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S. HRG. 111–1216 

LEGISLATIVE HEARING ON GREAT WATER BODY 

LEGISLATION: S. 1816 AND S. 1311 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WATER AND WILDLIFE 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

NOVEMBER 9, 2009 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

THOMAS R. CARPER, Delaware 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

ARLEN SPECTER, Pennsylvania 

JAMES M. INHOFE, Oklahoma 

GEORGE V. VOINOVICH, Ohio 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

MIKE CRAPO, Idaho 

CHRISTOPHER S. BOND, Missouri 

LAMAR ALEXANDER, Tennessee 

BETTINA POIRIER, Staff Director 

RUTH VAN MARK, Minority Staff Director 

SUBCOMMITTEE ON WATER AND WILDLIFE

BENJAMIN L. CARDIN, Maryland, Chairman 

FRANK R. LAUTENBERG, New Jersey 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

BARBARA BOXER, California (ex officio) 

MIKE CRAPO, Idaho 

JOHN BARRASSO, Wyoming 

LAMAR ALEXANDER, Tennessee 

JAMES M. INHOFE, Oklahoma (ex officio) 
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C O N T E N T S 

Page 

NOVEMBER 9, 2009 

OPENING STATEMENTS 

Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland ................ 1 

Crapo, Hon. Mike, U.S. Senator from the State of Idaho ..................................... 4 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma, prepared 

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

Vitter, Hon. David, U.S. Senator from the State of Louisiana, prepared statement ...................................................................................................................... 208 

WITNESSES 

Fox, J. Charles, Special Assistant to the Administrator, Chesapeake Bay 

Program, U.S. Environmental Protection Agency ............................................. 37 

Prepared statement .......................................................................................... 40 

Responses to additional questions from: 

Senator Cardin .......................................................................................... 51 

Senator Inhofe ........................................................................................... 55 

Senator Vitter ............................................................................................ 61 

Griffith, Bryon, Director, Gulf of Mexico Program, U.S. Environmental Protection Agency ........................................................................................................... 63 

Prepared statement .......................................................................................... 66 

Responses to additional questions from: 

Senator Cardin .......................................................................................... 72 

Senator Inhofe ........................................................................................... 77 

Senator Vitter ............................................................................................ 80 

Swanson, Ann, Executive Director, Chesapeake Bay Commission ..................... 145 

Prepared statement .......................................................................................... 148 

Responses to additional questions from Senator Inhofe ............................... 155 

Boesch, Donald F., President, University of Maryland Center for Environmental Science ...................................................................................................... 162 

Prepared statement .......................................................................................... 164 

Responses to additional questions from: 

Senator Cardin .......................................................................................... 169 

Senator Inhofe ........................................................................................... 170 

Hughes, Peter, President, Red Barn Trading Company ....................................... 174 

Prepared statement .......................................................................................... 176 

Responses to additional questions from Senator Inhofe ............................... 183 

Bodine, Susan Parker, Partner, Barnes and Thornburg ...................................... 186 

Prepared statement .......................................................................................... 188 

Responses to additional questions from Senator Inhofe ............................... 199 

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LEGISLATIVE HEARING ON GREAT WATER 

BODY LEGISLATION: S. 1816 AND S. 1311 

MONDAY, NOVEMBER 9, 2009 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON WATER AND WILDLIFE, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 3 p.m. in room 

406, Dirksen Senate Office Building, Hon. Benjamin L. Cardin 

(chairman of the subcommittee) presiding. 

Present: Senators Cardin and Crapo. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, 

U.S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. Good afternoon, everyone. Welcome to the Subcommittee on Water and Wildlife of the Environment and Public 

Works Committee. 

I particularly want to thank Senator Crapo for his cooperation in 

scheduling a Monday hearing. It is not easy to schedule a hearing 

on Monday, and I appreciate his cooperation. At the time, we were 

unclear as to the ability of having hearings in the EPW Committee 

this time of the year, and we knew Monday was a time that would 

be available. And Senator Crapo cooperated with us, and I thank 

him very much for it. 

We really do have the opportunity today to talk about two of the 

most important bodies of water in our country, the Chesapeake Bay 

and the Gulf of Mexico. The Chesapeake Bay is the largest estuary 

in North America; 17 million people live in the Chesapeake Bay 

watershed, and it includes six States and the District of Columbia; 

3,600 species of plants, animals and fish; 500 million pounds of seafood every year. It goes on and on and on. And I keep talking about 

the Bay because it is critically important to this region’s history, 

to its culture, to its economy, and to its future. 

The Gulf of Mexico is the ninth largest body of water in the 

world; five U.S. States, six Mexican states and Cuba all are impacted by the Gulf of Mexico; 1,631 miles of coastline in the United 

States; 61 million people live in the region; $20 billion in tourism 

industry every year; $29 billion in agricultural production. Clearly, 

it is a very important body of water for the economy of our Nation. 

Both bodies of water are in trouble. Sediment in nutrients such 

as nitrogen and phosphorus are flowing into both bodies of water. 

The overgrowth of algae creates oxygen starved dead zones. In the 

Chesapeake Bay, there are 7,000 square miles of dead zone. In the 
2 

Gulf of Mexico, the dead zones equal the size of the State of New 

Jersey. 

It impacts the ability of the Bay and the Gulf to be productive 

bodies of water. In the Bay, we have seen the endangerment of the 

blue crab, which is so symbolic of our State, an icon of our seafood 

industry. And we know that we are in trouble because of these 

dead zones, which are creating a problem for juvenile crabs and the 

crab production. That is just one example. I could list many, many 

more. 

In the Gulf of Mexico, we know that wetlands are being destroyed at an alarming rate. Between 1998 and 2004, over 400,000 

acres of wetlands were destroyed. When the EPW Committee went 

to New Orleans, we had a chance to see firsthand the importance 

in the Gulf of Mexico of the wetlands. It acts as what they were 

called speed bumpers for storms that come in, and the loss of the 

wetlands puts the shoreline at much, much greater risk. 

Now, the sources of the problems comes from agriculture, from 

stormwater runoff, from wastewater treatment facility plants, and 

airborne. The Chesapeake Bay Program is a critically important 

part of trying to deal with a strategy to abate the increased pollution and to restore the Bay’s quality. We have already had two 

oversight hearings. This is our third hearing on the Chesapeake 

Bay. The program itself was established by law 20 years ago in the 

Clean Water Act. President Obama as recently as May 12, 2009, 

declared the Chesapeake Bay a national treasure and ordered Federal agencies and departments to prepare and submit annual action plans. 

S. 1816, the Chesapeake Bay Water and Ecosystem Restoration 

Act, builds on that Executive Order establishing 2025 as the restoration deadline date. It is cosponsored by Senator Carper on our 

committee, and I am pleased also that Senators Mikulski and 

Kaufman have joined in this effort. It provides $1.5 billion in authorization to control urban and suburban stormwater runoff. Why that is important is that we have 

already provided substantial increased funds for agricultural activities in the farm bill and for the wastewater treatment facility 

plants in the President’s budget, as well as the American Recovery 

and Reinvestment Act. 

The bill provides specific help for farmers and foresters, and 10 

percent of the implementation grants are reserved for the States of 

Delaware, New York and West Virginia, acknowledging the importance of these States as it relates to the supplies of fresh water. 

The Gulf of Mexico Program was established in 1988 by the EPA 

as a non-regulatory office. There is no statutory authority for the 

Gulf of Mexico Program. Bills have been introduced in the past 15 

years, I have been told, but this is the first hearing on the legislative support for the Gulf of Mexico Program. 

I point out that these are two major bodies of water, but there 

are other bodies of water that this committee is interested in. 

Puget Sound, Senator Cantwell has recently introduced legislation, 

and we certainly will be looking at Puget Sound from the point of 

view of the appropriate legislative authority for congressional action or for Federal action in this area. The Great Lakes, the largest 

bodies of fresh water in the world, clearly a great interest to this 
3 

committee. Lake Tahoe, that borders California and Nevada, another body of water that this committee will take a look at. 

But today we will focus on the Chesapeake Bay and the Gulf of 

Mexico. We have our work cut out for us, and we have two panels 

of witnesses, Government experts, as well as people who have been 

working in this area for a long time, and we look forward to their 

testimonies. 

With that, let me turn it over to Senator Crapo. 

[The prepared statement of Senator Cardin follows:] 

STATEMENT OF HON. BENJAMIN L. CARDIN, U.S. SENATOR FROM THE STATE OF MARYLAND

I want to thank our witnesses for coming before the Water and Wildlife subcommittee today to discuss the need to re-authorize the Chesapeake Bay Program 

and finally formally authorize the Gulf of Mexico Program. 

This subcommittee has held two oversight hearings on the Chesapeake Bay Program, where we heard from elected representatives, private citizens, and agency officials on the health of the Bay and the status of restoration efforts. 

Today’s hearing will focus on expert views on legislation to help restore two great 

water bodies: the Chesapeake Bay and the Gulf of Mexico. We will hear from two 

panels of witnesses who will share their insight on how inter-agency and FederalState partnerships in the Chesapeake Bay Program and Gulf of Mexico Program can 

help us restore and protect these important water bodies. 

The Chesapeake Bay and Gulf of Mexico are two of our Nation’s most treasured 

water bodies. The Bay is home to 17 million people as well as our Nation’s capital. 

It is the largest estuary in North America and has been internationally recognized 

as a region of ecological significance. The Gulf of Mexico is the ninth-largest body 

of water in the world and contains half of the coastal wetlands in the United States. 

It links five of our States to Mexico, Cuba, and the Caribbean Sea. 

Both the Bay and the Gulf are rich with resources that provide the backbone for 

our regions’ economies. They are home to commercial fisheries and support recreation and tourism. They are also both rich in biodiversity, supporting thousands of 

species of fish, wildlife, and plants. 

But they are also seriously threatened by pollutants, especially nutrients and 

sediments. 

Two of the biggest dead zones in U.S. waters are in the Gulf of Mexico and Chesapeake Bay. The dead zone in the Gulf is the size of New Jersey. In the summer 

of 2003, the area of low oxygen in the Chesapeake stretched for over 100 miles. 

Unfortunately, dozens of the United States’ best known bays are starved for oxygen, ranging from Tampa Bay in Florida to San Francisco Bay in California and 

even up into the Puget Sound in Washington State. 

In Maryland, we have seen how pollution endangers the iconic Chesapeake blue 

crab. With the notable exception of last year, we have seen 10 years of unprecedented low blue crab populations. The shrinking crab population means smaller harvests for our watermen, an already beleaguered industry in these difficult economic 

times. 

In the Gulf, the rapid loss of coastal wetlands is especially troubling, since these 

wetlands serve as the first line of defense against devastating storms. 

Today we focus on legislative efforts to strengthen and formalize two programs 

that have been working to bring together Federal agencies, States, and international partners in Mexico to restore and protect these water bodies. 

The Chesapeake Bay Program was established under the Clean Water Act as a 

formal program office in the EPA more than 20 years ago. The Gulf of Mexico program has been operating for roughly the same time, but only as an administratively 

organized effort, not a formally authorized program. Over the past 20 years, these 

two programs have made significant progress and laid the foundation for the legislation we’re discussing today. 

S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act, provides 

the strong, new tools that States need to restore the Bay. It provides $1.5 billion 

in grants to control urban and suburban stormwater runoff: the only increasing pollution source in the Bay. It also helps farmers and foresters access farm bill funds 

so they can implement conservation practices to improve water quality. 

And for the first time, it recognizes the importance of the headwater States by 

setting aside 10 percent of State implementation grants for Delaware, New York, 

and West Virginia. 
4 

We will also hear witness views on S. 1311, the Gulf of Mexico Restoration and 

Protection Act. 

As I noted, the Gulf program has never had formal authorization in the Clean 

Water Act. In 1991, the first bill to establish the Gulf program was introduced by 

Senator Phil Gramm of Texas. Over the course of the next 15 years, authorization 

bills have been introduced six times, but no congressional action ensued. And again 

this year, Senator Wicker has introduced the Gulf authorization bill. 

My staff informs me that although this legislation has been introduced numerous 

times over the last 15 years, today will mark the first time that any of the Gulf 

of Mexico authorization bills have been the subject of a Senate hearing. That is an 

unfortunate string of inaction that ends today. 

The great water bodies of this Nation deserve our attention. This subcommittee 

has devoted considerable time to the Chesapeake Bay, and starting today to the 

Gulf of Mexico. We expect to turn our attention in the near future to the Puget 

Sound, where Senator Cantwell has recently introduced important restoration legislation. We will also return to the Great Lakes, the largest bodies of fresh water in 

the world, and to Lake Tahoe, the blue gem that straddles the California-Nevada 

border. 

But today we focus on the Chesapeake and the Gulf of Mexico. We look forward 

to hearing from our witnesses and their views on the bills before us today. 

OPENING STATEMENT OF HON. MIKE CRAPO, 

U.S. SENATOR FROM THE STATE OF IDAHO 

Senator CRAPO. Thank you very much, Mr. Chairman. 

Before I make my remarks, I would like to ask unanimous consent that Senator Inhofe’s statement be included in the record. 

Senator CARDIN. Without objection. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA

I appreciate the opportunity to discuss these great water body bills today. I am 

extremely concerned about the implications that these bills may have on States, 

local land use decisions, and EPA’s authority. I am particularly troubled by the approach taken in S. 1816, the Chesapeake Clean Water and Ecosystem Restoration 

Act. 

In my statement submitted for the record for the last Chesapeake Bay hearing, 

on August 3rd, I said that ‘‘taking care of a resource like the Chesapeake Bay requires the buy-in of all interested stakeholders, from businesses, to fishermen, to 

land users and developers upstream, be actively involved and engaged. A top-down, 

heavy handed Federal approach will not lead to the kind of real world changes that 

are necessary to ensure the health of the Bay.’’ I am disappointed that the bill before us today features exactly that top-down, heavy handed Federal approach I 

warned about. 

This bill requires that States provide EPA with adequate smart growth plans. As 

I have stated in the past, the Federal Government should not tell States how to proceed on development; furthermore, as a strong Federalist, I think it is dangerous 

to have Washington make decisions that should be up to local communities. Allowing the EPA to approve decisions about taxes, jobs, and local land use is simply unacceptable. 

I have heard from a number of groups who will be affected by these bills. I request that the statements of the Maryland State Builders Association; William 

Walker, Ph.D., Executive Director, Mississippi Department of Marine Resources; the 

Virginia Agribusiness Council; Virginia Grain Producers Association; Maryland 

Grain Producers Association; New York Corn Growers Association; National Corn 

Growers Association; and National Association of Wheat Growers, the National 

Cattleman’s Beef Association, and a letter received from nearly 50 agricultural organizations within the watershed be inserted into the record and that the record remain open for 2 weeks to allow the committee to gather a full and complete record 

on the impacts of these bills as we move forward. 

Unfortunately, I see this bill as another part of a hostile agenda aimed squarely 

at rural America and removing States and local officials as decisionmakers and instead placing them as merely following the dictates of Washington. Whether it’s new 

energy taxes from cap-and-trade legislation or more unfunded environmental mandates, it’s clear that this bill is yet one more raw deal for rural America. 
5 

Let me be clear, I have indicated to Senator Cardin my support for a reauthorization of the current Chesapeake Bay program, and I would like to work with Senator 

Cardin to make that happen. However, I cannot be supportive of a massive Federal 

expansion of EPA’s authority, which poses serious consequences for agriculture and 

local development and which could pave the way for this approach in other great 

water bodies, like the Great Lakes and the Gulf of Mexico. 

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Senator CRAPO. Thank you. Senator Inhofe would have been here 

today, but he is attending the services of one of his constituents 

who was unfortunately killed at Fort Hood. And so he asks for his 

regrets to be provided here for his not being able to attend. 

And Mr. Chairman, I want to thank you for holding this hearing 

today. It is two very important issues, as you have well explained. 

I very much appreciate the attention that you are giving to both 

the Chesapeake Clean Water and Ecosystem Restoration Act and 

to the Gulf of Mexico Restoration and Protection Act. 

I want to compliment you for your hard work on these issues and 

on this legislation, and frankly, on your strong focus on making 

sure that we achieve restoration in the Chesapeake Bay watershed. 

There are some concerns, of course, and some issues that we 

have with regard to the legislation, and we will get into that a little bit probably here with some of the witnesses to work through 

some of these issues, but you really deserve the credit for making 

sure that we move forward in this very, very important area. 

I also want to add my thanks to the witnesses for being here. It 

is good to see Mr. Fox here. He reminded me just a few minutes 

ago that the last time he was here, I was sitting in the Chairman’s 

seat, and was the issue arsenic back then? So it is interesting how 

things go around. 

And we appreciate the work that all of you have done, working 

over the weekend and doing the necessary preparation for this 

hearing. 

I am going to withhold any further comments, Mr. Chairman, 

until we get to the witnesses, so we can proceed as soon as possible 

with their testimony. And once again, I thank you for holding this 

hearing. 

Senator CARDIN. Well, thank you very much. I really appreciate 

it, Senator Crapo. 

Our first panel of witnesses are governmental witnesses. J. 

Charles ‘‘Chuck’’ Fox. Chuck Fox serves as EPA’s Senior Adviser to 

the Chesapeake Bay Program. He has dedicated many years to protecting the environment and natural resources in Maryland and in 

the Chesapeake Bay. Before coming to the Chesapeake Bay Program, Mr. Fox served as an Assistant Administrator of EPA’s Office of Water and as Secretary of the Maryland Department of Natural Resources. 

Bryon Griffith is the Director of the Gulf of Mexico Program and 

co-chairs the Gulf of Mexico Alliance Federal Work Group. He has 

served in the EPA for 30 years and at the Gulf of Mexico Program 

since 1991. As Director of the Gulf of Mexico Program, Mr. Griffith 

works with State and Federal authorities as well as partners in 

Mexico to restore and protect the Gulf. He will be speaking today 

about his experiences working in this regional partnership and 

what opportunities there are for Congress to improve it. 

We appreciate both you gentlemen being here today, and we will 

start with Mr. Fox. 

STATEMENT OF J. CHARLES FOX, SPECIAL ASSISTANT TO THE 

ADMINISTRATOR, CHESAPEAKE BAY PROGRAM, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. FOX. Thank you, Mr. Chairman. 
38 

Senator Crapo, it is good to see you again. 

At the outset, we would like to commend you, Mr. Chairman, for 

developing legislation to strengthen and reauthorize the Chesapeake Bay Program. Over the past several months, you have successfully engaged leaders from throughout the watershed. You have 

incorporated many useful comments and ideas. S. 1816 is a 

thoughtful and highly constructive initiative to address the nutrient and sediment pollution problems in the Chesapeake Bay and 

its watershed. Thank you for your leadership. 

The Administration strongly supports reauthorization of the 

Chesapeake Bay Program. We welcome the objectives and many of 

the specific elements of S. 1816. We look forward to our continued 

work with you and other Members of Congress to improve the program’s efficiency and effectiveness. 

The 26-year history of the Chesapeake Cleanup Program suggests that we will simply not be successful without new tools at our 

disposal. President Obama’s Executive Order on the Chesapeake 

Bay defined a new era of Federal leadership, one that is characterized by new levels of accountability, performance, partnership and 

innovation. Earlier today, we released a draft strategy for the 

Chesapeake, beginning a formal 60-day public comment period on 

a series of proposed initiatives that were sparked by the Executive 

Order. 

Many of our proposed actions to improve water quality are wholly consistent with key elements of S. 1816. For example, our draft 

strategy also states a goal of implementing all pollution control 

measures by 2025 that are sufficient to achieve water quality 

standards. Specific provisions in S. 1816 to expand the Stormwater 

Permit Program for urban and suburban runoff, to provide more 

accountability for agricultural pollution control, and to establish 

offset requirements for new and increased nutrient discharges are 

also highly consistent with the Executive Order. 

Last week, EPA articulated its expectations for the development 

of watershed implementation plans consistent with the pollution 

limits articulated in the emerging TMDL. Our expectations for 

these plans and the schedules for their implementation are also 

consistent with S. 1816. Importantly, like 1816, we also have defined a series of consequences which we may take in the event that 

progress is not sufficient to meet our water quality goals. 

The Administration’s draft strategy also calls for new Federal 

rulemakings to reduce pollution from concentrated animal feeding 

operations, urban and suburban stormwater, and new or expanding 

sources of nutrient or sediment pollution. With these rulemakings, 

EPA will strengthen and clarify Federal requirements to reduce 

major sources of runoff pollution. 

In the interim, EPA will issue detailed guidance documents to 

assist the States in establishing appropriate new pollution control 

programs that are consistent with the limits in the TMDL. 

Mr. Chairman, in 1983, you presided over the Maryland House 

of Delegates as its Speaker when Governor Harry Hughes proposed 

a package of Bay initiatives. It was the beginning of the modern 

Chesapeake Bay Cleanup Program. At that time, everyone understood that saving the Bay was a long-term proposition. However, 
39 

I don’t think anyone imagined that water quality would have 

changed so little 26 years later. 

Of course, we have made progress, and as you have made clear 

on many occasions we would be much further away from our goals 

if we had not taken actions that we had. We share your view that 

today is the time for new leadership and bold action. My two young 

children are in the audience today. It is my hope and that of so 

many people and communities in the watershed that we can secure 

a new, more healthy Chesapeake Bay for their future. 

Thank you again for this opportunity. 

[The prepared statement of Mr. Fox follows:] 
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Senator CARDIN. Well, thank you. I take it you mentioned your 

two children thinking that we would go a little softer on you on the 

questions? 

[Laughter.] 

Mr. FOX. That was my strategy at my confirmation hearing. I 

don’t think it will work today. 

[Laughter.] 

Senator CARDIN. Mr. Griffith. 

STATEMENT OF BRYON GRIFFITH, DIRECTOR, GULF OF MEXICO PROGRAM, U.S. ENVIRONMENTAL PROTECTION AGENCY 

Mr. GRIFFITH. Thank you, Mr. Chairman and members of the 

committee. Good afternoon, and thank you very much for the opportunity to discuss S. 1311, the Gulf of Mexico Protection Act. 

The Gulf of Mexico Program is a regional initiative of EPA. It is 

located in coastal Mississippi on the Federal campus of the NASA 

Stennis Space Center, strategically on the center northern region 

of the Gulf Coast. 

I would like to just briefly describe a few of the important aspects of Senate Bill 1311 and the underlying program efforts that 

we would put forth to its implementation for you this afternoon. 

The Gulf of Mexico is the ninth largest body of water in the 

world and borders five Gulf States: Texas, Louisiana, Mississippi, 

Alabama, and Florida. Its coastal areas contain 30 percent of the 

wetlands of the continental United States and are home to enormous diversity of natural resources spanning semi-arid to subtropical ecologies. 

The region’s coastal economy is inextricably tied to its natural resources. In 2006, the Gulf Coast GDP was $2.2 trillion, supporting 

over 20 million jobs with over 620,000 of those tied to tourism and 

recreation alone. The Gulf produces 52 percent of U.S. crude oil 

and 54 percent of domestic natural gas production. Its waters 

produce 1.2 billion pounds of fish and shellfish annually, and it is 

also home to 6 of the top 10 leading shipping ports of the United 

States. 

However, our coastal wetlands and barrier islands are disappearing at an alarming rate, as was mentioned earlier, due to 

both the unintended impacts of meeting demands for enhanced 

shipping, flood control, energy development and climate change. 

Ranged over 150 rivers spanning 31 States spawns the second largest zone of hypoxia in the world. Considering that the Nation’s population is estimated to increase by 130 million by 2050 and the 

Gulf Coast counties alone will account for a 10 percent increase, 

the demands of food and energy and trade will challenge the ecosystem’s resilience at an unprecedented scale. 

The Gulf Program was originally created in 1988. In the 21 years 

since the program began, we have had numerous successes in serving as the Federal, State and local programs’ integrator. A sampling of these successes include the recovery of numerous impaired 

water bodies across the five-State region, the restoration and protection of over 30,000 acres of coastal habitat, and the implementation of the first ever early warning detection system for harmful 

algal blooms, with a focus on red tides. 
64 

These red tide detection technologies are actually being put to 

use this very week as a large outbreak of red tides has basically 

taken on and challenged Vera Cruz and Tamaulipas, two of our 

Mexican states to the south. 

A cornerstone of the Gulf Program’s relationship is the Gulf of 

Mexico Alliance and the support we provide it, a collaborative effort 

among Texas, Louisiana, Mississippi, Alabama and Florida to protect its ecosystems and its underlying economy. Since the formation 

of the Governors’ Alliance in 2004, our program has served as the 

foundation for the partnership’s technical and financial assistance. 

We also co-lead the collaboration of the 13-member Federal Working Group with NOAA and the Department of the Interior. 

In June 2009, the Alliance released its second action plan after 

accomplishing virtually 100 percent of the objectives of its first 

plan. The program’s excellent support for the Alliance and participating Federal agencies resulted in the Joint Ocean Commission 

recognizing this collaborative as a model for ocean governance alliances nationally. 

We note that the Administration has embarked upon an effort 

through the establishment of the Interagency Ocean Policy Task 

Force to create a national policy for the oceans and coast and the 

Great Lakes, which is to be complemented with a recommended 

framework for coastal and marine special planning. 

EPA’s Gulf of Mexico Program embodies the science-based approach envisioned in the Task Force’s interim report as well as holistic coordination and collaboration with regional entities. 

The Gulf of Mexico Program has been very effective in supporting the growth activities of the Gulf of Mexico Alliance and improving wetlands conditions and water qualities in targeted areas. 

However, the region is experiencing changes faster and on a larger 

scale than any U.S. coastal region. 

A nearly enclosed, shallow, subtropical sea, the Gulf’s ecosystem 

is vulnerable to very small changes in temperature, salinity and 

sea level rise. Coastal wetlands are being lost in coastal Louisiana 

alone at a rate of 25 to 30 square miles per year. Barrier islands 

are disappearing with the passage of each coastal storm, leaving 

communities more vulnerable to much smaller storms such as Hurricane Ida, a late season tropical storm that will reach landfall in 

the northern Gulf this evening. 

The Gulf Coast’s natural barriers, our shock absorbers if you 

will, are degrading to the point where even a relatively small storm 

such as this will deliver increasingly costly economic damages and 

more widespread public health risks. 

These rapidly evolving physical changes in the ocean and atmosphere, coupled with the increasing pressures on our coastal environment, make it difficult to imagine tackling these issues with 

yesterday’s technologies and practices. The challenge facing the 

Gulf Program is to evolve at an appropriate pace to successfully 

support the Gulf States’ capacity to respond to the changing environment. 

To succeed, the program will have to continue to achieve high 

and effective leveraging of the projects and activities implemented 

across the region to support action plan two. EPA strongly supports 

the restoration and protection goals of Senate Bill 1311, which sup-
65 

ports our work leveraging partners and resources to enhance and 

sustain this valuable treasure. 

Thank you again for the opportunity to be here, and I look forward to your questions. 

[The prepared statement of Mr. Griffith follows:] 
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Senator CARDIN. Well, once again, let me thank both of you for 

being here and your extraordinary work on behalf of our environment. Both of you have long track records of involvement throughout your professional careers and bringing together diverse interests for policies that work. 

Mr. Fox, I couldn’t agree with you more. As we said earlier, if 

we did not have the Chesapeake Bay Program, if we didn’t make 

the efforts, the Bay would be in much worse shape today than it 

is. And while we are all disappointed we are not further along, but 

it was extraordinary accomplishments by legislation enacted both 

by the State of Virginia, the State of Maryland, controlling land 

use and tremendous sacrifices that were made by the people of our 

States, recognizing it was necessary in order to get the Bay plan 

moving forward. 

So I applaud you for your leadership over the years, and it is 

going to take, I think, some additional efforts now to get us to the 

next plateau. 

Now, the first question my staff asked me to ask each of you is 

whether you support the respective bills. I don’t know if I want to 

trust my luck here. I thought that you statements were pretty 

strong, both of you, in support of the respective bills. But is there 

anything in these bills that you want to bring to our attention that 

could cause a problem with the Administration? 

Mr. Fox, let me start with you, with S. 1816. 

Mr. FOX. Mr. Chairman, I think as you appropriately noticed, our 

statement is appropriately supportive of your legislation. We do not 

officially have an Administration position on your bill at this point, 

and we could certainly talk with you more about whether or not 

that would be something valuable. 

We have appreciated the opportunity to provide technical assistance, and we will continue to do so. 

Senator CARDIN. And we will let you know. Again, if there are 

provisions in here that present particular challenges, please let us 

know about it, but as you pointed out, many of the provisions were 

negotiated with EPA very much involved in our discussions. 

Mr. Griffith, as it relates to S. 1311, the Gulf of Mexico Restoration and Protection Act, would you like to further elaborate as to 

the Administration’s position? 

Mr. GRIFFITH. Mr. Chairman, as was pointed out in my testimony, EPA does strongly support the provisions of Senate Bill 

1311. The structure indeed matches the structure and evolution of 

the program to date. 

Senator CARDIN. Thank you. 

Mr. Fox, the legislation builds on the work of the Executive 

Council, and you mentioned 2025 as the date in our testimony for 

the implementations to be completed. We picked that date because 

of the Executive Council. The original bill that we sent around for 

review had an earlier date, but we decided to go with 2025 because 

it appears like it is the date that the interested community believes 

is attainable. Do you have any further observations as to whether 

that is the appropriate date we should be shooting for? 

Mr. FOX. Like you, Mr. Chairman, I think I have grown impatient over the years for action. But upon reflection of these dates, 

I think it is fair to say that there is widespread support for 2025 
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as the date by which we could achieve full implementation of the 

practices necessary to restore water quality. 

I think it is important, too, to be mindful that these control 

measures will not be cheap, and in today’s economy, given the realities facing many sectors of our economy, particularly the agricultural sector, the idea that an additional 5 years could be helpful 

seems to make a lot of sense. Time really is money, and 2025 is 

still a very ambitious goal. 

Senator CARDIN. The legislation authorizes an Interstate Nutrient Trading Program to achieve reductions in nitrogens and phosphorus in the Bay. Any comment as to the advisability of us establishing this Interstate Trading Program? 

Mr. FOX. If you had asked me about a month ago about the prospects for a trading program in the Chesapeake, my answer might 

be different than it is today. And that is because the most recent 

model and scientific information we have generated suggests that 

in fact there is perhaps more nutrients to trade. One of my fears 

about a trading program a month ago was in fact that there might 

not be enough nutrients to trade. Today, it appears differently. 

And so, I think for all the reasons that you know and are articulated in the legislation, a trading program makes a lot of sense for 

the Chesapeake. I think we will be able to deliver better results, 

cheaper and faster, and we look forward to trying to work and implement something like that. 

Senator CARDIN. Thank you. 

Mr. Griffith, could you just share with us the challenges of working not only with multiple States, but working between Mexico and 

the United States as it relates to the Gulf of Mexico? What lessons 

have been learned over the last 20 years that could guide us to try 

to establish achievable goals for the Gulf? 

Mr. GRIFFITH. Thank you, Mr. Chairman. 

First and foremost, the thing that has guided principally the relationship and the rapid development of programs with Mexico is 

actually the shared resource, the shared water body itself, and the 

influence is largely, as in the northern Gulf, it is with Mexico. The 

influence is the river systems on the coastal ecology, both from the 

standpoint of hypoxic zones as well as the rapid—even in many 

cases more rapid degradation of the coral reef structures. 

Our work on harmful algal blooms was some of the lowest hanging fruit for which we could actually test for ourselves the complexity and difficulty of working with Mexico, particularly with the 

broad range of technical, science and resource departments in that 

particular governance structure. 

It has proven to be extremely successful, largely from the standpoint of a technology exchange program. Mexico is at a point where 

they have a voracious appetite for anything and everything the 

U.S. has that would complement their coastal environmental programs’ infrastructure and support. So we know that the well is 

deep in that early experience with ocean observing to really jointly 

address the issues of ag non-point source practices and their impacts on the coastal ecology, as an example. 

Senator CARDIN. Just to follow it up, it is tough to see a program 

that would have specific enforcement targets when you are dealing 

with two countries. Is that something that can be agreed to? Or 
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will it require a more formal relationship between Mexico and the 

United States? 

Mr. GRIFFITH. I would certainly think that that would require a 

more formal relationship with Mexico and the United States, not 

the least of which is the complexity of the science to basically annotate the contributions and where they are actually coming from. 

Senator CARDIN. So you basically believe that the way this legislation moves forward is what is appropriate at this time? 

Mr. GRIFFITH. Yes, sir. It is a building block approach. 

Senator CARDIN. Thank you. 

Senator Crapo. 

Senator CRAPO. Thank you very much, Mr. Chairman. 

I will start with you, Mr. Griffith. You mentioned in your testimony the Presidential Interagency Ocean Policy Task Force. How 

do you foresee the Gulf of Mexico Program working with the new 

ocean policy that is contemplated there? And are there any improvements to S. 1311 that would help that transition move more 

smoothly? 

Mr. GRIFFITH. That is a very tough question, Senator Crapo, in 

the sense that that development is ongoing. But specifically to answer your question, and I can speak at it through several eyes, one 

of which is the region’s focus on actually establishing the Gulf of 

Mexico Program and the attempt to avoid duplication in an effort 

to really focus an aggregation of Federal environmental programs 

on the coastal priorities. 

We are hopeful and very expectant that the Ocean Policy Task 

Force will take into account the Federal structure of the Gulf Program as they determine how exactly they are going to implement 

programs on the ground. 

As far as the alliance that we support, which is largely the center 

of Senate Bill 1311, that Alliance, as was mentioned earlier as a 

national construct for effective regional governance, has actually 

been folded into the Ocean Policy Task Force’s framework under 

the government’s Advisory Council. And so the Gulf States Governors’ Alliance will actually be one of the principal voices of advice 

and program direction to the Task Force. 

Senator CRAPO. Thank you very much. 

And Mr. Fox, I want to go through several items with you with 

regard to the Chesapeake Bay legislation. As I am sure you are 

aware, some concerns have been raised about whether the legislation is too heavy in terms of top-down control from Washington and 

has too heavy a hand in that regard. 

The first question I wanted to talk to you about is the creation 

of a statutory TMDL. Some have said that that would literally 

freeze in place both science and policy and take away from the EPA 

the flexibility that it would need to make adjustments as necessary 

as further science and further understandings are developed. 

Could you comment on that, please? 

Mr. FOX. Some of that I believe, Mr. Crapo, is a fair comment 

about the way the legislation is presently drafted. I am not sure, 

though, that that was the intent of the drafters. The way the bill 

is in fact constructed presently there are two references to two different TMDLs, one of which actually was a pre-TMDL exercise 
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called the tributary strategies done several years ago, and it was 

constructed in the legislation as a backstop mechanism. 

I am a firm believer in adaptive management and not locking in 

science today that we would ultimately want to evolve over time. 

In all of our conversations with the Chairman and his staff, I think 

there is support for that. So I personally think this is a fair criticism of the bill the way it is drafted, but it is not my sense that 

that was the intent of it, and I would imagine that the Chair would 

be interested in learning more about how to fix this particular part 

of the bill. 

Senator CRAPO. All right. Thank you very much. 

Another piece that I am interested in is the provision that the 

EPA could withhold Clean Water Act funds as punishment for a 

State failing to meet its nutrient reduction goals. In my mind, as 

we look at the infrastructure needs that our States are facing, 

whether it be in clean water or clean air or drinking water, the incredible amount of need that there is out there in the States for 

these kinds of issues, it seems to me to be the wrong move to be 

depriving States of these resources in the very context in which 

they are trying to work and move forward. 

Could you comment on that as well? 

Mr. FOX. It is also a fair point. Presently under current law, we 

have the authority to withhold section 319 non-point source funds, 

section 106 State grant funds, as well as section 117 Chesapeake 

Bay funds for various reasons, including nonperformance by the 

States. Of course, we are always reluctant to do this because you 

never want to cut off your nose to spite your face. This is all about 

improving clean water. 

At the same time, I think what we have learned through 30 

years of environmental statutes and management programs is it is 

really important to have consequences, and removing new Federal 

funds is an important consequence potentially for inaction. It is one 

that has been a hallmark of the Clean Air Act. 

In this case, it is potentially withholding of Federal highway 

funds that have helped move States along and local governments 

along in improving air quality. And having some kind of consequence like this, to me, makes perfect sense. It is something that 

has been part of the Clean Water Act since its beginning. 

Senator CRAPO. Thank you. I can just say, although not in the 

context of the Bay, I certainly often have a number of small communities or others in Idaho who face fines and penalties that literally deprive them of the ability to try to meet the objectives that 

they are expected to meet under Federal law. 

I just had one other question, if I might, Mr. Chairman. And that 

is the issue of whether the EPA has the authority, and I believe 

it does in this legislation, to take the States’ delegated programs 

and authorities from them if they fail to comply, and basically have 

the EPA step in and begin running the program. 

I, for one, believe that we need to have the full involvement of 

our States and local communities in environmental protection and 

in the implementation of Federal environmental law and do not 

like to see the pathway expanded or an increased movement toward taking delegation and authorities back from the States and 

local communities to the Federal Government. 
85 

Could you comment on that issue as well? 

Mr. FOX. Yes. Presently, all of the States in the country that 

have delegated programs, and I believe today they are all but 

maybe three or four, 46 of them have delegated programs. They all 

have them under a specific delegation agreement with EPA. EPA 

at any time can revoke that delegation agreement under current 

law so that we can assume a State program. 

Nobody ever wants to do that. To my knowledge, it has never 

happened in the history of the Water Program. There have been 

threats that it should happen. EPA has been petitioned at various 

times to take back State programs. It generally leads to very constructive dialogues with the States about how to improve their program. 

So I think it is an important lesson for me about the value of 

consequences is it sometimes creates a conversation and a dialogue 

that ultimately leads to the end point that everyone wants without 

having to ultimately invoke those actual consequences. We do it all 

the time with our permit objections, for example. 

Senator CRAPO. Thank you very much. 

Senator CARDIN. Senator Crapo, thank you for your questions. I 

think they are all extremely important, particularly on the Bay bill. 

Let me point out, we very much want the States to be able to act 

and to use the tools that are available. And we extend the tools 

that are available under this Act. 

Governor Kaine and Governor O’Malley, the Governors of Virginia and Maryland, both support this legislation, knowing full well 

that there will be accountability, and there is always the danger, 

but that they feel so strongly that there needs to be an enforcement 

mechanism in the law to achieve the goals that are set out, and 

they also believe they need more flexibility that this statute would 

give them in order to achieve those goals. 

But I think the points that you raise are extremely important. 

The first point, Mr. Fox, is absolutely correct. We want to make 

sure that science allows us to always have the best programs in 

place, so we intend to deal with that. 

Let me thank our two witnesses very much for their testimony, 

and we look forward to continuing to work with both of you. 

Mr. FOX. Thank you. 

Mr. GRIFFITH. Thank you, sir. 

Senator CARDIN. As the second panel comes forward, let me without objection introduce into the record letters of support for the 

record. We have received 28 letters in support of S. 1816, the 

Chesapeake Clean Water and Ecosystem Restoration Act. These 

letters come from governments, national and regional NGOs, and 

even private individuals. For example, we have a letter from Governor O’Malley of Maryland, Governor Kaine of Virginia, and 

Mayor Fenty of the District of Columbia; a letter from Ducks Unlimited; a letter from the Nature Conservancy; a letter from the 

New York Upper Susquehanna Coalition and letters from five 

Pennsylvania NGOs, including Citizens for Pennsylvania’s Future. 

So without objection, all those letters will be introduced into the 

record. 

[The referenced letters follow:] 
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Senator CRAPO. I have no objection, Mr. Chairman. I would like 

to follow up on that. I note in Senator Inhofe’s opening statement 

that he had asked that a number of letters also be introduced. 

Senator CARDIN. Oh, absolutely. Those letters also will be included in the record. 

We now are joined by Ann Swanson. Ann Swanson has been a 

leader in the Chesapeake Bay restoration effort for over 25 years 

and has spent the last 20 years as the Executive Director of the 

Chesapeake Bay Commission. She is also a trained wildlifeologist 

and ecologist. In 2001, she was awarded the Bay Region’s highest 

award as the Conservationist of the Year. 

Although she has worked primarily in the Chesapeake Bay, Ms. 

Swanson’s expertise has been tapped by other great water bodies 

programs across the country and even abroad. 

Dr. Donald Boesch is an internationally known marine ecologist 

and President of the University of Maryland Center for Environmental Science. He has conducted research and published extensively on the environmental issues facing both the Gulf of Mexico 

and the Chesapeake Bay. He has also served on numerous advisory 

boards, including the National Research Council, ensuring that 

world class science is applied to protecting these two nationally significant ecosystems. 

Dr. Boesch will provide us with a scientific perspective on restoring and protecting these two great water bodies. 

Mr. Peter Hughes has been a leader in facilitating nutrient credit 

trading between point source and non-point sources and assisting 

farmers in improving water quality through on-farm nutrient control. In 2005, he founded Red Barn Trading Company, the only privately held entity with certified nutrient credits in the Commonwealth of Pennsylvania. It is also the only entity that has brokered 

point to non-point credit sales in the Commonwealth. 

And Susan Parker Bodine is a Partner at the law firm of Barnes 

and Thornburg, where she practices environmental law with a 

focus on public policy issues, including wetlands, water pollution 

and water resources. She has previously served as an Assistant Administrator of the Office of Solid Waste and Emergency Response 

and Staff Director and Senior Council to the Subcommittee on 

Water Resources and Environment within the House Committee on 

Transportation and Infrastructure. 

It is a pleasure to have all four of you with us. Without objection, 

your full statements will be made a part of our record. You may 

proceed as you wish, and we will start off with Ms. Swanson, and 

then we will go to Dr. Boesch. Is that fine? 

STATEMENT OF ANN SWANSON, EXECUTIVE DIRECTOR, 

CHESAPEAKE BAY COMMISSION 

Ms. SWANSON. Well, first of all, Senator Cardin and Senator 

Crapo, thank you so much for this opportunity to come before you 

and represent the Chesapeake Bay Commission. As you heard, my 

name is Ann Swanson, and I have served as the Executive Director 

of the Commission for the past 21 years. 

The Commission is the only State-level organization that works 

watershed-wide. Our 21 members are largely elected officials from 
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both parties, representing the General Assemblies and Administration of Maryland, Pennsylvania and Virginia. 

Because we were created in 1980 and are a leader in the Chesapeake Bay Program, we have been involved in every major policy 

negotiation since the program got its start in 1983. 

I would like to really begin by thanking Senator Cardin for introducing this landmark legislation. I can say I have probably worked 

on more than 50 pieces of legislation in my time with the Commission, and I do believe this is probably the most profoundly important piece of legislation yet. 

The other thing I should say is that half of my family is from 

Idaho. So Senator Crapo, I would also like to thank you very much 

for coming here today to listen to the concerns of both the Chesapeake and the Gulf of Mexico. 

The Bay restoration effort is now more than three decades old. 

And section 117 is, of course, what authorizes it. It has been authorized a number of times, and I think the important point to 

make here is that with each authorization comes a maturity of the 

program and therefore a maturity of the appropriate policies to be 

acted on as the Congress moves the program forward. 

The Clean Water Act covers all point sources of pollution, encompassing municipal waste, wastewater, concentrated feedlots, but 

the important point in the Chesapeake, where roughly 60 percent 

of the nutrient pollution comes from the other type of source, or 

non-point source, we need this legislation to really cover all 

sources, to make sure that they are all controlled in meaningful 

ways. 

And I should emphasize here that doesn’t necessarily mean regulatory ways. But the point is that it would be very accountable, 

programs to meet those load reductions, and that the States would 

develop programs with some confidence that they would actually 

get the pollutants out of the water. 

In my brief minutes before you, I want to make five key points 

that I think really summarize the Commission’s strong support for 

this piece of legislation. 

The first is that the bill does indeed, as Mr. Fox suggested, respect the collaborative nature of this program. And I cannot emphasize that enough. A week never goes by where I am not at 

meetings with representatives from all the jurisdictions in the watershed, any number of Federal agencies, in a variety of combinations depending upon the subject. 

The point is that right now we have been very aggressively negotiating a TMDL process because we tried to do it voluntarily and 

over the course of roughly 10 years of trying, we didn’t succeed. So 

instead, we have now developed a program with 2-year milestones, 

with end term dates of 2025, and with a very clear process and expectations for exactly how much pollution needs to come out of the 

Bay to define clean water. 

That puts us uniquely in a place that nowhere else in the country is. We have a 64,000-square mile TMDL and one of the most 

vulnerable estuarine systems on the planet. And we have negotiated. This legislation directly reflects that negotiation. And so on 

that point, from a State point of view, I think it is extremely important because it is saying what the States have agreed to do. 
147 

The second thing is that the bill uses that clean air construct, 

that construct that uses consequences not to actually ever levy 

them, but to say it is possible so that it really pushes the envelope 

and pushes the interest at the State and local level to get the job 

done. 

The third is that the bill clearly articulates Federal Government 

expectations in clean water. It sets a cap. It says what is needed. 

The fourth is there is an interstate trading program. Suffice it 

to say that this puts the Chesapeake Bay Program in the modern 

framework. It is using markets to get at conservation instead of 

strictly public investment. And that is critical to this piece of legislation and to pursuing cost effective approaches that can matter. 

Finally, it is about financial assistance. I say that last to leave 

you with that mark. But it is not just Federal financial assistance. 

It is enormous leverage at the State level. The other thing is it is 

very guided. It is very guided toward stormwater, which is the fastest growing pollutant in our watershed and the only one that is 

growing. And the other thing is it focuses on technical assistance 

for farmers, something that is sorely needed if we are really going 

to get vast and total cooperation. 

So with that, I would like to end by saying this program is so 

important. The collaborative nature that the Federal Government 

started here is wholly appropriate for the Gulf of Mexico. It is what 

the Federal Government can do. It can really nurture interstate relations, and at this point it seems both of the pieces of legislation 

are well constructed for those regions, place and time right now. 

Thank you very much. 

[The prepared statement of Ms. Swanson follows:] 
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Senator CARDIN. Thank you for your testimony. 

Dr. Boesch. 

STATEMENT OF DONALD F. BOESCH, PRESIDENT, UNIVERSITY 

OF MARYLAND CENTER FOR ENVIRONMENTAL SCIENCE 

Mr. BOESCH. Yes, Senator Cardin, Senator Crapo, it is a great 

pleasure to be here before you. 

As I describe in my written testimony, I am very familiar with 

both the Chesapeake Bay Program and the Gulf of Mexico Program, having divided my scientific career working on these two 

great water bodies. 

I am very pleased to note that both authorizing bills make reference to reliance on scientific information, monitoring and science 

based decisionmaking. It is simply not possible to restore and manage these complex ecosystems without understanding the forces 

that have degraded them and caused their natural variability. 

But science must move beyond diagnosis and prognosis toward 

prescription and treatment. We must be able to effectively monitor 

the patient’s return to health. Rigorous scientific guidance and assessment are critical to achieving real results efficiently and to accurate accounting to the Congress and the American people. 

The bills on these two great water bodies share a common focus 

on improving water quality and living resources. Yet they differ 

significantly in the level of specificity regarding goals, objectives, 

requirements of State partners and organizational components. 

Largely, as Ms. Swanson indicated, this is a result of their geographic scope and environmental diversity, but also the evolution 

of the programs. The Gulf of Mexico Program seeks to address 

water quality and associated living resources in five States bordering the Gulf of Mexico, a coast as long as that from Florida to 

Maine. Except for the area receiving the effluents of the Mississippi 

River, Gulf water quality issues are manifest principally in the 

bays and estuaries of the coast, and the Gulf Program must address the diverse circumstances of these coastal waters. 

The Chesapeake Bay Program, on the other hand, is a more mature partnership of Federal Government and the six States and the 

District of Columbia that drain into the Bay. Four of these States 

don’t even border on the Chesapeake Bay. The Chesapeake Bay 

Program has incrementally evolved to a point of addressing very 

specific pollutant load reduction objectives, as was discussed, for 

which unfortunately we have continued to fall short. 

Consequently, it is highly appropriate that S. 1816 emphasizes 

the Federal responsibility under the Clean Water Act to, indeed, 

achieve clean water through very specific Chesapeake Bay watershed implementation plans, including the measures, programs, 

milestones, deadlines and enforcement mechanisms needed to implement them. 

Its requirement for incremental 2-year periods of implementation 

with assurances that alternative mechanisms are applied as contingencies represents a significant advance over what we have been 

doing for the last 20 years. This moves the Chesapeake Bay Program beyond the largely voluntary approaches to reduce non-point 

sources of nutrients and sediments that have limited the effective-
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ness of the program but will require sustained and targeted Federal technical and financial assistance. 

From my work as a scientific adviser to European nations, working to restore the Baltic Sea, I have observed that the only fully 

effective approaches to control nutrient pollution from most significant non-point sources, that is agricultural non-point sources, have 

come from closely linking Government payments to the achievement of mandatory requirements. It should be pointed out that 

strategic Federal investments are also going to be required on the 

scientific programs that make sure that we are achieving the results and learning as we progress. 

The nearest analog to the Chesapeake for the Gulf of Mexico is 

the effort to reduce nutrient loadings to alleviate the very low oxygen conditions that characterize the Gulf dead zone. The EPA Gulf 

of Mexico Program has contributed to the Watershed Nutrient Task 

Force which is setting out to do this, and I think it could play a 

larger role in achieving commitments of the Gulf hypoxia plan. 

In this way, the evolution of the Chesapeake Bay Program and 

the steps now proposed under S. 1816 are very much a pathfinder 

for Gulf of Mexico hypoxia abatement. Modern concepts of adaptive 

management, which was mentioned by Mr. Fox, involve not just 

changing tactics based on trial and error, but on very systematic 

approaches to learning by doing, which constantly test assumptions 

against reality and therefore achieve quicker and more efficient 

outcomes. It requires a close interplay between the models that we 

use to prescribe the approaches being taken and the observations 

that verify their effectiveness. That is going to be particularly important going forth. 

The Chesapeake Bay Program has very good and substantial 

modeling and monitoring programs, but in my opinion they need to 

be more tightly integrated to truly achieve adaptive management. 

And in that regard, Mr. Chairman, I noticed your bill requires that 

EPA develop a strategy for implementation of adaptive management principles to assure full implementation of the plan. 

This adaptive approach is not just a strategy and effort by scientists and engineers. It requires full engagement of decisionmakers at all levels. And I am particularly pleased that the announcement today by the Federal agencies includes the initiation 

of ChesapeakeStat, which is modeled after our Governor’s BayStat, 

again involving very high level decisionmaking, analyzing the data, 

assessing progress and moving on. 

Finally, let me just point out that one of the very critical aspects 

of these programs is their scientific integrity. We have a vibrant 

scientific community that provides a compass and a self-correcting 

mechanism that should be effectively engaged. Recently the Chesapeake Bay Program has engaged the National Research Council as 

an independent evaluator of its nutrient reduction strategies and 

achievements. So as we look forward, I hope the bill will make sure 

that we continue to maintain that scientific integrity of these programs. 

Thanks for the opportunity. 

[The prepared statement of Mr. Boesch follows:] 
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Senator CARDIN. Thank you for your testimony. 

Mr. Hughes. 

STATEMENT OF PETER HUGHES, PRESIDENT, 

RED BARN TRADING COMPANY 

Mr. HUGHES. Senator Cardin and Senator Crapo, I thank you for 

the opportunity to speak here today. 

I believe that the role of the Federal Government is critical to 

the success of the Bay restoration effort. I am here today to lend 

a voice from an agricultural perspective, more specifically, animal 

agriculture in the neighboring State of Pennsylvania. 

I grew up on a dry land wheat farm in Washington State, and 

I have been out in Pennsylvania 10 years. Eight years ago, I started an ag consulting company, an engineering company, just to 

work with farmers within the Chesapeake Bay region. Today, we 

have over 650 clients within the Chesapeake Bay, and I don’t mean 

to trump Ms. Swanson’s connection with Idaho, but my wife and 

business partner, Molly, is from Boise and holds a master’s degree 

from the University of Idaho. So thank you. 

Senator CARDIN. I am starting to feel that Senator Crapo has 

more witnesses here from his side than our side. 

[Laughter.] 

Mr. HUGHES. We do serve the gamut of Pennsylvania agriculture 

from the 30-head Amish dairy to the 2,500-head dairy CAFO located on the Mason-Dixon Line. Pennsylvania agriculture may not 

have a mental connection to the Chesapeake Bay itself, but I don’t 

know a single farmer that does not have a direct relationship with 

the stream that runs through his or her land. We must think of 

the Chesapeake Bay as a report card for environmental compliance 

and focus our stewardship efforts on the localized streams and rivers that ultimately flow into the Bay. 

There are a myriad of regulations backed by the Clean Water Act 

for the protection of these local streams and watersheds. If we are 

to meet and exceed the expectations of the Executive Order of the 

Chesapeake Bay Protection and Restoration, we in the ag industry 

must first and foremost focus on our local bodies of water. 

The enforcement of regulations under the Clean Water Act is 

only one tool in the toolbox for Chesapeake Bay restoration. A 

boots on the ground approach local effort needs to be supported 

through strengthening the technical assistance of the public and 

private sectors. Agriculture desperately needs the leadership and 

technical assistance provided by soil conservation districts, natural 

resource conservation service, crop consultants, land grant universities, and extension agents. 

The bill as proposed will bring significant new money to the system, with critical emphasis on the needed technical assistance. The 

Chesapeake Bay Ecosystem Restoration Act offers a path forward 

that both ensures the future of the Nation’s largest freshwater estuary and gives local stakeholders the responsibility and financial 

and technical support to do their part. 

Three years ago, Pennsylvania’s DEP put forth a nutrient credit 

trading policy. As a part of that policy, since we already had agricultural clients within the watershed, we formed a sister company 

called Red Barn Trading. As was noted before, we entered into 
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agreements for the first point to non-point source trade with a local 

municipality. We continue working with developers and waste 

treatment plants so that they are able to meet their NPDES permit 

requirements. 

A geographically based cap and trade system is a vehicle for 

sound economic and environmental compliance. Since the Chesapeake Bay does not recognize the State geographical boundaries on 

a map, it is my contention that for a cap and trade system to truly 

work, we need a robust, multi-State Chesapeake Bay trading 

framework. This bill will bolster the fledgling credit trading market 

and allow for economic and environmental sustainability. 

The bill introduced by Senator Cardin creates a framework for 

water quality trading for nitrogen and phosphorus that will offer 

farmers new economic opportunities for the water quality improvements they implement. In order to have a robust water quality 

trading market, we must break down the geographical State barriers that are currently inhibiting a successful market. 

This can only happen if the Environmental Protection Agency is 

given authority to establish a water quality trading program that 

extends to all Bay States, which will result in a level playing field 

for the credit trading market. 

Now only would such a measure bring down the cost of wastewater treatment plant upgrades, it would provide an economic and 

environmental incentive for agriculture and other non-point 

sources to carry their fair share of the load toward Chesapeake Bay 

restoration. 

Agriculture is willing to do their part for the restoration of the 

Bay provided that farmers have real and factual clarity of what is 

expected of them. Agriculture will go above and beyond compliance 

through creative and innovative practices, but it can only attain 

this goal if there is reason and clarity of the process. The bill proposed by Senator Cardin offers the path forward in directional 

funding that is so desperately needed. 

It has been an honor for me to have the opportunity to share my 

views with you in regard to the responsibilities of agriculture and 

the Chesapeake Bay. I would ask for the support of the Chesapeake Bay initiative by keeping our farms sustainable and environmentally responsible. 

Thank you. 

[The prepared statement of Mr. Hughes follows:] 
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Senator CARDIN. Mr. Hughes, thank you very much for your testimony. 

Ms. Bodine. 

STATEMENT OF SUSAN PARKER BODINE, PARTNER, 

BARNES AND THORNBURG 

Ms. BODINE. Thank you, Chairman Cardin, Ranking Member 

Crapo. Thank you for the invitation to appear before you today to 

talk about S. 1816, the Chesapeake Clean Water and Ecosystem 

Restoration Act, as well as S. 1311, the Gulf of Mexico Restoration 

and Protection Act. 

Let me start with S. 1816. My full analysis of the bill is in my 

written statement, so I just want to highlight a few points. 

First, let me say that I am very impressed by the collaboration 

and cooperation among all the jurisdictions in the Chesapeake Bay 

watershed. As Ms. Swanson pointed out, each jurisdiction is committed to restoration, and they have been working together. And by 

working together, EPA, the District of Columbia, and the States in 

the watershed, as well as local governments, have the authorities 

and the tools that they need to achieve this goal. This is a model 

of cooperative federalism. 

So I have to step back and ask, what is the purpose of S. 1816? 

Because if it is to provide additional authorities, I have to question 

whether it is necessary. EPA has the authority to control air emissions across jurisdictions. State and local governments have the authority to control land use and to control non-point source runoff. 

And of course, the Clean Water Act, the Federal Water Pollution 

Control Act, provides for controls on point sources of pollutants into 

bodies of water. Collectively, those tools are there, and the tools are 

held by the group of people who are already working together. 

If the goal of the bill is to provide additional funding, then it 

could actually be a lot shorter, and the funding levels actually 

could be higher as well. But what we have is a bill, S. 1816, that 

would codify a TMDL for the Chesapeake Bay in the statute. It 

also gives States and EPA extensive new authorities and creates 

new mandates that are then enforceable by citizen suits. 

I am concerned that these provisions may have some unintended 

consequences, and I would like to summarize those concerns. 

First, under the language of the bill as introduced, the load allocations that are in the Chesapeake Bay, what comes out in December 2010, would be codified in Federal law. This is the point that 

I believe Mr. Fox and Senator Crapo were discussing earlier, that 

you don’t want to freeze science. You don’t want to codify the load 

allocations in Federal law no matter what the models show later 

because these models are constantly evolving. It shouldn’t take an 

act of Congress to allow States and EPA to revise a water quality 

implementation program to reflect best available science. 

Second, the bill would authorize States to issue permits under 

section 402 of the Clean Water Act to any pollution source that the 

State determines is necessary to achieve the nitrogen, phosphorus 

and sediment load reductions in the implementation plan. Now, 

402 permits are designed to address point source discharges of pollutants. These are collected in a channel. You have pollutants that 

you can measure, and you issue permits to control that. 
187 

What you have authorized are section 402 permits for any source 

of pollution. That includes air deposition. There isn’t actually a geographical limit. So as drafted, you could have one State, for example, the State of New York, issuing 402 permits for utilities in 

Ohio. That is how the bill is drafted. You have granted very broad 

authority for section 402 permits for any pollution source. These 

permits would also then apply to non-point sources. And again, it 

is unclear how that would work. 

Third, you have given EPA similar authority. If the State doesn’t 

come forward with their implementation plan, then EPA has the 

authority, and in fact the bill says ‘‘shall,’’ ‘‘shall promulgate such 

regulations or issue such permits as EPA determines is necessary 

to control pollution.’’ That is enormously broad. It is authority for 

any regulations, any permits that EPA determines is necessary to 

control pollution. That is authorizing EPA to determine where 

highways are. That is authorizing EPA to determine what is built. 

That could be determining that some land uses can’t be allowed 

anymore, or land uses have to change. This is an enormous expansion of Federal authority. 

Finally, I have two more points on S. 1816. One is that the mandates on EPA are enforceable in the bill through citizen suits. So 

you could have the agency craft a reasonable program, and I am 

sure that they would, but you could then have a citizen say, well, 

we don’t think that goes far enough and then file suit in Federal 

court to try and mandate changes. 

Last, to the extent that the bill sets up enforceable mechanisms 

against States, I believe that it would be found to be unconstitutional because under the Tenth Amendment, Congress doesn’t have 

the authority to commandeer State legislatures and direct them to 

carry out a Federal regulatory program. EPA can carry out a program. Of course, EPA can use its spending, the Federal Government can use spending power, as has been pointed out, but you 

can’t directly mandate a State to implement a Federal regulatory 

program. And so to the extent that it purports to do that, I believe 

that section would be found to be unconstitutional. 

I just want to make one point on S. 1311. I know I am over my 

time. I apologize. On S. 1311, I provided some analysis in my written testimony, and I would just ask the committee to look at all 

of the existing groups that are working collaboratively under the 

existing program, and then make sure that those organizations and 

functions are matched up with the authorization. Some of the language in the authorization that is used is different. It is unclear 

if all the groups are supposed to be now in a single entity or not. 

So I would just ask as a technical matter to make sure that that 

works. 

Thank you. 

[The prepared statement of Ms. Bodine follows:] 
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Senator CARDIN. Well, thank you very much for your testimony. 

Again, I thank all of our witnesses for their testimony. 

Ms. Bodine, let me first tell you I think I disagree with some of 

your interpretations, but we appreciate that and we can certainly 

tighten up the language to make sure that it carries out its intent. 

It is certainly my intent that there would be updates on the standards based upon science. So we will make sure that is clear. We 

thought it was clear, but obviously there has been some issues 

raised on that. So that is clearly our intent. 

And let me just make one more observation, and I appreciate 

your observations about the collaborative effort of the Chesapeake 

Bay Program. It has been a success since day one. I have always 

been impressed by the States that do not border the Chesapeake 

Bay, with their commitment and understanding how important 

their freshwater supply to the Bay is, and willing to be part of the 

Chesapeake Bay Program, and willing to implement policies in 

their State in order to protect the Bay. So it has been a collaborative effort. 

I mention that because the impetus for this reauthorization bill 

comes from the States and our partners. It does not come from the 

Federal Government. It really comes from our States. And they recognize the reality that we have missed the targets substantially in 

recent years and that there is need to reenergize a process that will 

accomplish the goals that are set out based upon good science and 

based upon the States having the tools, the partners having the 

tools to accomplish what is the goals that are established internally 

by this collaborative effort based upon good science. 

And that is the whole framework of the reauthorization bill. It 

is not something that was developed by the Federal Government. 

It was actually developed by the partners which we have worked 

with to be able to achieve the results. 

But I think your comments are extremely helpful, and we look 

forward to working with you on that. The bottom line is the Bay 

is in trouble today, and we have got to do a better job. I think all 

of our partners understand that and are looking for a framework 

to take the Bay Program to the next level. 

Dr. Boesch, I would just, if I could ask you first, dealing with the 

ecological significant of both bodies of water, the Bay and the Gulf, 

there are a lot of similarities. There are some differences, obviously 

the jurisdictional differences I would point out. Both are losing wetlands. Both are dealing with dead zones. 

How similar are the problems in these two bodies of water? 

Mr. BOESCH. Well, I think that they are very similar—— 

Senator CARDIN. Is your microphone on? 

Mr. BOESCH. There is habitat loss, as you said, with respect to 

wetlands, submerged aquatic vegetation. There are problems of 

water quality. Largely, now that the Clean Water Act was successful in reducing toxic inputs and the like, now the focus is in most 

of the estuaries along the Gulf Coast. The No. 1 water quality problem is nutrients, excess nutrients, much like the Chesapeake Bay. 

And also, all of these systems are contending with the limits of 

living resource utilization, over-fishing issues, habitat losses, bycatch issues in the Gulf of Mexico. So in some sense, they are all 

very closely related. 
203 

The difference, as I pointed out, is that we in the Chesapeake 

have been trying to do this in a coordinated way of one drainage 

basin went to one estuary. Whereas, the Gulf of Mexico has the 

problem of having to deal with a whole variety of different coastal 

bodies, bays and estuaries all over the coast and be sensitive to the 

differences of Texas to Florida, and the kinds of environments, the 

kinds of organisms, and the kinds of human issues and problems. 

As I said earlier, I would predict that you will see eventually an 

evolution of the Gulf of Mexico Program so it takes some of the 

same kind of approaches that you have in your bill with respect to 

requirements, deadlines, goals and so on moving forward. 

Senator CARDIN. You also mentioned the fact that the Bay legislation calls for the formal incorporation of adaptive management. 

And you were explaining that, and I want you to get more into the 

record on that because you were also explaining how the Bay Program incorporates some of the BayStat that the Governor had for 

accountability. Could you just go into more detail as to what this 

means? 

Mr. BOESCH. Sure. Well, adaptive management is an approach 

that has been developed in a wide variety of natural resource management circumstances. And basically, it involves learning by 

doing. So it is based on the understanding that at the end of the 

day we don’t always have the exact prescription about what it is 

going to take to restore a system to health, or even what that 

health may look like, but that we learn progressively by doing restoration. 

And so we have in the Chesapeake Bay Program, for example, 

world class modeling capability that models the water and the nutrients flowing off the watershed and delivers them into the Bay, 

and then the Bay responds, its production is affected and dead 

zones are created, etc. And these models are used to develop our 

management goals. 

And as you recall, a few years ago the GAO and others brought 

light to the question that models are fine for identifying goals, but 

you can’t be relied on to count progress simply on the basis of 

model projections. You have to actually verify that progress. 

We have on the other hand a very effective monitoring program, 

a very substantial, sophisticated monitoring program in the watershed and in the Bay. And so we are able to observe the outcomes 

of our efforts. Adaptive management requires bringing those together. How well do the observations fit your forecast, if you will, 

by the models? 

And so adaptive management will help us understand right 

away, if we apply it diligently, how effective the various management practices are, so we can then improve both the practices and 

the models. We can improve those practices. And then ultimately, 

comparing the observations with the model projections allows determination of how well the patient is doing and what is the prognosis for recovery. 

So this is this adaptive approach that really pulls it together. 

And as I indicated, in many other ecosystem restorations, the Everglades is a good case, this adaptive approach is being applied. The 

important thing to recognize is it isn’t just an exercise for the scientists and engineers. This is an exercise for decisionmakers. 
204 

So in Maryland, as you know, Senator, Governor O’Malley has 

developed, from day one of his coming into office, a model that he 

used in governing the city of Baltimore of management by accountability measures, taking that approach to Bay restoration, which 

he termed BayStat. So he as the senior decisionmaker in the State 

is actually asking these questions. What do the models show? What 

do the observations yield? In a way, BayStat is forcing us to integrate models and outcomes to produce adaptive decisionmaking 

that affects, for example, his decisions on allocation of budget priorities to the most cost effective approaches and so on. 

So it is a powerful concept. It is not the easiest thing in the 

world to do. It involves a lot of hard work, but ultimately I think 

it will yield better results and more efficient progress toward the 

restoration goals. 

Senator CARDIN. I wanted you to go through that because, Senator Crapo, we are very proud of Governor O’Malley’s management 

system that really holds departments accountable for certain specific results, and then the Governor literally can see on a regular 

basis whether they have achieved those results. And it very much 

affects his budget, so there is a clear accountability here. 

There is currently a subcommittee working on the Budget Committee looking at ways that we can deal with accountability in Federal budgeting. And I have called to their attention the Maryland 

model, originally the Baltimore City model because I do think accountability is going to be a very, very important part of the Bay 

Program. We have got to use the best management practices. We 

have to figure out a way that we can hold people accountable. I 

know Governor O’Malley is very much committed to doing that, 

and we are trying to adopt that in the overall framework, which 

I think all of us want to see done. 

Senator Crapo. 

Senator CRAPO. Well, thank you very much, Mr. Chairman. 

And I also agree with the need for accountability in trying to 

achieve some of these national policy objectives that we establish. 

And I just want to make sure that in the process that we maintain 

the viability of State and local and private sector stakeholders, and 

really the strength of the collaborative process. And I am not suggesting that you are not. I just want to be sure that we do do that. 

And Ms. Swanson, I am not going to ask you a question, but I 

want to thank you, first of all, for your acknowledgment of your 

Idaho ties, and frankly, for your commitment to collaboration in the 

area. I am a completely strong believer that those who live where 

the issues are and where the problems are, and who are willing to 

roll up their sleeves and get together and collaborate are the ones 

that can come up with the kinds of creative solutions that will help 

us achieve success in these endeavors. So thank you for your commitment to that. 

Mr. Hughes, I do want to ask you a question. I thank you for 

your Idaho ties as well, and I appreciate you mentioning the University of Idaho, not only in the context of your wife graduating 

from there, but also in your mention of land grant universities. You 

indicated that programs that are operated through groups like land 

grant universities or local soil conservation districts and other pri-
205 

vate sector voluntary efforts are very significant and very important in terms of dealing with non-point source issues. 

Could you elaborate on that a little bit? 

Mr. HUGHES. I sure can. It is critically important for the technical service, for the technical knowledge that is provided by soil 

conservation service, by the natural resource conservation districts. 

These are the people that farmers rely on for their information. 

These are the people that farmers rely on to know what are the 

right land practices to do. 

Historically, we have even moved our office to the local county 

conservation district because of the amount of farms that come and 

receive technical service through the farm service agency and the 

local conservation districts. Penn State University Extension is also 

there. 

Farmers don’t do a very good job about talking with each other 

about what is working and not working on their farm. But they 

will go to land grant universities, to technical service providers who 

see a wide variety of different practices that are done on farms and 

adopt those themselves. It is critically important that we support 

land grant universities. I am a graduate of a land grant university. 

And we have to make sure that the money is being put in the right 

area of emphasis. 

Senator CRAPO. Well, I appreciate your effort and your focus 

there. 

And just one more question. I am changing topics completely 

here a little bit, but it is a quick question also. Senator Cardin’s 

bill discusses a framework for trading phosphorus and nitrogen. 

And I was curious, I understand sediment is also an issue in the 

Bay area. Does Pennsylvania’s trading program deal at all with 

sediment? 

Mr. HUGHES. It does deal with sediment. There really right now 

is not a market for sediment, though there are many, you know, 

pounds of nitrogen and phosphorus that are tied to that soil particle within sediment. We really have from a waste treatment plan, 

NPDES needs of nitrogen being the gold standard. Phosphorus, I 

would say being the silver standard as far as meeting their compliance. 

So although it is recognized within our nutrient credit trading 

program, I would say the No. 1 nutrient of need is nitrogen, followed by phosphorus. And we are still looking for a sediment market to take place. 

Senator CRAPO. All right. Thank you. 

And Susan, I appreciate seeing you again and having you here. 

I would like to ask you to elaborate, if you would a little bit, on 

a couple of points that you made. You indicated that the legislation 

as currently drafted would really allow the regulation of any pollution source without geographic limitation or even topical limitation, 

and also that it would allow the EPA to require permits for virtually, if I understood you correctly, virtually any kind of activity, 

like the siting of highways or construction and development activities or the like. 

Did I understand you correctly there? And could you just elaborate a little bit on that? 
206 

Ms. BODINE. Yes, thank you, Senator Crapo. That is exactly what 

I said, and I guess I would point out that, you know, the State authority, it is on page 39 of the introduced bill, it literally says 

States can issue permits under 402 for any pollution source the 

State determines is necessary to achieve the goals in their implementation plan. 

There is no limit on that, and any source, again, can be upland 

of the Bay. It can be, as I said before, air deposition. It could even 

be in another State. I don’t know how they would actually enforce 

it, but that is technically how the bill is drafted in terms of expanded State authorities. 

And then similarly, if you look at page 49 of the bill, it says, 

‘‘EPA shall promulgate such regulations or issue such permits as 

EPA determines is necessary to meet the pollution goals.’’ 

That is without limit. There are no caveats on that authority. It 

is unfettered authority to literally do anything to meet pollution 

goals and recognize that that goes, then, very far upstream and you 

are talking now about land use. You are talking about highways. 

You are talking about buildings. You could be talking about whether or not you would be requiring green roofs or requiring gutter extensions. I mean, it can get into a level of detail, again, the authority is there that has never been seen before in terms of Federal authority over people living in the watershed. 

Senator CRAPO. All right. Thank you very much. 

I notice I have gone over my time. 

Senator CARDIN. With Senator Crapo’s permission, we will do a 

second round. I have just a couple of questions I would like to ask, 

and will not be too long. 

Ms. Swanson, if we could follow up on the point that Ms. Bodine 

is talking about. Some of this language is standard language that 

we include to make sure that is regulatory authority to implement 

the terms of the Act, but they are limited by the terms of the Act. 

What we are doing here, though, is giving the States the necessary 

authority to be able to respond to the challenges that are there, 

fully mindful that States need to operate within their framework, 

consistent with the requirements of their own laws, but also this 

national program. 

Could you just review for us how the authority as you see it in 

this bill would operate, and how the collaborative effort among the 

States works in this regard? 

Ms. SWANSON. Yes. And I am very glad to answer this question 

because it is something that the 5 minutes didn’t allow me to do, 

but it is certainly in my testimony is really emphasize how important that State flexibility is. And in fact, the Chesapeake Bay Commission’s support of this legislation is largely due to that flexibility. 

Essentially, what the legislation does is at the Federal level it 

does indeed codify that load allocation. I fully agree with the witness that that load allocation should be able to be not just the total 

cap allocation, which would include both the waste load allocation 

and the load allocation. 

But the point is that pollutant cap, that allocation load, should 

be set by the Bay Program. And so right now, the legislation does 

indeed reference the current load allocation, but that could change 

as the models change, and it should because those models are 
207 

based on monitoring. They are based on State reporting. They are 

based on State information. 

So the Federal legislation would basically set that cap, which 

would allow for trading, as Peter Hughes has described. The second 

thing it would then do is also guide the development of State watershed implementation plans. Those watershed implementation 

plans are designed to then numerically reach the cumulative sum 

of those caps. 

Importantly, what the States would basically have to do is pick 

and choose. If septic systems, if waste treatment facilities make 

sense in a certain State in terms of how they are going to meet 

those allocation goals, they can choose for those practices. In other 

areas, agriculture by far and away dictates their loads. A place like 

Pennsylvania is surely going to reach largely for agriculture, as opposed to, say, septic systems where there are 759,000 septic systems in the watershed. So they are going to reach to the place that 

makes the most sense to cost effectively reduce. 

The other thing that the bill does is it does require a process. It 

does require that every 2 years, you would have to essentially report in on what your plan is, and also if you began to slip, what 

you intent is to fill that gap. That is something that the Bay jurisdictions, regardless of the collaborative effort, they have never had 

that level of accountability. 

And you know, accountability changes the way government behaves. Certainly, as a government employee, it changes my behavior. You know, if I have to report on something, I make pretty 

damn sure that I have done it. So it does that. 

The other thing the bill does is it sets a halfway point, where it 

says by halfway through this activity through 2025, you should 

have basically in place 60 percent of those programs designed to 

reach those reductions. Those can be regulatory or those can be 

otherwise binding, contracts with farmers, aggregators such as Red 

Barn could be really effective in the process. 

So to me, that is what the bill does. If it exceeds its reach in 

terms of that flexibility, then I am not sure that that is what was 

intended, and I know the Commission would be happy to work with 

legislative staff to correct it. 

Senator CARDIN. Thank you very much. 

Mr. Hughes, I just really wanted to compliment you on your program, compliment you on your testimony. We are looking for revenue sources for farmers. I mean, the tough markets here, and the 

trading program we look at as being one of the real pluses for the 

agricultural community. 

We also have a set aside of 20 percent for technical assistance 

to help farming because we know they also don’t have the dollars 

available to implement the best practices, and we want to give 

them the ability to accomplish that. So we did take to heart your 

experiences in Pennsylvania in crafting this bill, and we look forward to your additional comments to make sure it is effective in 

helping the agricultural community. 

Senator Crapo. 

Senator CRAPO. Thank you, Mr. Chairman. 

I don’t really have any more questions, so if you want to do another round, or not. 
208 

Senator CARDIN. I think I am going to suggest that the record 

is open, and Ms. Swanson’s last point is very much in order. We 

are looking for ways to make sure the bill does what it is intended 

to do. We certainly don’t want to give a State the authority to issue 

permits of operations in another State, so that will clearly be, I can 

assure you that is not, first, I don’t think legally we could do it. 

We couldn’t enforce it, but it is certainly not the intent. 

And as Ms. Swanson pointed out, the intent here is to give the 

partners the authority they need, consistent with their plans, 

which have to be approved. So there is accountability here. They 

just can’t do things that are inconsistent with the plans that have 

already been approved by the Federal, but we are working with 

EPA. 

Ms. SWANSON. Senator Cardin, that is a very important point, 

that EPA oversight of those plans, because the States must submit 

plans that are approved. They have to be sufficient to meet the 

water quality standards. They have to be defined in that WIPP. So 

it is that back and forth, that iterative process that is so important 

to the Chesapeake. 

Senator CARDIN. And of course, every 2 years, we do have a 

chance to adjust that, and we certainly want to be judged by best 

science, so we will make sure that is the case. 

I would like to just take a moment to thank the two legal interns 

from the University of Maryland School of Law, my alma mater, 

who helped in this, Sylvia Chai and Matt Peters, for their help in 

preparing for this hearing, and with their drafting of the Chesapeake Clean Water and Ecosystem Restoration Act. 

I think everyone knows here that the University of Maryland is 

the top environmental law program in the Nation. I am not sure 

I am going to get in trouble with my colleague on that, but we are 

very proud of the students who helped us in this effort. 

And with that, the record will remain open for additional questions that may be asked. And again, I thank the witnesses and I 

thank Senator Crapo for the arrangements that this hearing could 

take place on a Monday. 

Thank you very much. 

Senator CRAPO. Thank you. 

Senator CARDIN. The hearing is adjourned. 

[Whereupon, at 4:25 p.m. the subcommittee was adjourned.] 

[An additional statement submitted for the record follows:] 

STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM THE STATE OF LOUISIANA

Madam Chair, I would like to thank you for the opportunity to discuss legislation 

before this committee on America’s great water bodies, in particular the Gulf of 

Mexico. I am a cosponsor of this legislation and am hopeful for its successful implementation. 

The bill would amend the Clean Water Act to statutorily establish the Program 

Office of the Gulf of Mexico Program as an office within the EPA. Given that the 

office and director already exist at EPA, this legislation would codify into law the 

program. 

S. 1311 requires the office to coordinate EPA and Federal action with State and 

local authorities, assist in developing specific action plans to carry out the program, 

foster stewardship and community outreach, disseminate information about the Gulf 

and focus on activities that will result in measureable improvements in water quality. It also allows EPA to enter into interagency agreements and give grants for 

monitoring the water quality and ecosystem, researching the effects of environ-
209 

mental changes on such water quality, developing cooperative strategies that address the water quality and needs of Gulf resources. This legislation would authorize $10 million for fiscal year 2010, $15 million for fiscal year 2011, and $25 million 

for fiscal years 2012–2014. 

Unlike the other great water body programs such as Great Lakes and Chesapeake 

Bay, the Gulf of Mexico Program has never been established in legislation under 

the Federal Water Pollution Control Act. The Gulf States Governors’ Alliance considers the EPA Gulf of Mexico Program’s unique technical and collaborative management capacities as essential to their future success in addressing the priority environmental issues that threaten the ecological and economic sustainability of the 

coastal region. 

I am hopeful that this grant program will provide the opportunity for further 

interagency collaboration for the benefit of the Gulf of Mexico and Louisiana’s water 

resources. I am also cognizant that the EPA should not be under the impression 

that this legislation expands EPA authority over Gulf of Mexico resources in any 

manner that would increase permitting or regulatory authority. This legislation is 

meant as a partnership and investment in Gulf of Mexico resources. I look forward 

to its proper implementation. 

Æ