to testify today, I am pleased to answer any questions.

The CHAIRMAN. Well, thank you, Administrator Garvin, for your 

testimony. 

The chair would like to remind Members that they will be recognized for questioning in order of seniority for Members who were 

here at the start of the hearing. After that, Members will be recognized in order of arrival. I appreciate Members’ understanding. 

And with that, I will recognize myself for the first 5 minutes. 

Mr. Garvin, you mentioned in your testimony that the EPA’s 

Chesapeake Bay Program Office is developing a cost associated 

with the WIPs, cost-benefit analysis. I read that within your testimony. This is more logistics. When can we expect to see the results 

of that analysis and are you working with the states to come up 

with those figures? 

Mr. GARVIN. I will answer in reverse order. We are working with 

the states. A number of states have already put together some information on cost and benefits as they were going through Phase 

I, so we are certainly looking to utilize that information, but we are 

consulting with them and with USDA on that information. The 

timing of it is probably we are looking at the middle part of next 

year on the cost. 

One of the things that we are taking into account is as the Phase 

I strategies were put together by the states and as they are more 

refined in Phase II, we want to make sure that we have a good understanding of what those balances are to help inform the costs. 

One of the things that we recognize is the fact that there are different mechanisms, different approaches, different cost effectiveness that you can get at when looking at all the sectors in the 

TMDL and subsequently looking at what decisions were made in 

those areas that will help inform that discussion. 

The CHAIRMAN. Obviously, the model has been a significant point 

of controversy, and I appreciate the response in June where it appears that it is a work in progress. I am concerned, though, that 

the mandates as a result of the model results are not as flexible. 

I think everyone knows that there is considerable controversy over 

the modeling on which the TMDLs are based versus the model 

USDA has put forward. And even taking USDA out of the picture, 

the differences between communities that sit in proximity to each 

other, some that are in surplus on sediments and some that have 

to remove sediments. 

And so at the last hearing on TMDL, this issue was discussed 

at great length. What has EPA done to reexamine the basic Chesapeake model this TMDL utilizes? And how much confidence do we 

have in the outcomes of this, the data that really is driving a very 

expensive response by farmers and communities and all those who 

live within the watershed? 

Mr. GARVIN. Congressman, we have a great deal of confidence in 

the tool that is the model, and the model is really—it summarizes 

a model but there are several different models that go into that 

model and the number of things that make up the suite of tools 

that we use to help inform decisions. The model is a tool that we 

use. We have worked closely with USDA. We have looked at consistency of information. Many of the issues that we are dealing 

13

with now are not related to the mechanism. It is related more to 

the input to the mechanism. 

We recognize that there is information we do not have. Clearly, 

we can’t input information into the mechanism that doesn’t exist, 

and so we are working very closely, particularly if you are talking 

about agricultural processes on the ground. And so we are looking 

at working and we have been working very closely with USDA and 

the states and other areas to make sure that information is both 

being tracked, being verified, and then being provided to us so that 

we can account for that. 

The CHAIRMAN. My concern obviously is kind of a cart-before-thehorse type thing. You know, we need good data so that we know 

that the taxpayers, whether it is a local level or out of their pockets, the agriculture community or the Federal taxpayers make investments, that they are going in for the right reasons in targeted 

areas. 

When Administrator Jackson testified before the full Committee 

earlier this year, she stated that this process was largely driven by 

a settlement agreement between the Chesapeake Bay Foundation 

and the EPA. Would you agree that that is kind of what pulled the 

most recent——

Mr. GARVIN. I don’t know exactly what the Administrator was referring to that you are citing. The actual TMDL is actually required and has been required for the last 15 years or so. And actually, back in 2000 when the partners agreed to the Chesapeake 

2000 agreement that said we would work and put on track by 

2010—meaning water quality standards for the Chesapeake Bay—

there was a recognition back then that if we did not make that goal 

that we would start beginning the process of creating a TMDL. 

And subsequently, this has been a long-standing requirement 

that has been hanging out there. It has been actually a result of 

a number of court settlements from back in the early 1990s across 

the country in which—not to get into too much detail—the waters 

that are on the impaired list, the 303(d) list, needed to have 

TMDLs established. So this has been something all the partners 

have been aware of was coming if the efforts that we were undertaking were not going to get us to meeting water quality standards 

or at least on a significant path to meeting water quality standards. 

The CHAIRMAN. Well, I just want to revisit: Administrator Jackson went on record to the Committee stating that this process was 

largely driven by a settlement agreement between the Chesapeake 

Bay Foundation and the EPA. In terms of accountability and transparency, do you think it is a conflict of interest that there are two 

EPA employees, Jeff Corbin and Chuck Fox, who both have been 

effective and instrumental in the development of the Bay TMDL, 

were both formerly employed by the Chesapeake Bay Foundation? 

Mr. GARVIN. No, I don’t believe there is a conflict of interest. 

The CHAIRMAN. Okay. I now recognize the Ranking Member for 

5 minutes. 

Mr. HOLDEN. Well, thank you, Mr. Chairman. 

Administrator Garvin, getting back to the model, you say you believe it has credibility but I am looking at an article from AgriPulse citing that a county in Virginia would have to reduce nitroVerDate 0ct 09 2002 15:00 Feb 14, 2012 Jkt 041481 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 I:\DOCS\112-26\71237.TXT BRIAN
14

gen by eight percent, phosphorous by 11 percent, and sediment by 

20 percent but another run from the EPA model for the same county would have to make no reductions in nitrogen and has a 20 percent surplus in phosphorous and room for 350 percent more sediment. Now, how can we have faith that you are moving forward 

with credibility when two variations in the models by EPA directly 

contradict each other? 

Mr. GARVIN. I don’t know what the two different models you are 

referring to. I think what you are referring to is the same model 

at two different scales, and one of the reasons for the October 5 letter to the states suggesting that they do not have to, though it is 

still up to them to make the decision—have to articulate those 

more local Phase II plans in pounds at the local level as opposed 

to a narrative on practices that would be calculated at the larger 

river basin level. 

There is a recognition amongst all of us that the model is much 

more effective at the larger basin level, that there are some irregularities at the finer scale. I liken it to my wife the other day asking me to hang a picture and it was between a doorjamb and the 

fireplace and there was a sconce in the way and I only had a yardstick. So I wasn’t able to get the yardstick all the way up to the 

point where I had to measure, so what I did was I had to use a 

little bit of common sense and eye up a little bit on where the point 

is that I was going to put the drill and hang the picture. What the 

model does at the larger basin scale is give you the big picture, allows the jurisdiction to figure out what are those practices to get 

up to that point, how do they work when you start giving them up 

at the local level, and then make the calculations. Though some 

states may want to use it and then kind of use some discretion on 

how——

Mr. HOLDEN. All right. Thank you, sir. And is EPA doing onsite 

farm visits? 

Mr. GARVIN. Yes. We are doing compliance visits and a couple——

Mr. HOLDEN. Under what authority is EPA doing onsite farm visits? 

Mr. GARVIN. It would fall under section 308 of the Clean Water 

Act is the authority but the goal of it is we look at them more as 

educational visits that we are working with the conservation districts and others to help educate us and inform both us, the states, 

as well as the farmers on expectations. It also helps us to have a 

better sense as we look at review assurance on planning. 

Mr. HOLDEN. Do you intend to visit every farm in the Bay region, 

the watershed? 

Mr. GARVIN. We do not. We have been focusing on generally 

areas that are high concentration and have a heavy impact on the 

Bay in helping to work with those communities. You know, one of 

the areas we went in was southeast Pennsylvania where there was 

a high level of Plain Sect farmers who were not necessarily engaged in the discussion and it was an opportunity working with the 

conservation districts to meet with them and talk to them about 

what the expectations are and for us to be educated and informed 

on what they actually have going on, on the ground. 

15

Mr. HOLDEN. Are farmers given notice that you are going to 

make the visit? 

Mr. GARVIN. Yes. 

Mr. HOLDEN. Okay. And Administrator, from your testimony I 

hear that you testify that you are working with the states, but I 

have to tell you Secretary Krancer who is in the next panel—in his 

written testimony he describes EPA as telling DEP to get over it 

or get on with it, and a similar statement was made by an official 

from Virginia. So that doesn’t seem to reflect the good working relationship. So I wonder if you can elaborate on the comments that 

are in the Secretary’s testimony. 

Mr. GARVIN. Yes, absolutely. I can’t refer to the specific comments. Obviously he will be testifying to those. I can comment on 

kind of the notion of what we have been working with all the Bay 

partners, with all the states in looking to address the issue of restoring the Chesapeake Bay. We can’t just keep standing at the 

starting line and saying, this 10K is an awful long run to take. We 

need to start making progress towards implementing the TMDL. 

The wisdom of the partnership back in 2008 led by the governors 

and the Administrator and the mayor of D.C. was breaking this up 

into 2 year increments, breaking these up into small pieces so that 

we can continue to adapt, we can continue to learn, we can continue to make changes over the course of the 15 years to address 

issues learned from what we are doing on the ground, share effectiveness with other jurisdictions on those type of things. And if we 

continue just to sit back and say this is a daunting effort and not 

move forward, we are never going to get there. 

And so what we recognize and what we are committed to is a 

process of adaptive management, a process of continuing the dialogues. I have assigned senior managers at EPA to work with senior managers in all the states on a consistent basis to continue to 

hear concerns and figure out how we can evolve and adapt based 

on what those issues are. 

Mr. HOLDEN. Well, thank you. Just keep in mind it is a partnership. 

Mr. GARVIN. Absolutely. 

The CHAIRMAN. I thank the gentleman and recognize Mr. Goodlatte from Virginia for 5 minutes. 

Mr. GOODLATTE. Thank you, Mr. Chairman, and thank you for 

holding this hearing. 

Administrator Garvin, welcome. 

Mr. GARVIN. Thank you. 

Mr. GOODLATTE. Standing at the starting line? Are you serious? 

I mean for 25 years farmers, localities, and others across the 

Chesapeake Bay region have substantially reduced the amount of 

nitrogen, phosphorous, and sediment going into the streams that go 

into the Chesapeake Bay and now you are claiming that we are 

standing at the starting line? There has been tremendous cooperation between local governments, state governments, and private entities, homebuilders, farmers, and others to achieve substantial reduction in these nutrients going into the Chesapeake Bay, and yet 

you claim that we are standing at the starting line. 

Now, you mention in your testimony that after I and many others have complained bitterly for years that all of this is being done 

16

without having done a cost-benefit analysis that now finally you 

are doing a cost-benefit analysis. Good for you. I am glad. But how 

can you make effective decisions about what should go into a 

TMDL and how can you expect the states to comply when you 

haven’t even given them the evidence of what needs to be done and 

how it will benefit the Chesapeake Bay? We don’t even know the 

extent to which the billions and billions of dollars that are going 

to be spent here will benefit the Bay, do we? Because you haven’t 

done a cost-benefit analysis yet and yet you are expecting us to be 

‘‘moving ahead instead of’’ as you say ‘‘standing at the starting 

line.’’

Mr. GARVIN. Congressman, my reference to standing at the starting line was the implementation of the TMDL. I absolutely agree 

with you and concur with you there has been a lot of great things 

that have occurred on the ground in the ag sector, urban and suburban storm water, and with wastewater treatment plants. My reference is the fact that if we wait for implementation of the TMDL 

until we have what is considered to be all the information, all the 

data——

Mr. GOODLATTE. Like an effective model and a cost-benefit analysis? Don’t you think we should have a model that is effective that 

would indicate what kind of things will work and what won’t work 

and a cost-benefit analysis to tell us whether this is even worth 

doing the way the EPA says to do it instead of the way the states 

had been doing it until you leaned on all of them? 

Mr. GARVIN. We believe we have an effective model. With regard 

to the cost-effective analysis, there have been a number of cost-benefit analyses done by a number of folks over the course of the 

years, so it is not like the information doesn’t exist. What we are 

looking to do is do it based on the Phase I TMDLs, based on what 

comes out of the Phase II TMDLs when we actually have those 

strategies and plans laid out on what the potential cost and benefits are for those activities. There have been blue ribbon panels in 

2004, NOAA, University of Virginia, University of Delaware, many 

other academia——

Mr. GOODLATTE. But not a cost-benefit analysis. They looked at 

and offered their opinions about various things but they did not 

compare the costs with the benefits to be derived by the Bay and 

weighed those two together. 

Now, let me ask you this. On August 30, President Obama sent a letter to Speaker Boehner outlining regulations that will cost $1 

billion or more. Virginia estimates that the Bay TMDL will cost the 

Commonwealth $7 billion alone. You have a witness on the next 

panel sitting behind you who is a member of the city council of a 

small city in my district, Lynchburg, Virginia, that has already 

spent hundreds of millions of dollars in compliance and estimates 

that these new requirements will cost them well over $100 million 

or more to comply. 

I believe that other states have similar estimates and this does 

not account for the cost incurred by localities, businesses, farms, 

and families. However, the Chesapeake Bay TMDL and the WIPs 

are not included in the list of costly regulations that the President 

outlined. Can you explain this omission? I am talking about $20 

billion or more, not $1 billion. 

17

Mr. GARVIN. The simple answer, Congressman, is the TMDL is 

not a regulation. 

Mr. GOODLATTE. It is not a regulation? 

Mr. GARVIN. No. 

Mr. GOODLATTE. So what is it? 

Mr. GARVIN. TMDL is a strategy, a plan to meet the 303(d) requirements of the Clean Water Act. 

Mr. GOODLATTE. And what will that result in localities and farmers and state governments and homebuilders and others having to 

do? 

Mr. GARVIN. Put on-the-ground activities to improve water quality. 

Mr. GOODLATTE. And will they be able to do those voluntarily or 

are they going to have to be required to do those? 

Mr. GARVIN. Both. 

Mr. GOODLATTE. But that is not a regulation? 

Mr. GARVIN. The TMDL is not a regulation. 

Mr. GOODLATTE. Well, that is a pretty amazing claim. You think 

people should feel good about the fact that the President left off a 

list something that is being pushed down from the Federal Government onto the states and then onto farmers and others and told, 

well, it is not on the list of things we should be concerned about, 

the impacts on jobs and economic growth because it is not a regulation? I find that unbelievable. 

Mr. Garvin, you participated in a meeting with the Chesapeake 

Bay jurisdictions on September 16 in which most of the jurisdictions expressed concerns about how the model assessed the use of 

nutrient management plans. In that meeting, the jurisdictions produced a chart that showed that in many counties, the use of nutrient management plans actually increased nutrient application 

rates in the upgraded 5.3.2 model. Do you agree that nutrient management land plans as identified in the model result in higher 

rates of nutrient application? 

Mr. GARVIN. No. What I agree with is the fact that that is an 

indicator that there is too much manure in that area in which that 

data came from. Ultimately, the way the model works and the way 

the law in Virginia works is the fact that you can’t apply manure 

to lands unless you have a nutrient management plan. Subsequently, the amount of manure that exists is credited to nutrient 

management plan lands, which is an indicator that what needs to 

happen is more nutrient needs to be dealt with so it is not being 

land applied. 

Mr. GOODLATTE. Is it true that one of the items you committed 

to fix in the previous model was related to how it evaluated nutrient management plans? 

Mr. GARVIN. Yes, the two areas in which we had agreed to make 

modification were urban/suburban land cover, as well as nutrient 

management plans. 

Mr. GOODLATTE. Can you give me a timeline for these fixes? 

Mr. GARVIN. That was done back in June. 

Mr. GOODLATTE. I might ask one more question, Mr. Chairman, 

with your leave? 

The CHAIRMAN. Yes. 

18

Mr. GOODLATTE. One of the major complaints about the model is 

that it does not account for non-cost-shared nutrient management 

plans. Has this been fully corrected in the model? Additionally, is 

the model giving credit for other things farmers are doing? For example, some farmers may not agree to fence off streams on their 

land by 35 feet. Picture this: if you have a stream meandering 

through your farm for a mile and you fence it off on both sides, in 

addition to the cost of doing that, you are fencing off 70 feet times 

5,000. That is 350,000 square feet of usable pasture land, more 

than 8 acres. But instead they do it to 5 feet, which keeps the cattle out of the streams and has a substantial benefit. Does the 

model account for those practices? 

Mr. GARVIN. With regard to non-cost-share conservation practices 

being credited in the mechanism, it is not a model correction; it is 

an input issue. I absolutely agree with you. There are things going 

on, on the ground, that we need to know and we are working closely with those folks who track and monitor that to provide that information to us so that it can be credited. We also recognize that 

there are additional areas where nobody has the information and 

we are working to figure out what is the best way to get that information. For example, as I referred to earlier, the Plain Sect community and their way of life, government interaction is done in a 

different way, and so our ability to work and find out what are 

those practices going on, on the ground, so that they can be credited in those areas is an important activity and we are working 

very closely with USDA and states on making sure that information is inputted. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman and recognize Mr. Owens, 

from New York. 

Mr. OWENS. Thank you. 

Mr. Garvin, thank you for testifying today. I want to ask you a 

couple of questions about the TMDL model that is specifically focused on New York State. We have heard from our constituents 

that there is a difference between the model estimates and the actual recording that takes place on the ground, the actual test results. How is that factored in or is it factored in? 

Mr. GARVIN. One of the bases of the model is the input of the 

data on actual water quality that we know. We recognize that 

there are some special issues in New York based on their location, 

based on the fact that they have been actually reducing and not 

growing and we have been working very closely with the State of 

New York to address those issues. And I believe that in the very 

near future, next month or so, we will have a path forward that 

addresses those concerns. 

Mr. OWENS. So we will be able, then, to actually have the real 

testing data included as opposed to model data. 

Mr. GARVIN. The real testing data is already included. What it 

is going to do is reflect some special circumstances in New York 

that address some of the concerns they have about growth and location and contributions to the Bay. 

Mr. OWENS. Another question that has been raised by my constituents is the need or the difference between the delivered load 

and the edge-of-stream load, and, fundamentally, the question is 

19

that you do have some dilution that occurs as the water moves 

downstream, and therefore, the load is in fact different than the 

measurement that is currently being proposed. How do you deal 

with that? 

Mr. GARVIN. That is actually one of the things that we are addressing in New York as well as in West Virginia, and we have 

folks who are working with them to account for their concerns in 

that area. 

Mr. OWENS. And finally, when you do your cost-benefit analysis, 

are you taking into account the increase in cost to the consumer 

for production of food in the ag community that arises out of increased regulation? 

Mr. GARVIN. I will have to get back to you on that, Congressman. 

I am not sure all the factors that are going into the analysis, but 

we can make that available to you and to the chair and the Subcommittee. 

Mr. OWENS. If it is not included, would the EPA consider including that as a factor? 

Mr. GARVIN. Well, I will go back and have a conversation and figure out what is being included and what is not and we will get 

back to you. 

[The information referred to is located on p. 83.] 

Mr. OWENS. Thank you very much. 

I yield back. 

The CHAIRMAN. The gentleman yields back. I now recognize Mr. 

Gibbs, from Ohio. 

Mr. GIBBS. Thank you, Mr. Chairman. 

Obviously, I am the only one on the Committee right here that 

is not in the Chesapeake watershed, so I don’t know all the specific 

data that you guys have, but I do have a couple of questions. 

I am just curious because my experience in my area talking 

about the modeling and stuff, on stream monitoring programs, who 

is doing that? Is that in partnership with the local county’s soil and 

water districts, state EPA? I am curious how rigorous your monitoring process is. 

Mr. GARVIN. I appreciate that and that is kind of the lifeblood 

of what we are doing. We have somewhere upwards of 250 monitoring points throughout the Chesapeake Bay watershed. We are 

actually undertaking an effort to increase that so that we have the 

most amount of data and information that we can to help inform 

on the discussions. We are also working with states and local communities to get information and data on what they have on the impacts. 

You know, clearly, when we are moving forward in this approach 

and we are looking to restore the Bay—and quite honestly to restore any water body—the more information we have, the better information we have to inform our decisions and be able to measure. 

One thing that we tend not to touch on is the fact that we deal 

with the Chesapeake Bay watershed in its entirety. It is 64,000 

square feet and it is 17 million people, but there are going to be 

different parts of the Bay watershed that are going to respond faster than other parts of the watershed. We want to make sure that 

we understand where those are and what the impacts are. 

20

Mr. GIBBS. I guess I would be an advocate that you have to break 

this down in subsets——

Mr. GARVIN. Yes. 

Mr. GIBBS.—and determine what is happening, especially point 

source areas and non-point source areas——

Mr. GARVIN. Yes. 

Mr. GIBBS.—especially making a determination of non-point is a 

lot more challenging as you know. And my experience in the past, 

you have in different streams different flow rates, weather conditions, rainfall that can impact it. And I know in my area in the 

past years we had an issue with the EPA at one time. They were 

doing what I call drive-by evaluations, windshield drive-bys and 

weren’t getting the right data. And so I guess being an outsider of 

the Chesapeake, that is when I would question and make sure that 

the monitoring process to develop the model makes sense. 

And the second part of that, in my one watershed we had been 

involved for about 10 years of a nutrient trading program——

Mr. GARVIN. Yes. 

Mr. GIBBS.—and how that has been so successful, they have lowered the load into that watershed working with a cheese manufacturer and working with those local farmers around there, and it 

has been real successful and kept the jobs and the economic 

growth. Are there any type programs like that going on in this watershed? 

Mr. GARVIN. Yes, Congressman. The TMDL actually had a section, an appendix that dealt with a placeholder for trading. A number of the states came in with their state strategies that relied—

in varying degrees on trading. What we have been doing with the 

states currently is we have been meeting with them, discussing 

what trading programs they do or they don’t have, getting a better 

sense of what they are. One of the issues is making sure that when 

we are doing trading we are not double counting, when we are 

doing trading that there is a common exchange rate so that we are 

talking apples and apples when we are looking at numbers. And 

so we have been working close with the states on that, and I am 

hoping in the next couple of weeks—and we will share this with 

the Subcommittee—that we will be providing some feedback to the 

states on that review. 

[The information referred to is located on p. 84.] 

Mr. GIBBS. Of course, to me that would go back to having a very 

rigorous monitoring program. 

Mr. GARVIN. Yes. 

Mr. GIBBS. And are there soil and water county districts near 

that area? 

Mr. GARVIN. Yes. 

Mr. GIBBS. So you have a close working relationship with the 

NRCS and the soil and conservation services in each county? 

Mr. GARVIN. Absolutely. 

Mr. GIBBS. Okay. Because, I just can’t emphasize enough—the 

monitoring—to develop a model that is accurate has to be based on 

sound data from the monitoring. 

So thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. Thanks, Mr. Gibbs. 

21

We are going to have a few additional questions. I now recognize 

Mr. Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Mr. Garvin, in February of 2008, the Chesapeake Bay Program’s 

Scientific and Technical Advisory Committee, or STAC, told the 

EPA that its Chesapeake Bay models, ‘‘are not appropriate for development and implementation of TMDLs at the local watershed 

scale.’’ In your letter to Bay Jurisdictions on October 5, you admit 

that there are areas in the watershed, ‘‘where there are limitations 

to the application of the Chesapeake Bay Program watershed 

model at a finer scale, finer scale than the major basin.’’ However, 

the final TMDL based off the model contains thousands of allocations. Do you understand the concerns that this raises about the 

accuracy of the model and the TMDL which has developed by this 

model? 

And throughout this process, the EPA has asked the states to 

provide reasonable assurance of plan implementation, but what 

reasonable assurance has the EPA provided that the model that is 

driving this whole process is accurate or that the loading reduction 

numbers the EPA has distributed to the states are accurate? 

Mr. GARVIN. The TMDL was developed and the tool or the model 

that was used was at the larger major basin scale, not at the finer 

scale, which is actually the subject of the October 5 letter, which 

is a recognition that there are some limitations at the finer scale, 

not that it can’t be used as a planning tool that the states can use. 

But when we are actually doing calculations on effectiveness, we 

are going to do it at the larger scale. 

Mr. GOODLATTE. But the TMDL itself includes thousands of allocations based upon a tool that you admit is not ready for those 

finer allocations. 

Mr. GARVIN. We believe that at the scales that were done for the 

TMDL the model is effective. 

Mr. GOODLATTE. What is driving the timeline to have the Phase 

II WIP completed by March 2012? Is there a legal requirement or 

a statutory requirement to meet this deadline? 

Mr. GARVIN. What ultimately is driving it is the schedule that 

was laid out with the end point being 100 percent of the practices 

on the ground by 2025, 60 percent of the practices on the ground 

by 2017. 

Mr. GOODLATTE. There is no legal requirement that you take a 

model that is flawed, that isn’t ready for primetime or for as you 

say ‘‘finer scale,’’ but you have nonetheless imposed thousands of 

allocations at that finer scale. There is no statutory requirement, 

no legal requirement to meet that deadline, is there? 

Mr. GARVIN. There is a settlement—well, let me back up. We set 

the schedule which was actually 5 months earlier than what the 

schedule is that we are on now. We expanded that schedule at the 

request of the states for some additional time. We also again in the 

October 5 letter changed our approach to the Phase II allowing the 

states the option of going to a narrative——

Mr. GOODLATTE. Is it more important to develop implementation 

plans with the correct science or to meet an artificial deadline? 

Mr. GARVIN. I believe that we have the correct science and I believe that we need to keep on a schedule——

22

Mr. GOODLATTE. But you have admitted that you don’t have the 

correct science. You said it is not ready. You said you don’t have 

a model that works at the finer scale, and yet you are asking individuals in communities and property owners of various kinds and 

so on to begin implementing something that is not ready. And Mr. 

Garvin, you have not committed to updating the Bay model until 

the Phase III WIPs are implemented in 2017. Why the delay when 

there are multiple 2 year milestones in the interim? 

Mr. GARVIN. What we have committed to is a reevaluation of the 

process in 2017. We will——

Mr. GOODLATTE. What are we supposed to do in the meantime? 

Mr. GARVIN.—continue to evolve the model, evolve the inputs 

that go into the model between now and 2017. What we are looking 

to do in 2017 is a wholesale evaluation based on what we learned 

from 2 year milestones, based on what we learned from the activities on the ground to make determinations, working very closely 

with the states and other Federal partners, in figuring out what is 

the best process to get us from 2018 to 2025. It is basically a midcourse check on where we are, our effectiveness on what we are 

doing and how we get to the end goal of 2025. 

Mr. GOODLATTE. Even though, as you say, standing at the starting line of the TMDL, you guys weren’t ready to go. You don’t have 

a model that works. You have a model that you acknowledge does 

not work at the ‘‘finer scale,’’ and yet you expect everybody to live 

by it, but maybe by 2017, 6 years from now, you will get around 

to telling us whether or not it was right. 

Mr. GARVIN. I believe we are ready to go and that is the process 

that all of the partners are undertaking at this time. 

Mr. GOODLATTE. Because you have threatened them if they don’t 

undertake it with actions that most of us here on this panel who 

are in the United States Congress and involved in writing laws 

don’t think the laws of the land allow you to do. 

Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. 

Mr. Garvin, just a couple final questions from me. You know, this 

is mainly farmers and communities, specifically in Lycoming County and then outside the district points east, as you are aware, we 

experienced some pretty tremendous flooding—it has been about a 

month ago—and I saw things going down the streams that were 

just—well, let us put it this way, there are a few cabins that are 

now in the Chesapeake Bay that originally were in Pennsylvania. 

Or maybe they haven’t made it there yet but they are coming. I 

don’t know how long it takes for that water to flow, a very long 

time. 

And we all saw on the news a significant amount of runoff, sediment, a lot more than just sediment that went directly into the 

Susquehanna River. And I read through the testimony today and 

it talks a lot about—I didn’t see the word turbidity but I saw, in 

terms of some of the measurements in the Bay cloudiness, dead 

zones, those types of things. And I have to wonder, when we are 

having these 100 year floods a whole lot more than 100 years it 

seems like and there is not much we can do to control those, certainly can’t prevent them. They are going to occur. But my question 

is with these hundreds of millions of dollars of some of these comVerDate 0ct 09 2002 15:00 Feb 14, 2012 Jkt 041481 PO 00000 Frm 00026 Fmt 6633 Sfmt 6601 I:\DOCS\112-26\71237.TXT BRIAN
23

munities and the costs of which we are spending on an annual 

basis, is there consideration of what went directly into the Chesapeake River and ultimately into the Chesapeake Bay? Is that 

factored into the modeling or is that impacted in—I have to wonder 

how much sediment as a result of 48 hours of flooding compared 

to 20 years of agriculture wind up in the Bay? 

Mr. GARVIN. That is a very good question, Congressman, and 

clearly that was one of the issues when initially everybody was concerned about Irene and it was actually tropical storm Lee that really hit your portion of the district and had a larger impact on the 

Susquehanna. You know, we recognize in all these conversations 

that we have is that there are going to be ebbs and flows as it relates to the impacts of Mother Nature, be it droughts in some times 

and excessive rain and potential flooding at other times. So we try 

to factor that in both in our ability to measure success of the practices that are going on the ground, as well as being able to take 

a snapshot of where we are and where we need to get to. 

With regards to the storm a couple months ago or I guess a 

month and a half ago or so, USGS, Army Corps, others had already 

had folks out there looking at, as I said, the concerns with Irene 

that did not necessarily develop, and so they were actually in place 

already doing additional monitoring before and after tropical storm 

Lee to help characterize what the potential impacts might be. 

The CHAIRMAN. And so will you be able to provide this Subcommittee measurements in terms of—you have given us some testimony and through the testimony of the other witnesses we know 

approximately how many pounds of sediments are targeted for each 

state and we have estimates of the tremendous reductions since 

about 1985, if I recall correctly, from the testimony. It would be 

really interesting to see the estimates of the amount of sediments 

that go into the Bay that are going to be largely unpreventable and 

are going to occur on a reoccurring basis. I would love to see that 

number compared to the TMDL plan that is out there as well. 

Mr. GARVIN. We will get you whatever information we have or 

that we have collected from other Federal agencies and states. The 

State of Maryland and the Commonwealth of Virginia were also 

out doing some monitoring after Irene. 

The one thing I do want to note and this was at least initial feedback was that the timing of the storm—let me put it this way—

the impacts could have been greater if it had happened earlier in 

the summer. So that may turn out to be something that diminishes 

at least the overall impact. 

The CHAIRMAN. My last question is actually kind of a clarification. In your testimony and what you have testified on, you seem 

to infer that the TMDL model is effective but the effectiveness at 

this point is limited at—I don’t recall the—it was a large Bay scale 

or there was a particular term you used. 

Mr. GARVIN. The major river basin scale. 

The CHAIRMAN. Major——

Mr. GARVIN. And it is effective at lower levels than that but we 

recognize that it becomes less effective the finer the scale becomes. 

It doesn’t limit it from being a valuable tool to be used to help inform decision and I can’t stress enough that the policy decisions are 

made by the policy-makers. The model helps to inform it, as well 

24

as data that we get from all corners of the watershed. The same 

thing with states in understanding what is happening, the dynamics that are happening on the ground, where they feel that what 

sectors they can make decisions based on. And so the model is one 

tool, a big tool that is used to help inform those decisions. 

The CHAIRMAN. All right. Well, I know Mr. Goodlatte would 

agree with me. We are concerned with the TMDL model in that it 

is being driven to make decisions on a local level and it has not 

only been proven to be inaccurate, it has been shown to be inconsistent with just some of the testimony that we have heard, that 

has been reported, the discrepancies in terms of numbers that have 

been set. 

And that really concerns me because in your testimony you describe on the bottom of page 4, Phase II WIPs explain how states 

will work with their localities—now, it is taking it down to the local 

level—to get 60 percent of the needed restoration practice in place 

by 2017, 100 percent of the practices in place by 2025. Bottom line 

is we need a TMDL model if we are going to use one that we are 

confident that doesn’t have the discrepancies that are showing up 

in this one. And so I have grave concerns about moving forward 

when the science isn’t settled. 

And that is not to say it is not possible to do that and it is not 

possible to come up with a model that actually is accurate for the 

full river basin, for states as a whole, and for localities, especially 

localities, because that is where a lot of these remedies are placed 

and that is where the financial burden is placed, on localities. I 

think the responsible thing is to make sure we tighten up that 

model. I appreciate the target improvements that were identified 

by the EPA in the letter that was sent in June. I just think that 

there is more work to do. 

So I want to thank you for taking the time to come down from 

the Keystone State and being here and testifying today. 

Mr. GARVIN. Thank you, Congressman. 

The CHAIRMAN. Thank you. 

Now, the folks that are on the second panel, I want to welcome 

our second panel witnesses to the table as we get set up. 

Well, now I would like to welcome our second panel of witnesses 

to the table. We have the Honorable Michael Krancer, Secretary, 

Pennsylvania Department of Environmental Protection down from 

Harrisburg, Pennsylvania; we have the Honorable Michael Brubaker, Chairman of the Chesapeake Bay Commission—the Commission is based out of Annapolis, Maryland; Mr. Carl Shaffer, 

President of the Pennsylvania Farm Bureau Federation, Camp 

Hill, Pennsylvania; Hon. Turner Perrow, Lynchburg City Council, 

Lynchburg, Virginia. 

Secretary Krancer, please begin when you are ready. 

STATEMENT OF HON. MICHAEL L. KRANCER, SECRETARY,

PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL

PROTECTION, HARRISBURG, PA 

Mr. KRANCER. Sure. I appreciate it. First, it is an honor for me 

to be here in front of a couple of my home Congressmen. If you 

don’t mind, I am going to adopt Representative Goodlatte as my 

honorary home Congressman because I went to UVA and then I 

25

went to Washington and Lee. Judge Sweeney taught me trial practice and my classmate, Morgan Griffith, is now a colleague of one 

of yours. So we were really proud to send him to the United States 

Congress. 

Mr. GOODLATTE. We have a lot of ties that bind. 

Mr. KRANCER. Yes, we do. Anyway, again, thanks for having me. 

And I want to just hit on a couple of notes. You have seen my written testimony and I certainly can talk about that and I appreciate 

the opportunity for you to ask me questions. Congressman Goodlatte hit the nail on the head about the deadlines and about what 

is really driving this. And I know the regional Administrator had 

a little trouble grasping the concept. Apparently, his boss did not 

when she was in front of the whole Committee. This is a settlement 

agreement that is driving these immediate deadlines. These are 

self-imposed deadlines with friendly litigation partners. I think 

that was also pointed out by the Congressman. And I have pointed 

that out before and I talked about it in an article that appeared 

in the Altoona Mirror that I think you all have seen. But that is 

clearly the case. So let us make no bones about that. That is exactly what is happening. That is what is causing the rush to judgment; that is what is causing the cart before the horse that the 

Congressman has noted already. 

There was some discussion about farm inspections in Pennsylvania specifically. It is in my backyard so I am interested in that. 

And heavy-handedness, well, I think the heavy-handedness can go 

together, and I will give you a little snippet of what I am talking 

about. July 19 we had a press release from the EPA touting one 

of the farm inspections, and they said we have done these farm inspections, particularly dairy farms, and we found that there was 

widespread noncompliance with state regulations and extensive nutrient pathogenic contaminations of drinking water sources. Well, 

I considered that inflammatory. I considered that an attack on 

Pennsylvania farmers in a broad brush, and I also considered it insensitive and certainly overstated—certainly a lot of rhetoric there. 

But in any event I thought it was inappropriate. 

Congressman Goodlatte hit the nail on the head again with the 

regulation. Not a regulation? My foot it is not a regulation. It sure 

is a regulation and it should be on that list of regs that are costing 

billions of dollars. But the bottom line is if the states don’t dance 

to the tune, the nonscientific tune that is being set, there are backstops that will be imposed, penalties imposed from the Federal 

Government. So again the Congressman was exactly correct about 

that. 

I have talked about this in my written testimony and I was at 

the all-secretaries meeting; I was at the summit, whatever you 

want to call it, about the modeling; and until very recently, the October 5 letter in particular, we were not being responded to in any 

meaningful sense. We were given some—I would say lip service—

about the model but we were not being paid attention to and what 

I would call a bunker mentality was adopted by the EPA on this. 

The Virginia Pilot reported that where one of the highest EPA officials basically said get over it. Get on with it. Well, that was when 

we kept bringing these issues to the attention of the EPA, the scientific model issues which these are not political issues by the way. 

26

These span different Administrations. I inherited these technical 

questions and disputes with the EPA. So this is not a political issue 

in any way, shape, or form. It is a down and simple scientific issue. 

So I was encouraged by the October 5 letter for sure, but like I 

said in my testimony, we are going to have to wait and see. In my 

written testimony, we are going to have to wait and see whether 

that is additional placating or whether that is really serious effort 

at EPA to start paying attention. We are just going to have to see. 

At the end of the day, Congressmen, you all hit it on the head 

as well about the cost. I said in my written testimony we have to 

make sure that this is worth the price. We all want to clean up the 

Bay and we want to get it better. There is no question about that. 

My farmers, Virginia’s farmers, New York’s, everybody is committed to doing that, but we need to make sure that the bang we 

are getting for the buck is worth it and that we are not paying too 

much buck for too little bang as I say in the testimony. 

So with that, I am going to close and allow either questions or 

I don’t know what the agenda is to move on to the other witnesses 

first, whatever it is. 

[The prepared statement of Mr. Krancer follows:]

PREPARED STATEMENT OF HON. MICHAEL L. KRANCER, SECRETARY, PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL PROTECTION, HARRISBURG, PA 

Introduction 

Chairpersons Thompson and Holden and Members of the Subcommittee, thank 

you for the opportunity to appear before you to discuss Pennsylvania’s efforts to 

comply with the U.S. Environmental Protection Agency’s (EPA’s) expectations for 

the Chesapeake Bay Total Maximum Daily Load (TMDL), the Pennsylvania Phase 

II Chesapeake Watershed Implementation Plan (WIP) and their impacts on rural 

communities. 

Pennsylvania is committed to protecting and enhancing our streams and watersheds. The efforts here at home will in turn help in further restoring the Chesapeake Bay by 2025. Over the years significant progress has been made to reduce 

nitrogen and phosphorous pollution of local waters in Pennsylvania’s watersheds. 

According to EPA’s current watershed model, when compared to 1985, Pennsylvania 

has achieved 27% of the nitrogen reductions, 31% of the phosphorous reductions, 

and 50% of the sediment reductions needed to reach the 2025 restoration targets. 

This is real progress but more needs to be done. When compared to current 2010 

progress reported by the watershed model, Pennsylvania needs to achieve an additional 33.23 million pound reduction in nitrogen, 1.26 million pound reduction in 

phosphorous, and 524.4 million pound reduction in sediment by 2025. It should be 

noted that EPA’s watershed model can be a useful tool to help guide management 

actions and project their results. It is not, however, sufficiently precise to measure 

actual progress or lack thereof. It should not be used in a regulatory context to determine whether an enforcement action or other penalty is appropriate. 

Basic Statutory Background 

The Federal Clean Water Act requires states to assess their waterbodies to identify those not meeting water quality standards. If a waterbody is not meeting standards, it is listed as impaired and reported to the EPA. Chesapeake Bay tidal waters 

in Virginia, Maryland and the District of Columbia were listed as impaired by the 

states and EPA in 1998. The Act then requires development of a Total Maximum 

Daily Load (TMDL) for the pollutants that caused the water quality violations. A 

TMDL calculates the maximum amount of a specific pollutant that a waterbody can 

receive and still meet water quality standards. It also establishes a pollutant budget 

or ‘‘diet,’’ which allocates portions of the overall pollution load to the pollutant’s various sources. The Chesapeake Bay TMDL published by EPA on December 29, 2010 

establishes load allocations for nitrogen, phosphorus and total suspended solids 

based in part on Pennsylvania’s Chesapeake WIP. In the TMDL, EPA also established a TMDL accountability system, including the development of a Phase II 

Chesapeake WIP and 2 year milestones. Pennsylvania completed its Phase I WIP 

in December 2010 at the major river basin scale (e.g., Susquehanna). The draft 

27

Phase II WIP is due to EPA on December 15, 2011, and the final is due March 1, 

2011. 

Pennsylvania Success Stories 

Pennsylvania has a long history of success since it became active in Chesapeake 

Bay restoration activities in 1983. Much of this success is due to the support of 

Pennsylvania’s General Assembly and partnerships with the agricultural sector. 

This leadership derives from the Commonwealth’s set of agricultural stewardship 

firsts, including:

• The first Bay state to require mandatory farm nutrient management plans;

• The first Bay state to regulate nitrogen and phosphorus in its nutrient management program;

• The first EPA-approved regulatory program for concentrated animal feeding operations;

• The first Bay state to permanently preserve 20 percent (more than 3 million 

acres) of land in the watershed.

• The first Bay state to meet its goal to plant 3,736 miles of forest buffers by the 

year 2010. The state has planted a total of 3,894 miles of forest buffers along 

waterways since 2002; and

• Pennsylvania is home to the largest Conservation Resource Enhancement Program (CREP) in the entire nation. The CREP program delivers more than $50 

million in state and Federal assistance and targets key edge-of-stream BMPs 

to maximize water quality. 

Recent History With Respect To the Phase II Water Implementation Plan 

Process 

You are probably most interested in the most recent events regarding the Phase 

II WIP process as that is what has been the topic of most of the discussion and some 

very recent media attention in both Pennsylvania and Virginia. So, let me address 

that first. 

In EPA’s original March 2011 Phase II WIP guide, EPA expected each state to 

sub-divide its load allocations to a more local level in Phase II (e.g., county). As 

Pennsylvania and the Chesapeake watershed jurisdictions began to review Chesapeake Bay watershed model outputs at county levels, they determined that the 

model had serious technical deficiencies that do not provide full nutrient reduction 

credit for several nonpoint source Best Management Practices (BMPs). Moreover, 

EPA was intent on using the model in the Phase II WIP process as a metric to drive 

huge expenditures and determine compliance where the only proper role of any 

model would be as a prediction tool. 

Pennsylvania aired these technical concerns early on. We directed a letter dated 

May 26, 2011 to Administrator Jackson on this topic. (A copy of that letter is attached hereto as Exhibit A). EPA was dismissive of the technical concerns outlined. 

Pennsylvania and other states continued to air these technical concerns to EPA at 

a September 16, 2011 meeting of State Secretaries and Deputy Secretaries with the 

EPA Region III Regional Administrator. Again, EPA was dismissive saying basically 

to us ‘‘get over it’’ or ‘‘get beyond it’’. EPA’s public statements were similar. Indeed 

the Senior EPA Policy Advisor on the Chesapeake Bay dismissed without dealing 

with the technical points the states had been making by quipping in a Virginia 

newspaper article, ‘‘let’s get on with it.’’ (A copy of that article is attached hereto 

as Exhibit B). The issue proved hard for EPA to escape as public media attention 

rose as is evidenced by the Virginia newspaper article just mentioned and a front 

page article of the October 2, 2011 Altoona Mirror under the headline: ‘‘Krancer: 

EPA Is Rushing Bay Cleanup Regulations; Pennsylvania Experts Disagree With 

Agency’s’’. (A copy of the Altoona Mirror Article is attached as Exhibit C). 

I can report, though, that perhaps the persistence and the public media attention 

may have proven worthwhile. Right after the Altoona Mirror story ran, we received 

a letter from the Regional Administrator in which EPA, for the first time, recognizes 

that there are limitations to the application of the watershed model at a finer scale, 

and clarified its Phase II WIP guide to allow jurisdictions to submit watershed 

model input decks at the major basin (e.g., Susquehanna) scale. The letter also says 

that the model is one of several points by which EPA will measure the state’s performance. Also, EPA has modified to some degree the nature of what has to be in 

the Phase II WIP—EPA says that the Phase II WIPs don’t have to be so specific—

we can identify ‘‘local area targets’’ or actions that local areas can take to fulfill 

their contributions toward meeting Chesapeake goals. Further, EPA also said that 

‘‘common sense’’ will be used to assess progress by jurisdictions in developing their 

28

Phase II WIPs and achieving milestone commitments, and consider other tools and 

data besides the model. 

Time will tell whether EPA is serious or just placating, especially regarding the 

comment about using ‘‘common sense’’. We certainly still have disagreement with 

EPA on the nature of the model and what it should or can be used for. However, 

it does appear that, at least for the Phase II WIP process, we may now be able to 

proceed with that in an ‘‘agree to disagree’’ mode 

Ultimately, the jurisdictions and EPA have the same goal—to remove the Chesapeake Bay from the CWA list of impaired waters and to improve local water quality. 

As long as EPA uses a common sense approach, Pennsylvania will be continue to 

be a strong partner at the table. 

Having gotten you up to date, let me now go back a bit in history and explain 

how we got to where we are now which will give an opportunity for me to provide 

more details about the actual process. 

Phase I WIP Background 

In Pennsylvania, our Chesapeake watershed stakeholders were actively involved 

in the development of our Phase I WIP and were a major reason that we were able 

to draft the plan successfully. The Department of Environmental Protection (DEP) 

convened a Chesapeake WIP Management Team to guide the development of the 

WIP. Over 125 individuals participated in the Management Team and its three 

workgroups focusing on agriculture, development and wastewater issues. Pennsylvania submitted its draft Phase I WIP to EPA on schedule—September 1, 2010. 

DEP continued to work with EPA to refine the WIP through the end of December. 

While EPA praised Pennsylvania in a December 29, 2010 letter, ultimately, when 

EPA issued the Chesapeake Bay TMDL, they imposed enhanced oversight and potential actions for agriculture and wastewater, and a regulatory ‘‘backstop’’ for 

urban/suburban stormwater. 

Pennsylvania’s Phase I WIP included both nonpoint source and point source reduction strategies. The nonpoint source strategy included a long list of Best Management Practices (BMPs) submitted to EPA’s Chesapeake Bay watershed model. 

The point source component included the Point Source Compliance Strategy for 

wastewater treatment plants previously adopted in 2006. Because the point source 

strategy did not change, our Phase I WIP focus was to identify and develop the programs that support the implementation of non-point source BMPs to meet Pennsylvania’s TMDL allocation. 

Pennsylvania’s WIP is based on three themes. The first is Milestone Implementation & Tracking. EPA uses the Chesapeake Bay watershed model to measure state 

progress—but the watershed model only knows what is reported to it. We determined that there are many BMPs being installed voluntarily with no government 

funding that do not get reported to the model. DEP supported several pilot projects 

to get a handle on the unreported BMPs. For example, in Bradford County, it was 

determined that 85% of the no-till activities are not cost-shared or reported to the 

watershed model. The WIP includes several new initiatives to improve BMP reporting. 

Another key initiative is to promote the ‘‘Million Pound’’ project. The goal is to 

achieve a million pounds of nutrient reductions annually through grants and other 

funding sources. Pennsylvania Infrastructure Investment Authority (PENNVEST) 

funds are newly targeted to green initiatives and non-point source projects. Pennsylvania’s Growing Greener grants give special consideration for Chesapeake Bay 

nutrient reductions. 

The second theme of Pennsylvania’s WIP is Advanced Technology and Nutrient 

Trading. Pennsylvania has learned that harnessing market forces can be an effective way to achieve environmental regulatory goals at less expense than traditional 

command and control regulations. For example, in 2008, Fairview Township decided 

to use credits to meet its nutrient reduction obligation with a cost savings of approximately 75%. The Commonwealth has been leading the way nationally in developing its nutrient trading program. The program is one of the first programs in the 

country to have both nonpoint sources and point sources participating in a nutrient 

credit trading program. Pennsylvania’s program is also designed to be protective of 

the Chesapeake Bay by capping the amount of credits that can be annually traded. 

Pennsylvania has completed over ten nonpoint source to point source trades—

where farmers go above and beyond their compliance requirements to sell credits 

to wastewater treatment plants. DEP has certified 97 projects for credit generation. 

And PENNVEST now has a track record of successful auctions to buy and sell credits. PENNVEST completed two auctions in 2010 and has two auctions planned for 

2011. Auctions will continue next year and the years beyond. In addition to the day 

to day operation of the nutrient trading program, DEP is working with EPA Region 

29

3 as they complete programmatic reviews of offset and credit trading programs 

across the Chesapeake Bay watershed. DEP worked closely with EPA when developing Pennsylvania’s nutrient trading program, which EPA supported at the time. 

DEP can understand EPA’s desire to examine the Bay jurisdictions’ programs from 

a regional perspective. But Pennsylvania feels strongly that the Federal agency 

should respect the Bay jurisdictions’ programs that are working successfully toward 

the restoration and maintenance of the water quality of the Chesapeake Bay. 

Pennsylvania has promoted advanced technology projects by providing financing 

loans from PENNVEST. DEP has been working with the Department of Agriculture 

and a number of companies looking to install various technologies such as co-generation on dairy, poultry and hog operations. Many of these technologies can 

produce electricity and marketable soil amendments; reduce methane emissions; 

and generate renewable energy, nutrient reduction and carbon credits which can 

then be sold. Projects of this nature can support three priorities in the Chesapeake 

Bay region: maintaining a vibrant farming economy; restoring and protecting the 

water quality of Pennsylvania streams and the Chesapeake Bay; and providing crucial economic development benefits to rural businesses and communities. Manureto-energy projects are just the first of many promising technologies the Commonwealth supports that advance broad based environmental benefits. 

The third theme of Pennsylvania’s WIP is enhancing compliance efforts for wastewater treatment plants, agriculture and stormwater. Pennsylvania’s Point Source 

Strategy developed in December 2006 remains in place—and the Nutrient Trading 

Program provides an option for compliance. New funding from EPA will support 

compliance and inspection activities for our CAFO, stormwater and agriculture regulatory programs. For agriculture, for instance, each Pennsylvania conservation district will be required to undertake 100 farm visits in the first year. Over 4,000 farm 

operations will be notified of Pennsylvania’s existing environmental requirements. 

Phase II WIP 

On August 1, 2011, EPA issued revised TMDL planning targets for the Phase II 

WIPs based on a revised Chesapeake Bay watershed model. While the numbers look 

different from Pennsylvania’s 2010 TMDL allocations, they require the same level 

of effort as for the 2010 TMDL allocations. To facilitate local implementation of necessary reduction actions to meet the allocations, EPA directed the Chesapeake watershed states to sub-divide the reductions by local areas in the Phase II WIP. Pennsylvania chose to sub-divide loads at the county-level, as the EPA Chesapeake Bay 

watershed model is based in part on county level data. As discussed earlier in this 

testimony, that guide has since been clarified to allow jurisdictions to submit watershed model input decks at the major basin (e.g., Susquehanna) scale instead of more 

local areas. 

For the Phase II WIP, we need to build on local partnerships—those efforts going 

on in county conservation districts and municipalities that work to improve local 

stream water quality. Lancaster County’s Clean Water Consortium, Lycoming County’s Nutrient Trading Program, York County’s Integrated Water Resources Plan, 

and the Conewago Creek Watershed Initiative are examples of local people taking 

local action to restore local streams. 

On August 3, DEP convened a Phase II Chesapeake WIP Summit, our first major 

outreach to communicate to local stakeholders on what EPA expects for the Phase 

II WIP. On August 10, EPA held a Chesapeake Bay Model Workshop at the Rachel 

Carson State Office Building, to inform stakeholders on the models that are used 

to build our WIPs and measure our progress. 

DEP worked with its WIP Management Team and workgroups to develop draft 

goals at the county level throughout the Chesapeake watershed. We took the Draft 

WIP County Planning Target sheets to eight Regional County Workshops, starting 

October 13 through November 2, to ground truth them and receive feedback. 

Invitees to the workshops included county conservation district managers, county 

planning commission directors, and municipalities representing the PA League of 

Cities and Municipalities, PA State Association of Township Commissioners, PA 

State Association of Boroughs, and the PA State Association of Township Supervisors. However, anyone was welcome to attend and listen to the discussions. 

The county planning targets addressed only those loads that can be reduced by 

Best Management Practices (BMPs). This included both regulatory and non-regulatory loads for agriculture, stormwater and forest. Wastewater treatment plant 

point source reductions were not included because they were previously addressed 

by the 2006 Chesapeake Bay Compliance Strategy. The county planning targets 

were for planning purposes only, and do not become regulatory allocations at the 

county level. The identified Pollution Reduction Actions represented one scenario 

from the Chesapeake Bay watershed model that meets the reduction targets. There 

30

are other equally valid combinations of actions that could also meet the reduction 

target. With input from counties and municipalities, DEP will then prepare its Draft 

Phase II WIP watershed model input deck at the major basin scale for submission 

to EPA by December 15. 

Similar to the Phase I WIP, EPA will evaluate each state’s Phase II WIP. Should 

we meet EPA’s expectations, there is opportunity to have EPA remove the TMDL 

‘‘backstop’’ imposed on the urban stormwater sector. That backstop provided notice 

that EPA would consider expanding the Municipal Separate Storm Sewer Systems 

(MS4s) coverage in Pennsylvania’s Chesapeake watershed should we not make sufficient progress in reducing urban stormwater loads. If we do not meet EPA’s expectations, they could impose additional consequences. We are looking for EPA to bring 

its new ‘‘common sense’’ approach to evaluating the Phase II WIPs. 

Conclusion 

In your letter of invitation, you also asked for information on how Pennsylvania’s 

Chesapeake WIP will impact its rural communities. Attached to this testimony is 

a detailed summary of Pennsylvania’s progress to implement agricultural activities 

identified in the Phase I WIP. These activities include funding for County Conservation District technical staff and BMP implementation from several of sources: Pennsylvania General Fund, PENNVEST, EPA’s Chesapeake Bay Program, and USDA 

Natural Resources and Conservation Service. In addition, the WIP also includes a 

basin-wide component to achieve agricultural regulatory compliance. The Federal 

EPA has certainly focused on the Chesapeake Bay as a priority item for attention. 

In some cases this has resulted in unfunded mandates to the states. 

We all share the core desire to keep up the progress on making the Bay even 

cleaner than it is now. While doing so, we do need to be mindful of how we are going 

to pay for this progress and what it is we are paying for. We need to be mindful 

of using available funds in an efficient and cost-effective manner so that we get the 

most ‘‘bang for the buck’’ that we can and avoid spending a lot of ‘‘bucks’’ for very 

little ‘‘bang’’. We also believe that it is important that the Federal Government ‘‘put 

its money where its mouth is’’ and if it is going to prioritize the Chesapeake Bay 

program, to appropriately also prioritize it among the competing voices for the pool 

of Federal funding that is available to bring to the effort. 

ATTACHMENT

PA Chesapeake Bay Watershed Implementation Plan 

Agricultural Section—Strategy to Fill Gaps 

Update September 2011

Non-Regulatory Efforts 

Chesapeake Bay Implementation Grant Special Projects Funding:

• DEP targeted priority practices (stream bank restoration/riparian buffers, fencing, manure storages/barnyard practices, cover crops/no-till, nutrient management/E&S plans) and priority watersheds. DEP awarded 46 projects to conservation districts for a total of $800,492.95. Of the 46 projects, 41 were awarded for priority activities including 17 projects for nutrient management/conservation plans, six for fencing and four for cover crops/no-till planting. Of the 

other five—less than 10% of the funds were awarded—two supported on-going 

staffing commitments and three were for additional outreach activities. In addition, all but two of these 46 projects were in the targeted watersheds. These 

two supported (1) a county-wide outreach effort in Bradford and (2) on-going 

staffing commitment in Susquehanna County

Chesapeake Bay Implementation Grant Technician/Engineer Funding:

• DEP revised the technician contracts for 2011–2012 to include specific tasks to 

expand the compliance assistance outreach for agriculture. The scope of work 

in these technician contracts required staff to spend a portion of their time contacting farms in their county to ensure all farm operators are aware of their 

responsibilities under PA erosion and sedimentation control regulations and the 

Manure Management Manual.

Agricultural Conservation Technician Funding:

• PA Department of Agriculture, through the State Conservation Commission, 

provided ongoing cost-share funding $527,000 in FY 2011–12 for Agricultural 

Conservation Technicians (ACT) in the CB watershed to provide technical assistance to farmers.

31

REAP Conservation Tax Credits:

• The State Conservation Commission in FY 2011–12 allocated more than $6 million (out of $10 million available) in REAP state tax credits to farmers for conservation BMPs, no-till planters, no-till drills and low disturbance manure incorporation equipment.

PENNVEST Non-Point Source Funding:

• On July 20, 2011, PENNVEST approved over $1.9 million for six projects to address agricultural non-point source pollution. All six are in Lancaster County 

and will reduce nutrient runoff into local streams and the Chesapeake Bay watershed. The specific projects were:

» A $163,213 grant to construct a manure storage facility at a poultry operation in Paradise Township.

» A $573,188 grant to construct a manure storage facility at a farm in Ephrata 

Township.

» A $176,210 grant to construct a manure storage facility at a farm in Mount 

Joy Township.

» A $157,534 grant to construct manure litter storage shed at a poultry operation in Strasburg Township.

» A $657,050 grant to construct manure composting facility as well as an infiltration basin at a farm in Drumore Township.

» A $212,056 grant to construct a manure storage facility and make other improvements at a second farm in Strasburg Township.

• On April 20, 2011, PENNVEST approved five projects to address agricultural 

non-point source pollution. Three of the projects ($1.069 million) were in the 

Chesapeake Bay watershed in Lancaster and Montour Counties. The specific 

projects were:

» $425,397 grant to construct various manure-control facilities at a dairy and 

poultry operation in West Lampeter Township that will reduce nutrient runoff into Pequea Creek in Lancaster County.

» $148,802 grant to construct manure-control facilities at a poultry farm in 

Strasburg Township, where nutrient runoff during wet weather is contaminating Big Beaver Creek in Lancaster County.

» Montour County Conservation District received a $495,000 grant to install 

manure and animal control facilities at two livestock farms where there is significant nutrient runoff into Mahoning Creek, Beaver Run and ultimately the 

Chesapeake Bay.

• On April 1, the PA Association of Conservation Districts hired Paul Herzer as 

the Non-Point Source Application Developer (AKA ‘‘NPS Circuit Rider’’) to assist county conservation districts, watershed groups, environmental groups, municipalities and DEP Regional Offices with the PENNVEST application process. 

Funding for this position was awarded by DEP to PACD from the EPA Section 

319 grant funds.

• PENNVEST announced the second round of nutrient credit trading auctions. 

These auctions will be held on November 2 and November 9, 2011. The Pennsylvania Infrastructure Investment Authority (PENNVEST), working in conjunction with the Department of Environmental Protection (DEP), will be hosting 

auctions for the sale and purchase of nutrient credits in the Susquehanna and 

Potomac watersheds to be conducted this fall. There will be two ‘‘spot’’ auctions 

of verified credits, applicable to the 2011 compliance year (i.e., October 1, 2010–

September 30, 2011). Both auctions will afford wastewater treatment plants in 

these two watersheds to purchase credits as a means of meeting their nitrogen 

and phosphorous discharge limits for the compliance year.

NRCS Financial Assistance—In Federal FY 2010, the NRCS provided more than 

$37 million in technical and financial assistance to Pennsylvania farmers in the CB 

watershed for the installation of best management practices through their CB Watershed Initiative (CBWI) and the Environmental Quality Incentive Program 

(EQIP). 

NRCS Training for Field Staff:

• NRCS, working with Penn State, developed the AG 101: Understanding PA 

Farm Operations online sessions that explore the many facets of farm types, 

operations management, economics, social aspects, and environmental considerVerDate 0ct 09 2002 15:00 Feb 14, 2012 Jkt 041481 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 I:\DOCS\112-26\71237.TXT BRIAN
32

ations. The ‘‘winter burst’’ and ‘‘summer burst’’ of the series were held in 2011 

and looked at what Pennsylvania agricultural producers manage as they grow 

food, fiber, and fuel. AG 101 was developed to enhance the work of conservation 

practitioners who are on the front lines supporting producers in choosing, planning, and implementing the best management practices that preserve soil, 

water, and air quality. AG 101 was jointly developed and sponsored by Penn 

State Cooperative Extension, SCC and the Pennsylvania Natural Resources 

Conservation Service in collaboration with PennAg Industries and the Pennsylvania Farm Bureau.

• NRCS, in cooperation with various partners, continues to provide annual training (1 week, intensive classroom and field experience) to approximately 50 entry 

level agricultural conservation technicians and conservation planners that work 

with farmers to plan and implement BMPs.

Legacy Sediment BMP:

• DEP is cooperating with Robert Walter and Dorothy Merritts of Franklin and 

Marshall College in the development of a new BMP often referred to as Legacy 

Sediment. The Chesapeake Bay watershed model focuses largely on modern 

land use, particularly agriculture and construction, as the dominant sources of 

high suspended sediment and nutrient loads. Research by Walter and Merritts 

documents, however, that historic sediment and associated nutrients eroded 

from the stream corridor upstream of breached millponds are also an important 

component of the total load in modern streams. Results show that stream corridor and streambank erosion is a major contributor to the suspended sediment 

and particulate—phosphorus loads carried by many streams, and that minor, 

but substantial, nitrogen loads are released as well. DEP’s Legacy Sediment 

Workgroup developed the new Natural Floodplain, Stream, and Riparian Wetland Restoration BMP that addresses aquatic resources impaired by legacy sediment in 2008. Current activity is focused on establishing nutrient and sediment 

reduction efficiencies for the BMP so it can be included in the Chesapeake Bay 

watershed model. A demonstration project is underway in the Big Spring Run 

Basin in Lancaster County. The project involves approximately 5 acres of natural floodplain and riparian wetland restoration and 3,200 feet of natural 

stream restoration. The BMP implementation is supported by a funding partnership of DEP, Chesapeake Bay Commission, private landowner owner, Suburban Lancaster Sewer Authority, Foundation for Pennsylvania Watersheds, and 

Pennsylvania Environmental Council. 

Regulatory Efforts 

Continue Existing Regulatory Programs:

• DEP, in cooperation with a number of agricultural agencies and organizations 

expanded outreach to ag community to increase compliance with Chapter 102 

and manure management requirements. Chapter 102 regulations which in part 

regulate all agricultural operations that plow and till, were updated late in 

2010. A revised PA Manure Management Manual was updated and recently released for use.

• Prepared ‘‘Am I in Compliance’’ brochure with distribution of ∼20,000 copies 

since January 2011. Prepared ‘‘Ag E&S Barn sheet’’ for use in conservation district 100 site visits.

• Three training sessions held in conjunction with NRCS, State Conservation 

Commission (SCC) and PACD on February 24, March 2 and March 10 for about 

200 people. The training was aimed at staff from USDA Natural Resources Conservation Service (NRCS), PA Department of Environmental Protection (DEP), 

and Conservation Districts who are involved in agricultural erosion and sediment control plans and conservation planning. Speakers from NRCS, SCC and 

DEP answered the question: what is an Agricultural Erosion & Sedimentation 

Plan? A detailed review of the Chapter 102.4(a) requirements will be explained. 

Examples of the requirements for Ag E&S plans are: maps, treatment of animal 

heavy use areas, near stream cover requirements, and tolerable soil loss conditions for crop fields.

» PA SCC continued its oversight of the PA NM Program (Act 38) that requires 

that CAFOs and CAOs to development and implement an approved PA NM 

Plan for their operations. The SCC provided approximately $1.7 million to 

fund NM technicians in county conservation districts within the CB watershed in FY 2011–12.

33

» PA Department of Agriculture, in cooperation with the SCC, continued certification programs for Certified NM Specialist (approximately 350 persons), 

Certified Manure Haulers and Brokers (approximately 925 persons) and Certified Odor Management Specialists (approximately 23 persons), providing 

more than 200 days of classroom and field based training annually to certified 

specialist in Pennsylvania.

Evaluate and Modify Regulatory Tools—Chapter 102 Regulations:

• In July 2011, NRCS developed the ‘‘Conservation Planning and Regulatory 

Compliance Handbook’’ for NRCS staff. This guidance referenced Pennsylvania’s 

Chapter 102 regulations and provided tools and guidance for NRCS staff involved in conservation planning that addresses the requirements for Ag E&S. 

Guidance does not implement Pennsylvania’s regulatory program, but provides 

guidance as to what requirements are found in Pennsylvania and how this 

interfaces with NRCS conservation planning activities.

Evaluate and Modify Regulatory Tools—Manure Management Manual:

• In 2011, DEP, in cooperation with SCC, PDA, NRCS and Penn State Cooperative Extension developed revisions to the Manure Management Manual. Final 

revisions were presented to DEP’s Agricultural Advisory Board in June. Manual 

was released for use in late October as a PA DEP Technical Guidance Document.

Basin-wide Component to Achieve Agricultural Regulatory Compliance:

• In 2011, DEP continued revise delegation agreements with county conservation 

districts.

• In 2011, DEP continued development of ‘‘Model Agricultural Compliance Policy.’’ A preliminary draft has been developed and given a cursory review by 

DEP’s Bay Ag Water Quality Initiative Workgroup. Revisions are on-going with 

additional review by county conservation districts and others, in anticipation of 

presentation at ‘‘All Bay Meeting’’ in January 2012. On-target to meet roll-out 

in July 2012.

• In 2011, DEP revised the conservation district Bay technician contracts for 

2011–2012 to include specific tasks to expand outreach for agriculture. The 

scope of work in these technician contracts required these 42 staff to undertake 

100 site visits per staff person—or equivalent staff person—and DEP expects 

over 4,000 site visits by June 2012. Over 200 were conducted by September 

2011. In addition, each Bay conservation district was requested to submit a 

plan that identifies how each district will engage all farms in this regulatory 

outreach. These plans are required to be submitted in October 2011. Significant 

training of staff via webinar and supplies of outreach material were provided. 

DEP press release was made and significant positive press coverage was received.

• In 2011, DEP received $2.466 million from EPA via the Chesapeake Bay Regulatory and Accountability Program (CBRAP) grant. DEP used these funds to, 

among other things, support five new DEP staff positions. In March 2011, four 

of these staff were hired. (The 5th position is not yet hired, due to DEP difficulty in hiring this one staff position.) One staff position was in Harrisburg 

and has been engaged in development of the Manure Management Manual and 

the CAFO General Permit. Two staff positions were hired for the Southcentral 

Regional Office and have been engaged in compliance inspections. One position 

was hired in the Northcentral Regional Office and has been engaged in compliance inspections and regulatory outreach activities.

• WIP indicates ‘‘Conservation District Chesapeake Bay staff can address 18,000 

farm operations—about half of the farms in the watershed—and inform them 

about compliance with their regulatory requirements.’’ In 2011, DEP expects 

over 4,000 site visits will be made by these staff. Outreach plans for these conservation districts are expected to be available by December 2011 indicating 

how all 40,000 farm operations will be addressed by 2015. 

EXHIBIT A 

May 26, 2011

Hon. LISA JACKSON,

Administrator,

U.S. Environmental Protection Agency 

Washington, D.C.

34

Dear Lisa Jackson:

Thank you for your letter to Governor Corbett of April 7, 2011, stating recognition 

and support for Pennsylvania’s Chesapeake Bay Total Maximum Daily Load 

(TMDL) Watershed Implementation Plan. Pennsylvania shares the goal of restoring 

and protecting the Chesapeake Bay and has long recognized our role in the restoration and protection of this national asset. The Pennsylvania Department of Environmental Protection (PADEP) and I appreciate the acknowledgment from EPA. 

I would like to take this opportunity to reach out to you directly to request your 

assistance in needed additional work between our agencies related to urban 

stormwater management. While we share the same Chesapeake Bay clean up goals, 

Pennsylvania is concerned with aspects of the TMDL issued by EPA in December 

2010, and the application of the Chesapeake Bay Watershed TMDL model to the 

municipal stormwater sector in particular. We do not think EPA’s approach to this 

sector will achieve the goals even if the municipalities could implement and afford 

it, which they cannot. The urban stormwater sector is identified as contributing only 

approximately 6% of the problematic load. EPA contractors have estimated that it 

will cost municipalities $5.3 billion to address the problem. This extraordinary cost 

is simply not reasonable, not cost effective and not likely to result in significant 

needed environmental gains and comes at a time when local governments are in significant economic distress. 

You should be aware that Pennsylvania has serious concerns regarding the 

Chesapeake Bay Watershed TMDL model EPA is using. Put simply, we do not think 

the application of the model to Pennsylvania MS4 permits is scientifically or technically appropriate. The model projects loads based upon very gross inputs. The 

model does not reflect conditions at the local level for purposes of predicting specific 

local load reductions to be included in individual permits, and was not developed 

for such a use. Additionally, there are specific problems related to the urban 

stormwater sector based upon what we know to be inaccurate inputs and information related to stormwater management in Pennsylvania. For example, mining impacts are currently included in the urban stormwater sector of the model. Likewise, 

according to the U.S. Geological Survey (USGS), there can be up to 15% error in 

the accuracy of the monitoring data used to calibrate the model itself. This variability at the gross level is magnified as you try to apply it at finer and finer levels. 

Pennsylvania has articulated these reservations to EPA for quite some time, and 

has been frustrated with the lack of collaborative dialogue on these issues. Our professional staff are the experts on Pennsylvania waters, Pennsylvania land uses and 

regulatory programs. PADEP is in the process of collecting the information we believe to be critical to making the model results more reflective of on-the-ground construction, post construction and MS4 BMP implementation in Pennsylvania, and is 

also working with the National Association of Conservation Districts, other states 

and NRCS to determine how to better capture the full spectrum of agriculture 

BMPs for credit in the model. PADEP would welcome the opportunity to work more 

closely with EPA as a partner and resource in improving the accuracy of the model 

results for these sectors. 

Pennsylvania has also been very concerned about EPA Region III’s request to include specific numeric reductions extrapolated from the boundary TMDL in the 218 

Pennsylvania Chesapeake Bay MS4 permits. This is technically unsupportable and 

unsustainable. Apart from the concerns about the reliability of the model, inclusion 

of percent reductions extrapolated from the boundary TMDL is scientifically problematic because the scale of the Chesapeake Bay Watershed TMDL model is basinbased at a county and larger level and is not readily transferable or defensible as 

applied at the smaller scale, such as townships or boroughs which are the vast majority of Pennsylvania small regulated MS4s. 

Further, while Pennsylvania appreciates the flexibility and collaboration you reference in your April 7, 2011, letter with regard to the approach to agriculture, 

PADEP and our municipality stakeholders have been frustrated with EPA’s continued failure to acknowledge the challenge of Pennsylvania’s unique municipal structure—which results in Pennsylvania having more regulated Municipal Separate 

Storm Sewer Systems (MS4s) than any other state and 1⁄6 of the nation’s total with 

nearly 1,000 as of the 2000 Census. PADEP has also been further disheartened and 

frustrated by the lack of support and acknowledgement by EPA of Pennsylvania’s 

strong stormwater management program. 

Unfortunately, with regard to the urban stormwater sector, Pennsylvania does not 

agree the TMDL development effort has been collaborative. But we do remain hopeful that such collaboration is possible. An important consideration we believe EPA 

needs to recognize is Pennsylvania’s recently finalized stormwater regulations which 

require post construction stormwater best management practices be implemented 

35

and maintained when a land development project disturbs one or more acres of 

land—regardless of whether the project is located in a regulated MS4 area. Implementation of these regulations on average results in significantly less pollutants 

being discharged to Pennsylvania waters and ultimately the Bay than is contemplated in the Chesapeake Bay model. We are confident that significant pollutant 

reductions to the Bay will continue to be realized through the ongoing implementation of our stormwater management programs. 

Toward that end PADEP would like to engage EPA in a fundamental way regarding the Federal MS4 program, as well as the implementation of the Chesapeake Bay 

TMDL in the urban stormwater sector in Pennsylvania. 

Pennsylvania’s program is effective in part because it is not constrained to the artificial—and unworkable—‘‘point source’’ regulatory framework. The legal authority 

for Pennsylvania’s strong stormwater program is based upon our state anti-degradation program and state stormwater management laws and regulations. Pennsylvania’s program works because it recognizes changes from land development, to the 

volume, rate and quality of overland stormwater flow, are by definition different 

from traditional continuous flow end of pipe point source discharges. The variable 

nature of wet weather driven stormwater discharges and the regulation of change 

in those stormwater flows requires a distinct regulatory program that is based upon 

and supports a best management practice approach. The limitations of the traditional ‘‘point source’’ framework that is well suited to end-of-pipe controls does not 

translate effectively to the regulation of pollution associated with changes in 

stormwater associated with land development activities. 

We will continue to lead, as we have, not only to restore and reclaim the Chesapeake Bay, but to protect and maintain Pennsylvania’s water resources which are 

among the most significant assets of the Commonwealth. 

I appreciate your letter and would like the opportunity to have PADEP staff sit 

down with Mr. Corbin and provide our perspective on what works in Pennsylvania, 

and how Pennsylvania’s program can serve as a model for improvements to the national program. 

If you have any questions, please contact Margaret Murphy, Assistant Counsel, 

by e-mail at [Redacted] or by telephone at [Redacted]. 

Sincerely,

Hon. MICHAEL L. KRANCER,

Secretary.

CC:

U.S. Senator ROBERT P. CASEY, JR.; 

U.S. Senator PATRICK J. TOOMEY, SR.; 

U.S. Representative ROBERT A. BRADY; 

U.S. Representative CHAKA FATTAH; 

U.S. Representative GEORGE JOSEPH KELLY, JR.; 

U.S. Representative JASON ALTMIRE; 

U.S. Representative GLENN THOMPSON; 

U.S. Representative JAMES GERLACH; 

U.S. Representative PATRICK LEO MEEHAN; 

U.S. Representative MICHAEL G. FITZPATRICK; 

U.S. Representative WILLIAM SHUSTER; 

U.S. Representative THOMAS ANTHONY MARINO; 

U.S. Representative LOUIS J. BARLETTA; 

U.S. Representative MARK S. CRITZ; 

U.S. Representative ALLYSON YOUNG SCHWARTZ; 

U.S. Representative MICHAEL F. DOYLE; 

U.S. Representative CHARLES DENT; 

U.S. Representative JOSEPH R. PITTS; 

U.S. Representative THOMAS TIMOTHY HOLDEN; 

U.S. Representative TIMOTHY F. MURPHY; 

U.S. Representative TODD RUSSELL PLATTS. 

EXHIBIT B 

Published on HamptonRoads.com PilotOnline.com (http://hamptonroads.com) 

Scott Harper, (757) 446–2340, scott.harper@pilotonline.com


11226001.eps
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New model for Bay cleanup muddies goals, cities say 

For 2 decades now, the Chesapeake Bay cleanup has been guided largely by a 

computer model. Housed in Maryland, it spits out targets and forecasts and helps 

officials set goals for what should be done to restore North America’s largest estuary. 

The states involved in the celebrated cleanup, including Virginia, have a say in 

how the model works and help set its guidelines, but its operation falls mainly to 

the U.S. Environmental Protection Agency. 

How the modeling is done, and what data are fed into the computer, have been 

bones of contention for years. Today, they are central to pending lawsuits from 

farmers and developers who argue that an aggressive push from the Obama Administration is based partially on flawed, incomplete science and should be stopped. 

Now another wrinkle has surfaced. 

Virginia and several other states—including Maryland, Pennsylvania and Delaware—are complaining that a newly tweaked version of the model, known as 5.3.2, 

is leading to some weird and incomprehensible results for what local governments 

are expected to accomplish in the coming years to dramatically improve water quality by 2025. 

In James City County, for example, data stemming from the previous model urged 

the county near Williamsburg to reduce nitrogen from farms, streets, storm drains 

and development sites by 8 percent, phosphorus by 11 percent and sediment by 20 

percent. The guidance worried local officials, unsure how they would pay for environmental improvements and controls to hit those targets. 

However, computer runs performed by the state using the new model prescribe 

something completely different: no reductions needed for nitrogen, and a 20 percent 

surplus of phosphorus and a 350 percent cushion for sediment. 

In short, on paper the county went from a polluter to one that doesn’t have to 

do anything. 

While the James City County discrepancies are extreme—new data show that 

most Virginia localities have to do more, not less, to help save the Bay—state and 

local officials face a quandary: How exactly to proceed in the face of changing targets? 

‘‘What do we say to our localities? ‘Well, we think that these practices we are asking you to implement might help you reach your goal, but we really don’t know what 

that goal is and we aren’t sure the money you spend to implement these practices 

will make any difference?’ ’’ said Doug Domenech, Virginia’s secretary of natural resources, Gov. Bob McDonnell’s top environmental official. 

The EPA, environmentalists and some scientists concede that the modeling is imperfect and will continue to be updated and improved. But they also say the states 

are not required to be so precise in their calculations, and that no one asked them 

to break down data county by county, pound by pound of pollutants, for what they 

need to do to help the effort. 

The model, they add, is not designed to be so specific and its main strength is 

defining what states must do river by river. 

‘‘They’re getting down into the weeds, and we’re telling them they don’t need to 

go there,’’ said Jeff Corbin, the EPA’s senior adviser on the Chesapeake Bay. ‘‘Use 

common sense. Let’s get on with it.’’

Carl Hershner, a scientist at the Virginia Institute of Marine Science, said model 

critics are missing the point of the new push to get serious about restoring the Bay. 

‘‘None of this stuff should impede the planning for what everyone knows is needed 

to be done,’’ Hershner said. ‘‘We need to better control nutrients entering the Bay, 

and every state, county and city has to help do that.’’

The two main nutrients, nitrogen and phosphorus, are good for the Bay in proper 

amounts. But in excess, as today, they spark algae blooms that rob oxygen from 

water, making life difficult for aquatic life. Sediment that washes off the land clouds 

water quality, shallows creeks and rivers, and smothers key underwater grasses. 

In settling a lawsuit years ago, the EPA pledged to clean up the Bay enough to 

remove it from a national list of dirty waters. In December, the EPA and its partner 

states agreed to a pollution diet, or TMDL, short for Total Maximum Daily Load, 

to achieve this goal. 

The diet, which the computer model helped to define, called on Bay states to reduce nutrients and sediments through various means and to implement those improvements by 2025, with 60 percent of them complete by 2017. Virginia estimates 

its part of the deal could cost as much as $8 billion. 

Amid economic woes and lean budgets, officials in the McDonnell Administration 

say they have to be precise in how they spend such money, and that the computer 

model or any other tool should help guide where to get the biggest bang for the 

buck. 

37

If the model is not precise enough to tell localities what they need to do without 

fear of penalty from the EPA, it should be refined to do so before moving forward, 

state environmental officials say. 

‘‘Dealing with numbers like this is just ridiculous when you’re trying to put together a plan that the EPA will hold you accountable for,’’ said Anthony Moore, an 

assistant secretary of natural resources overseeing Bay issues. 

Moore and other senior officials from concerned states met with EPA leaders at 

a ‘‘modeling summit’’ last month. Chiefly, the states complained that many computer problems stem from calculating the impact of farm pollution. 

One of the primary strategies for curbing fertilizer runoff from agriculture is implementing nutrient management plans on farms. But in many cases, the new 

model shows that such plans increase nitrogen and phosphorus pollution, not reduce 

it, Moore said. 

In response, the EPA’s regional director, Shawn Garvin, sent a letter to Virginia 

and other states that attended the summit. Garvin wrote that the EPA will correct 

its model but that the states should continue writing their plans reflecting how local 

governments will contribute to the effort. The plans are due Dec. 15. 

Garvin also stressed that state calculations based on the new model do not have 

to be so specific. 

‘‘EPA does not expect the jurisdictions to express the ‘local area targets’ in

terms . . . such as pounds of pollutant reductions by county,’’ he wrote. 

Instead, Garvin added, the next round of state plans ‘‘could identify ‘targets’ or 

actions that local and Federal partners would take to fulfill their contribution toward meeting the Chesapeake Bay TMDL allocations.’’

Virginia officials, while disappointed, said they will press on, though they worry 

local governments may balk at committing to pollution cuts amid shifting targets. 

John Carlock, an environmental specialist with the Hampton Roads Planning District Commission, which represents local governments across the region, described 

the changing models as ‘‘extremely frustrating for everyone.’’

The commission had serious problems with the previous model and threatened to 

challenge its recommendations in court. 

‘‘The states and the EPA are coming to the conclusion that the model works pretty 

well at the state level, OK at the river basin level, but not so good at the local 

level,’’ Carlock said. ‘‘We absolutely need more consistency.’’

Source URL (retrieved on 10/28/2011—14:24): http://hamptonroads.com/

2011/10/new-model-bay-cleanup-muddies-goals-cities-say. 

EXHIBIT C 

THE ALTOONA MIRROR

Krancer: EPA is rushing bay cleanup regulations 

Pennsylvania experts disagree with agency’s 

October 2, 2011

By William Kibler (bkibler@altoonamirror.com)

State Department of Environmental Protection Secretary Michael Krancer is in a 

rush to develop Marcellus Shale gas in Pennsylvania, despite environmental concerns, according to local environmentalist Stan Kotala. 

But Krancer wants to slow what he thinks is a Federal rush to put regulations 

in place to clean up Chesapeake Bay. 

‘‘We do not see eye-to-eye about the scientific validity of the models used to drive 

all these costly decisions,’’ Krancer said of his department and the Federal Environmental Protection Agency. 

The model has ‘‘serious flaws,’’ he said, and Pennsylvania’s technical experts disagree with EPA’s. 

The EPA has ‘‘turned a deaf ear’’ to those misgivings, and the regulatory process 

is ‘‘moving quickly,’’ despite the misgivings, he said. 

‘‘We want to get the Bay clean,’’ he said. ‘‘But we don’t want to rush to judgment’’—given the big investments, he said. 

He doesn’t have as much of a problem with Bay regulations already in place, but 

he doesn’t have much confidence in regulations that may be in the works. 

It would be a ‘‘very embarrassing situation’’ if the state and communities within 

it spend a collective billion dollars only to learn a few years later that the regulations had missed their target, he said. 

‘‘We should be driven by sound science, not litigation deadlines,’’ he said. 

The EPA disputes Krancer’s interpretation. In a statement released by the EPA 

Mid-Atlantic Region office, an official said, ‘‘EPA’s focus, and our role, is to hold 

38

states accountable for the commitments they have made. Despite the comments 

made by Secretary Krancer, we are sure they plan to live up to those commitments.’’

States, including Pennsylvania, have developed implementation plans with a series of individual steps that will protect the Bay. 

The EPA determines how much of various pollutants the Bay can handle from the 

rivers that drain the states in the watershed, then allocates total maximum daily 

loads for those pollutants for each state. 

The agency believes things will work out if the state just follows the program. 

Kotala said he generally thinks the EPA’s plan to protect the Chesapeake has 

been appropriate. 

Pennsylvania itself also has taken ‘‘some fantastic steps,’’ he said. 

Most notably is state Rep. Jerry Stern’s Resource Enhancement and Protection 

Program, which helps farmers implement best-management practices to avoid 

stream pollution, Kotala said. 

Unfortunately, the program has endured significant cuts, he said.

The CHAIRMAN. All right. Thanks, Mr. Secretary. 

We will have testimony from all the witnesses and then we will 

open up for some questioning. 

Chairman Brubaker, good to see you again. Thanks for coming 

down to testify and the floor is all yours. 

STATEMENT OF HON. MICHAEL BRUBAKER, CHAIRMAN, 

CHESAPEAKE BAY COMMISSION; SENATOR,

COMMONWEALTH OF PENNSYLVANIA, ANNAPOLIS, MD 

Mr. BRUBAKER. Well, thank you, Mr. Chairman. 

Good morning, Chairman Thompson, Ranking Member Holden, 

and Chairman Goodlatte. And I want to say it is very nice to see 

you. 

My name is Mike Brubaker. I am an agronomist—that is a plant 

and soil scientist—and I have practiced for 25 years and have written many nutrient management plans. But after serving as CEO 

of multiple private sector agricultural consulting firms that operated frankly in each of your states, I now serve as a Pennsylvania 

State Senator representing the 36th Senatorial Districts, which 

covers parts of Lancaster and Chester Counties. I am also honored 

to serve this year as Chairman of the Chesapeake Bay Commission, which is a tri-state legislative commission representing the 

General Assemblies of Pennsylvania, Maryland, and Virginia on 

matters of Bay-wide concerns. The Commission is now in its 31st 

year and predates the Bay program, of which we are a member. 

Over the years, the Commission has witnessed the evolution of 

Bay restoration efforts from the first gathering of a few Congressmen and state legislators to the current effort which is dominated 

by the TMDL. The TMDL, while ambitious, is ultimately about 

clean water. So if clean water is important, and I believe that it 

is, then the question is not whether we should move forward or not 

but how can we best move forward to support implementation in 

a time of challenging budgets and a struggling economy and how 

can we implement it fairly? And I have three responses to that 

statement. 

One is numeric goals, two is partnerships, and three is innovation. On numeric goals, we have the numbers on the TMDL but 

then our states, our municipalities, and our farmers should be 

given a certain amount of flexibility in how we reach those numbers. The WIP process can allow for that flexibility both in our initial decision-making and our ability to adapt as new information 

becomes available. 

39

Second, we need to strengthen our partnerships across all of government. In fact, I would argue it is even more important now to 

do it than ever before. Under the Phase II WIPs, the important role 

of local partners is being acknowledged and enhanced. After all, at 

the local level is where implementation ultimately occurs. And Congressman Goodlatte has been focusing on that. 

However, this should not mean that the buck merely is being 

passed down the chain. Each level and branch of government has 

an important role to play in support of the common goal. Both 

states and the Federal Governments can support local efforts 

through financial incentives and technical assistance that allow for 

flexibility. At the Federal level in particular, USDA conservation 

programs including technical assistance remain the single biggest 

source of support for implementation of nonpoint source best management practices. Programs offered nationwide such as EQIP and 

the Regional Chesapeake Bay Watershed Initiative Program have 

been a critical source of support for our farmers. 

Congressman Holden and Congressman Goodlatte and other 

Members of this House Agriculture Subcommittee were instrumental in the establishment of the CBWI, which has allowed agricultural communities to make some of the most significant progress 

of any sector in the watershed. That kind of progress can only continue with your support. 

It is a combination of cost-sharing and technical assistance that 

will lead us to lasting success. Federal cost-share dollars are leveraged through word-of-mouth and changing acceptance of what constitutes normal practices within the agricultural community itself, 

the kind of system change that comes through active participation 

of the local technical assistance providers. 

Third, innovation—as a state legislator, I understand the current 

budget situation that our states and the Federal Government are 

facing. I know that I cannot limit my remarks to a mere request 

for funding dollars. Instead, I want to acknowledge the important 

role of innovation—both innovative technologies and innovative 

funding programs—in making our limited dollars work more effectively. Innovation has provided some of the greatest strides in nutrient and sediment reductions to date. Example: phosphate-free 

detergents; phytase, a feed additive for poultry; and no-till are all 

examples of gains that have been made inside this watershed 

through innovation. 

Now, emerging technologies promise future gains. Precision agriculture, GPS technologies, and manure-to-energy technologies are 

just a few examples. These practices produce benefits for the environment and for the farmers’ bottom line, benefits that could help 

redefine sustainable agriculture. But we currently lack the technical assistance and the verification mechanisms needed to get onthe-ground practices tracked accurately. Without them, we have a 

lost opportunity. 

When it comes to funding, we can be innovative by moving away 

from a single-focused program and instead give priorities to 

projects that achieve multiple goals such as manure-to-energy. 

I see my time has expired, so I look forward to your question and 

answers later on. 

[The prepared statement of Mr. Brubaker follows:]

40

PREPARED STATEMENT OF HON. MICHAEL BRUBAKER, CHAIRMAN, CHESAPEAKE BAY

COMMISSION; SENATOR, COMMONWEALTH OF PENNSYLVANIA, ANNAPOLIS, MD 

Good morning, Chairman Thompson, Ranking Member Holden, and Members of 

the Subcommittee. Thank you for the opportunity to present my testimony before 

you today. 

My name is Mike Brubaker. I am an agronomist by training, and after serving 

as CEO of private agricultural consulting firms, I now serve as a Pennsylvania 

State Senator, representing the 36th Senatorial District covering parts of Chester 

and Lancaster counties. I am also honored to serve this year as Chairman of the 

Chesapeake Bay Commission, a tri-state legislative commission representing the 

General Assemblies of Pennsylvania, Maryland and Virginia, on matters of Baywide concern. Individually, the members of the Commission represent distinct areas 

of the watershed and bring an intimate knowledge of the local residents and their 

social, economic and environmental challenges. Collectively, the 21 members share 

the perspective of the full watershed and provide the least parochial and most comprehensive outlook among the leaders of the Bay Program. 

The Commission is now in its 31st year; it is important to note that its establishment pre-dates that of the Chesapeake Bay Program, of which we are a member. 

This history demonstrates the commitment that state government and state legislators, in particular, have to the restoration of this National Treasure. 

Our members are not term-limited, and we have a mix of new members as well 

as members who have served for more than 2 decades. Consequently, the Commission has witnessed first-hand the evolution of the Bay restoration effort, from the 

first gathering of a few concerned state legislators, to the current effort which is 

heavily influenced by an ambitious Total Maximum Daily Load (TMDL). 

I have been asked by this Subcommittee to review the implementation of Phase 

II of the Chesapeake Bay TMDL Watershed Implementation Plans and its impact 

on rural communities. That impact will be felt by all sectors, and we need to achieve 

reductions from all sectors, if our water quality goals are to be met. However, because the jurisdiction of this Subcommittee relates to agriculture, I have chosen to 

focus my remarks primarily on agricultural implementation. 

To begin with, while ambitious, our water quality goals, and the level of activity 

needed to meet them, are necessary if we are to achieve clean water in the Chesapeake Bay and the rivers and streams that feed it. Clean rivers and streams as well 

as a clean Chesapeake Bay are not only important environmental goals, but also 

important economic goals. Whether it be fly fishing in the cool streams of Pennsylvania or cruising down the Bay on a summer evening, clean rivers and a clean 

Chesapeake supports critical economic, recreational, environmental, and aesthetic 

elements of our lives. 

The question is: how can we best support and promote clean water in a time of 

challenging budgets and a struggling economy? In answer, I offer four recommendations:

1. Innovation

Innovation is needed not only in the technology and practices used to achieve 

nutrient and sediment reductions, but also in the ways that we fund the implementation of those practices.

To date, innovation has provided some of the greatest strides in nutrient and 

sediment reduction to date. The phosphate detergent bans that replaced the 

phosphorus in home laundry and dishwashing detergents with a less-polluting 

surfactant; and ‘‘phytase,’’ a feed additive for poultry which reduced both the 

phosphorus in the manure and the cost of feed to the farmers are both examples 

of gains made through innovation.

Emerging technologies continue to offer new promise. Farmers are increasingly 

implementing precision agriculture techniques, which improve the nutrient efficiency of both livestock growth and cropping systems. These practices produce 

benefits for both the environment and the farmer’s bottom line—benefits that 

could help to redefine the sustainability of agriculture. For example, by combining farmer judgment with GPS technology, operators can now avoid double 

or even triple seeding when the tractors are turning around. The same is true 

for fertilizer and pesticide application with the result being a 5–32% savings in 

the fields. But we currently lack the technical assistance needed to show individual farmers how these and other technologies can be applied on their own 

farm and thus achieve widespread adoption. Furthermore, we lack a clearly 

verifiable and transparent mechanism to accurately track implementation of 

these practices that will allow our farmers to get credit for their improved environmental performance.

41

On the horizon are advanced manure-to-energy systems that will allow for more 

efficient recycling of nutrients, thus mitigating the nutrient imbalances that 

currently exist in the Chesapeake watershed. These systems have the additional 

benefit of providing a reliable, domestic source of renewable energy. Future 

technologies can be supported through policies that generally support entrepreneurship, as well as a review process that can quantify credit for nutrient and 

sediment reductions based on sound science and verification.

In times of thin budgets, we should also look for innovative methods of funding. 

Instead of programs that focus on one goal, funding priority should be given to 

projects that aim to achieve multiple goals, such as manure to energy projects 

which can provide energy independence and water quality benefits while 

strengthening agricultural sustainability.

Nutrient trading is another example of an innovative funding strategy. Instead 

of focusing on specific practices or technologies, trading allows the market to reward the most cost-effective strategies. However, as mentioned above, an effective market can only be achieved when the credits can be quantified through 

a review process based on sound science and verified implementation.

2. Clear, predictable goals based on performance, not prescription

The existing Watershed Implementation Plan (WIP) process established under 

the Chesapeake Bay TMDL allows states to develop clear actions for attaining 

necessary pollution reduction goals. It also allows the state to prioritize these 

specific actions. This is a sound approach, and one that should also extend to 

implementation at the municipal and farm level. While there should be certain 

basic standards to be met for compliance, the actual practices required to meet 

those standards will vary from town to town and farm to farm. Local choice is 

the key.

Similarly, farmers who voluntarily step forward and ‘‘do the right thing,’’ and 

then verify the implementation of those practices to achieve necessary WIP pollution reductions, should receive a level of certainty or predictability, for a time 

certain, that they will not be subject to new or more rigorous standards if the 

Federal Government changes its mind about what is the expectation for compliance under the WIP. While our knowledge and understanding of the Bay will 

change over time, resulting pollution reduction demands should be deliberative 

and predictable to those already acting in a responsible manner.

A process is currently underway among our state governments to define what 

a certainty program might look like for the region. While there may be a place 

for Federal action on this matter, we ask that both Congress and EPA consider 

the outcome of this state-led effort before finalizing any action.

3. Technical Assistance

The key to the success of all implementation is the presence of knowledgeable 

people—boots on the ground—who make it happen. Local USDA and conservation district staff, and other technical service providers, deliver locally-relevant 

and science-based information to farmers and other landowners. Regardless of 

cost-share assistance, the presence of trusted local partners is imperative to success.

While technical assistance funding associated with cost-share through programs 

such as EQIP and CBWI is important, traditional planning support through the 

Conservation Technical Assistance budget, and targeted supplemental support 

such as that provided through the SWAT (strategic watershed action teams) is 

also critical. Historically, technical assistance funding has not significantly increased, despite an increasing need (see Figure 1).

Additionally, efforts should be made to assure that technical assistance is available throughout the life of a cost-share contract. Although practice contracts can 

last 3-5 years, technical assistance is funded year-to-year, leaving a project vulnerable to a lack of planning or engineering to see it through.

4. A strong partnership across all levels of government

The current WIP process, which provides a clear Federal standard and allows 

for state flexibility in implementation, is now moving to a new phase where the 

important role of local partners is being acknowledged and enhanced. However, 

this process should not result in the responsibility merely being passed down 

the chain. Each level and branch of government has an important role to play 

in support of the common goal.

At the local level, planning, coordination and implementation will result in the 

lasting change we desire, but people are key to making it happen. Both state 

and Federal Governments can support local efforts through financial incentives, 

42

technical assistance and providing flexibility. This support can take the form of 

direct funding or program assistance, or eligibility for enhanced support that 

could be dependent on the implementation of ordinances or other actions.

At the state level, we have the responsibility to directly engage local governments and other partners to be clear about what must be accomplished. As we 

explore and evaluate the many ways we can support local efforts, we must consider flexibility that enables cost-efficiency. This approach should be applied 

broadly to include actions such as the authorization of stormwater authorities, 

the eligibility criteria for state funding, the establishment of clear statewide 

standards for pollution reduction, and the development of robust trading programs. The state’s role is critical for coordinating our funding programs to leverage their value and achieve multiple benefits.

At the Federal level, USDA conservation programs, including technical assistance, remain the single biggest source of support for implementation of nonpoint source best management practices (BMPs). Nationwide programs such as 

EQIP (Environmental Quality Incentives Program) and the regional Chesapeake Bay Watershed Initiative (CBWI) have been a critical source of support 

for our farmers.

Created in the last farm bill, through the bipartisan leadership of the Congress, 

including key Members of this Subcommittee, CBWI has uniquely demonstrated the 

success of targeted conservation. Not only does CBWI target Federal money to a region with a significant need for additional conservation, CBWI allows that money 

to be further targeted to the sub-watersheds and specific BMPs that will achieve 

the most cost-effective reductions. It is the combination of Technical Assistance with 

cost-share dollars that provides the magic. 

Let me take a minute to illustrate just how important this targeted approach has 

been to the agricultural progress made thus far. The agricultural community has 

contributed handsomely to achievement of our water quality goals, with the sector 

more than half way to the goal line, thanks in large part to the funding provided 

via EQIP and CBWI. 

In the USDA Conservation Effects Assessment Project (CEAP) report for Chesapeake Bay, the agency concludes that 810,000 acres of farmland have a high level 

of need for conservation practices, while a moderate level of need exists on approximately 2.6 million acres. All totaled, to make our water quality goal, NRCS he s 

committed to applying 4 million acres of new conservation by 2025. Translated, this 

will mean that NRCS must apply conservation practices on a minimum of 270,000 

acres each year from 2010–2025. Since 2009, CBWI funds have been used to develop 

contracts for treating approximately 510,000 acres of working lands and account for 

74% of NRCS’s annual ‘‘acre goal’’ for 2010 and 2011. EQIP and other conservation 

support programs round out the difference and provide the foundation for meeting 

state implementation goals. 

If CBWI funding were to be continued in the 2012 Farm Bill at an annual rate 

of $50 million baseline, and carried forward from 2013–2025, NRCS could fund approximately 16,250 more contracts to treat about 2.34 million additional acres in 

priority watersheds. Other financial assistance funds provided via the formula allocations of such programs as EQIP are also spent in priority watersheds. However, 

CBWI forms the core of the agency’s financial assistance in these areas. 

These dollars are further leveraged through word of mouth and changing definitions of normal practices within the agricultural community itself. Only a decade 

ago, farmers practicing no-till were the exception. Today, after targeted outreach efforts about this practice coupled with cost-share assistance, a majority of our crop 

acres are no-tilled. And, most of these acres have been converted to no-till without 

direct cost-share. 

You cannot harvest a crop without first planting the seed. Cost-share dollars provide the seed, technical assistance and outreach provides a robust soil in which that 

seed can grow. With the right combination, we can reap the benefits of improved 

water quality. 

As stated earlier, promoting innovation, coordination of energy and conservation 

programs, as well as acknowledgement of state-specific programs of regulatory certainty, are other ways that the Federal Government, and this Subcommittee in particular, can be of assistance to our farmers and local partners in their conservation 

efforts. 

Thank you again for the opportunity to testify before you today. I am happy to 

answer any questions you may have. 

43

Figure 1

USDA Conservation Funding 1983–2010

Source: ERS analysis of USDA budget summary data. 

Produced by Penn State University College of Agricultural Sciences.

The CHAIRMAN. Thank you, Chairman. 

It is a pleasure to introduce Mr. Shaffer. 

STATEMENT OF CARL SHAFFER, PRESIDENT, PENNSYLVANIA 

FARM BUREAU FEDERATION; MEMBER, BOARD OF

DIRECTORS, AMERICAN FARM BUREAU FEDERATION, CAMP 

HILL, PA 

Mr. SHAFFER. Thank you, Chairman Thompson, Ranking Member Holden. I really appreciate the opportunity to testify on behalf 

of the Pennsylvania Farm Bureau and the American Farm Bureau 

Federation. 

Pennsylvania’s Department of Environmental Protection is working with more than 150 partners in developing the Watershed Implementation Plan. This is the process the Congress intended 

under the Clean Water Act. Unfortunately, in our view, EPA is 

micromanaging states and usurping their authority. An example of 

this can be seen in EPA’s disapproval of Pennsylvania’s first Water 

Implementation Plan. Not only did EPA reject our first plan but 

they were less than helpful when responding to questions about 

their expectations of states. Moreover, the timeline for which the 

states were given to develop the plan was inadequate, and states 

were expected to draft plans without knowing the required reductions. 

The process of developing Phase II of the WIP is taking a similar 

track. Pennsylvania’s Department of Environmental Protection is 

working to reach out to county and local governments in the 43 

counties within the Bay watershed to obtain the necessary data 

and insight. This activity takes time to get it right. Like the development of the TMDL, the submission of the Phase I WIP, the EPA 

is hurrying the process while offering little guidance of any value. 


11226002.eps
44

What is most disturbing is the EPA is still telling state and now 

local governments to develop a plan based on poor and inadequate 

data. In September, Pennsylvania pointed out that EPA’s model 

continues to assume inaccurate manure application rates. Specifically, the Commonwealth wrote, ‘‘within EPA’s model about 50 percent of the cropland and 90 percent of all row crops receive manure.’’ Well, in USDA’s National Agricultural Statistics Service reports, only 24 percent of the total harvested cropland receives manure. 

Despite this knowledge of real and valid data, EPA continues to 

threaten retaliatory action against states if they do not meet the 

unsupported and ever-changing goals. As taxpayers, Farm Bureau 

members are concerned that millions of dollars may be spent to 

chase paper compliance with a model that uses faulty assumptions 

rather than valid and readily available data. EPA’s modeling has 

not given taxpayers in the Bay watershed assurance that the model 

will get us close to the required reductions. 

If millions and millions of dollars are spent, the practices are implemented, and reality proves the modeling projections are wrong, 

what then? Will farmers and other businesses and communities be 

expected to spend even more? State agencies also share these concerns. Pennsylvania’s previous Administration wrote, ‘‘in general, 

Pennsylvania’s concern that EPA’s approach to the Draft Chesapeake Bay TMDL is neither practical, equitable, nor cost-effective 

and could reverse progress in meeting our water quality goals.’’ 

Last month, Virginia wrote to EPA saying, ‘‘the current watershed 

model is undermining the credibility of our collective efforts.’’ 

As I stated just 7 months ago, farmers are seriously concerned 

about their ability to continue to operate their farms in the Chesapeake Bay watershed. One reason is that EPA’s TMDL establishes 

a binding allocation and timelines regardless of cost. Several Bay 

states estimate that implementation will cost billions of dollars. We 

believe the TMDL threatens the economic health of businesses, individuals, and communities throughout the Bay watershed. 

Finally, I would be remiss if I did not mention the positive outcomes realized and real water quality improvements that have occurred due to farm bill conservation programs. Many farm bill conservation programs have helped agricultural producers implement 

conservation measures to comply with regulatory mandates by 

EPA. 

I would really like to thank the Committee for convening this 

hearing and I would be pleased to respond to any questions. Thank 

you. 

[The prepared statement of Mr. Shaffer follows:]

PREPARED STATEMENT OF CARL SHAFFER, PRESIDENT, PENNSYLVANIA FARM BUREAU

FEDERATION; MEMBER, BOARD OF DIRECTORS, AMERICAN FARM BUREAU

FEDERATION, CAMP HILL, PA 

Thank you, Chairman Thompson and Ranking Member Holden. I appreciate the 

opportunity to appear before you today and to provide comments on behalf of the 

farm and rural family members of Farm Bureau. 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. Farm Bureau 

represents farms of all sizes, spanning virtually all commodities grown and sold in 

our great nation. I am pleased to offer this testimony, on behalf of the Pennsylvania 

45

* The document referred to and other submitted documents are retained in Committee file. 

Farm Bureau, the American Farm Bureau Federation and its more than 6.2 million 

member families. 

I own and operate a farm in Columbia County, 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. As we speak, at 

least two agencies of Pennsylvania’s state government—the Department of Environmental Protection (DEP) and Department of Agriculture—are working to develop 

Phase II of the Watershed Implementation Plan (WIP) for the Chesapeake Bay Watershed. Pennsylvania Farm Bureau has been involved in the WIP process since it 

first began almost 2 years ago, and we sit on the WIP Management Team, a group 

of industry, governmental and environmental groups working with DEP officials 

provide advice and insight on objectives and actions the Commonwealth should pursue to reduce pollution in the Chesapeake Bay Watershed in a manner that is environmentally effective and economically feasible. 

The planning process being implemented by our state DEP—working with more 

than 150 partners and state law—is one that, we believe, Congress intended to be 

implemented under the 1972 Clean Water Act in effectively managing pollution of 

waterways and responding to more serious water pollution problems. Unfortunately, 

in our view, recent regulatory actions by the Environmental Protection Agency 

(EPA) to micromanage and dictate environmental performance in the Chesapeake 

Bay Watershed have needlessly and unlawfully usurped the responsibilities that the 

Act intended to be reserved and addressed by the states. An example of this can 

be seen in EPA’s review and disapproval of Pennsylvania’s first WIP. Not only did 

EPA reject Pennsylvania’s first plan, but throughout that process, state agencies 

and the affected industries would repeatedly ask EPA officials if a certain approach 

would be sufficient in meeting the goals and objectives of the Federal agency. Those 

questions were most often met with responses seriously lacking helpful guidance. 

Moreover, the timeline for which Pennsylvania, and other states for that matter, 

was given for development of the plan was woefully inadequate, and states were expected to draft plans without knowing what their required nutrient and sediment 

reductions would be. 

The process of developing Phase II of the WIP is taking a similar track. Pennsylvania’s DEP is working diligently to reach out to county and local governments 

in the 43 counties of Pennsylvania within the Bay Watershed to obtain the necessary data and insight on workable solutions to reduce nutrient and sediment runoff at the local level—an objective that EPA is demanding in the Phase II segment 

of Watershed Plans. Despite the deadlines and expectations of EPA, this action is 

taking a significant amount of time in order to get it right. Like the development 

of the TMDL and the submission of the Phase I WIPs, EPA is driving a hurried 

process on the part of the states while offering little guidance of value. What’s most 

disturbing is that EPA is still asking state, and now local, governments to develop 

a plan based on poor and inadequate data. 

The timeline that Pennsylvania is expected to meet, along with the other Bay 

states, is quite unreasonably ambitious. The Draft Phase II WIP must be submitted 

to EPA by Dec. 15, 2011 and the final plan is then due by March 30, 2012. 

The demands that EPA is putting on Bay states in Phase II is further crippling 

states’ ability to devise a program that will encourage meaningful and effective longterm benefits, already hampered by the demands that EPA has already placed so 

far through EPA’s excessive TMDL regulation. Let me spend a moment to highlight 

some of the problems with EPAs’ total maximum daily load (TMDL). Under EPA’s 

Chesapeake Bay TMDL, all the pollutant loadings to the Bay and the reductions 

in those loadings take place in ‘‘model world.’’ The model world appears to have no 

basis in reality and has very little to do with the real conservation efforts of farmers. Please note the attached timeline * because it enumerates the concerns with 

EPA’s models raised by scientists, states and other stakeholders. In the short time 

that I have, I want to focus on the lack of scientific realities specific to Pennsylvania 

agriculture. 

Nutrient management provides a good example. EPA’s TMDL says that regulated 

agricultural operations in the Pennsylvania part of the watershed for the Susquehanna River can deliver no more than 761,488.58 pounds of nitrogen, 18,589.44 

pounds of phosphorus, and 2,688,715.58 pounds of sediment to the Bay. These numbers apply to farms in Pennsylvania, even though the Susquehanna River itself is 

meeting Pennsylvania water quality standards for nutrients. 

One way EPA seeks to force reductions in nutrient and sediment loads is by increasing the rate of adoption of best management practices (BMPs). For agriculture, 

EPA assumes that 47.2 percent of farms have already adopted nutrient manageVerDate 0ct 09 2002 15:00 Feb 14, 2012 Jkt 041481 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 I:\DOCS\112-26\71237.TXT BRIAN
46

ment practices. In its TMDL, EPA requires 85 percent of farms to adopt ‘‘enhanced 

nutrient management practices.’’ 

EPA’s requirement makes no sense because all Pennsylvania agriculture operations that generate manure are already subject to nutrient management requirements. However, EPA’s Chesapeake Bay models do not credit non-cost-shared nutrient management practices, so they misrepresent the on-the-ground reality of nutrient management on Pennsylvania farms. This flaw was pointed out by numerous 

stakeholders. For example, in its draft Watershed Implementation Plan, Pennsylvania stated:

A significant number of agricultural and other best management practices that 

have been implemented in Pennsylvania have not been ‘tracked’ and entered 

into the Chesapeake Bay Model. A significant level of interest in this deficiency 

was expressed by Pennsylvania’s Agricultural Watershed Implementation Plan 

workgroup. Pennsylvania pilot project efforts in Lancaster and Bradford counties, as well as preliminary evaluation of data from NASS indicates that as 

much as 84 percent of some implemented BMPs have not been entered into the 

Bay model, resulting in potentially significant nutrient and sediment reductions 

not being accounted for in the reductions attributable to Pennsylvania.

In another example, EPA’s model assumes that only 57,659 tons of manure are 

transported from Pennsylvania to locations outside of the Chesapeake Bay Watershed. However, Pennsylvania told EPA in September 2010 that all Chesapeake 

drainage county conservation districts in Pennsylvania report the export of manure 

from the county, and 227,527 tons left the Chesapeake Bay Watershed. 

EPA’s model also assumes that at least 15 percent of all manure at an animal 

feeding operation production area is simply ‘‘lost’’ and ends up in the waterways. 

Even though EPA was told that this assumption was ludicrous, it made no changes. 

EPA did not correct these discrepancies between its model and reality and finalized the Chesapeake Bay TMDL in December 2010, knowing full well that it had 

not properly accounted for agricultural BMPs and was misrepresenting manure 

management in Pennsylvania and other jurisdictions. EPA cited an out-of-court settlement agreement as its excuse for rushing to complete the TMDL, even though 

it had received requests to extend the deadline, including requests from Reps. Goodlatte and Holden of this Subcommittee. 

Instead, EPA promised to make some changes to land use and nutrient management assumptions in the Chesapeake Bay Model in 2011, in time for the revised 

model to be used for the Phase II Watershed Implementation Plans. However, in 

the new models (Phase 5.3.2) EPA only changed the number of acres of impervious 

surface and some nutrient management assumptions. It did not address the lack of 

credit for non-cost-shared BMPs. It did not address the fact that a single piece of 

land can utilize multiple BMPs. It did not correctly apply the recommendations of 

the Agricultural Work Group regarding nutrient management. And, it did not address the 15 percent manure loss assumption that is built into the model. 

As a result, EPA made its model worse, not better. EPA again rushed to meet 

the arbitrary deadline it established for state submission of Phase II Watershed Implementation Plans and has again developed a model that does not reflect reality. 

When the Chesapeake Bay Watershed states began using EPA’s revised model to 

try to develop their Phase II Watershed Implementation Plans, they began to get 

inconsistent results. For example, when Virginia tried to use EPA’s model to determine how much Charles City County needed to reduce sediment, it found that, 

while the old model told them that Charles City County needed to reduce sediment 

by 48 percent, the new model says that Charles City County could increase sediment 

by 406 percent. Obviously, states and every community or business in the Watershed that has been assigned an allocation and a responsibility under EPA’s TMDL 

is concerned. EPA’s refusal to take the time to improve its models, or to reduce its 

reliance on models, is undermining the public’s confidence. Worse, EPA’s Federal 

TMDL could cause people to spend scarce resources on conservation measures that 

are directed to the wrong sources or the wrong areas. 

A news article reporting the previously referenced inconsistencies in Virginia 

quoted an EPA official dismissing the concerns of local and state governments on 

modeling data saying, ‘‘Use common sense. Let’s get on with it.’’ Another EPA official is quoted as saying, ‘‘None of this stuff should impede the planning for what 

everyone knows is needed to be done.’’ Unfortunately, common sense tells us as 

farmers that ever-shrinking public dollars, and hard earned private capital, must 

be applied in a manner to achieve actual and proven water quality improvements, 

not compliance with a model based on assumptions that puts out inconsistent prescriptions for water health. 

47

As taxpayers, Farm Bureau members across the nation are concerned that millions of dollars can be potentially spent to chase paper compliance with a model that 

uses faulty assumptions rather than valid and readily available data, and a computer model that shows inconsistencies, as displayed in the Charles City County instance. EPA’s questionable modeling has not given taxpayers in the Chesapeake 

Bay Watershed reasonable assurance that the practices the model is directing the 

states to implement and the millions of dollars the states will need to spend to implement these practices will get it even close to the reduction goals EPA is demanding states to meet. If the millions are spent, the practices are implemented, and reality proves the modeling projections are wrong, then what? Will farmers, other 

businesses and communities be expected to spend even more monies and resources 

to pursue other practices and programs directed through a modified model? 

As farmers, business-owners and economic engines of the nation’s economy, Farm 

Bureau members are worried that the private investments they are making to improve water quality, based on the flawed model, will be for naught and will not be 

credited to them as individuals, or to the agricultural industry, in the same model. 

On Nov. 8, 2010, Pennsylvania’s DEP and Department of Agriculture, under the 

previous Administration of then-Governor Ed Rendell, wrote to EPA stating:

In general, Pennsylvania is concerned that EPA’s approach to the Draft Chesapeake Bay TMDL is neither practical, equitable, nor cost-effective and could reverse progress in meeting our water quality goals.

In a meeting with EPA on Sept. 16, 2011, the Watershed jurisdictions rebelled 

against using EPA’s model. As noted by the Commonwealth of Virginia in a Sept. 

28, 2011 letter to EPA summarizing that meeting: ‘‘the current Watershed Model 

is undermining the credibility of our collective efforts.’’ 

In the Sept. 16, 2011 meeting, concerns were raised by Pennsylvania, Maryland 

and Virginia. For example, Pennsylvania pointed out that EPA’s model continues to 

assume inaccurate manure application rates. According to Pennsylvania:

Within EPA’s model about 50 percent of crop land and 90 percent of all row 

crops receive manure. USDA’s National Agricultural Statistics reports that 24 

percent of total harvested cropland receives manure.

EPA’s response to the states’ concerns has not been entirely satisfactory. In a letter dated Oct. 5, 2011, EPA finally admitted that its models could not support allocations below the scale of a major river basin. However, EPA is still demanding 

Phase II Implementation Plans from states that include a narrative of how the 

states are to meet those river basin-wide allocations. Also, EPA’s letter says nothing 

about the validity of the thousands of allocations that are already in the Final 

TMDL. Finally, in a question-and-answer document issued on Oct. 17, 2011, EPA 

repeated its threats to take retaliatory action against states if they do not meet 

EPA’s ever-changing expectations. 

On Oct. 17, 2011, EPA also released a plan for responding to the modeling concerns raised by the states. Unfortunately, each concern that involved a change to 

the model was pushed back to 2017. The only fix EPA is willing to make before 2017 

is the recognition of additional BMPs. In response to concerns about wildly varying 

loadings resulting from the new model, EPA suggests that states focus their communication on implementation goals rather than pounds per acre reductions. That advice is difficult to follow when the TMDL specifies specific pounds of reductions for 

over 488 individual sources and communities with large storm sewer systems as 

well as aggregate (by river basin) pounds of reduction to be met by all the animal 

feeding operations, all the row crop agriculture, all septic systems and smaller municipal storm sewer systems in each river basin. 

Even though the TMDL currently has aggregate pollutant loadings for agriculture 

on a river basin basis, EPA plans to develop a ‘‘certainty framework’’ that would 

track a farm’s progress towards meeting the modeled reductions needed to meet a 

modeled result on a farm-by-farm basis. As noted above, EPA’s models are not accurate at the county scale, much less the farm scale, and the Federal TMDL should 

not impose specific reductions on specific farms or areas of land. 

Pennsylvania’s Secretary for Environmental Protection, Michael Krancer, who is 

also providing testimony today, has the unforgiving task of trying to weave the effective environmental programs and regulatory measures already being done in 

Pennsylvania into EPA’s unrealistic and deeply flawed requirements. Pennsylvania 

Farm Bureau appreciates the opportunities we have been given to participate in 

state processes for planning and development of programs that have proven, not 

theoretically, benefits to local watersheds 

Pennsylvania’s farm families strongly agree with the approach set forth by the 

Clean Water Act that gives state agencies the lead in working with non-point 

48

sources. To that end, let me provide some examples on how Pennsylvania’s agricultural community and our state’s environmental regulatory agency, have taken significant steps in working cooperatively to improve our water quality. This positive 

effort has provided measurable benefits to the citizens of the Commonwealth who 

live near or use waterways downstream. 

In Pennsylvania, water quality improvements have been made as a result of the 

following state regulations and initiatives (as well as others, not specifically mentioned below):

• Pennsylvania Erosion and Sediment Control Regulations

All farms must implement BMPs to control erosion and sedimentation for all 

disturbed lands, including plowing and tilling activities. Written erosion and 

sedimentation (E&S) control plans must be kept on site for all plowing and tilling activities that disturb 5,000 square feet or more. Plans must contain plan 

maps, soils maps, waters of the Commonwealth, drainage patterns, BMPs, descriptions of tillage systems used and schedules.

• Mandated State Standards for Storage and Land Application of Manure

Every animal farmer, regardless of the farm’s size or animal concentration, 

must operate his or her farm and manage animal manure in a manner that is 

consistent with the practices and standards identified in DEP’s ‘‘Manure Management Manual for Environmental Protection.’’ Any practice that substantially 

deviates from the manual’s practices must obtain specific approval or permit 

from DEP. Every farmer who generates manure or receives manure for land application is required by state law to develop and implement written manure 

management plans that demonstrate the use of management practices that control nutrient runoff from farms.

• Pennsylvania Clean Streams Law

This statute prohibits discharges of animal waste into streams. The degree of 

penalties to be assessed are based on the willfulness of the violation, the damage or injury that occurs to the waters or natural resources of the Commonwealth, the costs for correcting or mitigating the damages, and other relevant 

factors. Substantial penalties are often assessed on violations that result in fish 

kills or other serious injury to aquatic life.

• Pennsylvania’s Nutrient and Odor Management Act

This law prohibits Concentrated Animal Feeding Operations (CAFOs), Concentrated Animal Operations (CAOs) and any operation receiving animal manure from a CAFO or CAO from mechanically land applying the manure within 

100-feet of a perennial or intermittent stream with a defined bed or bank, a 

lake, or a pond. Exceptions exist where a qualified 35-foot vegetated buffer is 

established along the water bodies. Recent statutory and regulatory changes to 

the Act also require the development and implementation of nutrient plans approved by regulatory agencies to minimize runoff of nitrogen and phosphorus 

into waters of the Commonwealth, and require owners of land receiving manure 

generated from a CAFO or CAO farm to demonstrate through nutrient balance 

calculations that nutrients from the manure will not exceed the nutrient needs 

of plants and vegetation to be grown on the land.

• Pennsylvania Concentrated Animal Feeding Operation (CAFO) Program

The program requires either National Pollutant Discharge Elimination System 

(NPDES) general or individual permits for animal operations with over 1,000 

Animal Equivalent Units (AEUs) and CAOs with over 300 AEUs. Pennsylvania’s CAFO permitting program has been expanded to include: poultry operations that use dry manure handling systems and are CAOs with more than 

300 AEUs or that have 1,000 or more AEUs; horse operations that are CAOs 

with more than 300 AEUs or that have 1,000 or more AEUs; or any animal operation defined as a large CAFO under the Federal CAFO Regulations. The 

scope of farms required under state law to obtain NPDES permits is broader 

than the scope of farms required to obtain NPDES permits under Federal law.

• Best Management Practices Manual for Pennsylvania Livestock and Poultry Operations

This manual was developed to outline BMPs which can assist livestock and 

poultry operations in their effort to protect local and regional natural resources, 

and to allow them to successfully integrate into the neighboring community. 

Some of the BMPs described are mandatory due to current regulations; other 

voluntary efforts are suggested to assist producers in addressing specific concerns.

49

• Pennsylvania Fish and Boat Code

State law prohibits the placement or allowance of any substance harmful to fish 

into streams. In addition to imposition of fines, a person who places or allows 

a substance into a stream is required to pay damages for fish that are killed 

or injured as a result of the substance being introduced into the stream. Penalties and damages are in addition to any penalties that may be assessed under 

the Clean Streams Law.

• Pennsylvania Stream Protection Program

This program allows streams to upgrade to High Quality (HQ) or Exceptional 

Value (EV) protection status. The program regulates activities and discharges 

adjacent to upgraded streams.

• Pennsylvania Dam Safety and Encroachment Act

Permits are required for activities located in, along or across streams or wetlands. Pennsylvania’s wetland protection regulations exceed Federal requirements.

• Pennsylvania Flood Plain Management Act

The construction of manure storage facilities in a flood plain must meet upgraded construction standards.

Stream health and aquatic rebirth in the Keystone State are improving each year. 

An example of this occurred at a recent Pennsylvania Fish and Boat Commission 

meeting on April 11–12, 2011 where nearly 100 streams—in 32 different counties—

were presented to the commission for adoption as ‘‘Wild Trout Streams.’’ The Pennsylvania Fish Commission defines such a stream as ‘‘a remote, natural and unspoiled environment where man’s disruptive activities are minimized.’’ Wild trout 

are an excellent indicator of water quality and stream health. These upgrades in 

stream classifications were made possible by the ongoing and collaborative efforts 

of farmers, landowners and state and local regulators applying local and individualized solutions to water quality concerns. 

Pennsylvania also has an effective nutrient management program in place. Pennsylvania’s Nutrient and Odor Management Act provides the opportunity for animal 

farms whose animal numbers and concentrations are below those of a regulated 

CAO or CAFO to voluntarily act in developing and implementing reviewed and approved nutrient management plans in the same manner as regulated CAOs or 

CAFOs. Those who do so are given modest protections from enforcement penalties. 

Each year, the Commonwealth sees an increase in volunteer nutrient management 

planning—in the early 1990s fewer than 2,000 acres were enrolled in Pennsylvania’s 

nutrient management program; today this program covers 1.3 million acres. Several 

years ago, Pennsylvania’s DEP estimated that approximately half of the total manure being generated by the Commonwealth is now being managed under approved 

nutrient management plans of regulated and volunteer farms. This demonstrates 

farmers’ desires to be good stewards of the land and to protect our natural resources 

for future generations. Furthermore, Pennsylvania was the first state in the Union 

to implement mandatory requirements for nutrient management plans for CAOs 

and CAFOs, a practice that was in place long before the current scrutiny on the 

Chesapeake Bay TMDL. 

Additionally, Pennsylvania’s State Conservation Commission implements the Dirt 

and Gravel Road Program. This program is an innovative effort to fund environmentally sound maintenance of unpaved roads that have been identified as sources 

of erosion and sediment pollution. The program is based on the principle that informed and empowered local effort is the most effective way to stop pollution. The 

Dirt and Gravel Road program has inspected 16,500 miles of public unpaved road, 

and has set up 16,600 ‘‘worksites’’ where road runoff negatively impacts a stream 

are mapped and assessed. This program has stabilized more than one quarter of a 

million square feet of streams near 640 miles of rural roads since 1997. These state 

and local efforts are significantly reducing sediment discharge. Expansion of Federal 

jurisdiction over these small streams would only complicate an already successful 

program. 

Although Farm Bureau and state officials try to work cooperatively in developing 

effective and feasible regulatory initiatives to improve water quality, we can and do 

have material disagreements over regulatory measures the Commonwealth ultimately decided to impose. A very recent example is the aforementioned revision of 

the ‘‘Manure Management Manual,’’ which will likely be finalized by DEP very soon. 

DEP rejected a number of concerns and recommendations offered by Pennsylvania 

Farm Bureau that we believed would place significant and unworkable requirements on smaller animal farm operations without providing any meaningful enhancement of water quality. While disappointing, DEP’s response illustrates the 

50

larger picture—that Pennsylvania’s regulatory agencies are not unduly influenced 

by industry and in fact, do make their own independent judgments. In discussions 

with other state Farm Bureaus, we believe that other states apply the same independence in judgment as applied by DEP in regulatory management of water quality. 

We believe any contention that state agencies are incapable of effectively regulating and improving water quality are quickly dismissed when a Federal regulator 

applies common sense to the assessment of Pennsylvania’s accomplishments. Surely 

other states in the Bay Watershed, and nationally, have similar improvements in 

water quality that have little to do with Federal edicts. EPA has made it quite clear 

that their current focus on the in the Chesapeake Bay Watershed is a model for 

other watersheds across the nation. While we believe their actions go beyond their 

authority under the law and have filed a complaint in Federal court, farmers will 

continue the work of stewarding our natural resources, improving water quality and 

feeding America. 

As I stated just 7 months ago, farmers are seriously concerned about their ability 

to continue to operate their farms in the Chesapeake Bay Watershed. This is because of the continuous onslaught of regulations, guidance and other requirements 

being issued by the EPA. 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 its environmental impact on 

the Bay. 

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. 

Finally, I would be remiss if I did not mention the positive outcomes realized, and 

real water quality improvements that have occurred due to farm bill conservation 

programs, including the Environmental Quality Incentive Program (EQIP), the Conservation Reserve Program (CRP)—or its state counterpart, the Conservation Reserve Enhancement Program (CREP), the Emergency Conservation Program (ECP), 

the Farm and Ranchland Protection Program (FRPP), the Chesapeake Bay Watershed Initiative (CBWI) and others. Many of the farm bill conservation ‘‘working 

lands’’ programs, including those referenced, help agricultural producers implement 

conservation measures to comply with regulatory mandates by EPA. 

I would like to thank the Committee 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. And I now yield to Mr. 

Goodlatte for purposes of the introduction of our final witness on 

this panel. 

Mr. GOODLATTE. Well, Mr. Chairman, thank you for that honor. 

I am very pleased that we have with us Turner Perrow, a member of Lynchburg City Council who comes to us not only with experience of the impact of this issue on local government, but also with 

a civil engineering degree from Virginia Military Institute. And 

having worked as a consultant engineer designing overflow and 

other infrastructure projects while working closely with the City of 

Lynchburg, he has a professional engineering designation, so I 

think he can speak to this issue from a couple of vantage points. 

In 2008, he was elected to represent the city’s 4th Ward and I am 

delighted that he has come up here to be with us today. 

Turner, welcome. 

51

STATEMENT OF HON. EDGAR J.T. PERROW, JR., WARD IV

REPRESENTATIVE, LYNCHBURG CITY COUNCIL,

LYNCHBURG, VA 

Mr. PERROW. Thank you, Congressman. Good morning, Mr. 

Chairman, Members of the Committee. I am very concerned about 

what our locality and others are being compelled to do. It is estimated that the cost to Virginia communities alone is over $7 billion. The schedule for the implementation of these new Chesapeake 

Bay Total Maximum Daily Load final report regulations is arbitrary; no other TMDLs that we are aware of have a fixed schedule 

or are required to have a fixed schedule by the Clean Water Act. 

Instead of establishing a realistic schedule based on the ability to 

implement, the schedule is being driven purely by the EPA’s voluntary settlement of a lawsuit with the Chesapeake Bay Foundation and others. 

As a member of Virginia’s Phase II Watershed Implementation 

Plan Stakeholders’ Advisory Group, I was told that the model—the 

theoretical mathematical program used to predict pollutant loading—is seriously flawed. On a macro scale, it is thought to be fairly 

accurate in its ability to establish the overall loading reductions 

needed for the Bay to meet Water Quality Standards. However, on 

a smaller scale there are significant and validated concerns. 

In the recent 5.3.2 model release, Lynchburg’s load reduction 

goals have significantly increased compared to the prior model 

version, while another community just downstream in the same 

river basin is shown to be able to increase its sediment loadings by 

350 percent. This obviously does not make sense, which calls into 

question the overall validity of the model and creates significant 

challenges for local governments to be able to plan and defend investments needed to clean up the Bay. 

In October, the EPA basically acknowledged in correspondence 

with the Bay states that the model does not work at a local scale. 

We are also pleased that the EPA has recently issued a memorandum offering flexibility for localities nationwide to prioritize 

various Clean Water Act actions, although it is difficult to see how 

this flexibility would apply in the Chesapeake Bay watershed 

states given the magnitude and schedule of EPA Chesapeake Bay’s 

TMDL requirements. 

In the City of Lynchburg, the additional cost to be incurred due to the Bay TMDL Report potentially includes a $70 million wastewater treatment plant upgrade and an estimated $110 million capital investment in stormwater infrastructure. Annually reoccurring 

costs of $12 million are to be expected. This is a four percent increase of our city’s expenses, approximately $140 annually per 

household. We are approximately a 72,000-person city. 

Since Fiscal Year 2010, we have cut our budget by 11 percent 

and expect another two percent cut this year. Our revenues have 

held steady, but our mandated fixed costs continue to rise. As a result of this great recession, our local government has trimmed all 

the fat we can find in our budget, but this year, we are going to 

cut deeper. The added cost of the Bay TMDL Program cannot be 

sustained in our budget. 

The end result is that Lynchburg and other localities are being 

forced to impose upon our citizens and our businesses a stormwater 

52

fee to meet these demands. Should the $70 million wastewater 

treatment plant upgrade be necessary, we will have to increase our 

sewer rates which are already among the highest in the state. This 

will hit our water dependent manufacturers hard, as will the proposed stormwater fees which correlate to manufacturer’s significant 

impervious area. This will encourage sprawl in areas where a fee 

has not been imposed and where sewer rates are lower. Business 

will be incented to move further into counties, and tax bases will 

be lost in population centers. This will have an overall negative impact to water quality. 

If this program is the model for the EPA’s future regulations of 

TMDLs across the county, we will witness the hardships I described spread to the entire country. What happens when the Mississippi River or the San Francisco Bay are subjected to these 

standards? In effect, the settlement between the Chesapeake Bay 

Foundation and the EPA is dictating the future TMDL regulations 

across our country. 

Regulatory agencies need to consider the funding implications of 

their regulations on municipalities and not continue to just assume 

that the cities or states can get their funds for whatever they deem 

to regulate. A citizen of Lynchburg recently sent me an e-mail that 

said, ‘‘I did not ask for the changes, nor did I get to vote on acceptance of the stormwater changes placed on the City of Lynchburg. 

I understand that there could be penalties for noncompliance with 

the new stormwater regulations; nonetheless, I do not want to increase my payments from my fixed income to my city to comply 

with regulations that I didn’t have the opportunity to vote on.’’ 

As our elected representatives, I respectfully urge you to consider 

the imposed hardships that these regulations place on our constituents and debate the policy based on its costs and benefits. 

In summary, I am a strong supporter of a healthy Bay. The 

Chesapeake Bay and the James River on which I grew up are part 

my heritage as a Virginian. The Bay is both a natural and strategic 

asset of our country. Cleaning up the Bay is the correct action to 

take; however, the science must be proven, the timeframe realistic, 

and it cannot be such a sudden financial impact to our citizens and 

our businesses. 

Thank you, Mr. Chairman. I will await any questions you may 

have. 

[The prepared statement of Mr. Perrow follows:]

PREPARED STATEMENT HON. EDGAR J.T. PERROW, JR., WARD IV REPRESENTATIVE, 

LYNCHBURG CITY COUNCIL, LYNCHBURG, VA 

Good morning Mr. Chairman and Members of the Committee,

My name is Turner Perrow, and I am a member of Lynchburg City Council. In 

addition to being on council, I am a licensed professional engineer in the Commonwealth of Virginia. Therefore, I understand both the engineering and the fiscal impacts of the Chesapeake Bay Total Maximum Daily Load (TMDL) Final Report developed by the EPA. 

I am very concerned about what our locality, and others, are being compelled to 

do. It is estimated that the cost to Virginia communities alone is over $10 billion. 

The schedule for the implementation of these new TMDL regulations is arbitrary; 

no other TMDLs that we are aware of have a fixed schedule, or are required to have 

a fixed schedule by the Clean Water Act. Instead of establishing a realistic schedule 

based on the ability to implement, the schedule is being driven purely by the EPA’s 

voluntary settlement of a lawsuit with the Chesapeake Bay Foundation and others. 

53

As a member of Virginia’s Phase II Watershed Implementation Plan Stakeholder’s 

Advisory Group, we were told that the model, the theoretical mathematical program 

used to predict pollutant loading, is seriously flawed. On a macro scale, it is thought 

to be fairly accurate in its ability to establish the overall loading reductions needed 

for the Bay to meet Water Quality Standards. However, on a smaller scale there 

are significant and validated concerns. In the recent 5.3.2 model release, 

Lynchburg’s load reduction goals have significantly increased compared to the prior 

model version, while another community downstream in the same river basin is 

shown to be able to increase its sediment loadings by 350%. This obviously does not 

make sense, which calls into question the overall validity of the model and creates 

significant challenges for local governments to be able to plan and defend investments needed to clean up the Bay. In October, the EPA basically acknowledged in 

correspondence with the Bay states that the model does not work at local scale. We 

are also pleased that EPA has recently issued a memorandum offering flexibility for 

localities nationwide to prioritize various Clean Water Act actions, although it is difficult to see how this flexibility would apply in the Chesapeake Bay watershed 

states given the magnitude and schedule of EPA’s Chesapeake Bay TMDL requirements. 

The additional cost to be incurred due to the Bay TMDL Report potentially includes a $70M wastewater treatment plant upgrade and an estimated $110M capital investment in stormwater infrastructure. Annually reoccurring costs of $12M 

are to be expected—a 4% increase of our City’s expenses, approximately $140 annually per household. Since FY 2010, we have cut our budget by 11% and expect another 2% cut this year. Our revenues have held steady, but our mandated fixed cost 

continue to rise. As a result of this great recession our local government has 

trimmed all the fat we can find in our budget, but this year, we’ll cut deeper. The 

added cost of the Bay TMDL Program cannot be sustained in our budget. 

The end result is that Lynchburg and other localities are being forced to impose 

upon our citizens and our businesses a stormwater fee to meet these demands. 

Should the $70M WWTP upgrade be necessary we will have to increase our sewer 

rates which are already among the highest in the state. This will hit our water dependent manufacturers hard, as will the proposed storm water fees which correlate 

to manufacturer’s significant impervious area. This will encourage sprawl to areas 

where a fee has not been imposed and where sewer rates are lower. Business will 

be incented to move farther into counties, and tax basis will be lost in population 

centers. This will have an overall negative impact to water quality. 

If this program is the model for the EPA’s future regulations of TMDLs across 

the county, we will witness the hardships I described spread to the entire country. 

What happens when the Mississippi River or the San Francisco Bay are subjected 

to these standards? In effect, the settlement between the Chesapeake Bay Foundation and EPA is dictating the future TMDL regulations across our country. Regulatory agencies need to consider the funding implications of their regulations on municipalities and not just assume that the cities or states can get the funds for whatever they deem to regulate. A citizen of Lynchburg recently sent me an e-mail that 

said, ‘‘I didn’t ask for the changes nor did I get to vote on acceptance of the storm 

water changes placed on the City of Lynchburg. I understand that there could be 

penalties for non-compliance with the new storm water regulations; nonetheless, I 

don’t want to increase my payments from my fixed income to the City to comply 

with regulations that I didn’t have the opportunity to vote on.’’ As our elected representatives, I respectfully urge you to consider the imposed hardships that these 

regulations place on our constituents and debate the policy based on its costs and 

benefits. 

In summary, I am a strong supporter of a healthy Bay. The Chesapeake Bay and 

the James River, on which I grew up, are part my heritage as a Virginian. The Bay 

is both a natural and strategic asset of our country. Cleaning up the Bay is the correct action to take, however, the science must be proven, the timeframe realistic, 

and it cannot be such a sudden financial impact to our citizens and our businesses. 

Thank you.

The CHAIRMAN. Thank you, Councilman. I appreciate all the testimony of all the witnesses on the second panel. 

I want to start out my first questions for Secretary Krancer. Secretary Krancer, are you aware of what the potential cost of implementing the TMDL will be on Pennsylvania? 

Mr. KRANCER. I can’t give you an exact number—billions. I think 

I heard Virginia was $7 billion. Regretfully, as pointed out earlier, 

54

there has been no cost-benefit analysis and even if there is one 

from EPA, which is supposed to come out when? I think I heard 

next year after the WIPs are submitted, which is again cart before 

the horse. We would like to look at the cost-benefit analysis that 

EPA does produce. I have seen substantial debate about similar 

cost-benefit analyses that EPA has produced with respect to its air 

regulations. 

The CHAIRMAN. And I am assuming in a good year, billions of 

dollars would be fairly crushing on the state budget. And living in 

the Keystone State, I think Pennsylvania is like most states today, 

difficult economic times. 

Mr. KRANCER. No question about it. Our governor, Governor 

Corbett, just closed a $4.2 billion budget deficit that was left for 

him in his first year. So correct, the economy is not where we 

would like it to be, although in Pennsylvania with the help of our 

newly discovered gas industry, we are going to be doing better, but 

we need to do much better obviously. 

The CHAIRMAN. Thank you. 

Chairman Brubaker, first of all, in your testimony you had identified I thought some—I had them marked here but I am not finding it right now—four different aspects, innovation and the other 

three, which I thought really were spot on in terms of looking at 

addressing this. I wanted to address one of those. And you had 

mentioned in your testimony as well about the importance of numerical goals and my question is: given some of the testimony we 

have heard and the discrepancy of some specific communities in 

terms of variance with the current TMDL model impacting those 

local communities, are you confident given these reported discrepancies that the numerical goals, the TMDLs that the EPA is putting out there at this point in time are 100 percent accurate? 

Mr. BRUBAKER. I can’t speak to the level of accuracy. I certainly, 

as the last witness concluded his testimony, am a believer as I believe that we all want a clean Bay. The question is, how do we best 

get there? And those points that you referred to, first was promoting innovation, second was coordinating energy and conservation programs, third was supporting both cost-share and technical 

assistance, and fourth is acknowledging states’ specific programs 

and regulatory issues. 

So I do have concerns about how we are going to find the dollars 

necessary. I believe some of the achievements that we can make in 

the future are very much focused on innovation, so we need to signal to the research and development communities of this nation 

and the world that we are serious about bringing new innovation 

into the Chesapeake Bay to help us reduce the nitrogen and phosphorous and sediment. 

The CHAIRMAN. And I do think all those things are important, 

but I mean I can’t help—I came out of healthcare for 28 years. You 

don’t jump to surgery before you have an accurate diagnosis, and 

the TMDL model has some real accuracy issues on a local level. I 

think that is just step one—or it is not step one because we have 

been doing this for 30 years. It is the next step. Let us make sure 

that model is accurate. 

Mr. Shaffer, the EPA is facing some serious credibility issues 

with inconsistencies in their modeling and decisions continue using 

55

assumptions when readily available data exist. What are your 

thoughts on ways that we could rebuild their credibility in this 

process? Because in the end we do want a clean Bay. There is no 

one in here that doesn’t want a cleaner Bay. 

Mr. SHAFFER. I think all of agriculture, especially across Pennsylvania where I can speak for it, has proven that time and time 

again that they want clean water going down to the Bay. They 

want clean water for their families. And they have proven that by 

all that we have accomplished voluntarily. And I want to repeat 

that—voluntarily without any EPA mandates. What we have accomplished so far and what we will continue to do, farmers are 

great stewards of their land and they really have a great pride in 

the job they are doing with conservation practices. I think what is 

very important, how we are able to accomplish this and one of the 

things the Senator just said, as technology develops, we adopt it, 

we utilize it, we are able to put it on the farm, put it on the ground 

to improve. And that is the way we have this curve going in the 

right direction and we will continue to do so. 

The CHAIRMAN. Thank you. And my final question this round, 

Mr. Perrow, you touched on the fact that EPA suggested that this 

model and regulations of TMDLs would hopefully be used across 

the country. I think that is an accurate portrayal. I think this is 

why it should be important to every Member of Congress. This is 

coming to a watershed near you in the future and really the Chesapeake Bay is being used as a pilot. Do you think that these standards are even attainable at this point? 

Mr. PERROW. Thank you, Mr. Chairman. 

The standards are attainable over time but the schedule that is 

set, we can’t meet the schedule. Earlier, as the Administrator discussed, the EPA was trying to fine tune the model. However, they 

are going to wait another year for that and it won’t be until 2017 

until they revise it. Meanwhile, at the local level, we have to implement these changes right away. So we are making decisions, City 

Council, to set up a stormwater utility and to implement these programs and fees right now. So we can’t wait for this. 

Yes, it is attainable with time and with practical, proven results, 

but not on the schedule that has been set. 

The CHAIRMAN. So I mean my perception—and I want to see if 

you agree with this—TMDLs where they serve as a vision and a 

roadmap seem like they are pretty positive. They take us in the 

right direction. But I don’t think that is what my impression what 

the EPA is doing with this. It is more being used as punitive regulations at this point. 

Despite the fact that I know the Administrator didn’t call them 

a regulation, I know one when I see one. Maybe it is not termed 

that but——

Mr. PERROW. Yes, sir, I agree with your assessment. Initially, the 

schedule is developed by what were the goals to meet the Chesapeake Bay cleanup, just the goals to what localities and the watershed was supposed to do. However, in the settlement, it is my understanding that those goals became the hard deadline. And whereas we are striving to meet those goals, we are worried about actions being taken by the EPA such as not renewing our wastewater 

treatment plant discharge permit or MS4 permit, which come up 

56

for renewal here shortly. So that is the mechanism by which they 

can enforce implementing these arbitrary goals immediately, and 

that is what we are very concerned about. 

The CHAIRMAN. Thank you. 

And I now recognize the Ranking Member for questioning. 

Mr. HOLDEN. Thank you, Mr. Chairman. 

I apologize to you and to our witnesses. Ranking Member Peterson called a meeting of the Minority Members so I had to attend 

that and that is why I am by myself on this side. 

But getting back to the onsite farm inspections. Secretary 

Krancer and Mr. Shaffer, do you believe that the EPA has authority under the Clean Water Act, Section 308? 

Mr. KRANCER. Well, Representative, I promised I would stop 

practicing law after I got to this position in which now I have lawyers, although it is a promise I break virtually daily if not repeatedly during the day. They seem to think they have that authority. 

Quite honestly, they seem to think recently since I have been in office that they have a lot of authority to do a lot of things. We are 

not sure in Pennsylvania where that stops yet but we are working 

on it. 

Mr. HOLDEN. Mr. Shaffer, do you care to comment? 

Mr. SHAFFER. It is our read on the Clean Water Act they absolutely do not have the authority to come on farms for enforcement 

actions, and we have several high-level comments on that that we 

feel we are absolutely right on that. 

One of the most concerning things is in talking to the Pennsylvania Department of Agriculture, EPA has requested for GPS coordinates for every dairy farm in the Chesapeake Bay watershed. 

Now, I am sure they don’t want to add those people to their Christmas card list, and so they have a plan of enforcement, and they are 

just going to keep pulling forward until they are stopped. 

Mr. HOLDEN. Secretary Krancer, you and the Administrator had 

different observations of the relationship between the Commonwealth and EPA as we move forward in this process, and you referenced an October letter and he said we will have to wait and see. 

Can you elaborate on the October letter, what was expressed? 

Mr. KRANCER. Right, the October 5 letter—and that was a topic 

of some of Administrator Garvin’s testimony—talked about how the 

EPA now, somewhat suddenly, views the model—at least what they 

are saying they view the model. They are not viewing it anymore 

as local as they had before. And quite honestly, it had been 

months—I think I mentioned this—that we had been trying to 

pound on EPA, get the message to EPA. We went to the public, to 

the press both here and—or I should say in Pennsylvania and in 

Virginia, and virtually within a week after the media attention—

because I guess you can’t hide forever—and I would also add the 

Congressional oversight. I think the Congressional oversight, the 

questions you all have been asking for months, the questions we 

have been asking for months, as I said in my testimony, that persistence, that public attention might be worthwhile, but I am cautiously optimistic on that. 

As I say in my testimony, I am going to wait and see. We are 

all going to have to wait and see whether EPA is merely placating 

57

or whether they are serious or whether they are just trying to do 

what we used to call in the ACC basketball area some four corners. 

Mr. HOLDEN. Thank you, Mr. Secretary. 

Mr. Shaffer, I know you have to be careful how much you can 

say about the litigation, but could you tell us as much as you possibly can? You know, what drove you to go that far? That is a pretty extreme step that is going to cost your organization a lot of 

money. Can you tell us as much as you can? 

Mr. SHAFFER. Let me first just say, Congressman, one reason 

why we did do it that is not valid. We didn’t do it to shirk any responsibility of being good stewards of the land. So let me make 

that very clear. We are going to continue working to clean up the 

waters of Pennsylvania. 

The reason we felt we had no other choice is because we feel EPA 

is just basically violating the Clean Water Act, that they don’t have 

the authority to do what they are doing, and unfortunately, this is 

the only way of dealing with it. And we feel very strongly about 

it and where we are at right now, we are on a timeline. We have 

entered a motion to complete the record, and in doing so, we feel 

we don’t have all the information and documents we need from 

EPA to move forward. So there is a delay in the summary judgment briefing right now until that decision is made on our motion 

to complete the record. 

But that is where we are at right now, but like I said, I want 

to once again reiterate it has nothing to do with our responsibility 

as good stewards of the land. We are going to continue to do that; 

we are going to continue to make the strides we have made and 

move forward in the future. But we feel that the violation of the 

Clean Water Act has major ramifications for all of us down the 

road. 

Mr. HOLDEN. Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. Now, I recognize Mr. 

Goodlatte for questioning. 

Mr. GOODLATTE. Well, thank you. 

And Mr. Shaffer, let me just add to what you just said in response to Congressman Holden. We agree with your position. In 

fact, the House of Representatives has voted to cut off the funding 

not for programs that help farmers comply with existing regulations, that keep cattle out of streams and so on, but simply to cut 

off the funding for the implementation of this—as Secretary 

Krancer has called it—cart-before-the-horse effort on the part of 

the EPA. Unfortunately, so far the Senate hasn’t gone along with 

our efforts, but we will continue to try to support your efforts in 

that regard. 

Councilman Perrow, again, welcome. I am very familiar with the 

situation in the City of Lynchburg and have, when possible, attempted to help the city comply with the combined sewer overflow 

problem that you have had. And for the past 17 years, the city has 

been making significant upgrades to its storm and wastewater system. In total, this investment will probably reach a half a billion 

dollars for a city of 75,000 people. In addition to this, you now have 

to make another $150 million, possibly more, upgrade mandated by 

the TMDL. Can you explain to the Committee what this means at 

a local level? As a councilmember, what kind of priorities are you 

58

having to balance for these costs? Unlike the Congress where we 

don’t have a balanced budget amendment to the United States 

Constitution—which by the way both these gentlemen support—the 

City of Lynchburg, like virtually every other city in the country, 

has to balance its budget. So what are you looking at when you are 

faced with $150 million add-on to what you are already spending 

here? 

Mr. PERROW. Thank you, Congressman. Our annual budget is $306 million and so just as an example, we are looking at a $12 

million reoccurring cost for stormwater alone. Our public bus service costs $7 million. That is nearly double what our public bus service costs. 

As I pointed out earlier, we already have some of the highest 

sewer rates in the state. The CSO program is driven out of sewer 

fees under a consent order. We have to balance the household median income with the sewer rates and set our sewer rates that way 

and drive the program to completion. What has startled me in 

working on this program initially, this CSO program was initially 

budgeted to be a $200 million program, and now we are 75 percent 

finished with it and it is still a $200 million program and the total 

cost, as the Congressman said, are expected to be half a billion. I 

see the exact same problem potentially arising out of these 

stormwater infrastructure that would have to go in place as part 

of the TMDL report. 

Now, another item in—excuse me if I am getting too technical—

it makes me scratch my head because maybe we, instead of separating the sewers like we were directed to do several years ago, we 

should have all left and combined and treated the whole thing. It 

is very frustrating to me from a local standpoint that it almost 

seems like we are going back and having to rework a system that 

we thought we had fixed due to the changing regulations. This is 

a significant impact to our business and to our taxpayers in the 

City of Lynchburg. We are getting a significant amount of 

pushback from our constituents who just don’t understand exactly 

why they need to pay these increased fees and what good the fees 

are doing. So it is very troubling for our city, sir. 

Mr. GOODLATTE. Thank you. In fact, because of those fees that 

you are already mandated to gather and because of the prospect of 

what you are facing here, you say that this has particularly hurt 

some businesses. Is the city concerned about the ability to attract 

new businesses to the city when some of the localities near Lynchburg may not be in the Bay watershed and don’t have to live under 

the mandates of the TMDL? 

Mr. PERROW. Yes, Congressman. As you are aware, Lynchburg is 

an independent city, which makes us in the Commonwealth of Virginia a little bit different. But we have to impose these regulations 

based on the density of the City of Lynchburg, yet a potential business could move a foot over the property line and not be subjected 

to the same regulations that we are. We are concerned about this 

because our primary driver in our budget is on real estate taxes. 

And if more businesses or more residents attempt to escape the 

fees and move outside the city’s limits, we are going to lose tax 

base. And if we lose tax base, we lose the ability to offer the services that we normally provide to our constituents and we become 

59

a failing city. And that is something we cannot allow to happen. 

So yes, sir, we are very concerned about the impact to our businesses and the ability to attract and recruit new businesses to the 

area. 

Mr. GOODLATTE. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. 

Just to follow up with a few more questions. 

Secretarty Krancer, I have heard in testimony, both written and 

verbal, identifying the need for more technical assistance. In fact, 

a term I use frequently and I read it somewhere within the testimony—I don’t know who to give a credit to; I will have to go back 

and look—but I was pleased to see that term in your boots on the 

ground. And I wanted to see in your testimony you address what 

DEP has done to provide training to many different target audiences, to have qualified technical assistance out there to help folks 

to deal with these issues. Can you expand on that a little bit of 

what DEP is doing? 

Mr. KRANCER. Well, sure. We work in partnership with our Department of Agriculture and, quite honestly, our stakeholder community, our ag community, municipality community, all the other 

communities that are involved in this. And you have really given 

me a good opportunity here to tell you and tell the entire Congress 

what a great job our agricultural community in Pennsylvania has 

done already over the past 10, 20 years, the great job our municipality community has done, our developer community has done. 

We have done in Pennsylvania a ton of heavy lifting with respect 

to the Bay over the past 5, 6, 10 years, and we are going to continue to do all that. And we work very hard at stakeholder outreach, at technical assistance outreach with whatever resources we 

can garner. Obviously, now those resources are somewhat not as 

available as they had been in the past, but I don’t want it to be 

ever said about Pennsylvania that Pennsylvania is not already 

doing a tremendous job. And that is part of the bone I had to pick 

with EPA is that we have done all these things over the past few 

years and gotten little credit for it just because of the mathematical 

construct they are using. So in some cases we are having to start 

all over again even though we have done a ton already. So I hope 

that answers your question. 

The CHAIRMAN. Thank you. 

Chairman Brubaker, thank you for your service to Chesapeake 

Bay, but obviously I also want to thank you for your service to the 

Commonwealth of Pennsylvania and the Pennsylvania Senate. It is 

great to have you there with the work that you do. 

I think this really gives you a unique perspective process. You 

know, assuming that the estimates that have been put forth that 

pegged the cleanup for some of the states at more than $10 billion, 

given your leadership within the state legislature, if you get a bill 

for $10 billion, what are your thoughts? What does that mean to 

the Commonwealth of Pennsylvania? 

Mr. BRUBAKER. Well, thank you, Mr. Chairman. You referred to 

the boots on the ground comment. That was in the Chesapeake Bay 

Commission’s testimony that you received because we as a commission do believe in technical assistance. 

60

The CHAIRMAN. Right. 

Mr. BRUBAKER. And I share Secretary Krancer and President 

Shaffer’s comments about what Pennsylvania farmers have done 

over the last 20, 30, 40 years. I share pride with each of these gentlemen in what Pennsylvania farmers have indeed accomplished. 

Specifically on technical assistance also, the Chesapeake Bay Commission believes a significant part of technical assistance can go to 

the existing, unquestioned regulatory compliance. As has been testified by a number of people here prior, our farmers, our businesses 

in the Commonwealth of Pennsylvania and the entire Chesapeake 

Bay watershed want to comply. And our entire business community 

and farm community is not in total compliance with every piece of 

existing unquestioned regulatory state and/or Federal regulatory 

issue. So at the Commission, we are attempting to not get down in 

the weeds on TMDL versus tributary strategy, but we certainly 

support aggressive technical assistance working in partnership. 

And another thing we have in Pennsylvania that makes a significant difference as a very, very cost-effective partner is the Conservation Districts. So we don’t have the money inside of our state 

budget. We do not have a reserve to pay that bill, so therefore, we 

believe in partnerships, technical assistance, and innovation. 

The CHAIRMAN. And you are talking about cost-effective approaches, but if the Commonwealth of Pennsylvania is faced with 

a $10 billion bill and that mandate materializes, that is what occurs, what would have to happen in Pennsylvania to be able to pay 

that bill, to fund those mandated initiatives? 

Mr. BRUBAKER. The General Assembly a few years ago put on a 

referendum, a ballot, an H2O Initiative, ask our taxpayers if they 

wanted us to do some bonding to secure some additional dollars to 

put into our local communities like the local community that has 

been testifying here. So when a local community gets a mandate 

the sewer water plant needs to be upgraded, many times the only 

way that they have to pay for that is to distribute that among their 

users. They are not able to do that. So we put it on a referendum 

and it passed overwhelmingly that our taxpayers at that time, a 

few years ago, wanted to have a few hundred million dollars to 

send to our local communities to help them with some of these regulatory mandates that they were facing. 

The CHAIRMAN. And I always appreciate that kind of giving the 

citizens that voice and that choice. Unfortunately, EPA TMDLs are 

not giving anyone a choice. I don’t think that would be an option 

because if a mandate comes, it is going to have to be paid. 

Mr. Shaffer, there are a lot of—and I don’t want to get too deep 

into the lawsuit—but a lot of press releases from other associations 

and environmental groups saying that the Farm Bureau filed a suit 

against EPA to stop water quality improvements, and it was all 

about giving farmers a free pass. Just wanted to get your response 

to that accusation. 

Mr. SHAFFER. That definitely raises the hair on the back of my 

neck when I hear that because it is the furthest thing from the 

truth. I think once again the farmers in Pennsylvania, probably 

throughout the watershed, have proved this isn’t the case by all the 

things they voluntarily already have done, spent millions of dollars 

on new technology, adapted it, put it on the farms without EPA’s 

61

foot on their head to make them do it. They have done it voluntarily. 

I think what you have heard today goes back to what the lawsuit 

is really about. When I say they violated the Clean Water Act, the 

Clean Water Act provides that the states should take care of the 

waters in their state, and they are the best ones to do that. When 

there is a goal of conservation, an environmental problem to fix, we 

work with our state agencies to devise the best way to go about fixing that because every state, the type of agriculture is different, 

the topography is different. So one-size-fits-all solution is definitely 

not the answer. I can say that is one of the reasons for the lawsuit 

is to make sure that we continue doing the work we have done 

within the state and devise a solution to any problem that arises. 

The CHAIRMAN. Well, I want to thank the panel for coming, for 

testifying, for bringing your experience from many varied perspectives on these very important issues. 

Before we adjourn, I want to invite the Ranking Member to make 

any closing remarks he has. 

Mr. HOLDEN. I want to thank our witnesses for being here today, 

and thank you for having the hearing, Mr. Chairman. 

The CHAIRMAN. All right. I thank the Ranking Member. I thank 

all Members for participating. 

You know, we know there is a problem. You know, this is a longstanding problem. The quality of the water in the Chesapeake Bay, 

this is an initiative that is not new. It has been going on for 30 

years, and we have made great progress and from all aspects. But 

I certainly have questions. I still have questions even coming out 

of this second hearing. I have questions about a model that is 

flawed at the local level. You know, I take the EPA’s opinion that 

certainly at a river basin level it works, but frankly, we institute 

these costly mandates on local communities, on local farmers, you 

have to get a good diagnosis before you decide which part of the 

body to operate on. And they haven’t done that yet. I think that 

they are showing some will to look at it, but they are still moving 

ahead with these timelines. That is my other concern. They are 

rushing a timeline and a fixed schedule here. 

And finally, it is a matter of jurisdiction. Whether it is regulation 

or not regulation, I happen to think they are regulations. It looks 

like, smells like, tastes like regulations, I think it is—from the EPA 

versus a state responsibility. I mean we have in the short time I 

have been in Congress—this is just about the end of my third 

year—I see a lot of blurring of the lines of who is responsible for 

what. And this is maybe one of the most glaring missteps. The 

states took it upon themselves to come together and work together, 

to pool their resources with this commission. 

And so those are just some of the questions I certainly have. But 

I want to thank everybody for coming today. I know we are going 

to continue to provide oversight on this, and I suspect we will have 

a future hearing or two as well, especially after the EPA provides 

us those—it looks like next spring they promised a cost-benefit 

analysis, and it would be a good opportunity to be able to walk 

through that within a week or so after that is published and we 

receive it. 

62

And so under the rules of the Committee, the record for today’s 

hearing will remain open for 10 calendar days to receive additional 

material and supplementary written responses from witnesses to 

any questions posed by a Member. 

This hearing of the Subcommittee on Conservation, Energy, and 

Forestry is adjourned. 

[Whereupon, at 11:54 a.m., the Subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

63

LETTER SUBMITTED BY HON. GLENN THOMPSON, A REPRESENTATIVE IN CONGRESS

FROM PENNSYLVANIA

September 28, 2011

Hon. SHAWN M. GARVIN,

Regional Administrator, 

U.S. Environmental Protection Agency, 

Philadelphia, PA

Dear Mr. Garvin:

The purpose of this letter is to follow-up on our discussions concerning the reduced accuracy of the Phase 5.3.2 Watershed Model. Virginia’s concerns echo those 

you received last July from the Commonwealth of Pennsylvania. 

Virginia remains committed to do our share of the watershed wide effort to restore the Chesapeake Bay. We will continue to implement practices that reduce nutrient and sediment pollution as outlined in the Virginia Watershed Implementation 

Plan and will dedicated millions of dollars to the effort this year. Unfortunately, as 

explained below, we have discovered that the model contains inexplicable inaccuracies that must be corrected. The current watershed model is undermining the credibility of our collective efforts. Virginia proposes several adjustments to the current 

process so the clean-up efforts can stay on track and continue moving forward. 

Virginia has significant concerns with several aspects of the Phase 5.3.2 Watershed Model. As explained in our presentation to you on September 16th (see attached), the most notable problem exists with the lack of adequate nutrient reduction credit applied to nutrient management plans. This is a problem not only in Virginia but covers numerous counties across the entire Bay watershed as illustrated 

on slide 4 in the presentation. This serious shortcoming alone renders one of our 

most effective and commonly used BMPs useless in meeting nutrient reduction 

goals. 

We have found that the model, as currently constructed, is not appropriate for use 

in assigning loads in permits, developing local load targets, or measuring reduction 

progress. It is especially not appropriate for imposing any consequences. Attempting 

to use the model in these ways negatively impacts our planning for the Phase II 

WIP, along with the credibility of the EPA, and of most concern, exposes Virginia 

to potential litigation. We ask for your help to resolve these matters through what 

we believe are reasonable steps. 

We are aware that modeling of a watershed as large and complex as the Chesapeake Bay is a monumental task. The current model may be an adequate tool for 

predicting overall pollution loadings on a watershed basis. However, as we demonstrated in our discussion and presentation on September 16th, and the Maryland 

presentation sent by Jim Edwards on September 12, when used on a local government level outrageous anomalies occur in the model that are inconsistent with current scientific knowledge. 

As a consequence of these discussions, we have developed the attached ‘‘Path Forward’’ document that outlines needed changes and adjusts the schedule. A commitment from EPA to correct these concerns is needed as a precursor to continued 

Phase II WIP planning efforts. 

It is clear that the model, as currently constructed, is not capable of producing 

meaningful, realistic loading targets for use at the local level and that our time is 

better spent working with local governments on implementation of the suite of practices described in our Phase I WIP or equivalent measures. Our modified approach 

to meet our commitments for Phase II and the 2012–2013 Milestones is also described in the attached ‘‘Path Forward’’ document. 

Virginia is ready to move forward with the Phase II planning process and development of milestones. However, recognition from EPA of the current problems and 

limitations of the model, along with a commitment to work together to address them 

will be key to our success. 

I look forward to further discussions on our proposed path forward. 

Sincerely,

DOUG DOMENECH.

CC:

JEFF CORBIN, Senior Advisor to the Administrator for Chesapeake Bay and Anacostia River;


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JIM EDWARDS, Deputy Director, Chesapeake Bay Program. 

ATTACHMENT 1

Path Forward 

Proposed Approach for Phase II WIP Development 

9/21/11

Three-Track Approach to Implement Phase I WIPs and develop Phase II 

WIPs

Overview:

• The Chesapeake Bay jurisdictions have expressed serious concerns about using 

5.3.2 watershed model output for localities nutrient and sediment reduction targets under the framework ofthe Chesapeake Bay TMDL and the approved 

Phase I Watershed Implementation Plans (WIP).

• While useful as a planning and evaluation tool at the watershed scale, the 

model was not constructed for use at the local scale and its output raises serious questions and concerns among state agencies and our local partners.

• Anomalies present in the output are difficult to explain and in many ways do 

not represent the ‘‘real world’’ of local watershed management and water quality planning and implementation.

• In order to ensure that these identified issues do not divert attention from the 

more important task of implementation of the Phase I WIPs and meeting associated TMDL targets, the following approach is proposed that would result in 

model revisions and ongoing implementation using Phase I WIP practices as the 

basis for the Phase II WIPs.

The following tracks are proposed to take place simultaneously:

Track 1

EPA continues to work on correcting identified model issues so that it can be used 

with greater confidence in setting local (sub-segment shed) target loads for N, P and 

S. The following steps are recommended:

• Holistic review of the following issues:

» How to model Agricultural Nutrient Management (efficiency or Land Use 

Change)

» Calculation of nutrient rates on acres not under nutrient management

» Load reductions associated with application of nutrient management plans

» Changes in manure routing preferences through time

» Amount and nutrient content of poultry manure

» Biosolids application (include all states or exclude all states)

» Regional factors due to Phase 5.3.2. Watershed Model calibration

» Submitted versus credited BMPs

» BMP stacking (Urban and Continuous No-till)

• Modify Scenario Builder code

• Test Model to determine if modifications produce expected results

• Re-calibrate watershed model

• Run scenarios

• Review outputs to evaluate other concerns and check for unintended consequences

• Upon agreement by EPA and the jurisdictions, use refined model to establish 

loading targets at the local level.

Track 2

States develop Phase II WIPs based upon the existing practices identified in the 

Phase I WIP/TMDL input deck and submit these interim plans to EPA by June 1, 

2012. These plans will focus on achieving the 2017 goals.

• Continue current local engagement efforts to collect improved land use, BMP 

implementation and local implementation strategies as the Phase II WIP is developed. Local engagement efforts will shift focus from meeting local target 

loads to maintaining implementation levels consistent with the Phase I WIPs.

• The Phase II WIP would provide a mix of BMPs at the segment-shed level.

65

• States refine the interim BMP targets once the model is deemed sufficient to 

assign target loads and corresponding levels of BMP implementation needed at 

the local level as part of the next milestone cycle or the Phase Ill WIP development.

Track 3

States develop 2012–2013 Milestone implementation actions and strategies and 

submit these plans to EPA in accordance with the current schedule.

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ATTACHMENT 2


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SUPPLEMENTARY MATERIAL SUBMITTED BY EPA 

During the November 3 hearing entitled, Hearing To Review the Chesapeake Bay 

TMDL, Agricultural Conservation Practices, and Their Implications on National 

WatershedsHearing To Review the Implementation of Phase II of the Chesapeake Bay 

TMDL Watershed Implementation Plans and Their Impacts on Rural Communities, 

requests for information were made to EPA. The following are their information 

submissions for the record. 

Insert 1

Mr. OWENS. And finally, when you do your cost-benefit analysis, are you taking into account the increase in cost to the consumer for production of food in 

the ag community that arises out of increased regulation? 

Mr. GARVIN. I will have to get back to you on that, Congressman. I am not 

sure all the factors that are going into the analysis, but we can make that available to you and to the chair and the Subcommittee. 

Mr. OWENS. If it is not included, would the EPA consider including that as 

a factor? 

Mr. GARVIN. Well, I will go back and have a conversation and figure out what 

is being included and what is not and we will get back to you.

EPA’s TMDL cost study, is intended to assess the costs of pollution controls and 

associated administrative actions identified in the Chesapeake Bay jurisdictions’ 

Watershed Implementation Plans (WIPs), with many of these actions being the 

same conservation practices that Bay region farmers have implemented over the 

years, often with financial assistance from state and Federal programs. Moreover, 

the TMDL includes provisions for innovative approaches, including nutrient credit 

offsets and trading, that provide economic opportunities for agricultural interests 

that adopt practices to reduce nutrient discharges to the Chesapeake Bay and its 

tributaries. 

There are a number of challenging complications to assessing any changes in the 

cost to the consumer that could be directly attributed to specific actions in the Bay 

including the interstate distribution of food, the percentage of food prices that can 

be attributed to changes in production practices, the broader impacts of the major 

influences on supply, demand, and price for food products in domestic and international markets among a wide range of additional factors. 


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Separate from EPA’s cost analysis; we understand there are other organizations 

examining the impacts of the Chesapeake Bay TMDL on food prices to consumers. 

EPA will stay abreast of their findings. 

Insert 2

Mr. GIBBS.—especially making a determination of non-point is a lot more 

challenging as you know. And my experience in the past, you have in different 

streams different flow rates, weather conditions, rainfall that can impact it. And 

I know in my area in the past years we had an issue with the EPA at one time. 

They were doing what I call drive-by evaluations, windshield drive-bys and 

weren’t getting the right data. And so I guess being an outsider of the Chesapeake, that is when I would question and make sure that the monitoring process to develop the model makes sense. 

And the second part of that, in my one watershed we had been involved for 

about 10 years of a nutrient trading program——

Mr. GARVIN. Yes. 

Mr. GIBBS.—and how that has been so successful, they have lowered the load 

into that watershed working with a cheese manufacturer and working with 

those local farmers around there, and it has been real successful and kept the 

jobs and the economic growth. Are there any type programs like that going on 

in this watershed? 

Mr. GARVIN. Yes, Congressman. The TMDL actually had a section, an appendix that dealt with a placeholder for trading. A number of the states came in 

with their state strategies that relied—in varying degrees on trading. What we 

have been doing with the states currently is we have been meeting with them, 

discussing what trading programs they do or they don’t have, getting a better 

sense of what they are. One of the issues is making sure that when we are 

doing trading we are not double counting, when we are doing trading that there 

is a common exchange rate so that we are talking apples and apples when we 

are looking at numbers. And so we have been working close with the states on 

that, and I am hoping in the next couple of weeks—and we will share this with 

the Subcommittee—that we will be providing some feedback to the states on 

that review.

EPA is working with each of the Bay jurisdictions on the development and implementation of effective trading and offset programs that meet the basic requirements 

described in Section 10 and Appendix S of the Bay TMDL. As a first step, EPA has 

undertaken a review of existing offset and trading programs. Program reviews included assessments of basic principles such as: trading ‘‘baselines’’ (i.e., what pollutant reductions are eligible to generate credits for offsets and trading); ‘‘quantification’’ methods (i.e., how much credit is generated by implementation of specific best 

management practices); and ‘‘certification/verification’’ requirements (i.e., how the 

implementation and proper maintenance of best management practices are monitored to ensure that reductions being sold as offsets or credits are actually being 

achieved). 

As part of the review process, EPA and the jurisdictions have had a series of constructive meetings and calls at the end of 2011 and at the start of 2012. EPA intends to finalize trading program assessment reports for each jurisdiction by the end 

of March 2012. The observations in the assessment reports will inform the ongoing 

development of each jurisdiction’s offset and trading program, a key component of 

the Phase II Watershed Implementation Plans. 

SUBMITTED QUESTIONS

Letter and Response from U.S. Environmental Protection Agency 

October 28, 2011

Hon. GLENN THOMPSON,

Chairman,

Subcommittee on Conservation, Energy, and Forestry, 

House Committee on Agriculture, 

Washington, D.C.

Dear Chairman Thompson:

Enclosed are responses to questions for the record following the November 3, 2011 

Subcommittee hearing to review the Implementation of Phase II of the Chesapeake 

Bay Total Maximum Daily Load (TMDL) Watershed Implementation Plans and 

their impacts on rural communities. 

85

1Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th Cir. 2002). 

If you have any further questions, please contact me, or your staff may contact 

Greg Spraul in my office at [Redacted]. 

Sincerely,

LAURA VAUGHT,

Deputy Associate Administrator for Congressional Affairs.

Questions Submitted By Hon. Glenn Thompson, a Representative in Congress from 

Pennsylvania 

Question 1. When will the Cost-Benefit Analysis for the Chesapeake Bay TMDL 

be completed? Will EPA make any changes to the TMDL based on the results of 

the analysis? 

Answer. The EPA’s Chesapeake Bay Program Office and National Center for Environmental Economics are scheduled to complete their initial analyses of costs and 

benefits by the end of 2012. More complete and final analysis is expected to be completed by the summer of 2013. The analysis will incorporate the final Phase II Watershed Implementation Plans (WIPs). The Chesapeake Bay TMDL establishes the 

amount of nutrients and sediment the Chesapeake Bay can receive and still meet 

state-established water quality standards. The cost-benefit analysis being conducted 

by the EPA will not change the TMDL’s science-based assessment of the Bay’s pollution capacity. However, when complete, the analysis will provide insights as to the 

costs and benefits of implementing practices to achieve the TMDL pollution allocations and will help inform continued implementation of the Bay TMDL by the EPA, 

states, and other partners.

Question 2. Can you explain why EPA does not consider the Chesapeake Bay 

TMDL a regulation? What criteria do you use to evaluate what the agency considers 

a regulation? 

Answer. The Chesapeake Bay TMDL is not a regulation. TMDLs, including the 

Bay TMDLs, are not self-implementing or enforceable and do not by themselves require or prohibit any actions. A TMDL sets a pollutant reduction target or goal to 

be implemented through various other regulatory and non-regulatory programs as 

appropriate, including the National Pollutant Discharge Elimination System 

(NPDES) permit program.1

Section 303(d) of the Clean Water Act (CWA) requires states and the District of 

Columbia to ‘‘establish’’ lists of impaired waters that fail to meet state-established 

water quality standards and to ‘‘establish’’ TMDLs for those listed water bodies ‘‘at 

a level necessary to implement the applicable water quality standards.’’ In Section 

303(d), Congress did not call TMDLs ‘‘rules’’ or ‘‘regulations’’ or say that the states 

or the EPA must ‘‘promulgate’’ TMDLs through rulemaking (as Congress explicitly 

did for water quality standards in Section 303(c)(4) of the CWA). 

The EPA has adopted implementing regulations for Section 303(d) of the CWA 

that further describe the characteristics of, and the process to, establish a TMDL. 

See generally 40 CFR Part 130; 40 CFR 130.2 (definition of a TMDL); 40 CFR 130.7 

(process to establish TMDLs). Those implementing regulations also do not specify 

that TMDLs are to be established by either states or the EPA through rulemaking. 

Even though the Bay TMDL is not a ‘‘rule,’’ the EPA did provide opportunity for 

public input into its establishment. 

Questions Submitted By Hon. Tim Holden, a Representative in Congress from Pennsylvania 

Question 1. EPA keeps saying that the Chesapeake Bay TMDL has been a collaborative process, but the states are telling us that EPA has been very heavy-handed 

and top-down. These cartoons (Mr. Whiskers and Ball & Chain) were part of a presentations on the Chesapeake Bay TMDL that were given by Jeff Corbin in 2010, 

when he was your Chesapeake Bay advisor. Do you think that reflects an accurate 

representation of your relationship with the states? 

Answer. No, the cartoons do not represent the EPA’s relationship with the states 

and they were not used to reflect that relationship. The EPA believes the states will 

produce effective Phase II WIPs to meet their TMDL targets to improve local waters 

and the Chesapeake Bay.


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Question 2. It is my understanding that West Virginia was the only Bay state to 

be considered deficient for the Phase I WIPs. What backstop measures did EPA implement in this state given this deficiency status? 

Answer. West Virginia was not the only state to have backstop measures in the 

final TMDL. 

The EPA established backstop allocations that assumed further limitations in pollution from significant wastewater treatment plants in New York because New 

York’s Phase I WIP did not demonstrate sufficient pollutant reductions. The EPA 

established backstop adjustments to stormwater loads in Pennsylvania and agricultural loads in West Virginia because the Phase I WIPs did not demonstrate sufficient reasonable assurance that load reductions in these states and sectors would 

be achieved and maintained. 

Finally, the EPA identified the following states and sectors as requiring enhanced 

oversight:

• Pennsylvania agriculture and wastewater;

• Virginia stormwater; and

• West Virginia stormwater and wastewater.

For West Virginia, the EPA applied a backstop adjustment to agriculture allocations because the Final Phase I WIP lacked:

• Detailed strategies for how the state was going to ramp up voluntary, incentivebased conservation to levels necessary to meet TMDL allocations.

• Strong contingency plans such as new policies, programs, or mandates in the 

event that voluntary approaches are not sufficient to meet reduction goals.

The EPA is in the process of reviewing West Virginia’s demonstration of nearterm progress implementing the agricultural section of its WIP, including Concentrated Animal Feeding Operation (CAFO) Program authorization and permit applications and issuance. Based on review of West Virginia’s Phase II WIP submittal, 

the EPA will assess whether this backstop adjustment for agriculture can be removed or reduced.

Question 3. What specifically have you been doing to increase your dialogue and 

better communicate with the agriculture community? 

Answer. The EPA conducted an extensive outreach campaign throughout the development of the TMDL, including outreach to the agriculture community (see Attachment 1). The EPA consulted with the agricultural community through three primary forums: (1) stakeholder meetings on TMDL development during the fall of 

2009 through fall of 2010; (2) formal and informal discussions with each jurisdiction’s department of agriculture during WIP development; and (3) discussions with 

agricultural groups on the TMDL and modeling efforts through industry-specific 

meetings and Chesapeake Bay Program Agriculture Workgroup discussions. 

For Phase II WIP development, we have participated in all meetings where states 

have requested our presence. For example, Pennsylvania recently completed eight 

county workshops. The EPA, and/or University of Maryland staff employed at the 

Chesapeake Bay Program, were present at every workshop at the state’s request. 

Also at the request of the states and the Chesapeake Bay Commission, the EPA 

held five Scenario Builder workshops and nine trainings for the Chesapeake Assessment and Scenario Tool (CAST) between August and October 2011 in order to help 

the states and stakeholders better understand and use the Chesapeake Bay Program modeling tools. As noted in the next question, the EPA also has been involved 

in a number of discussions, along with USDA, state officials, and agriculture stakeholders to explore the option of state agricultural certainty programs. 

Last summer, EPA Administrator Lisa Jackson, other senior EPA staff, and I 

spent a day in Lancaster County, Pennsylvania where we toured a dairy farm and 

participated in a roundtable discussion with members of the agriculture community. 

We met with local farmers and saw the innovative practices being implemented by 

the agriculture community benefiting both farm operations and local water quality. 

These kinds of interactions are very useful and we will continue to rely upon them 

as a key way of hearing from the agriculture community. 

In addition, as discussed below in response to Question 6, the EPA and USDA 

have been collaborating for well over a decade on agriculture issues and are continuing to collaborate on our respective modeling efforts.

Question 4. In your testimony you mention the development of agricultural certainty programs and this is a concept that we have been exploring as an option for 

producers as well. How do you envision an agriculture certainty program working? 

What do you see as the Federal role in the development of this type of program? 

87

2http://archive.chesapeakebay.net/pressrelease/ECl2009lallmilestones.pdf. 3See ChesapeakeStat at: http://stat.chesapeakebay.net/?q=node/130&quicktabsl10=0.

Answer. The EPA has been involved in a number of discussions, along with 

USDA, state officials, and agriculture stakeholders to explore the option of state agricultural certainty programs. In December 2010, the EPA and USDA sent a joint 

letter to the state agriculture secretaries and environment secretaries to confirm interest and communicate agency support for developing state certainty programs (see 

Attachment 2). Most recently on October 6, EPA senior officials joined more than 

40 representatives from USDA and the Chesapeake Bay watershed states to discuss 

key elements and principles of an agriculture certainty program in the Chesapeake 

Bay region. A follow up meeting with agriculture and environmental groups was 

held November 7. 

We believe that such certainty programs are best carried out by the states and 

we have offered our support to states in the Bay region and other parts of the country as they think through the development of these programs. Although Virginia already has enabling legislation and is promulgating regulations related to such programs, other states are still in the very early stages of possible program development.

Question 5. The 2011 milestones under the Bay TMDL identified funding re- sources anticipated for the total Bay watershed ($2.4B) and each jurisdiction (for example, $1.2B for Virginia, $774 million for Maryland, $67 million for PA) to achieve 

initial nitrogen and phosphorus load reductions. Has actual funding matched what 

was projected? If not, what shortfalls have occurred? How are any funding shortfalls 

affecting implementation and development of the Phase II WIPs? 

Answer. In their 2009–2011 milestones,2 the Chesapeake Bay watershed jurisdic- tions projected that they would spend a total of $2.36 billion between 2009 and 2011 

to reduce nitrogen and phosphorus. In 2009, the jurisdictions reported that they had 

committed a total of $669.6 million.3 In 2010, the jurisdictions reported that they 

had committed a total of $761.9 million, a 14 percent increase over 2009. The funding for these 2 years totaled $1.43 billion, or 61 percent of the total identified in 

the milestones. The jurisdictions would need to provide an additional $930 million, 

representing a 22 percent increase over 2010, to meet the commitments identified 

in their 2009–2011 milestones. In June 2010, the jurisdictions reported to the 

Chesapeake Bay Executive Council that they were generally on track to implement 

pollution control practices necessary to achieve load reduction commitments and 

thereby meet the commitments identified in the 2009–2011 milestones. In instances 

in which the jurisdictions were behind, the jurisdictions were implementing contingency actions. 

Question 6. Following the release of USDA’s CEAP report in March 2011, EPA 

announced that it would be working with USDA to evaluate the CEAP model results 

for possible collaboration and incorporation into the Chesapeake Bay Program 

Model. What information from the CEAP report was incorporated and what was 

not? Are the two agencies still coordinating on data? If so, how? 

Answer. Yes, the EPA and USDA are coordinating on model input data. We are 

committed to strong partnerships and collaboration with states not only to support 

the data collaboration effort but to continue to coordinate financial resources to support conservation practices in the Bay watershed. We see opportunities for continued collaboration, as detailed in the June USDA/EPA joint Chesapeake Conservation Data Collaboration workplan (see Attachment 3). The EPA and USDA believe 

that maintaining agriculture’s viability is essential to sustaining ecosystems in the 

Chesapeake Bay basin. 

Despite being built for two different efforts, the Chesapeake Bay Program (CBP) 

Watershed Model and the CEAP cropland model provide consistent results regarding the relative nutrient loads from agricultural lands at the large basin scale and 

the additional management actions that are needed. Although the CEAP cropland 

model is not a TMDL model, it provides valuable information that will help enrich 

the CBP Watershed Model. 

NRCS data (and USDA Farm Service Agency data) from 2004–2011 are being incorporated into the CBP Watershed Model via the data-sharing agreement that 

USDA forged with the U.S. Geological Survey (USGS). USGS is currently aggregating the data to a scale that complies with farm bill confidentiality provisions and 

working with USDA and the states to ensure protocols are in place for removing 

any duplicate records. By the end of February 2012, USGS will deliver to the EPA 

a list of reportable NRCS/FSA practices at the county level. 

The CEAP cropland report contained a wealth of valuable information related to 

conservation practice implementation and effectiveness on cropland; however it is 

88

not the type of information that can be directly incorporated into the CBP Watershed Model. Rather, the data used to develop the CEAP cropland model and the 

findings on conservation practice effectiveness across different landscapes can be integrated with existing data. To this end, USDA and the EPA plan to refine and increase the level of data available for understanding conservation practices implemented by farmers in the Chesapeake Bay region—both those with state or Federal 

cost-share assistance and those funded solely by farmers. 

We have agreed to work toward standardizing data sets used in the modeling. We 

have also agreed to ensure that nutrient and sediment reductions from agricultural 

conservation practices are accurately credited—both those currently in use and future, new and innovative practices. The joint workplan (see Attachment 3) represents a commitment by the EPA and USDA to ensure that the latest science is 

used to inform these modeling efforts. This workplan was sent to Chairman Thompson in June 2011.

Question 7. In December 2010, the Chesapeake Bay Program’s Scientific and 

Technical Advisory Committee (STAC) told EPA that it ‘‘not been responsive to important issues raised in previous reviews’’ of the model by STAC and that ‘‘this is 

an unacceptable pattern and inconsistent with the U.S. EPA Peer Review Handbook.’’ EPA ignored State partners, their own advisory group, and other stakeholders when they all sent warning signs that the models were based on incomplete 

and inaccurate information. Why did you ignore the advice of your own peers and 

others? 

Answer. The EPA disagrees that the Chesapeake Bay Program ‘‘ignored the advice’’ of STAC and others in the scientific community. The Chesapeake Bay Program 

has a long history of seeking and following the assessments and recommendations 

of specific and general criticisms from the scientific community. The EPA and the 

Chesapeake Bay Program partners considered STAC’s findings and addressed them 

in the final Bay TMDL and the development of the jurisdictions’ Watershed Implementation Plans. 

Furthermore, the quotes referenced in this question are out of context. They are 

from a 2010 STAC report on a Partnership-requested independent review of just one 

component of the Partnership’s Chesapeake Bay Land Change Model (one of the 

suite of six models and tools used by the Partnership in its shared decision making). 

The STAC sponsored review was ‘‘an urgent, short turn-around peer review of certain critical land use and land cover inputs to the Phase 5 Bay-wide watershed 

model.’’ The quote, ‘‘this is an unacceptable pattern and inconsistent with the U.S. 

EPA Peer Review Handbook’’ was specifically in reference to the short review period; it was not directed at the full suite of models nor at the 2 decade history of 

peer reviews. The quote simply reflects the STAC review panel’s frustration at the 

limited amount of time for their review and a lack of documentation on responses 

to a previously completed STAC review of the overall Land Change Model. STAC’s 

overall assessment was actually very positive:

‘‘Overall, the reviewers were impressed by the technical quality of the work. 

They recognized that the Chesapeake Bay Program has confronted challenging 

conceptual and technical issues and appropriately applied state of the art approaches.’’

Question 8. In your October 5, 2011 letter to the Bay jurisdictions you said that 

states no longer need to develop local area allocations in their Phase II WIPs. But 

in an EPA question and answer document dated October 17, 2011 continues to 

threaten Federal actions against states:

EPA has full discretion to determine whether Federal actions are appropriate 

based on the degree to which reduction goals are missed, the reasons why, and 

additional actions that jurisdictions are taking to ensure that load reductions 

will remain on track to meet the Partnership’s goal of all practices in place by 

2025 to meet applicable water quality standards. EPA has already demonstrated 

this discretionary authority when deciding whether to establish backstop allocations and adjustments in the Chesapeake Bay TMDL.

Why do you keep changing your expectations of the states given the flaws in your 

model? Even the NAS, in a review of plans to implement the TMDL, has said: 

‘‘Based on the information provided, the overall accounting of BMPs in the Bay watershed cannot be viewed as accurate.’’ 

Answer. The EPA’s expectations for the states have not changed. The EPA never 

intended (for EPA or the jurisdictions) to establish local level TMDL allocations. The 

purpose of local area pollution reduction targets—which are not smaller scale TMDL 

allocations—has always been to help conservation districts, local governments, planning commissions, utilities, and others clearly understand their contribution toward 

89

meeting the Chesapeake Bay TMDL larger basin scale allocations. The EPA still expects Bay jurisdictions to work with their local partners to develop local area pollution reduction targets in the Phase II WIPs in accordance with the guidance explained below. 

The October 5, 2011, letter put the modeling tools in the appropriate context. The 

letter was in response to the Bay jurisdictions’ stated concerns with assigning local 

area targets in terms of pounds of pollutant reductions by county, given the questions they had about model results at the county scale. Specifically, the letter provides flexibility for how states choose to explain local contributions to meeting the 

Bay TMDL allocations and implementing the states’ WIPs. The EPA is not requiring 

that local efforts be expressed as pounds reduced. They may now be explained in 

terms of implementation levels or planning actions. The EPA has offered to help the 

states develop and refine their methods. 

This letter also does not mean or imply that the model is ‘‘flawed.’’ The model is 

just one tool for assessing and evaluating WIPs and milestones. The EPA remains 

confident in the model and its ability to inform our decisions to implement the strategies developed by the states, through the TMDL process, to meet water quality 

standards in the Bay.

Question 8a. Do you think moving the goal posts is an accurate or good way to 

proceed? Given these facts, what is the basis for your threats? 

Answer. We do not agree that the EPA is moving the ‘‘goal posts’’ for Chesapeake 

Bay restoration. In fact, the goal posts have generally been in the same place for 

the last fifteen years. The water quality restoration goals for Chesapeake Bay—now 

embodied in Delaware, the District of Columbia, Maryland, and Virginia’s state 

water quality standards—are still the levels of dissolved oxygen, depth of water 

clarity, acres of underwater Bay grasses, and amount of algae our scientists established more than a decade ago as needed to support a healthy Bay ecosystem. The 

major river basin by jurisdiction load reduction targets established in 1997 and refined in 2003, and the level of effort to meet those targets as defined in the states’ 

tributary strategies, have changed very little when compared to the 2010 Bay 

TMDL and the on-the-ground actions necessary to meet the Phase II WIP planning 

targets. 

Every 2 years, we will assess milestone commitments and annual implementation 

progress to assess whether states are on pace to have 60% of practices in place by 

2017 and 100% of practices in place by 2025. However, the EPA has quarterly calls 

with the states to track success and work through issues before they fall behind. 

Using a common sense approach, a determination of Federal actions, if necessary, 

to close any potential gap, will consider many factors, including the degree to which 

reduction goals are missed, the reasons why, and any additional actions the jurisdiction is taking to ensure they are on track to meet the 2017 and 2025 deadlines.

Question 9. The Final TMDL requires farmers in Pennsylvania to increase the use 

of nutrient management from 47% of farms to 85% of farms. In Virginia, nutrient 

management is supposed to increase from 35% to 86%. In New York, nutrient management is supposed to go from 18% to 62% of farms. But, your baseline numbers 

in your TMDL are wrong and farmers in Pennsylvania, Virginia, and New York are 

already achieving high levels of nutrient management. 

Similarly, the Final TMDL requires farmers in Pennsylvania to increase the use 

of conservation tillage from 46% to 95%, from 58% to 90% in Virginia, and from 7% 

to 40% in New York. Again, your baseline numbers in the TMDL are wrong and 

according to USDA about 88% of cropland in the watershed is already subject to 

conservation tillage. 

Answer. The Bay TMDL is not self-implementing and does not by itself require 

or prohibit any actions. A TMDL sets a pollutant reduction target or goal to be implemented through various other regulatory and non-regulatory programs. The 

TMDL does not create any Federal authority over activities that are not otherwise 

regulated. 

The numbers included in this question come from Appendix V of the Bay TMDL 

and are based completely on numbers reported by Pennsylvania, Virginia, and New 

York. Those implementation percentages represent actions that jurisdictions reported through 2009. Actions to meet the TMDL allocations for agriculture are 

based on the jurisdictions’ final Phase I Watershed Implementation Plans (WIPs). 

The states, not EPA, determine the sector allocations and strategies. While the 

USDA CEAP cropland report estimates a higher rate of conservation tillage than 

has been reported by the states, the report also estimates that nearly 80% of 

cropped acres, including cropland with conservation tillage, have a high or moderate 

treatment need, especially for controlling nutrients. 

90

4 American Farm Bureau Federation et al. v. EPA et al., Civil Action No. 11–0067–SHR 

(M.D.PA). 

The EPA fully supports a more complete accounting of verified conservation practices (including practices funded in full by farmers which are not in state or Federal 

cost-share tracking databases). In the Executive Order strategy, the EPA and USDA 

have committed to work with the National Association of Conservation Districts 

(NACD) and state partners to develop non-cost-share data tracking and verification 

mechanisms by July 2012. The EPA needs complete, accurate and current data to 

improve the characterization of agricultural conservation in the watershed. CEAP 

findings will help inform this effort. 

It’s important to note that states have already factored in the data gaps in their 

tracking of non-cost-shared practices when they divided up load allocations among 

source sectors. States are counting on a certain percentage of the necessary reductions they assigned to agriculture from simply better tracking and reporting of 

verified non-cost-shared practices between now and 2025.

Question 9a. So, when your models are updated in 2017 do you allow them to take 

credit for these practices you can then declare successful implementation of the 

TMDL. Does this cause a problem because nothing in the watershed will have 

changed? Farmers were implementing nutrient management and conservation tillage before the Final TMDL and will continue to implement these practices afterwards. The only change will be in ‘‘model land.’’ How does this help clean up the 

Bay? How did you select 2017 as the timeline? Was this date or the entire TMDL 

schedule outlined in the EPA settlement agreement? 

Answer. The Chesapeake Bay Program Partnership models help the partnership 

decide how much more needs to be done to achieve water quality goals. Monitoring 

data alone will tell us when those water quality goals are met. Revised historical 

implementation figures will help the Partnership determine the appropriate balance 

of management actions between sectors, basins, and jurisdictions to most effectively 

achieve the goals. 

The 2017 evaluation is intended to make revisions to reflect the effectiveness of 

the practices. The EPA will continue to work with the states, USDA, and conservation districts to incorporate the most accurate and up-to-date information on what 

conservation practices are on the ground in the next round of Chesapeake Bay Program model updates, which will be complete in advance of the Phase III WIPs in 

2017. When the CBP models are updated, they will be calibrated to water quality 

monitoring data throughout the watershed. Where monitoring data tell us that more 

needs to be done to clean up our waters, the EPA will work with partners to put 

more conservation actions on the ground. The Chesapeake Bay Program watershed 

model is currently calibrated to nearly 300 sites for flow and between 100 and 200 

sites for water quality to ensure that the estimated necessary implementation actions will result in the needed pollution reductions to clean up our rivers and 

streams. 

The commitment to the 2017 midpoint model updates and Phase III WIPs was 

part of the larger Chesapeake Bay Accountability Framework first outlined by the 

EPA and agreed upon by the Principals’ Staff Committee whose membership includes the state secretaries in 2008. This framework was further refined in 2009 

and 2010 by the EPA and the Bay partners. The Accountability Framework, including the schedule for Phase I–III WIPs and a midpoint evaluation for the Chesapeake 

Bay Program modeling tools, is discussed in more detail in the Executive Summary 

and Sections 7.2 of the Chesapeake Bay TMDL and in the Federal Strategy for Protecting and Restoring the Chesapeake Bay Watershed.

Question 10. It has come to our attention that the EPA has not handed over vital 

documents pertaining to on going court cases related to the TMDL. Why has EPA 

not cooperated? Does EPA intend to comply? 

Answer. The EPA disagrees with the assertion that it has not been cooperative 

in the ongoing litigation regarding the Chesapeake Bay TMDL4 or has failed to 

‘‘hand over’’ vital documents. 

A number of parties (identified below) are now involved in litigation challenging 

the Chesapeake Bay TMDL. In accordance with the Court’s scheduling order as proposed by the parties, the EPA timely filed its administrative record in the case on 

August 26, 2011. This record consisted of more than 38,000 pages and approximately 100,000 electronic model and data files. As is customary in cases like this, 

counsel for the EPA then conferred with counsel for the Plaintiffs over the scope 

of the administrative record. The EPA voluntarily agreed to add over 2,000 additional documents in October 2011, including many that Plaintiffs requested for inclusion. Plaintiffs then filed a motion seeking to add six additional documents to the 

91

administrative record and to seek limited discovery regarding the scope of the administrative record. The EPA opposed that motion. On December 28, 2011, the 

Court issued a decision granting in part and denying in part the Plaintiffs’ motion 

to add several documents to the record, and denied the Plaintiffs’ request for further 

discovery. Pursuant to the Order of the Court on January 11, 2012, the parties are 

currently engaged in filing their respective motions for summary judgment. The parties (identified below) are awaiting the decision of the Court to that motion.

• Plaintiffs—American Farm Bureau Federation (‘‘AFBF’’), Pennsylvania Farm 

Bureau, the Fertilizer Institute, National Pork Producers Council, National 

Corn Growers Association, National Chicken Council, U.S. Poultry & Egg Association, National Turkey Federation and National Association of Home Builders 

(‘‘NAHB’’).

• Defendant—EPA.

Defendant Intervenors—Chesapeake Bay Foundation, Inc. (‘‘CBF’’), Citizens 

for Pennsylvania’s Future, Defenders of Wildlife, Jefferson County (West Virginia) Public Service District, Midshore Riverkeeper Conservancy, the National 

Wildlife Federation; National Association of Clean Water Agencies (‘‘NACWA’’), 

the Maryland Association of Municipal Wastewater Agencies, Inc. (‘‘MAMWA’’), 

the Virginia Association of Municipal Wastewater Agencies, Inc. (‘‘VAMWA’’) 

and Pennsylvania Municipal Authority Association (‘‘PMAA’’). 

ATTACHMENT 1

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, 2 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. 

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 

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* Editor’s note: The attachments B–C referred to in the document entitled, EPA Engagement 

with the Agriculture Community, have not been reprinted here, they can be seen in the House 

Committee on Agriculture hearing Serial No. 112–6, entitled, Hearing To Review the Chesapeake 

Bay TMDL, Agricultural Conservation Practices, and Their Implications on National Watersheds, dated March 10, 2011, pp. 167–174.

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 2 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

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—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. 

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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 2

December 22, 2010

Hon. THOMAS J. QUIGLEY,

Secretary,

Department of Conservation and Natural Resources, 

Harrisburg, PA.

Dear Secretary Quigley:

We want to thank you and your staff for your willingness to discuss a framework 

to provide certainty to farmers who implement practices that protect water quality 

in the Chesapeake Bay. 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 your 

state watershed implementation plans. 

As we at the U.S. Department of Agriculture and the U.S. Environmental Protection Agency have discussed with you and your staff, certainty is viewed as a tool 

that states can use with agricultural producers to help achieve multiple goals for 

agriculture and water quality, including:

• Increasing producer interest and willingness in adopting Best Management 

Practices based on farm-specific conservation planning, which, in turn, would 

increase the pace and extent to which resource conservation and verifiable 

water-quality improvements are achieved.

• Providing to producers clear and consistent communications on conservation actions consistent with the objectives of the state watershed implementation 

plans.

• Providing assurance to agricultural business operations that investments in 

conservation practices will provide benefits for farms and water quality consistent with state watershed implementation plans.

While this is an effort best done at the state level, USDA and the EPA are willing 

to support you as you develop a state certainty program. As discussed earlier this 

month, by January 15, 2011, the six Chesapeake Bay basin state agriculture secretaries will follow up with their USDA Natural Resources Conservation Service 

(NRCS) State Conservationists to confirm interest in pursuing a certainty program. 

In turning this framework into a practical tool, you are encouraged to call on USDA 

and EPA staff for assistance. The NRCS stands ready to help you develop farm-specific plans to support such a program. 

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USDA and the EPA believe that maintaining agriculture’s viability is an essential 

component to sustaining ecosystems in the Chesapeake Bay basin. We are committed to strong partnerships and collaboration with states, and we very much appreciate your contributions to improving the Bay. We look forward to working with 

you on this and other issues to ensure a healthy basin ecosystem, strong rural communities and a vital agricultural sector. 

Sincerely,

KATHLEEN A. MERRIGAN, BOB PERCIASEPE,

Deputy Secretary, Deputy Administrator,

U.S. Department of Agriculture; U.S. Environmental Protection Agency. 

December 22, 2010

Hon. JOHN HANGAR, Secretary,

Pennsylvania Department of Environmental Protection, 

Harrisburg, PA.

Dear Secretary Hangar:

We want to thank you and your staff for your willingness to discuss a framework 

to provide certainty to farmers who implement practices that protect water quality 

in the Chesapeake Bay. 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 your 

state watershed implementation plans. 

As we at the U.S. Department of Agriculture and the U.S. Environmental Protection Agency have discussed with you and your staff, certainty is viewed as a tool 

that states can use with agricultural producers to help achieve multiple goals for 

agriculture and water quality, including:

• Increasing producer interest and willingness in adopting Best Management 

Practices based on farm-specific conservation farming, which, in turn, would increase the pace and extent to which resource conservation and verifiable waterquality improvements are achieved.

• Providing to producers clear and consistent communications on conservation actions consistent with the objectives of the state watershed implementation 

plans.

• Providing assurance to agricultural business operations that investments in 

conservation practices will provide benefits for farms and water quality consistent with state watershed implementation plans.

While this is an effort best done at the state level, USDA and the EPA are willing 

to support to you as you develop a state certainty program. As discussed earlier this 

month, by January 15, 2011, the six Chesapeake Bay basin state agriculture secretaries will follow up with their USDA Natural Resources Conservation Service 

(NRCS) State Conservationists to confirm interest in pursuing a certainty program. 

In turning this framework into a practical tool, you are encouraged to call on USDA 

and EPA staff for assistance. The NRCS stands ready to help you develop farm-specific plans to support such a program. 

USDA and the EPA believe that maintaining agriculture’s viability is an essential 

component to sustaining ecosystems in the Chesapeake Bay basin. We are committed to strong partnerships and collaboration with states, and we very much appreciate your contributions to improving the Bay. We look forward to working with 

you on this and other issues to ensure a healthy basin ecosystem, strong rural communities and a vital agricultural sector. 

Sincerely,


11226040.eps 11226040.eps
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KATHLEEN A. MERRIGAN, BOB PERCIASEPE,

Deputy Secretary, Deputy Administrator,

U.S. Department of Agriculture; U.S. Environmental Protection Agency. 

ATTACHMENT 3

June 28, 2011

Hon. GLENN THOMPSON,

Chairman,

Subcommittee on Conservation, Energy, and Forestry, 

House Committee on Agriculture, 

Washington, D.C.

Dear Chairman Thompson:

At the Subcommittee on Conservation, Energy and Forestry hearing about the 

Chesapeake Bay in March, the USDA and the EPA stated their intention to continue efforts to refine and increase the level of data available for understanding the 

implementation of conservation practices by farmers in the Chesapeake Bay Region. 

To ensure that the work continues to progress, the EPA and the USDA scientists 

have developed a plan of work for the key activities that are expected to be accomplished. A copy of the plan of work for that effort is enclosed. 

The additional data and refinements will serve a set of key purposes that will:

• Account for agricultural conservation practices implemented throughout the 

Chesapeake Bay watershed, including those practices funded solely by the farmer (not funded by Federal or state cost-share funding).

• Develop, as appropriate and feasible, a consistent estimate of pasture and hay 

land acres for use by the EPA and the USDA.

• Develop, as appropriate and feasible, a consistent approach for estimating fertilizer and manure applications for use by the EPA and the USDA.

In addition, there is ongoing work to (1) update and refine current conservation 

practice effectiveness estimates; and (2) credit new conservation practices as they 

are applied in the field. These efforts are intended to reflect our long term commitment to ensuring the best possible data is available. As a result of this work, we 

hope to increase our understanding of the impact of conservation practices and of 

the contribution farmers are making to restoration of the Bay. 

We appreciate your interest in this important issue and will be glad to provide 

additional information that you may request. 

Sincerely,

ARVIN R. GANESAN,

Associate Administrator.

ENCLOSURE

U.S. Department of Agriculture (USDA) and U.S. Environmental Protection 

Agency (EPA) Chesapeake Bay Conservation Data Collaboration 

In December 2010, the EPA released the final Total Maximum Daily Load 

(TMDL) for the Chesapeake Bay. TMDL nutrient and sediment load allocations for 

the Bay Watershed States were developed using water quality monitoring data and 

a suite of models, including the Chesapeake Bay Program Watershed Model. 

In March 2011, the USDA released its Assessment of the Effects of Conservation 

Practices on Cultivated Cropland in the Chesapeake Bay Region, a document known 

familiarly as the Chesapeake Bay Conservation Effects Assessment Project, or 

CEAP report. The USDA’s CEAP effort is based on a combination of farmer surveys 

and modeling used to estimate the impact of conservation practices on the landscape. 

There is a lot of interest from Chesapeake Bay stakeholders and within the USDA 

and the EPA to ensure consistency between the two modeling efforts and that they 

are informed by the best data available describing implementation of conservation 

by farmers in the Chesapeake Bay region. Below are commitments by the two agencies to that end.


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Improve tracking and reporting of conservation practices in the Chesapeake Bay Program (CBP) Watershed Model

As called for in the May 12, 2009 Executive Order 13508—Strategy for Protecting 

and Restoring the Chesapeake Bay Watershed, the USDA and the EPA are working 

with state agricultural agencies, conservation districts, and other key agricultural 

groups to ensure that non-cost-shared practices are tracked, verified, and reported 

for credit in the CBP Watershed Model. 

Additionally, the USDA is surveying approximately 1,400 producers through the 

National Resources Inventory (NRI) in 2011 to estimate the level of conservation 

practice implementation and to refine the spatial scale of available data. Combined 

with the similar work conducted from 2003–2006 (presented in the 2011 CEAP report), the results of this survey will provide an estimate of additional on-the-ground 

implementation of conservation practices between the two survey time periods.

Commitments:

The USDA and the EPA will work with state agricultural agencies, conservation 

districts, and other key agricultural groups to develop a mechanism for tracking, 

verifying and reporting non-cost-shared conservation practices on agricultural lands 

for use in the CBP Watershed Model.

Timeframe: Complete by July 2012.

Using CEAP results from 2003–2006 and the pending 2011–12 analysis, the 

USDA and the CBP Partnership will explore inclusion of the additional practices 

identified in these surveys into the CBP Watershed Model.

Timeframe: Begin in 2012.

Develop consistent estimates of pasture and hay land use in both models

The CBP Watershed Model and CEAP Model use different approaches for estimating pasture and hay land in the Chesapeake Bay watershed. The U.S. Geological 

Survey developed a methodology for estimating land use for the CBP modeling effort 

in which the pasture and hay land use is based on the USDA Census of Agriculture 

data rather than satellite imagery.

Commitment:

The Natural Resources Conservation Service (NRCS) and the CBP will work together to investigate the appropriateness of using a common approach for estimating pasture and hay land in both models.

Timeframe: Begin in 2011.

Coordinate fertilizer and manure nutrient input assumptions in both 

models

The NRCS and the CBP independently developed databases to estimate nutrient 

applications to cropland and arrived at similar figures for total application. However, differences likely exist in application timing and amounts applied by region, 

crop, and management system. A consistent approach for fertilizer and manure nutrient inputs that is informed by the significant work by the USDA and the CBP 

partnership would likely improve both models.

Commitment:

The NRCS and the CBP will work together to investigate the development of a 

single database to estimate nutrient applications to cropland that would drive both 

modeling efforts, building on the experiences of both. Alternatively, given the different temporal and spatial scales of the modeling, the NRCS and the CBP can work 

together to standardize assumptions across databases.

Timeframe: Begin 2012 and continue thereafter. Results may be used in CEAP on 

an ongoing basis and may be used for the CBP management decisions in 2017.

Develop comparable scales for reporting nutrient/sediment loads in 

CEAP & CBP Models

Commitment:

Currently the two models track and report loads on different geographic scales. 

Development of common reporting scales will allow a more effective comparison of 

model findings and increase watershed model data and technique sharing capabilities. As the technologies of the two models advance, opportunities to collaborate 

should be explored.

Timeframe: Begin 2012 and continue thereafter.

There are two further tasks that are already in progress to ensure that 

the CBP Watershed Model is informed by the latest scientific data:

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Updating current conservation practice effectiveness estimates based on 

the latest science. The NRCS and the CBP will work with the Agriculture 

Workgroup to determine the most appropriate way to inform updates to conservation practice effectiveness estimates in the CBP Watershed Model, with a particular 

focus on characterizing spacial variability in practice effectiveness.

Timeframe: Ongoing

Crediting new conservation practices. The EPA will provide resources to help 

coordinate the effort to credit new conservation practices in the CBP Watershed 

Model, in accordance with the established protocols. The USDA will provide relevant 

data on effectiveness estimates of the new conservation practices to inform assessment by expert panels that evaluate practice effectiveness.

Timeframe: Ongoing

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