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65–502 PDF 2011

HEARING TO REVIEW THE CHESAPEAKE BAY 

TMDL, AGRICULTURAL CONSERVATION 

PRACTICES, AND THEIR IMPLICATIONS ON 

NATIONAL WATERSHEDS

HEARING

BEFORE THE

SUBCOMMITTEE ON CONSERVATION, ENERGY,

AND FORESTRY

OF THE

COMMITTEE ON AGRICULTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

MARCH 16, 2011

Serial No. 112–6

(

Printed for the use of the Committee on Agriculture 

agriculture.house.gov 

COMMITTEE ON AGRICULTURE 

FRANK D. LUCAS, Oklahoma, Chairman 

BOB GOODLATTE, Virginia, 

Vice Chairman 

TIMOTHY V. JOHNSON, Illinois 

STEVE KING, Iowa 

RANDY NEUGEBAUER, Texas 

K. MICHAEL CONAWAY, Texas 

JEFF FORTENBERRY, Nebraska 

JEAN SCHMIDT, Ohio 

GLENN THOMPSON, Pennsylvania 

THOMAS J. ROONEY, Florida 

MARLIN A. STUTZMAN, Indiana 

BOB GIBBS, Ohio 

AUSTIN SCOTT, Georgia 

STEPHEN LEE FINCHER, Tennessee 

SCOTT R. TIPTON, Colorado 

STEVE SOUTHERLAND II, Florida 

ERIC A. ‘‘RICK’’ CRAWFORD, Arkansas 

MARTHA ROBY, Alabama 

TIM HUELSKAMP, Kansas 

SCOTT DESJARLAIS, Tennessee 

RENEE L. ELLMERS, North Carolina 

CHRISTOPHER P. GIBSON, New York 

RANDY HULTGREN, Illinois 

VICKY HARTZLER, Missouri 

ROBERT T. SCHILLING, Illinois 

REID J. RIBBLE, Wisconsin 

COLLIN C. PETERSON, Minnesota, Ranking 

Minority Member 

TIM HOLDEN, Pennsylvania 

MIKE MCINTYRE, North Carolina 

LEONARD L. BOSWELL, Iowa 

JOE BACA, California 

DENNIS A. CARDOZA, California 

DAVID SCOTT, Georgia 

HENRY CUELLAR, Texas 

JIM COSTA, California 

TIMOTHY J. WALZ, Minnesota 

KURT SCHRADER, Oregon 

LARRY KISSELL, North Carolina 

WILLIAM L. OWENS, New York 

CHELLIE PINGREE, Maine 

JOE COURTNEY, Connecticut 

PETER WELCH, Vermont 

MARCIA L. FUDGE, Ohio 

GREGORIO KILILI CAMACHO SABLAN, 

Northern Mariana Islands 

TERRI A. SEWELL, Alabama 

JAMES P. MCGOVERN, Massachusetts 

PROFESSIONAL STAFF

NICOLE SCOTT, Staff Director 

KEVIN J. KRAMP, Chief Counsel 

TAMARA HINTON, Communications Director 

ROBERT L. LAREW, Minority Staff Director 

SUBCOMMITTEE ON CONSERVATION, ENERGY, AND FORESTRY

GLENN THOMPSON, Pennsylvania, Chairman

BOB GOODLATTE, Virginia 

MARLIN A. STUTZMAN, Indiana 

BOB GIBBS, Ohio 

STEPHEN LEE FINCHER, Tennessee 

SCOTT R. TIPTON, Colorado 

STEVE SOUTHERLAND II, Florida 

MARTHA ROBY, Alabama 

TIM HUELSKAMP, Kansas 

RANDY HULTGREN, Illinois 

REID J. RIBBLE, Wisconsin 

TIM HOLDEN, Pennsylvania, Ranking 

Minority Member 

KURT SCHRADER, Oregon 

WILLIAM L. OWENS, New York 

MIKE MCINTYRE, North Carolina 

JIM COSTA, California 

TIMOTHY J. WALZ, Minnesota 

CHELLIE PINGREE, Maine 

MARCIA L. FUDGE, Ohio 

GREGORIO KILILI CAMACHO SABLAN, 

Northern Mariana Islands 

BRENT BLEVINS, Subcommittee Staff Director

(II) 

(III)

C O N T E N T S 

Page 

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

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

Prepared statement .......................................................................................... 5

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

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

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

WITNESSES

White, Dave, Chief, Natural Resources Conservation Service, U.S. Department of Agriculture, Washington, D.C. .............................................................. 6

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

Perciasepe, Bob, Deputy Administrator, U.S. Environmental Protection Agency, Washington, D.C. ............................................................................................ 35

Prepared statement .......................................................................................... 36

Supplementary information ............................................................................. 151

Submitted questions ......................................................................................... 191

Domenech, Douglas W., Secretary of Natural Resources, Commonwealth of 

Virginia, Richmond, VA ....................................................................................... 43

Prepared statement .......................................................................................... 45

Shaffer, Carl T., President, Pennsylvania Farm Bureau; Member, Board of 

Directors, American Farm Bureau Federation, Mifflin Township, PA ............ 66

Prepared statement .......................................................................................... 67

Hoot, Lynne C., Executive Director, Maryland Association of Soil Conservation Districts and Maryland Grain Producers Association, Edgewater, MD .. 70

Prepared statement .......................................................................................... 72

Hebert, Tom, Senior Advisor, Agricultural Nutrient Policy Council, Washington, D.C. ........................................................................................................... 74

Prepared statement .......................................................................................... 76

Bauhan, Hobey, President, Virginia Poultry Federation, Harrisonburg, VA; 

on behalf of National Chicken Council; National Turkey Federation; U.S. 

Poultry and Egg Association ............................................................................... 104

Prepared statement .......................................................................................... 105

SUBMITTED MATERIAL

Curley, Keith, Director of Government Affairs, Trout Unlimited, submitted 

letter ...................................................................................................................... 119

Devine, Jr., Jon P., Senior Attorney, Water Program, Natural Resources 

Defense Council, submitted letter ...................................................................... 120

Hughes, Robert E., Executive Director, Eastern PA Coalition for Abandoned 

Mine Reclamation, submitted letter ................................................................... 123

Hughes-Wert, Melinda, President, Nature Abounds, submitted letter ............... 136

Jarrett, Jan, President & CEO, Citizens for Pennsylvania’s Future, submitted 

letter ...................................................................................................................... 137

O’Leary, Dave, Conservation Chair, Maryland Sierra Club, submitted letter ... 138

Siglin, Doug, Federal Affairs Director, Chesapeake Bay Foundation, submitted letter .......................................................................................................... 140

Choose Clean Water Coalition, submitted letter ................................................... 142

(1)

HEARING TO REVIEW THE CHESAPEAKE BAY 

TMDL, AGRICULTURAL CONSERVATION 

PRACTICES, AND THEIR IMPLICATIONS ON 

NATIONAL WATERSHEDS 

WEDNESDAY, MARCH 16, 2011

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CONSERVATION, ENERGY, AND FORESTRY, 

COMMITTEE ON AGRICULTURE, 

Washington, D.C. 

The Subcommittee met, pursuant to call, at 10:00 a.m., in Room 

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

Members present: Representatives Thompson, Goodlatte, 

Stutzman, Huelskamp, Hultgren, Ribble, Holden, Schrader, Owens, 

and Peterson (ex officio). 

Staff present: Patricia Barr, Brent Blevins, Tamara Hinton, John 

Konya, Josh Maxwell, Debbie Smith, Nona Darrell, Nathan Fretz, 

Liz Friedlander, Robert L. Larew, Anne Simmons, and Jamie 

Mitchell. 

OPENING STATEMENT OF HON. GLENN THOMPSON, A 

REPRESENTATIVE IN CONGRESS FROM PENNSYLVANIA 

The CHAIRMAN. Well, good morning everyone. This hearing of the 

Subcommittee on Conservation, Energy, and Forestry to review the 

Chesapeake Bay TMDL, agricultural and conservation practices, 

and their implications will come to order. Good morning again. I 

want to welcome everyone to the first hearing of the Conservation, 

Energy, and Forestry Subcommittee. This Subcommittee will hold 

hearings on many important topics over the next 2 years and I believe this topic ranks among the most important. There are two 

purposes for our hearing today. First of all, we will review the development and implementation of the Chesapeake Bay TMDL by 

EPA. And our second purpose is to consider the role farmers play 

in ensuring a healthy Bay. 

Let me say up front I know everyone in this room is concerned 

about the health and the well-being of the Chesapeake Bay. Now 

we all recognize that it is a treasure that is important to the vitality of millions of people. Everyone, including the agricultural community, must play a part in ensuring its health. That being said, 

I am alarmed at the lack of transparency by EPA in the development of its model for the TMDL. This TMDL is unprecedented in 

terms of its scope and impact on the lives of every day citizens and 

2

is based on a model that has been questioned by everyone from industry stakeholders to colleges. 

Now I am concerned about the lack of a thorough cost-benefit 

analysis having been performed by EPA, and further, I am concerned that states are being burdened with a non-permanent, resident-funded mandate at a time when states are struggling to balance their budgets. The Federal Government and states have, to 

date, spent billions of dollars on the health of the Bay. The 2008 

Farm Bill included language in short that farmers in the watershed would have access to the resources necessary to improve the 

health of the Bay. The TMDL will have a devastating economic impact on my constituents. I am very concerned about the burden 

that this action by EPA will place on farmers and citizens in my 

district and throughout the watershed. 

For example the Commonwealth of Virginia has estimated that 

the cost to implement the current plan approved by EPA would 

cost almost $5,000 per taxpayer. Maryland has estimated this plan 

will cost $10 billion over 10 years. The health of the Chesapeake 

Bay is a tremendously important issue for farmers and taxpayers 

in Pennsylvania, the citizens of Washington, and the other five 

states in the watershed, but even if you aren’t one of the 17 million 

people living in the Chesapeake Bay watershed, or your district is 

thousands of miles away, this process is important to you. The 

model and the process used to develop the Bay TMDL will be replicated by EPA on watersheds across the country. So, although this 

may seem a world away, you may see this again in the future. 

We certainly see just this past week in my hours both at home 

in the district and here in Washington just purely by happenstance, different agencies coming in that are involved in the watershed, the Bay as well. The Army Corps of Engineers are meeting 

with county commissioners to talk about their past use of Community Development Block Grant monies specifically to assist municipalities that impact the watershed issues. 

And most recently—actually very recently this came out today, 

where we have the Federal court decision that was released today 

from the Fifth District Court I believe. U.S. Court of Appeals in the 

Fifth District in New Orleans essentially said that the EPA exceeded its statutory authority in requiring concentrated animal feeding 

operation, CAFOs, that propose or might discharge to apply for 

CWA permits. And the fact is that a unanimous decision by that 

court that the EPA cannot require livestock operations to obtain 

Clean Water Act permits unless, and until, they have a discharge 

into the waterways of the United States. 

So I am looking forward to the panel that we have today. I want 

to—really want to thank all the witnesses for coming to testify this 

morning. Our first panel of witnesses will discuss the development 

and the implementation of the TMDL. Our second panel will discuss success stories of farmers engaging in voluntary conservation 

practices and how that has made a significant improvement in the 

Bay. This panel will also share concerns about the impacts of implementation of the TMDLs on the agricultural community. 

Now we will hear stories of farmers who have acted in a responsible manner as good stewards, and I am proud of the fact that 

farmers are taking real, on the ground daily steps to improve the 

3

water quality in the Chesapeake Bay region and across the country. And I want to be sure that the agricultural community receives 

the credit it deserves for engaging in voluntary practices to reduce 

nutrient and sediment runoff. 

And I want to extend a warm welcome to Carl Shaffer, the President of Pennsylvania Farm Bureau and I am certainly happy that 

Carl drove down here this morning to share his thoughts and concerns of my constituents and offer a Pennsylvania perspective on 

this important policy matter. 

[The prepared statement of Mr. Thompson follows:]

PREPARED STATEMENT OF HON. GLENN THOMPSON, A REPRESENTATIVE IN CONGRESS

FROM PENNSYLVANIA

Good morning. I want to welcome everyone to the first hearing of the Conservation, Energy, and Forestry Subcommittee. 

This Subcommittee will hold hearings on many important topics over the next 2 

years, and I believe this topic ranks among the most important. 

There are two purposes for our hearing today. First of all, we want to review the 

development and implementation of the Chesapeake Bay TMDL by EPA. 

Second, we want to consider the role of farmers in ensuring a healthy Bay. 

Let me say up front, I know everyone in this room is concerned about the health 

and well-being of the Chesapeake Bay. We all recognize that it is a treasure that 

is important to the vitality of millions of people. Everyone, including the agricultural community, must play a part in ensuring its health. 

That being said, I am alarmed at the lack of transparency by EPA in the development of its model for the TMDL. I am concerned about the lack of a thorough costbenefit analysis having been performed by EPA. 

Further, I am concerned that states are being burdened with an unfunded mandate at a time when states are struggling to balance their budgets. 

The Federal Government has spent hundreds of millions of dollars on the health 

of the Bay. The 2008 Farm Bill included language that ensured that farmers in the 

watershed would have access to the resources necessary to improve the health of 

the Bay. 

I am very concerned about the burden that this action by EPA will place on farmers and citizens throughout the watershed. The TMDL regulations will have a devastating economic impact on my constituents. 

For example, the Commonwealth of Virginia has estimated that the cost to implement the current plan approved by EPA would cost almost $5,000 per taxpayer. 

Maryland has estimated this plan will cost $10 billion over 10 years. 

The health of the Chesapeake Bay is a tremendously important issue for farmers 

and taxpayers in Pennsylvania, the citizens of Washington, and the other five states 

in the watershed. 

But even if you aren’t one of the 17 million people living in the Chesapeake Bay 

watershed, or your district is thousands of miles away, this process is important to 

you. The model and the process used to develop the Bay TMDL will be replicated 

on watersheds across the country. 

I want to thank our panels of witnesses for coming to testify this morning. 

Our first panel of witnesses will discuss the development of the TMDL. Our second panel will discuss success stories of farmers engaging in voluntary conservation 

practices, and how that has made a significant improvement in the Bay. This panel 

will also share concerns about the impacts of implementation of the TMDL on the 

agriculture community. 

We will hear the stories of farmers who have acted in a responsible manner. I 

am proud of the fact that farmers are taking real, on-the-ground, daily steps to improve water quality in the Chesapeake Bay region and across the country. I want 

be sure that the agriculture community receives the credit it deserves for engaging 

in voluntary practices that reduce nutrient and sediment runoff. 

I want to extend a warm welcome to Carl Shaffer, the President of the Pennsylvania Farm Bureau. I am happy he drove down here this morning to share the 

thoughts and concerns of my constituents and offer a Pennsylvania perspective on 

this process. 

I now yield to the gentleman from Pennsylvania, Mr. Holden for his opening 

statement.

4

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

OPENING STATEMENT OF HON. TIM HOLDEN, A 

REPRESENTATIVE IN CONGRESS FROM PENNSYLVANIA 

Mr. HOLDEN. Thank you, Mr. Chairman, and thank you for having this hearing today. Today’s hearing focuses on a very important 

topic for farmers and ranchers in the Chesapeake Bay watershed, 

as well as those across the country concerned with increased regulation. 

The Chesapeake Bay is the nation’s largest and most diverse estuary. It is home to more than 3,600 species of plants and animals, 

and is a significant migration and wintering habitat in the Atlantic 

Flyway. The health of this body of water, and those contained in 

the Chesapeake Bay watershed including the Susquehanna River 

that runs through my Congressional district, deserve our full attention. 

Farming has always been an important part of the Chesapeake 

Bay’s landscape comprising almost 1⁄4 of the watershed. Agriculture 

can play a significant role in the protection of this ecosystem. Efforts to improve Bay water quality however should not impede the 

livelihood of our family farmers. 

This Subcommittee has worked for a long time to make sure 

Chesapeake Bay farmers, who already face some of the most stringent environmental regulations in the United States, are put on 

the same level playing field as those in other regions of the country. We have made great progress towards regional equity for increased funding for dairy, specialty crops, and conservation including the $438 million Chesapeake Bay Watershed Program to help 

reduce nutrients and sediment which can flow from farm and 

forestland into the Chesapeake Bay. 

The ink was barely dry on these new provisions to assist producers when EPA announced plans for new regulations and increased penalties through the Chesapeake Bay TMDL. My concern 

is that once again we are placing Bay farmers at a financial and 

competitive disadvantage in doing so without knowing or having all 

of the information EPA used to develop the TMDL load allocations. 

Despite the lack of information about the data used to develop 

the load reduction allocation, and despite glaring discrepancies between data collected by various government agencies, EPA has 

published a final TMDL and is pushing states to begin work on 

Phase II watershed implementation plans which will set nutrient 

sediment goals to more local levels. 

It is important that we allow farmers and ranchers, who have always been the best advocates for resource conservation, to continue 

their efforts to further elevate their environmental stewardship 

across the Chesapeake Bay watershed before adding increased regulations and threatening harmful penalties. Agricultural practices 

can be some of the most cost effective at improving water quality 

in the region and the agricultural community and USDA stand 

ready to improve water quality and wildlife habitat. 

I remain committed to working with NRCS and FSA, as well as 

EPA, to ensure that Chesapeake Bay conservation programs are 

5

implemented as efficiently as possible while minimizing burdens on 

producers in the states. I look forward to hearing the testimony 

from our witnesses today. Mr. Chairman, thank you. 

[The prepared statement of Mr. Holden follows:]

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

PENNSYLVANIA

Thank you, Chairman Thompson. I would also like to thank our witnesses and 

guests for coming today. Today’s hearing focuses on a very important topic for farmers and ranchers in the Chesapeake Bay watershed, as well as those across the 

country concerned with increased regulation. 

The Chesapeake Bay is the nation’s largest and most diverse estuary. It is home 

to more than 3,600 species of plants and animals, and is a significant migration and 

wintering habitat in the Atlantic Flyway. The health of this body of water and those 

contained in the Chesapeake Bay watershed, including the Susquehanna River that 

runs through my Congressional district, deserve our full attention. 

Farming has always been an important part of the Chesapeake’s landscape. Comprising almost 1⁄4 of the watershed, agriculture can play a significant role in the protection of this ecosystem. Efforts to improve Bay water quality however should not 

impede the livelihood of our family farmers. 

This Subcommittee has worked for a long time to make sure Chesapeake Bay 

farmers, who already face some of the most stringent environmental regulations in 

the United States, are put on the same level of playing field as those in other regions. We have made great progress toward regional equity with increased funding 

for dairy, specialty crops and conservation including the $438 million Chesapeake 

Bay Watershed Program to help reduce nutrients and sediment which can flow from 

farm and forestland into the Chesapeake Bay. 

The ink was barely dry on these new provisions to assist producers when EPA 

announced plans for new regulations and increased penalties through the Chesapeake Bay TMDL. My concern is that once again we are placing Bay farmers at a 

financial and competitive disadvantage and doing so without knowing or having all 

of the information EPA used to develop the TMDL load allocations. 

Despite the lack of information about the data sets used to develop the load reduction allocations and despite glaring discrepancies between data collected by various 

government agencies, EPA has published a final TMDL and is pushing states to 

begin work on Phase II Watershed Implementation Plans, which will set nutrient 

and sediment goals to more local levels. 

It is important that we allow farmers and ranchers, who have always been the 

best advocates for resource conservation, to continue their efforts to further elevate 

their environmental stewardship across the Chesapeake Bay watershed before adding increased regulations and threatening harmful penalties. 

Agricultural practices can be some of the most cost-effective at improving water 

quality in the region and the agriculture community and USDA stand ready to improve water quality and wildlife habitat. 

I remain committed to working with NRCS and FSA, as well as EPA, to ensure 

that Chesapeake Bay conservation programs are implemented as efficiently as possible, while minimizing burdens on producers and the states. I look forward to hearing from our witnesses today.

The CHAIRMAN. Thank you. We are also joined in the Subcommittee by the Ranking Member, Mr. Peterson, of the full Committee. The chair would request that all other Members submit 

their opening statements for the record so that the witnesses may 

begin their testimony and ensure that there is ample time for questions. I would like to welcome our first panel of witnesses to the 

table. We have Mr. David White who is Chief the Natural Resources Conservation Services, United States Department of Agriculture in Washington. Welcome, Chief White. We have Mr. Bob 

Perciasepe, Deputy Administrator, United States Environmental 

Protection Agency based here in Washington. And Mr. Doug 

Domenech, Secretary of Natural Resources, Commonwealth of Virginia, Richmond, Virginia. Thank you, gentlemen, for joining us 

and Mr. White, please begin when you are ready. 

6

STATEMENT OF DAVE WHITE, CHIEF, NATURAL RESOURCES 

CONSERVATION SERVICE, U.S. DEPARTMENT OF

AGRICULTURE, WASHINGTON, D.C. 

Mr. WHITE. Greetings, Mr. Chairman, Mr. Holden, Mr. Goodlatte, Members of the Subcommittee, Mr. Peterson, it is fun to be 

here. I wish you guys would have me up here more often because 

there is so much cool stuff going on with conservation that I would 

really love to share with you. 

I have thought a lot about this oral statement and you have 12 

pages of thoroughly vetted and approved testimony and I will talk 

about a couple of things. Also in your packet we put an actual survey copy that farmers filled out for the Chesapeake Bay CEAP that 

we released yesterday. And then I have some before and after 

photos if you want to check them out from various conservation 

practices going on around the Bay area. 

You know, when I think of the Bay I am happy and sad. In 2002, 

I was loaned to Senator Luger and helped with the conservation 

title of the 2002 Farm Bill. In 2008, I was loaned to Mr. Harkin 

and helped with the 2008 Farm Bill conservation title and many 

of the more senior staff sitting behind you were there too, and I 

have a lot of respect and admiration for them. I kind of know a little bit about what went into crafting the 2008 Farm Bill. And I 

kind of know how some of the Members of this Committee and 

Subcommittee fought for conservation dollars and fought to create 

the Chesapeake Bay conservation program, and fought to get funding for the Bay. So it grieves me when I see accounts that some 

of these Members went above and beyond to get conservation funding are now being characterized as somehow being against the Bay. 

When I was a kid I used to read Superman comic books. In Superman, although I am more of a Marvel kind of guy, but in Superman they had created this bizarro world where everything you 

thought was right, was opposite. And when I read some of the 

statements that were made about some of the Members of this Subcommittee it is—I think that is where I have to say it kind of 

grieves me to see that because I know where your hearts are. 

On the positive side the testimony speaks to how we are working; how we are implementing the Chesapeake Bay Program that 

you created; how we are using the Conservation Innovation Grants 

to explore new technology; how we created four of the new cooperative conservation partnership initiatives; how we are working with 

EPA and the states to try to flesh out the concept of certainty 

where if a farmer is doing some good stuff for our water it removes 

the fear of regulation. 

We are also taking some new approaches in a little discussion 

about the Strategic Watershed Action Teams. So, I would like to 

announce today that we are finalizing the four teams in the Bay. 

There is going to be one in West Virginia, one in Delmarva which 

does part of Delaware and part of Virginia. There is one in the 

Shenandoah Valley. There is one in the Piedmont of Pennsylvania. 

There is about $3 million Federal funds. It is coming with about 

$850,000 matching funds, and the partners in these are the State 

Departments of Agriculture and Conservation Districts. 

I would also like to discuss, and you probably know yesterday we 

released the Conservation Effects Assessment Project for the ChesaVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
7

peake Bay. It is based on 700 farmer surveys, several world class—

three world class models that are impeccable, statistical framework 

provided by the National Resources Inventory. Some of the results 

are astounding. This report focuses on crop land. Ninety-six percent of the crop land has some conservation on it. 

We have reduced—and I am going to make sure I read this so 

I don’t mess it up—edge of field losses by 55 percent sediment, nitrogen surface run-off by 42 percent, phosphorus by 40 percent and 

this is edge of the field estimates on crop land. And it also shows 

that we need to do more. About 20 percent of the crop land still 

needs a high level of treatment, but Members of the Subcommittee 

we can do this. 

The funding that you put into the 2008 Farm Bill, started to hit 

in 2009 so we have 3 years really: 2009, 2010, and the current year 

we are in. If you look at those three fiscal years we will have about 

$1⁄4 billion for conservation in the Chesapeake Bay and we are getting results with that funding. 

The CEAP report, it says a lot of good stuff but it is just a snapshot in time. It covers 2003 to 2006 and we are going to be updating it this fall with some more data points. So I asked staff to go 

back and look in our PROTRACTS database. What have we done 

in 2006, 2007, 2008, 2009, and Fiscal Year 2010? And I am going 

to share that with you now. 

This is kind of rough; needs a little bit more work, but in the last 

five fiscal years, I want you to buckle your seatbelts. From the 

CEAP baseline in 2006 according to our data and this is just EQIP 

and the farm bill programs. It doesn’t include anything that was 

done at state or voluntarily. Sediment has been reduced by another 

20 percent, nitrogen by another 17 percent, and phosphorus by another 15 percent. I think we can deal with this issue because of the 

support that you have provided, because of our tremendous partners, our dedicated employees, because of the commitment of farmers who also put in their own money to this and their willingness 

to do their share. I think in a very real sense we are turning the 

conservation challenges into conservation gold for the Bay. Thank 

you, Mr. Chairman. 

[The prepared statement of Mr. White follows:]

PREPARED STATEMENT OF DAVE WHITE, CHIEF, NATURAL RESOURCES CONSERVATION

SERVICE, U.S. DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C. 

Good morning, Chairman Thompson, Ranking Member Holden, and other Members of the Subcommittee. I am pleased that you have given me the opportunity to 

describe the impressive actions USDA and its customers are taking to improve 

water quality in the Chesapeake Bay and its tributaries. At USDA, our efforts are 

carried out with the understanding that how landowners manage their lands will 

help determine the fate of the Chesapeake Bay. 

USDA’s National Resources Inventory shows that in the Chesapeake Bay watershed, developed land increased by 67 percent between 1982 and 2007. While a majority of rural lands lost to development during this period came from forest land, 

30 percent came from cropland. USDA’s Conservation Effects Assessment Project 

shows that per-acre nutrient and sediment loadings are significantly higher from developed lands (point and nonpoint sources included) than from cultivated cropland. 

USDA and other Federal agencies believe that a thriving and sustainable agricultural sector is critical to restoring the Chesapeake. Agricultural land makes up 

nearly 30 percent of the area of the Chesapeake Bay watershed. The 2007 Census 

of Agriculture reported that the 84,000 farms in the Chesapeake Bay watershed, 

about four percent of the total number of farms in the United States, had sales of 

8

nearly $10 billion. Investments in private lands conservation are good for farmers 

and ranchers-reduced input costs directly help the bottom line, while improved soil 

and water quality help maintain and even enhance long-term productivity while 

minimizing regulatory pressures. These same investments in conservation work for 

all Americans—a well-managed farm limits its nutrient and sediment runoff, produces food and fiber, helps sustain rural community economies, and contributes to 

the food security of our nation. 

On May 12, 2009, President Obama’s Executive Order 13508, Chesapeake Bay 

Protection and Restoration, recognized the Chesapeake Bay as a national treasure 

and called on Federal agencies to work cooperatively to protect and restore the 

Chesapeake Bay watershed. The Executive Order also called for a comprehensive 

approach to Chesapeake Bay restoration, including goals for restoring water quality, 

habitat, living resources, and lands. This is consistent with the Administration’s recently announced plan to conserve and preserve America’s Great Outdoors. The 

America’s Great Outdoors report announced by the President last month gave particular emphasis to protecting working lands through partnerships and incentives. 

The Administration’s approach to conserving the Chesapeake Bay is an excellent example of what is called for in the report. USDA, in collaboration with the Environmental Protection Agency (EPA) and other Federal agencies, is targeting high-priority watersheds with high-impact practices and using the latest science to inform 

decision making. 

Implementing the Chesapeake Bay Watershed Initiative 

At USDA, we understand that the American people and the Federal Government 

are facing challenging economic and budgetary conditions. We are fortunate that the 

2008 Farm Bill provided funding for USDA to work with producers in the Chesapeake Bay watershed. Since we began implementation of the Chesapeake Bay Watershed Initiative (CBWI) in 2009, USDA has worked to balance the program’s objectives of (1) improving water quality and quantity, and (2) restoring, enhancing, 

and preserving soil, air, and related resources within the Chesapeake Bay watershed. CBWI authority, which was provided by Members of this Subcommittee, offers 

USDA an opportunity to leverage information and technology to help restore the 

Chesapeake Bay. 

The additional funding provided by CBWI, over and above our base farm bill programs, has allowed NRCS to try some new approaches to better target and leverage 

our funding. In collaboration with EPA, the U.S. Geological Survey (USGS), the Fish 

and Wildlife Service (FWS), state governments, State Technical Committees, and 

conservation districts, NRCS used the best available science to identify watersheds 

with the highest nitrogen, phosphorus and sediment delivery to the Bay and its tributaries. NRCS continues to work with these partners, through a process of adaptive 

management, to use the latest scientific information to inform our program delivery. 

For example, USGS will provide updated information in 2011 on areas delivering 

high sediment loads to the Bay to help prioritize conservation actions. 

NRCS, in partnership with the states, will complete an evaluation of the Chesapeake Bay priority watersheds and identify any revisions to the priority list by October 2012, and every 2 years thereafter until 2025. The Strategy for implementing 

the Executive Order on Chesapeake Bay, published in May 2010, identifies the goal 

of working with producers to apply new conservation practices on 4 million acres 

of agricultural working lands in priority watersheds by 2025. While this goal is ambitious, NRCS believes that by focusing resources on priority watersheds and within 

those watersheds on priority lands, accelerating partnerships, and fully accounting 

for conservation practices, we can achieve a dramatic reduction of nitrogen, phosphorus and sediment. 

A snapshot of CBWI implementation during Fiscal Year 2010 shows that Chesapeake Bay watershed producers expressed strong interest in conservation. NRCS obligated more than $33 million in CBWI financial assistance. NRCS entered into 953 

contracts with producers to help apply conservation treatment on more than 156,000 

acres across the watershed. For example, NRCS worked with Pennsylvania producers to implement more than 60 square miles of new conservation tillage practices 

on cropland. That’s an area equivalent to the size of Pittsburgh, Pennsylvania. Forested riparian buffers were planted on the equivalent of 714 football fields to help 

keep soil from entering adjacent streams. 

For Fiscal Year 2011, the farm bill authorized $72 million for CBWI. Pending outcome of the Congressional budget negotiations, this funding, combined with our 

other mandatory and discretionary accounts, would represent a high-water mark for 

USDA funding in the Chesapeake Bay watershed. We have a real opportunity to 

show that a voluntary, site-specific approach to conservation can work in the Chesapeake region, coupled with efforts underway across the Federal family. 

9

Leveraging Funding 

CBWI is just one of many USDA activities in the Bay watershed. Consistent with 

the Executive Order on Chesapeake Bay Protection and Restoration, USDA is committed to leveraging funding in its watershed restoration activities. We are fulfilling 

this commitment in a number of ways: 

The Conservation Innovation Grants (CIG) program funds the development of 

new conservation approaches and technologies. Recipients must fund at least 50 percent of the cost of each project. In September 2010, NRCS joined EPA at an event 

in Maryland to announce the latest recipients of CIG awards in the Chesapeake Bay 

watershed. NRCS provided $2.8 million in CIG grants, while EPA provided $2.7 million for its Nutrient and Sediment Reduction grant program. USDA and EPA work 

together in administering these grant programs to reduce duplication and to ensure 

that funding is going to the most meritorious projects: 2010 CIG projects funded by 

NRCS are listed below.

• Chester River Association was granted $300,000 to demonstrate new approaches to reducing nitrogen loads from cropland in the Upper Chester River 

watershed of Maryland’s Eastern Shore by engaging 20 producers.

• University of Maryland Eastern Shore was granted just under $1 million to implement and demonstrate the effectiveness of gypsum curtains for reducing 

soluble phosphorus on farms in Somerset County, Maryland and to develop a 

practice standard for installation of gypsum curtains.

• World Resources Institute was granted $600,000 to build an online multi-state 

platform for water quality trading that builds on existing state trading platforms and will include a registry; marketplace; interactive map; calculation tool 

to estimate on-farm nitrogen, phosphorous and sediment losses as well as carbon sequestration rates; and a farm profit calculator to help farmers and 

aggregators understand potential cost and benefits associated with generating 

credits in the water quality trading market.

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

in the Shenandoah Valley and one in the Delmarva, Peninsula.

The Cooperative Conservation Partnership Initiative (CCPI) is an initiative 

that enables NRCS and partners to assist producers in implementing conservation 

practices on agricultural and nonindustrial private forest lands. NRCS leverages financial and technical assistance with partners’ resources to install soil erosion practices, manage grazing lands, improve forestlands, establish cover crops, reduce onfarm energy usage and undertake other conservation measures. CCPI is open to federally recognized Tribes, state and local units of government, producer associations, 

farmer cooperatives, institutions of higher education and nongovernmental organizations that work with producers. Nationwide, 26 projects in 14 states were approved 

for CCPI in Fiscal Year 2010. Four of these 14 projects were part of the Chesapeake 

Bay Watershed Initiative (CBWI–CCPI) and were funded at more than $1.3 million. 

In Fiscal Year 2011, NRCS will build on the showcase watershed projects identified and initiated in 2010: Conewago Creek, PA; Upper Chester River, MD; and 

Smith Creek, VA. The objective of the Showcase Watershed Projects is to focus financial and technical assistance on a small scale in an effort to demonstrate results 

through enhanced partnerships and targeted water quality monitoring. A key component of these work plans is an outreach strategy that reaches all or nearly all 

of the agriculture producers in each watershed and provides an inventory of conservation needs. An annual work plan is currently being developed for each of these 

showcase watersheds. As a part of that process, NRCS is working with other Federal, state, and non-governmental partners to identify additional resources to invest 

in the showcase watersheds. Another critical component of the showcase watershed 

is development and implementation of a water quality monitoring strategy to measure impacts of our activities. Pending appropriations, USGS will provide guidance 

to develop monitoring strategies, as well as equipment and staff time to assist in 

the implementation. 

USDA also supports voluntary Chesapeake Bay restoration efforts under the 

Farm Service Agency’s Conservation Reserve Program (CRP). Under CRP’s Conservation Reserve Enhancement Program, FSA has also negotiated Federal-state 

partnership agreements with all Chesapeake Bay area states, which provide targeted assistance to address water quality, soil erosion, and wildlife issues. 

Within the Chesapeake Bay Basin, there are about 302,000 acres enrolled in the 

CRP of which about 107,000 acres are devoted to buffers. CRP is a voluntary program that helps agricultural producers use environmentally-sensitive land for conservation benefits. Producers enrolled in CRP plant long-term, resource-conserving 

10

covers to control soil erosion, improve water and air quality and develop wildlife 

habitat. In return, FSA provides participants with rental payments and cost-share 

assistance. Contract duration is between 10 and 15 years. 

New Approaches to Conservation Delivery 

USDA recognized the President’s Executive Order on the Chesapeake Bay to be 

in part a call for new approaches and new ideas to Bay watershed restoration. 

Below are several examples of how USDA is exploring new ways to engage producers and help them have a positive impact on Chesapeake Bay water quality. 

Strategic Watershed Action Teams 

In Fiscal Year 2011, NRCS will deploy Strategic Watershed Action Teams 

(SWATs) to work intensively on several landscape conservation initiatives, including 

the Chesapeake Bay. Developing and strategically deploying teams with needed expertise will improve the environmental cost effectiveness of NRCS technical and financial assistance programs by focusing on priority resource concerns within concentrated areas. 

The goal in deploying SWATs is to accelerate conservation adoption within a focus 

area. A concentrated number of additional technical specialists delivering technical 

assistance within landscape initiatives will increase the number and extent of conservation practices installed through financial assistance programs and private 

landowner investment. Improved outreach and follow-up will also accelerate the 

adoption of conservation practices, which in turn will produce faster natural resource improvement. 

In the Chesapeake Bay watershed, SWAT members will work with producers in 

target locations to accelerate conservation implementation to improve water quality 

and simultaneously help achieve the ambitious CBWI goal of implementing new 

conservation practices on 4 million acres in priority watersheds by 2025. SWATs 

will not only help achieve USDA goals, but will also support State Watershed Implementation Plan (WIP) goals for best management practice (BMP) implementation, 

as determined through the EPA total maximum daily load (TMDL) process. Below 

is a brief outline of how the SWAT approach will work:

• Four teams will accelerate conservation activities through outreach, conservation planning, practice implementation, and follow-up in priority watersheds. 

Specific needs include development of comprehensive nutrient management 

plans, design and installation of nutrient management practices, design and installation of livestock-related practices, and establishment of riparian buffers.

• NRCS will provide overall coordination and technical direction. Local partners 

will supervise the teams, which will work closely with NRCS staff to address 

Executive Order Strategy goals and EPA TMDL allocations.

• Teams will be located in the Delmarva area (covering Delaware and Maryland), 

Piedmont area (Pennsylvania), Shenandoah Valley (Virginia), and West Virginia.

NRCS will invest $3 million in mandatory farm bill funding for the SWAT teams 

and local partners will contribute matching funds. 

Certainty 

For a number of months, senior officials from USDA and EPA have been working 

with Chesapeake Bay states to discuss a framework to provide certainty to farmers 

who implement practices that protect water quality in the Chesapeake Bay watershed. Certainty programs that states develop consistent with the framework could 

serve as a tool for engaging producers in conservation activities while providing 

some certainty to producers who have concerns about how they might be impacted 

by the TMDL. 

Nutrient Management Pilot 

In Fiscal Year 2011, NRCS is targeting producers who have not adopted nutrient 

management techniques with a new Nutrient Management Pilot effort in Maryland 

and Pennsylvania. NRCS will provide funding to producers to work with certified 

Technical Service Providers (TSPs) to develop nutrient management plans and implement water quality and monitoring practices on crop acreage in select watersheds 

in the Chesapeake Bay watershed in Pennsylvania and Maryland. Participating producers will establish test strips to demonstrate net income results from nutrient 

management, and obtain additional management guidance from their TSP. NRCS 

will develop ranking criteria that provide preference to late-adopting applicants in 

high priority locations. NRCS will use the results from the pilot efforts in Maryland 

and Pennsylvania to inform future iterations of the program. 

11

Environmental Markets 

The Executive Order Strategy on Restoring the Chesapeake Bay identified environmental markets as an emerging innovative tool for facilitating restoration of the 

Chesapeake Bay and its watershed. While still in their infancy, environmental markets show promise for encouraging innovation and investment in conservation, improving accountability, reducing costs of restoration, and expanding economic opportunities for landowners. 

As directed by the Strategy, USDA has formed and is leading an interagency Environmental Markets Team to coordinate among Federal agencies and with stakeholders in the development and implementation of offsetting and trading provisions 

for the Bay TMDL as well as facilitating work on other market-based approaches 

in habitat, wetland, stream and shoreline restoration, marine markets and other applications. We look forward to developing guidance and products that can assist 

Chesapeake Bay states as they look to develop markets or build on those already 

in place. 

State-of-the-Art Science 

In June 2010, Secretary Vilsack rolled out the first Conservation Effects Assessment Project (CEAP) cropland report, covering the Upper Mississippi River watershed. CEAP is a multi-agency effort to quantify the environmental effects of conservation practices and develop the science base for managing the agricultural landscape for environmental quality. In simple terms, CEAP provides both an assessment of the impacts of conservation on the landscape and a path forward on how 

to improve implementation of USDA conservation programs and policies. 

Just this week, NRCS released the second CEAP cropland report, this one focused 

on the Chesapeake Bay. The report quantifies the effects of conservation practices 

commonly used on cultivated cropland in the Chesapeake Bay watershed, evaluates 

the need for additional cropland conservation treatment in the region, and estimates 

the potential gains that could be attained with additional treatment. 

The CEAP cropland reports are based on a unique methodology—first, farmer surveys are used to obtain data on actual farming activities and conservation practices. 

In the case of the Chesapeake Bay watershed, the surveys were conducted from 

2003 through 2006. The survey information is correlated with soils information on 

National Resources Inventory survey sites and statistically expanded to represent 

all cropland in the watershed. The farming and conservation activities and soils information are fed into a plant growth assessment model and then eventually into 

a watershed model to simulate downstream outcomes of producers’ activities. This 

methodology allows USDA to evaluate the cumulative effect of conservation practices in terms of the following:

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

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

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

The assessment includes all conservation practices undertaken in the basin. It is 

not restricted to only those practices associated with Federal conservation programs; 

the assessment also includes the conservation efforts supported by the states, nongovernmental organizations, and independent actions of individual landowners and 

farm operators. 

The Chesapeake Bay CEAP cropland report included the following major findings:

1. Agricultural conservation practices deliver benefits for the Bay.

In the Chesapeake Bay watershed, most cropland acres have either structural and 

management practices in place to control erosion. Nearly half the cropland acres are 

protected by one or more structural practices, such as terraces. Reduced tillage is 

used in some form on 88 percent of the cropland. Adoption of conservation practices 

has reduced edge-of-field sediment loss by 55 percent, surface nitrogen losses by 42 

percent, and subsurface nitrogen losses by 31 percent, and phosphorus losses by 41 

percent, compared to a situation where no practices were applied.

2. Inherent soil vulnerabilities in the Chesapeake Bay watershed create 

a complex environment for agriculture.

Inherent vulnerability factors such as soils prone to leaching or runoff and high 

precipitation levels amplify potential for nutrients and sediment to move from farm 

fields. At least 44 percent of the cropped acres in the watershed are highly erodible 

land. By comparison, only 18 percent of the cropped acres in the Upper Mississippi 

River Basin are highly erodible.

12

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

More can be done to reduce nitrogen losses through complete and consistent nutrient management (proper rate, form, timing, and method of application). About 65 

percent of cropped acres need some additional nutrient management to address 

losses of nitrogen through subsurface pathways.

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

pathways.

A system of conservation practices that includes soil erosion control and consistent 

nutrient management is required to address soil erosion and loss of nitrogen 

through leaching via the numerous potential loss pathways.

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

Targeting the most critical acres delivers significantly more benefit. Treating the 

cropped acres with high need for treatment can have twice the impact of treating 

the acres with low or moderate need for treatment. In some areas, the conservation 

benefits are even greater. 

Significant progress in conservation adoption has been made since the last phase 

of the CEAP farmer survey was completed in 2006, particularly with respect to 

cover crop use. Since 2006, implementation of cover crops in the watershed has increased significantly, particularly where state programs have supported the use of 

cover crops. When used properly, cover crops protect the soil from erosion during 

the winter months, take up nutrients remaining in the soil, and release plant-available nutrients slowly over the subsequent cropping period, thereby reducing nutrient leaching and runoff during the non-growing season. 

The CEAP results also reaffirm the importance of maintaining working lands in 

the Bay watershed. That is, working lands develop less sediment and nutrients, on 

average, than developed lands. So while NRCS, states, farmers and other landowners work to reduce run-off into the Bay, we must also ensure that agriculture 

and forestry are maintained as economically viable land uses. 

Beyond establishing a baseline of conservation programs and highlighting continued areas for improvement for the agricultural sector, CEAP has the potential to 

be a key tool supporting our programs and policies moving forward. We are incorporating CEAP findings into agency standards, program approaches and delivery, 

and policies. 

The findings confirm that targeting the most vulnerable and least protected landscapes is the most effective and efficient path to conservation progress. At the same 

time, we will be on guard to maintain gains made in other areas. USDA is also 

working to incorporate soil vulnerability information into more of our targeting efforts. The CEAP findings also confirm the wisdom of using systems of practices, instead of individual practices, in our planning methodology. And we have turned 

some of our best technical minds toward addressing the persistent problem of nitrogen loss through subsurface pathways. 

CEAP and the Chesapeake Bay Program Watershed Model 

USDA developed the CEAP model in response to a directive, included in the 2002 

Farm Bill manager’s report, to evaluate the impact of conservation practices on the 

landscape. CEAP was developed to estimate, at a large basin scale, the effectiveness 

of conservation activities across the nation to help inform USDA conservation policies and programs. 

The Chesapeake Bay Program Partnership’s Watershed Model (CBP Model) is 

part of a suite of models designed to account for all nutrient and sediment loading 

sources to the Chesapeake Bay in the context of the Bay TMDL and focuses specifically on describing how actions on the land from all sources affect nutrient and sediment loadings to the Bay and the associated Bay water quality. 

While the CBP Model and CEAP have both been extensively peer-reviewed and 

represent state-of-the-art modeling approaches, they were developed for different 

purposes. 

Even though the models serve different purposes, there are advantages to be 

gained from improving and coordinating the input data used by the two models, and 

USDA and EPA will continue to work together to that end. Most importantly, both 

models show that the agricultural sector has done much to reduce nutrient and sediment loadings in the Bay watershed, and also that there is more to do. 

Summary 

There is a sense among the agricultural community that these are uncertain 

times for farmers in the Bay watershed. The Chesapeake Bay TMDL and state 

13

WIPs have introduced a new dynamic to Bay restoration. At USDA, we are taking 

advantage of the good fortune that the CBWI has bestowed upon us to provide Bay 

watershed producers with historic levels of technical and financial assistance. Our 

CEAP effort will help us target those dollars to the places and the practices that 

have the greatest impact on nutrient and sediment loadings. With assistance from 

key partners in the Bay watershed, we have developed new approaches, such as 

SWATs, that we believe will engage additional producers to accelerate conservation 

adoption on private lands. In addition, USDA is actively working with EPA and the 

states to explore a framework for engaging producers in conservation activities 

while providing certainty to producers who have concerns about how they might be 

impacted by the TMDL. With our resources, the resources of our partners, and the 

resources of producers themselves all leveraged toward improving water quality in 

the Bay watershed, USDA sees the agricultural community as part of the solution, 

not just part of the problem. 

I appreciate the invitation to be here today and I am happy to answer any questions.

14

ATTACHMENT 1


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ATTACHMENT 2

Chesapeake Bay Watershed Conservation Projects: Before-and-After 

Delaware

Before: The above photo shows an abandoned poultry house. Over time, 

buildings like this can build up excess nutrients in the soil under the floor. 

Water can then flow over and through the soil and into the Chesapeake 

Bay.

After: Through our efforts in the Chesapeake Bay, NRCS worked with the 

landowner to demolish the house, grind up the wood, and remove the soil 

and apply it to cropland where it was needed for fertilizer. Clean soil was 

placed on the site and it was reseeded with native grasses. These actions 

benefit water quality in the Bay.


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Pennsylvania

Before: A severe storm eroded streambanks along this creek, sending sediment down the waterway that flows into the Chesapeake Bay.

After: Today, a designed rock reinforcement bank has been used to stabilize the streambank. This rock structure keeps streambanks in place and 

sediment out of the creek, and also works to reinforce the foundations of 

nearby buildings.


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Maryland

Before: At this site, 300 dairy cattle were eroding the streambank and 

causing nutrients to enter the stream.

After: Working with NRCS, the owners installed stream crossings to allow 

cattle safe passage, built 21⁄2 miles of fence to keep cattle out of the stream, 

and planted conservation buffers along the stream. These actions will reinforce the streambanks and prevent sediment and nutrients from entering 

the stream.


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Virginia

Before: Working with NRCS, a landowner installed fencing and a conservation buffer to exclude his cattle from a stream whose waters feed tributaries of the Chesapeake Bay.

After: Two months later, vegetation has returned to the streambanks, reducing the amount of sediment deposited in the water, while conservation 

buffers filter out nutrients that could impair water quality in the stream 

and other Bay tributaries.


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New York

Eroding streambanks along this creek were causing problems for water 

quality and fish habitat. This image show conservation practices installed 

to address those problems. Control structures direct the flow of the water 

toward the middle of the stream, preventing streambank erosion. Near the 

structures, rock reinforces the banks, and also works to prevent erosion. 

Plantings along the creek sides prevent sediment from entering the water 

and provide shade for brook trout. Partners in this project include NRCS, 

the U.S. Fish & Wildlife Service, New York State, 35 landowners, the local 

conservation district, and local volunteers.


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West Virginia

Manure storage facilities like this one allow West Virginia farmers in the 

Chesapeake Bay watershed to collect poultry litter needed as fertilizer for 

crop production. Collecting litter in storage facilities prevents nutrients 

from entering waterways that flow into the Bay.


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The CHAIRMAN. Thank you. Deputy Director—Deputy Administrator, please go ahead. 

STATEMENT OF BOB PERCIASEPE, DEPUTY ADMINISTRATOR, 

U.S. ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, 

D.C. 

Mr. PERCIASEPE. Good morning, Chairman Thompson, Ranking 

Member Holden, and Members of the Subcommittee. Thank you for 

the opportunity to talk to you today about the Chesapeake Bay watershed and the important role the agricultural community plays in 

protecting water quality throughout the region. I have been connected to the Bay personally for much of my professional life as 

Secretary of the Environment for the State of Maryland, as head 

of the Water Program at EPA, and involved with the early Chesapeake Bay Agreements in the 1980’s, and now as Deputy administrator at EPA. And I know how important these waters are to the 

people in the region and how important the work that the agricultural community does to the long term success and the Chief just 

outlined many of those achievements. 

The Chesapeake Bay and the rivers that feed into it form a very 

unique ecosystem. In addition to being the largest estuary in North 

America, the watershed encompasses 64,000 square miles, six 

states, the District of Columbia, and over 1,000 local governing 

bodies. As everyone on the Committee knows the Bay is also a 

major economic engine for the region valued at over $1 trillion. 

The collaborative efforts that EPA and the states have been engaged in over the last 2 years is nothing new. Our work together 

speaks to a long and rich history of partnership that goes back 

more than 25 years and has led to the development of the Chesapeake Bay TMDL. And the agricultural community has made significant progress in reducing nutrient and sediment loads to the 

Chesapeake Bay through these conservation practices such nutrient management, conservation tillage, and livestock exclusion from 

streams. These practices are good for farms and they are good for 

the Bay. 

Let me take a moment to describe a TMDL, or Total Maximum 

Daily Load. It is simply a scientific determination of the total 

amount of pollution that a water body can handle and still meet 

water quality standards. The states took this threshold and figured 

out ways to reduce the loadings ranging from agricultural management and conservation practices to technology investments in 

wastewater treatment plants. 

The Chesapeake Bay TMDL is based on significant interstate collaboration. Once the analysis of the data was complete to establish 

the limit on pollution in the Bay, the states then developed Watershed Implementation Plans based on their knowledge of local needs 

and priorities to achieve the goals. Let me be clear about those watershed plans because we have heard a lot of misinformation about 

how they were developed. There was a great deal of interaction 

with the states completing the Watershed Implementation Plans as 

they sought to address all the sources of pollution that impact the 

Bay—urban, rural, and suburban and to ensure that the expectations for cleanup were shared among all the different sectors. 

36

When it came to forming the plans for the agriculture sector, the 

states focused on full implementation of their existing programs 

and ramping up of voluntary conservation programs. Let me also 

be clear as the Administrator has stated repeatedly: We believe 

maintaining the viability of agriculture is essential to the ecosystem of the Chesapeake Bay. Conservation-based farming is a 

preferred land use in the region and we are committed to strong 

partnerships and collaboration with states, and local governments, 

urban, rural, private sector, and the agricultural community to 

achieve those objectives. 

Mr. Chairman, I know that there are also stories and narratives 

out there about EPA’s actions with respect to the Bay. The truth 

is EPA has worked collaboratively with the states over the past 

several decades culminating in this basin wide diet combined with 

workable state level plans which will reduce pollution and increase 

economic stability in the region. It is neither our intention nor our 

belief that this will in any way endanger the agricultural heritage 

of this region. 

As Governor McDonnell from Virginia stated so well this past 

December, ‘‘We are pleased that EPA accepted the Virginia Watershed Implementation Plan as part of the Chesapeake Bay TMDL. 

Our plan reflects recommendations made by the public and Virginia stakeholders and groups and proposes specific actions in appropriate timeframes to achieve significant cost effective reductions 

in pollution to the Bay. We feel it is a stringent but workable plan 

that demonstrates Virginia’s commitment to cleaning up the 

Chesapeake Bay while providing for a continued economic growth 

in the Commonwealth. After much discussion with EPA the approved plan balances important environmental protection concerns 

with the need to protect jobs in agriculture and farming.’’

In conclusion, EPA’s job is to ensure water quality in the Bay 

and to protect the ecosystem and the industries that rely on it. We 

have worked with our partners in the states, the Federal Government, and the Congress to develop a plan that does just that. I am 

happy to take any questions you have and thank you very much 

for inviting me today. 

[The prepared statement of Mr. Perciasepe follows:]

PREPARED STATEMENT OF BOB PERCIASEPE, DEPUTY ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, D.C. 

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

the Subcommittee. Thank you for the opportunity to talk to you today about the 

Chesapeake Bay Total Maximum Daily Load (TMDL) and the important role that 

the agricultural community plays in protecting water quality throughout the Chesapeake Bay watershed. 

I share the sentiments provided by Administrator Jackson in her testimony before 

the full Committee last week. Administrator Jackson and I recognize the invaluable 

contributions farmers make to our economy, the critical work that farmers are doing 

to protect our soil, air, and water resources, and the challenging economic difficulties the agriculture community faces. 

Today, I will provide you with an overview of the health of the Chesapeake Bay 

and describe the Total Maximum Daily Load (TMDL) for the Bay watershed, issued 

by EPA on December 29, 2010 to protect and restore the Bay highlighting the collaboration and science which informed its development. I will also discuss the innovative agricultural practices which the states included in their restoration plans for 

the Bay and its tributaries. And finally, I will provide an update on the implementaVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
37

1Saving a National Treasure: Financing the Cleanup of the Chesapeake Bay, A Report to the 

Chesapeake Bay Executive Council, Chesapeake Bay Blue Ribbon Finance Panel, October 27, 

2004. 2 2007 Census of Agriculture reported 83,775 farms in the Chesapeake Bay region. 

3http://www.chesapeakebay.net/content/publications/cbpl50513.pdf. 4 Ibid.

5http://www.chesapeakebay.net/historyofcbp.aspx?menuitem=14904. 

tion of the Strategy in response to the President’s Executive Order on the Chesapeake Bay. 

The Chesapeake Bay Watershed 

The Chesapeake Bay watershed encompasses 64,000 square miles, parts of six 

states and the District of Columbia. Nearly 17 million people live in the watershed. 

Runoff from the Bay’s enormous watershed flows into an estuary with a surface 

area of 4,500 square miles resulting in a land-to water ration of 14:1—the largest 

ratio of any major estuary in the world. That large ratio is one of the key factors 

in explaining why the drainage area has such a significant influence on the water 

quality in the Bay. The actions we take on the land have a significant impact on 

the health of our rivers, streams, and the Bay. 

The Chesapeake Bay is the largest estuary in North America and is ecologically, 

economically and culturally critical to the region and the country. It is home to more 

than 3,600 species of fish, plants and animals. For more than 300 years, the Bay 

and its tributaries have sustained the region’s economy and defined its traditions 

and culture. The economic value of the Bay is estimated at more than $1 trillion 1

and two of the five largest Atlantic ports (Baltimore and Norfolk) are located in the 

Bay. 

Approximately 84,000 farms are located in the Chesapeake Bay watershed and 

form a vital part of the watershed’s economy and way of life.2 EPA believes that 

maintaining the viability of agriculture is essential to sustaining ecosystems in the 

Bay. Environmentally sound farming is a preferred land use in the Region and EPA 

is committed to working together with the United States Department of Agriculture 

(USDA) and the Bay states to help farmers produce abundant and affordable foods 

while managing nutrients and soils in a manner that helps to protect and restore 

the Bay’s water quality and the values and benefits that derive from clean water 

and a healthy, vibrant ecosystem. 

The Health of the Bay 

Each year, the Chesapeake Bay Program issues a health and restoration assessment of the Chesapeake Bay and watershed, known as the ‘‘Bay Barometer.’’ The 

2009 Bay Barometer affirmed that ‘‘despite the impressive restoration work done by 

the array of partners, the health of the Bay and watershed remains severely degraded.’’ The data included in the report are sobering. Virtually all of the 13 measures which comprise Bay health showed conditions that fall short of restoration 

goals.3

Despite some significant progress in reducing pollution level over the past several 

decades, the Bay and many of its tributaries remain in poor health, failing to meet 

water quality standards. Populations of key species such as oysters are extremely 

low, and habitats such as underwater grass beds and wetlands are degraded.4 The 

problems facing this unique watershed stem from human activity that has transformed the natural landscape, the impacts of which have accelerated due to rapid 

growth and development. The physical and scientific challenges facing the Bay are 

wide ranging: population growth, increased development, warmer temperatures, increased nutrients, loss of underwater grasses, and large dead zones devoid of oxygen. 

The main sources of nutrient and sediment pollution to the Chesapeake Bay and 

its tributaries are urban and suburban discharges and runoff, agriculture, wastewater, and atmospheric deposition. The agricultural sector has done much to reduce 

nutrient and sediment loadings in the Bay watershed. Both nitrogen and phosphorus loadings from agriculture have declined since 1985; however, significant additional reductions from agriculture and all sectors are needed to meet water quality 

standards. 

Efforts to restore the Chesapeake Bay and its watershed have been underway for 

over 25 years. The Chesapeake Bay was the nation’s first estuary targeted by Congress for restoration and protection. In the late 1970s, Congress funded a 5 year 

study, to analyze the rapid loss of aquatic life in the Bay.5 The report identified excessive nutrients (excess nitrogen and phosphorus pollution) as a main source of the 

Bay’s degradation. The publication of these initial research findings in the early 

38

6http://archive.chesapeakebay.net/info/c2k.cfm. 7 Chesapeake 2000 Agreement page 5: http://www.chesapeakebay.net/content/publications/

cbpl12081.pdf. 8See PSC meeting minutes for October 1, 2007: http://archive.chesapeakebay.net/pubs/calendar/PSCl10-01-07lMinutesl1l9029.pdf. 9For a detailed description of EPA’s legal authority to issue the Bay TMDL including commitments made, see the Final Chesapeake TMDL section 1.4.2 on page 1–16 as well as Appendix 

W Part 1 starting on page 264 at: http://epa.gov/chesapeakebaytmdl/. 10The Executive Order and Strategy are available at: http://executiveorder.chesapeakebay.net. 11Point sources are discrete sources such as wastewater treatment plants and industrial facilities that are regulated under the Clean Water Act. 12 Nonpoint sources are diffuse sources such as runoff from land and atmospheric deposition 

not regulated under the Clean Water Act. Most agriculture is defined as a nonpoint source. The 

exception is Concentrated Animal Feeding Operations which are included in the definition of 

point source in Section 502(14) of the Clean Water Act. 13Prosolino v. Nastri, 291 F .3d 1123, 1129 (9th Cir. 2002). 

1980s led to the creation of the Chesapeake Bay Program (CBP) as the means to 

help restore this exceptionally valuable waterbody. 

Since it was established, the CBP has had a long history of partnership, science 

and action to protect and restore the Bay watershed. The CBP brings together the 

intellectual and financial resources of various state, Federal, academic and local watershed organizations to build and adopt policies that support a unified plan for 

Chesapeake Bay watershed restoration. 

Over the past 3 decades, CBP partners have signed several Agreements and directives that unite them in efforts to reduce pollutant loadings into the Bay and restore 

its living resources. In 2000, the partners signed Chesapeake 2000 (C2K).6 This 

comprehensive, ecosystem-based approach set the course for the Bay’s restoration 

and protection for the next decade and beyond. When the partners signed C2K, they 

recognized that they would be required to develop a TMDL if the actions identified 

in the Agreement were not successful in achieving water quality standards in the 

mainstem and tidal portions of the Bay.7 While the partners made some important 

progress to reduce nutrient pollution from agriculture and wastewater treatment 

plants, it was not enough. In October 2007, when it became apparent that water 

quality standards would not be met, the Chesapeake Bay Program’s Principals’ Staff 

Committee (PSC), a group of state secretary-level representatives, requested that 

EPA establish the multi-state TMDL.8

Additional commitments also led to the decision to develop a TMDL for the Chesapeake watershed including a number of consent decrees and Memoranda of Understanding.9 In addition, the Bay TMDL was included as a keystone commitment in 

the strategy developed by 11 Federal agencies, including USDA, to restore and protect the Chesapeake Bay and its watershed—as directed in President Obama’s Executive Order 13508, issued on May 12, 2009.10

TMDL Development 

On December 29, 2010, EPA issued the final Chesapeake Bay TMDL establishing 

the maximum amount of pollution the estuary can receive and still meet water quality standards. Specifically, the Bay TMDL identifies the reductions of nitrogen, 

phosphorus and sediment from point 11 and nonpoint sources 12 in Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia 

necessary to meet the Bay’s water quality standards. It is by far the most comprehensive roadmap to water quality restoration for the Chesapeake Bay. 

The Clean Water Act requires states, including the District of Columbia, to establish lists of impaired waters that fail to meet water quality standards and to establish TMDLs for listed water bodies. A TMDL specifies the maximum amount of a 

pollutant that a water body can receive and still meet applicable water quality 

standards. Typically, it includes waste load allocations for point sources and load 

allocations for nonpoint sources and natural background. The 9th Circuit Court described TMDLs as ‘‘primarily informational tools’’ that ‘‘serve as a link in an implementation chain that includes federally regulated point source controls, state or 

local plans for point and nonpoint source pollutant reduction, and assessment of the 

impact of such measures on water quality, all to the end of attaining water quality 

goals for the nation’s waters.’’ 13 EPA and the Bay states have extensive experience 

in developing TMDLs and there are currently more than 12,000 TMDLs established 

within EPA Region III (Mid-Atlantic) alone. 

The establishment of the Chesapeake Bay TMDL began in earnest when, on September 11, 2008, EPA sent official letters to the states detailing a plan for the 

TMDL, including: criteria for establishing nitrogen, phosphorus and sediment allocations; schedules for establishing the TMDL and pollution reduction plans; EPA’s 

expectations and evaluation criteria for state plans to meet the TMDL pollution limVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
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14 Chesapeake Bay TMDL letters to states are available at: http://www.epa.gov/reg3wapd/

tmdl/ChesapeakeBay/ResourceLibrary.html#keydocs. 15 Economic Impacts of Implementing Agricultural Best Management Practices to Achieve 

Goals outline in Virginia’s Tributary Strategy, Center for Economic and Policy Studies, Weldon 

Cooper Center for Public Service, University of Virginia, February 23, 2010. 

its; EPA’s expectations for demonstrating reasonable assurance for controlling 

nonpoint source pollution; and contingency actions that EPA could take to ensure 

progress.14

Watershed Implementation Plans 

Integral to the Bay TMDL are the state’s Watershed Implementation Plans 

(WIPs) or road maps for how and when the seven Bay states, in partnership with 

Federal and local governments, will achieve and maintain pollutant allocations (reductions) under the TMDL. EPA worked closely with the states to ensure that each 

WIP achieved the basin-state pollution allocations and provided reasonable assurance that nonpoint source reductions will be achieved and maintained. The states 

were in the lead for developing the WIPs and a significant amount of flexibility was 

afforded to the states. WIPs must include enough detail to create a high degree of 

accountability for reducing water pollution, including assurance that point source 

permits will be issued consistent with the TMDL pollution allocations. 

EPA released a draft Chesapeake Bay TMDL on September 24, 2010 and began 

a 45 day public comment period that concluded on November 8, 2010. After issuing 

the draft TMDL, EPA continued to work closely with each state holding weekly discussions to assist them in revising and strengthening their plans. 

In developing the TMDL, our plan was always to have allocations based on states’ 

strategies (i.e., WIPs) and to provide the states with flexibility to let them lead the 

way in determining how to reduce pollution and from what sectors. The final TMDL 

is a product of close EPA-state collaboration and is largely based on the allocations 

and actions included in each of the state’s final Phase I WIPs. 

Outreach 

Throughout the 2 year development of the final TMDL, EPA conducted an extensive outreach campaign throughout the watershed. Outreach to the agriculture community was particularly focused and occurred throughout the region. EPA staff met 

with representatives of the American Farm Bureau Federation (national and state 

level), agribusiness organizations, as well as state agricultural agencies and conservation districts. 

In 2011, EPA will work with the Bay states on Phase II WIP development. Phase 

II WIPs will include additional detail to facilitate implementation of nutrient and 

sediment controls at the local level. The Phase I and Phase II WIPs will inform the 

2 year milestones established by the TMDL. 

Economic Benefits and Financial Assistance 

The implementation of the TMDL is designed to be as flexible as possible. EPA 

allowed and encouraged states to develop a Watershed Implementation Plan that 

meets the TMDL allocations in the best way for any given state. 

It is important to recognize that there are economic benefits to improving local 

and Bay water quality and that the agricultural practices that states are committing to implement can be very good for the producer’s bottom line. For example, 

many farmers implement continuous no-till systems without seeking Federal or 

state cost-share funding because it reduces fuel and labor costs from not having to 

till cropland, and long-term, it can improve soil quality. Also, excluding livestock 

from streams is another example of a conservation practice that is economically beneficial to the dairy farmer from the standpoint of reducing the costs associated with 

waterborne illnesses, mastitis, and foot rot. 

An economic analysis conducted by the University of Virginia this year found that 

implementation of the agricultural practices to reduce runoff pollution called for in 

Virginia’s Chesapeake Bay ‘‘tributary strategy,’’ such as livestock stream exclusion, 

buffers, and cover crops, would generate significant economic benefits. For example, 

the report found that every public dollar spent on implementing the practices will 

produce $1.56 in new economic activity. Further, the practices would generate nearly 12,000 new jobs over the course of the cleanup effort.15

The Fiscal Year 2012 President’s Budget includes $25.3 million for programmatic 

and implementation grants to states and $10.0 million for innovative and small watershed grants available to states, local governments, and other organizations. All 

told, about $40 million of the $67 million request, or about 60 percent, will be available to state and local entities. These grants can be used to help producers impleVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00043 Fmt 6633 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
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16http://www.chesapeakebay.net/committeelmsclprojects.aspx?menuitem=16525#peer. 17 Ibid. 18http://cbf.typepad.com/files/scientistletter-2.pdf. 19 2009 data from CBP Watershed Model Phase 5.3.0. 

ment key conservation practices that are not only good for the Bay, but also for producers’ economic bottom-line. 

Chesapeake Bay Program Watershed Model 

The Chesapeake Bay Program (CBP) Watershed Model (hereinafter CBP Model) 

was integral to developing the Bay TMDL. The CBP Model, a product of the Bay 

Partnership (not EPA), is actually a suite of models developed specifically for the 

scale of the Chesapeake Bay watershed and its 92 major waterbody segments. The 

CBP Model is a critical tool that will help inform the allocation of pollution reductions among states and sources of pollution, and help decision makers make informed management decisions. 

The CBP Model is well established and an effective means for assessing environmental impacts over larger landscapes and watersheds. As a sophisticated analytical 

tool, the CBP Model helps advance our ability to understand the effectiveness of actions on the land in reducing nutrient and sediment loads to the Chesapeake Bay 

watershed. 

The suite of models used for the TMDL are among the most sophisticated, studied 

and respected in the world, and represent the cutting edge of estuary restoration 

science.16 The models provide a comprehensive view of the Chesapeake ecosystem, 

from the depths of the Bay to the upper reaches of the watershed, and from the 

development occurring on land to the air over the region. The CBP Model has gone 

through numerous peer reviews by modeling experts and has been widely endorsed 

as a useful TMDL model—most recently by the Chesapeake Research Consortium 

(CRC), the CBP Scientific and Technical Advisory Committee, the Virginia Institute 

of Marine Science, the University of Maryland and others.17 In a November 8, 2010 

memorandum, the CRC stated, ‘‘the substantial majority of knowledgeable environmental scientists in the region agree with the premise that the modeling framework 

used to develop the Draft TMDL represents the best current incorporation of available science with which to set and allocate maximum loads within the watershed.’’ 18

Over the past 20 years, the CBP Model has improved significantly in precision, 

scope, complexity and accuracy. For example, the current CBP Model is calibrated 

to monitoring stations in the region, with the number of linked stations expanded 

from 20 in the previous version to nearly 300 in the current version. The segments 

in the model have grown from 94 to 2,157, providing information at the watershed, 

county and conservation district level. The types of land uses that can feed into the 

model were increased from 9 to 25. By working with partners and stakeholders, the 

CBP continues to improve the quality of the data for land use, agricultural practices, precipitation, wastewater, urban and suburban runoff and air pollution. 

The CBP Model suites have been developed and utilized through collaboration 

with Federal, state, academic and private partners. This includes extensive input 

from agricultural agencies and organizations including state agricultural agencies, 

and agricultural organizations on the CBP Agriculture Workgroup. Use and development of the models is fully transparent and open. All decisions and refinements to 

the model are made at public meetings of the Chesapeake Bay Program. The CBP 

Model suites undergo extensive independent scientific peer-review by a wide spectrum of Federal, state and academic scientists, as well as modeling experts. Bay watershed states use the CBP Model to determine the appropriate mix of nutrient and 

sediment reduction practices that will achieve their allocations from a suite of management practices such as wastewater treatment plant upgrades, urban stormwater 

controls, and implementation of various agricultural conservation practices. 

Crediting the Agricultural Community in the Model 

EPA recognizes the agriculture community has done much to reduce pollution in 

the watershed over the last few decades. Since 1985, much of the reduction has been 

achieved through implementation of nutrient management and conservation practices, and changes in land use. Continued implementation of conservation practices 

and development of new conservation strategies are crucial to restoration of the 

Chesapeake Bay. 

While agricultural lands make up about 22% of the total watershed area, current 

model estimates show that agricultural lands are responsible for about 45% of the 

total N loadings, 44% of the total P loadings and 65% of the total sediment loadings 

entering the tidal Chesapeake Bay.19

41

The CBP Model currently credits more than 40 agricultural practices. These include such practices as: enhanced nutrient management, continuous no-till, conservation tillage, livestock exclusion from streams, cover crops, forest buffers, poultry phytase, and more. I applaud these and the many other efforts currently being 

implemented by the agricultural community. 

As states work to further reduce nutrients and sediment from agricultural operations, they have committed to implement new and innovative technologies for 

achieving the load reduction goals. EPA continues to work with the states to add 

these additional ‘‘new’’ practices for credit in the Model. Two examples of these are 

more advanced nutrient management technologies and technologies for using excess 

manure nutrients for uses such as energy production. 

EPA and USDA Models 

Both USDA and EPA use models to help describe the effectiveness of actions on 

the land and to inform decision making. 

While the Chesapeake Bay Program Partnership’s Bay Watershed Model (CBP 

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

been extensively peer-reviewed and represent state-of-the-art modeling approaches, 

they were developed for different purposes. 

CEAP was built to give an estimate, at a large basin scale, of the effectiveness 

of conservation activities on the landscape and their impact on nutrient loads to the 

Chesapeake Bay. 

The CBP Model was designed to account for all nutrient and sediment loading 

sources to the Chesapeake Bay in the context of the Bay TMDL and focus specifically on describing how actions on the land from all sources affect nutrient loadings 

to the Bay and the associated Bay water quality. 

Although these and other technical differences exist in the models, they both show 

that the agricultural sector has done much to reduce nutrient and sediment loadings 

in the Bay watershed, and also that there is more to do. 

Now that the CEAP report is completed, USDA and EPA will work together to 

further understand and coordinate the different approaches used in the two modeling efforts and to continue improving the data available for use by both models. 

Executive Order 

USDA and EPA have a long history of collaborating on the Chesapeake Bay restoration to ensure both a healthy Bay and viable agriculture in the Chesapeake Bay 

watershed. 

Both agencies agree that maintaining the viability of agriculture is an essential 

component to sustaining ecosystems in the Bay. Both acknowledge the enormous 

contribution that farmers are making to improve Bay water quality. And, both are 

committed to strong partnerships and collaboration with states and local governments, urban, suburban and rural communities, and the private sector to achieve 

environmental objectives for the Bay. 

For example, senior officials from USDA and EPA met with the state agricultural 

and environmental secretaries several months ago to discuss a framework to provide 

certainty to farmers who implement practices that protect water quality in the 

Chesapeake Bay. Following that meeting, in December 2010, USDA Deputy Secretary Kathleen Merrigan and I sent letters to each of the State Agriculture and 

Environmental Secretaries asking them to confirm their interest in pursuing a certainty program. It is our hope that we have developed a constructive framework 

that states can use in providing to producers incentives and recognition that accelerate the adoption of conservation practices and advance the objectives of the state 

Watershed Implementation Plans. We are continuing to follow up with interested 

states to advance this concept. 

USDA and EPA have committed to look for opportunities to leverage and better 

align our collective Federal resources to support the states in implementing the 

commitments outlined in their TMDL Watershed Implementation Plans. One example of funding coordination is the 2010 effort to align our agencies’ innovation grants 

programs to support key priorities for addressing some of the biggest water quality 

challenges facing agriculture. This resulted in $5.5 million being targeted towards 

innovative agricultural projects in the Bay watershed last year. Let me describe two 

examples: 

Reducing Ammonia Emissions and Runoff from Broiler Litter 

EPA is spending $700,000 to fund demonstrations of technologies to reduce ammonia emissions and runoff from poultry litter such as (1) ammonia scrubbers which 

are attached to exhaust fans on poultry houses, (2) addition of alum to poultry litter 

inside poultry houses, and (3) using a litter incorporator to make litter applications. 

The project team, including personnel from Virginia Tech, Virginia Cooperative ExVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
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20http://stat.chesapeakebay.net/BayTAS. 

tension, Virginia Department of Conservation and Recreation, USDA/NRCS, Soil 

and Water Conservation Districts, the University of Maryland—Eastern Shore and 

USDA/ARS, will work with local growers to demonstrate the effects of these technologies on ammonia losses to the atmosphere, phosphorus runoff and crop growth 

on two farms in the Shenandoah Valley and two farms on the Eastern Shore of Virginia. 

Conewago Creek Watershed in Pennsylvania 

As part of the Executive Order described below, EPA is aligning its resources with 

the USDA farm bill funding in priority watersheds to accelerate cost-effective nutrient and sediment reductions from agricultural areas. EPA has provided $800,000 in 

the USDA’s ‘‘showcase watershed’’ to support a diverse partnership of Federal, state 

and local government agencies, academics, watershed groups, farmers and businesses in comprehensively restoring the Conewago Creek watershed. The collaborative partnership has set goals that include:

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

• 100% of homeowners have identified and implemented on-site opportunities for 

improving stormwater retention and infiltration, septic system management, 

water conservation, riparian buffers, and protection of private drinking water 

systems;

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

and

• the TMDL for phosphorus and sediment is met.

The partnership will monitor early signals of changes in stream quality, and has 

committed to transfer this process to other watersheds. 

Continued EPA/USDA collaboration will be critical to continue to refine modeling 

tools, improve agricultural conservation tracking and verification, and accelerate agricultural nutrient and sediment reductions necessary to meet the Bay TMDL. 

Implementing the Strategy for Protecting and Restoring the Chesapeake Bay Watershed, is another area of strong collaboration between USDA and EPA. On May 

12, 2009, President Obama issued Executive Order 13508 on Chesapeake Bay Protection and Restoration. The Strategy developed in response to the Executive Order 

ushered in a new era of shared Federal leadership, action and accountability. This 

comprehensive and highly coordinated ecosystem-based strategy deepens the Federal commitment to improve our results in protecting and restoring the Chesapeake 

Bay and its watershed. 

The strategy includes a number of actions and initiatives related to farming and 

agriculture. For example, EPA will collaborate with USDA, other Federal agencies, 

state governments and conservation districts to identify watersheds with the highest 

nitrogen, phosphorus and sediment delivery to the Bay and its tributaries. In addition, EPA and USDA committed to develop and implement mechanisms for tracking 

and reporting voluntary, noncost-share practices installed on agricultural lands. 

And, EPA will coordinate funding opportunities with USDA to accelerate nitrogen, 

phosphorus and sediment reductions in priority watersheds and tackle key agriculture challenges. To increase accountability, the agencies will establish milestones 

every 2 years to ensure progress toward measurable environmental goals. 

In order to provide additional transparency and accountability to the work identified in the Strategy and specifically, the Bay TMDL, EPA has developed a system 

to track and verify progress in meeting cleanup commitments. At this early stage, 

the Chesapeake Bay TMDL Tracking and Accounting System (BayTAS) displays 

geographically the 2009 baseline levels of nitrogen, phosphorus and sediment pollution and the allocations of pollutant reductions called for in the final Bay TMDL—

specifically, allocations by state, by water body segment and by source sector.20

State specific data reflecting progress, measured against the 2009 figures, will be 

added to the system on an ongoing basis, starting in 2011. 

A tenet of the Executive Order is Federal leadership, action and accountability. 

In developing the Strategy, EPA stated its belief that ‘‘maintaining the viability of 

agriculture is an essential component to sustaining ecosystems in the Bay. A goal 

of the Strategy is to work with producers to apply new conservation practices on 

4 million acres of agricultural working lands in high priority watersheds by 2025 

to improve water quality in the Chesapeake Bay and its tributaries. Environmentally sound farming is a preferred land use in the region and we are committed 

to strong partnerships and collaboration with states and local governments, urban, 

43

21The Next Generation of Tools and Actions to Restore Water Quality in the Chesapeake Bay: 

A Revised Report Fulfilling Section 202a of Executive Order 13508, November 24, 2009, U.S. Environmental Protection Agency. 

suburban and rural communities, and the private sector to achieve environmental 

objectives for the Bay.’’ 21

Closing 

In closing, I commend the conservation practices developed and implemented by 

the agriculture community. The efforts have improved the health of local streams, 

rivers and the Bay. Federal agencies and the states are relying on the efforts of the 

agricultural industry in both the restoration efforts identified in the Executive 

Order strategy and in the implementation of the states’ restoration plans which are 

the basis for the Bay TMDL. 

I appreciate the opportunity to meet with you today, I look forward to continuing 

our work with you and I am pleased to answer any questions you might have.

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

STATEMENT OF DOUGLAS W. DOMENECH, SECRETARY OF 

NATURAL RESOURCES, COMMONWEALTH OF VIRGINIA, 

RICHMOND, VA 

Mr. DOMENECH. Thank you. Good morning, Mr. Chairman, and 

Members of the Subcommittee. On behalf of Virginia Governor 

Robert F. McDonnell, thank you for inviting me to discuss the 

Commonwealth’s Chesapeake Bay Watershed Implementation Plan 

and EPA’s TMDL. My written testimony has been submitted for 

the record. I am Doug Domenech, Secretary of Natural Resources 

for the Commonwealth of Virginia. In my Secretariat I oversee six 

state agencies, several of which have responsibilities to manage 

and protect the Chesapeake Bay. 

Mr. Chairman, as you said, the Chesapeake Bay is a national 

treasure and an ecological wonder and we are committed to ensuring a clean and vibrant Bay for future generations to cherish. We 

strongly believe a clean Bay is good for the economic well-being of 

the state. That is why its restoration is one the Governor’s top environmental goals. 

I applaud the dedicated men and women at the EPA who work 

hard every day to improve the state of the Bay. I also congratulate 

Administrator Jackson for selecting Jeff Corbin, a Virginian to 

serve as the new Senior Advisor to the Administrator for the 

Chesapeake Bay or as the state’s like to call him, the Bay Czar. 

Virginia has been engaged in various Bay cleanup efforts for 30 

years. During that time we have made significant progress in reducing pollutants to the Bay through voluntary measures with agriculture, forestry, wastewater treatment, and stormwater management even while Virginia’s population has increased by two million 

people. Virginia submitted our Phase I WIP to EPA on November 

29, 2010, and EPA accepted our plan and included it in their 

TMDL with minor modifications, absent backstops threatened by 

EPA last September, in response to our draft plan. 

However, as we have stated to EPA directly, Virginia continues 

to have concerns with several aspects of the program. Number one, 

we question the legality and compressed timing of some of the EPA 

actions on the states. There are three reasons EPA asserts that 

they have to develop the Bay TMDL by December 31, 2010. 

44

First, they say it was pursuant to the requirements of the Consent Decree in the 1999 case American Canoe Association v. EPA.

Second, because of President Obama’s May 2009 Chesapeake Bay 

Protection and Restoration Executive Order, and third, because of 

the EPA’s out of court settlement agreement with the Chesapeake 

Bay Foundation. Virginia was not a party to those court cases and 

the President’s Executive Order does not apply to states, and the 

Consent Decree established a deadline of May 1, 2011, for the EPA 

to establish TMDLs, not December 2010. 

Second, EPA’s Bay model is problematic. Virginia is concerned 

with the nearly absolute reliance on management by computer 

model. The Chesapeake Bay model may be a useful tool in predicting outcomes on a watershed-wide basis, however, it continues 

to contain fundamental flaws that call its credibility into question. 

We are especially concerned that the level of precision EPA assigns 

to the model is far beyond what the model is capable of. This will 

be a larger problem as we develop the more locally based Phase II 

WIPs. Another concern is the apparent discrepancies in agricultural land uses between EPA’s model and the USDA NRCS figures 

which is 1.4 million acre difference in ag acres. EPA has acknowledged several of these technical flaws and has been working to resolve those for nearly a year. Finally, Virginia is generally concerned that EPA is the only place that houses the model. It is hard 

to know when you are speeding if the only people with the speedometer are the police. 

Third, we are concerned about the cost and flexibility of the program. It is important to emphasize that this plan has been developed during the worst economy in generations. Virginians have already invested billions of dollars in Chesapeake Bay water quality 

improvement to date. We estimate that full implementation of this 

plan will likely cost more than $7 billion between now and 2025. 

The cost and pace of this mandate on state—on the state localities, 

private industries, farmers, and homeowners in Virginia will be 

significant. The estimated cost for agriculture alone to comply with 

the WIP will be more than $1 billion. While Governor McDonnell 

included $36.4 million in our Water Quality Improvement Fund in 

his budget, this—in this economy we cannot guarantee additional 

funding will be provided by our General Assembly for this purpose 

over the next 15 years. 

Therefore, it is our position that the success of the WIP will be 

largely subject to the provision of sufficient Federal funding to assist in covering these massive costs. While we have developed an 

approved plan, Virginia has told EPA that we reserve the right to 

adjust the plan as needed as EPA Administrator Lisa Jackson said 

last week, WIPs are state plans. Flexibility is the key to success. 

This water bottle holds approximately 1 pound of nitrogen. The 

cost to remove this much nitrogen can be $6 or it can be $6,000 

depending if it is removed in a wastewater system or with an 

urban stormwater retrofit. That is why we are studying the expansion of our existing nutrient credit exchange to allow additional 

source sectors to participate in a market-based program. 

In conclusion, I would add that our General Assembly is taking 

this responsibility seriously and in their last session completed significant advances in the management of fertilizers, banning phosVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00048 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
45

phorous in most homeowner fertilizer products. In addition, with 

the support of our agricultural interests, they passed bills regarding the development of resource management plans on farms. Our 

work does not end with the submission of our WIP. We will continue to work with EPA, stakeholders, and the public to ensure 

that our implementation improves water quality in a manner that 

is sensible, fair, and cost effective as this process unfolds over the 

next 15 years. 

Thank you for this opportunity to speak today. 

[The prepared statement of Mr. Domenech follows:]

PREPARED STATEMENT OF DOUGLAS W. DOMENECH, SECRETARY OF NATURAL

RESOURCES, COMMONWEALTH OF VIRGINIA, RICHMOND, VA 

Good morning, Mr. Chairman and Members of the Committee. I am Doug 

Domenech, Secretary of Natural Resources for the Commonwealth of Virginia. In my 

Secretariat, I oversee six state agencies; the Department of Environmental Quality, 

the Department of Conservation and Recreation, the Virginia Marine Resources 

Commission, the Department of Historic Resources, the Virginia Museum of Natural 

History, and the Department of Game and Inland Fisheries most of which have 

some responsibility to manage and protect the Chesapeake Bay’s natural and historic resources. 

Thank you for inviting me to discuss the Commonwealth of Virginia’s Chesapeake 

Bay Watershed Implementation Plan (WIP) and the U.S. Environmental Protection 

Agency’s (EPA) Total Maximum Daily Load (TMDL). On behalf of Virginia Governor 

Robert F. McDonnell, we have worked diligently with stakeholders and constituents 

to develop Virginia’s Phase I Watershed Implementation Plan. 

The Chesapeake Bay is a national treasure and an ecological wonder. As Virginians, we are committed to ensuring a clean and vibrant Chesapeake Bay for future generations to cherish. We strongly believe a clean Bay is good for the economic 

well being of the state. 

I applaud the dedicated men and women at the EPA who work hard every day 

to improve the state of the Bay, and who provide advice and counsel to the states 

on how we can work together toward our common interest. 

Virginia has been engaged in Bay cleanup efforts for 30 years. The Chesapeake 

Bay partnership began with a study by the Maryland and Virginia Legislative Advisory Commission which was the impetus for the Chesapeake Bay Commission (CBC) 

in 1980. The commission was formed to assist legislators in evaluating and responding to mutual Bay concerns and intergovernmental cooperation. Pennsylvania joined 

the Commission in 1985. 

The first Chesapeake Bay Agreement was signed by the jurisdictions of Virginia, 

Pennsylvania, Maryland, the District of Columbia and the EPA and CBC in 1983. 

The partners agreed to meet biannually, establish an implementation plan, and a 

liaison office in Annapolis. In 1987 the partners agreed to develop, adopt, and begin 

implementation of a basin wide strategy to equitably reduce nutrients by 40% by 

the year 2000. In signing the Chesapeake Bay 2000 Agreement, the partners committed to meet water quality standards in the Bay by 2010. In 2003 the partners 

agreed to new allocations that were the basis for the tributary strategies as the best 

way to restore the Bay and those strategies were developed and released in 2005. 

The Chesapeake Bay Program has been an effective multi-jurisdictional effort to 

reduce pollution loads into the Chesapeake Bay. Since the initial Agreement was 

signed, the partners have evaluated progress in the program and adjusted its goals 

to advance the restoration of the Bay. In Virginia, we have been successful in reducing nitrogen loads to the Bay by about 20 million pounds per year from 1985 

through 2009 and an additional 10 million pounds per year from 2002 through 2009. 

Similarly Virginia reduced phosphorus loads by 4 million pounds per year from 1985 

through 2009 even while the population has increased by two million people. 

Virginia submitted our Phase I WIP to EPA on November 29, 2010 and EPA accepted our plan and included it in their TMDL with minor modifications. We crafted 

a comprehensive and effective plan that allows us to achieve EPA’s pollution reduction goals absent ‘‘backstops’’ threatened by EPA last September in response to our 

draft plan. 

However, as we have stated to EPA directly, Virginia continues to have concerns 

about the process, legality, allocations, and compressed timing in the development 

of this plan. 

46

Legality 

EPA asserts that it had to develop the Bay TMDL by December 31, 2010 pursuant 

to the requirements of the Consent Decree entered in the 1999 case American Canoe 

Association et al. v. the United States EPA, 54 F. Supp. 2d 621 (E.D. Va. 1999), 

President Obama’s May 2009 Chesapeake Bay Protection and Restoration Executive 

Order, and the EPA’s out-of-court ‘‘settlement agreement’’ with the Chesapeake Bay 

Foundation. I note that Virginia was not a party to those court cases, and the Consent Decree established a deadline of May 1, 2011 for the EPA to establish 

TMDLs—not December 2010. This concern regarding the rush to completion is 

shared by many local governments, industries and others as evidenced by the public 

comment EPA received last fall. 

The Model 

Virginia must also state our significant concerns with the nearly absolute reliance 

on management by computer model. As it’s been said, ‘‘All models are wrong, but 

some are useful’’ (George Box). The Chesapeake Bay Model may be a useful tool in 

predicting outcomes on a watershed-wide basis, however, while the model has seen 

years of development it continues to contain fundamental flaws—such as under estimating the amount of impervious surface—that call its credibility into question. We 

are especially concerned that the level of precision EPA assigns to the model is far 

beyond what the model is capable of. This will be a larger problem as we develop 

the more locally based Phase II WIPs. In Virginia, our approach will be to make 

sure programs and practices are effective in the real world, not just the model world 

constructed by EPA. 

These concerns about the model have also been validated by apparent gross discrepancies between the loading calculations provided by EPA’s Bay Model and that 

of the U.S. Department of Agriculture Natural Resources Conservation Service 

(NRCS). The difference between the EPA and NRCS assessments of actual agricultural land uses in the Bay watershed amounts to approximately 1.4 million acres. 

To put that in perspective, the two Federal agencies disagree on the amount of ag 

land that’s a land mass the size of the State of Delaware. EPA cannot credibly demand compliance with a TMDL derived from a model that differs so dramatically 

with that of its sister agency. A sister agency, I might add, that is actually charged 

by law with keeping an accurate Census of agricultural uses in the Bay watershed 

and across the country. 

Finally, Virginia is generally concerned that EPA is the only place that houses 

the model. It is hard to know you are speeding if the only people with a speedometer 

are the police. 

Timing, Cost and Flexibility 

It is important to emphasize that this plan is being developed during the worst 

economy in generations. Virginians have already invested billions of dollars in 

Chesapeake Bay water quality improvement to date. As EPA’s numbers demonstrate, significant reductions have taken place in Virginia since the advent of the 

Chesapeake Bay program despite a significant increase in population. 

We estimate that full implementation of this plan will likely cost more than $7 

billion in new dollars between now and 2025. The cost and pace of this mandate 

on the state, localities, private industries, farmers, and homeowners in Virginia will 

be significant. 

Even in these tight times, Governor McDonnell included $36.4 million new dollars 

in our Water Quality Improvement Fund in his 2011 budget amendments which has 

now been adopted by the General Assembly. In this economy, we cannot guarantee 

additional funding will be provided by our General Assembly for this purpose over 

the next 15 years. It is our position that the success of the WIP will be largely subject to the provision of sufficient Federal funding to assist in covering these massive 

costs. 

While we have developed an approved plan, Virginia has told EPA that we reserve the right to adjust this plan based on new information such as additional voluntary best management practices currently implemented but not accounted for in 

the EPA model, adverse economic impacts on business, funding availability from 

Federal sources in particular, and improved scientific methodologies. As EPA Administrator Lisa Jackson said last week, WIPs are state plans. 

Virginia is moving forward with the implementation of this plan with a clear 

focus on flexibility and cost effectiveness. A venti (20 oz.) size latte holds approximately one pound of nitrogen. The cost to remove that much nitrogen can be $6.00 

or it can be $6,000 depending if it is removed in a wastewater system or an urban 

stormwater retrofit. The removal of nitrogen and phosphorus in different sectors can 

47

vary that much, therefore it is imperative that our plan provides options for localities to meet their reduction goals. 

Nutrient Trading 

In our recently concluded General Assembly session a resolution was adopted, as 

was proposed in our WIP, calling for a study of the expansion of our existing nutrient credit exchange to allow additional source sectors to participate in a marketbased program. Virginia’s nutrient credit exchange program has already allowed for 

reductions in the wastewater sector to be accomplished in an orderly and cost-effective manner. We believe that expanding that program will afford the same approach 

to other sectors, particularly urban stormwater and septic. 

The James River 

I would also call your attention to our proposed approach for the James River watershed. Due to its proximity to the mouth of the Bay and the Atlantic Ocean, the 

James has less impact on the water quality of the mainstem than any other river. 

The James also is unique because of the numeric chlorophyll standards that were 

adopted in 2005 with the concurrence of EPA. We believe that because sufficient 

new information is available for the James River, we should take the time necessary 

to review the James River numeric chlorophyll standards to ensure that they reflect 

the best science and regulatory approaches. Therefore, we have included a detailed 

plan to accomplish this review and amend standards if necessary prior to the scheduled revision of the TMDL in 2017. We will also consider developing a local chlorophyll-based TMDL for the James River. Our plan demonstrates that we will meet 

the 2017 target loads prescribed by EPA in all basins, including the James. 

General Assembly Action 

Our General Assembly recently completed significant advances in the management of fertilizers used in urban areas through the passage of legislation that will 

ban phosphorus in most homeowner fertilizer products. 

Legislation was passed that prohibits the sale, distribution and use of lawn maintenance fertilizers containing phosphorus after December 31, 2013. Additionally, the 

sale of deicing agents containing urea, nitrogen or phosphorus, will be unlawful 

after December 31, 2013. The legislation requires golf courses to implement nutrient 

management plans by July 1, 2017. The Commonwealth is developing a cost-share 

program to assist in implementation of the required nutrient management plans. 

Legislation was also passed regarding resource management plans. This legislation affects both regulated agricultural landowners and voluntary participants. 

Components of a resource management plan, depending on the type of farm and 

crops, may include nutrient management plan, forest or grass buffer, soil conservation plan, cover crops, and a system that prevents livestock access to streams. Each 

individual farm will be assessed to determine the appropriate components and to 

determine which agricultural best management practices are currently being implemented. Cost share funding is available through the Virginia Agricultural Best 

Management Practices Cost-Share Program to assist with the implementation and 

maintenance of the resource management plan. 

Resource management plans, if components are fully implemented and maintained, will deem the agricultural landowners or operators as meeting the requirements of the Chesapeake Bay TMDL. 

To meet the requirements of EPA’s TMDL, Virginia’s WIP relies on 95% of all agricultural lands implementing one or more of the following best management practices: nutrient management plans, soil conservation crops, cover crops, forest buffers 

and livestock exclusion from streams. The estimated cost for agriculture alone to 

comply with the WIP is more than $1 billion. These costs will be borne by the agricultural landowner and the state, with the landowner paying for approximately 30 

percent of the cost of implementation. The Commonwealth is working in cooperation 

with the agricultural industry and farmers to increase the reporting of both voluntary and cost-share best management practices. 

In the urban sector, estimated costs to meet the urban retrofits requirement is 

$3 billion. The vast majority of this cost will be borne by local governments and private developers. It is anticipated that Virginia will adopt new stormwater management regulations, which will meet the requirements of the WIP, in early fall of this 

year. The regulations will ensure that there is no increase in nutrient loadings for 

new development and ensure that redevelopment improves the current nutrient 

loadings. 

We designed Virginia’s WIP to allow the flexibility to implement the most costeffective practices in each watershed using the programs that are already in place, 

programs that will be expanded and new programs that we will propose. The plan 

48

emphasizes actions with appropriate timeframes in each sector to achieve significant 

cost-effective reductions in pollution loads to the Bay. 

Our work does not end with the submission of our Watershed Implementation 

Plan. We will continue to work with EPA, stakeholders, and the public to ensure 

that our implementation improves water quality in a manner that is sensible, fair 

and cost effective as this process unfolds over the next 15 years. 

Thank you for the opportunity to speak with you today.

DOUGLAS W. DOMENECH,

Secretary of Natural Resources.

The CHAIRMAN. Thank you, Mr. Secretary. Thanks to the panel 

for your testimony. The chair would like to remind Members that 

they will be recognized for questioning in the order of seniority for 

Members who were here at the start of the hearing. After that, 

Members will be recognized in the order of arrival and I appreciate 

Members understanding. I will begin with my own questioning for 

5 minutes. 

And once again thank you for the panel for being here. Deputy 

Administrator, I appreciate you being here. I really very much appreciated Administrator Jackson coming before the full Committee 

just last week. And you here today it has been a chance to talk 

about a very, very important issue. 

One of the things I had asked Ms. Jackson about and wanted to 

get a follow up and then a confirmation. I had requested to see if 

the EPA has longitudinal studies over the past 30 years since we 

began to invest in a very important initiative in cleaning up the 

Chesapeake Bay. And I had requested that whatever longitudinal 

study may be out there by the EPA in terms of showing the trajectory of the health of the Bay over time. Is that something that you 

were able to bring with you today? 

Mr. PERCIASEPE. Mr. Chairman, I don’t have it with me today. 

The most up-to-date one will be out in about a month in April and 

I would like it if I can get you last year’s summary. It is called the 

Bay Barometer and it is something that all the states and the Federal agencies all work on together and they track 13 important parameters in the Bay. And there is no doubt that many of them 

have improved over the last 20 years and some have stayed static 

and some have gotten a little worse as you might expect from the 

state of affairs. But the most recent one based on 2010 information 

will be available by April. I think what we would make available 

to the Committee and of course this is available on the web, but 

we will make it available to the Committee, the 2009 version and 

then make sure that you have 2010 version. 

[The information referred to is located on p. 151] 

The CHAIRMAN. I appreciate that. Is this the same—2009 is the 

same date I looked at. I believe it showed improvement in at least 

eight indicators. And just a confirmation, I had asked about it 

seems that the EPA routinely does cost-benefit analysis when it 

comes to regulations although I was surprised. And I just want to 

affirm the information that Ms. Jackson shared that there was no 

cost-benefit analysis done with the TMDL regulations. 

Mr. PERCIASEPE. Well, first I have to make sure that we are clear 

on the record here that a TMDL itself is really just an allocation 

of the pollution reduction that would be required to meet a certain 

water quality standards, standards that are set by the states. The 

actual practices and reductions from different sources come from 

49

the state implementation plans and as the Secretary pointed out 

from Virginia as a State Representative here they are in the process of doing the more detailed implementation plans this year. 

There are actually discussions about the timing on all that underway with the states right now. 

Maryland and Virginia have done some good cost estimates and 

you heard some of them here from Doug. I would expect that when 

we have these more detailed plans we will be able to look a little 

more specifically. And we will make sure we get the states to work 

with us on that. On the other side of the coin, remember there are 

a cost and benefits side here. On the other side of the coin there 

has been blue ribbon panels that looked—that have gotten together 

under the auspices of the Bay partnership and the executive council and the principle staffs committee which are made up of the 

state Representatives and the Federal agencies to look at the economic value of the Bay and you know from fishing, from commercial fishing, from sport fishing, commercial activities there——

The CHAIRMAN. If I can, because I want to try to limit myself——

Mr. PERCIASEPE. Yes. Okay. I’m sorry. 

The CHAIRMAN.—the same as other Members. And I appreciate 

there are—and I know there are a lot——

Mr. PERCIASEPE. So we have those two sides going. 

The CHAIRMAN.—of folks looking at it, but the fact is the TMDLs, 

this is something that is EPA driven. I guess we can argue about 

what constitutes a regulation and what doesn’t. We tend to argue 

about words in Washington sometimes, but the bottom line the 

EPA has not done a cost-benefit analysis. This would—a question 

to all the panelists. A number of my House colleagues and I requested an extension of the comment period for the TMDLs but 

were denied. Do you believe that a 45 day public comment period 

for a topic of this complexity and magnitude was sufficient to get 

the type of input that we needed to have? And I will—let me start 

with Chief White and——

Mr. PERCIASEPE. Sorry about that. Go ahead. 

Mr. WHITE. No, you go ahead. No, please. 

Mr. PERCIASEPE. No, no, no. I am fiddling with the buttons. 

Mr. WHITE. I recall that last fall but really, it is out of my lane 

to even comment on that, Mr. Chairman. 

The CHAIRMAN. Okay. 

Mr. DOMENECH. Well, I would just say from the state’s standpoint there was a lot of discussion about the compressed timing. 

Some of that involved again problems with the model in terms of 

producing for us the numbers that we needed to develop our draft 

plans and that is what compressed the timing which started off as 

a 90 day public comment period was presented to us as a 30 day 

comment period. And we negotiated with EPA to make it 45. So 

there was pressure on the states to comply in a quick time. 

The CHAIRMAN. All right, thank you. I now recognize the gentleman, the Ranking Member from Pennsylvania for 5 minutes. 

Mr. HOLDEN. Thank you, Mr. Chairman. Is it Mr. Perciasepe? Is 

that correct? 

Mr. PERCIASEPE. Perciasepe. 

Mr. HOLDEN. As you probably or you heard in our opening statements from the Chairman and from myself, with what was said 

50

last week with Administrator Jackson, and things that Mr. Goodlatte and I have said over the last year and a half, this Committee 

is very frustrated. As Chief White has said in his testimony we 

really tried in the last farm bill to do something for conservation 

in the Chesapeake Bay watershed and we did. And Chief White 

has done an excellent job administering that and we have made a 

lot of progress. 

But despite that, the ink wasn’t even dry on the farm bill as I 

mentioned in my opening statement and our producers were faced 

with this Executive Order and further regulation. And even more 

frustrating there was no consultation with me, no consultation with 

anyone on this Committee that I know of and we are faced with 

this. And I don’t think I can repeat that enough as I tell you what 

I hear when I am in Pennsylvania talking to my producers. But I 

have a few specific questions for you, sir. 

In your written testimony you mentioned nonpoint sources as 

typically included for a TMDL calculation. However, it was my understanding that nonpoint sources were not regulated under the 

Clean Water Act. Can you elaborate how and exactly under what 

authority EPA is moving forward with implementation and enforcement over nonpoint sources? 

Mr. PERCIASEPE. EPA would not be doing enforcement or regulation of nonpoint sources that are not covered under the Clean 

Water Act. That would be the responsibility of the states if they include them in their state plans. However, when we do a TMDL 

which is a plan to look at all the sources so you know how much 

each one has to do, it allocates what the resulting pollution loads 

might be from all those different sources. So therefore, the state 

would have the information to make those choices but EPA would 

not be regulating nonpoint source pollution. That is not covered 

under the Clean Water Act. 

Mr. HOLDEN. Well, let me see if I understand you. So you are 

saying the state would gather information or regulate it and then 

you would implement it? 

Mr. PERCIASEPE. Sir, on nonpoint sources, to the extent that a 

state says in their plan that an individual watershed will get some 

reduction from nonpoint sources; therefore, it wouldn’t have to go 

to the other sources. That would be the requirement of the state 

to provide the assurance under the Clean Air Act—I mean, under 

the Clean Water Act that that would occur. So we would not, EPA 

would not implement those nonpoint source practices. 

Mr. HOLDEN. Would anyone like to comment on the study released by the Agricultural Nutrient Policy Council about discrepancies in the information and the differences between USDA and 

EPA on pollutant load estimates and about conservation practices 

model, the framework and results and what is being done to reconcile the differences? 

Mr. WHITE. Is this the LimnoTech Study? 

Mr. HOLDEN. It is a study by the Agricultural Nutrient Policy 

Council. 

Mr. WHITE. Okay. All right. I am aware of it. I ask our techies, 

do we have any issue with it and they said not really. I can’t talk 

about the EPA view, but my understanding is that the EPA’s going 

to ask for an independent assessment. I think prudence would dicVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00054 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
51

tate we wait until that independent review occurs before we make 

any statements. 

Mr. PERCIASEPE. And I would concur that it would be EPA’s view 

that that work would require an independent review. We are going 

to ask the Bay Scientific and Technical Advisory Committee a 

panel of scientists to take a look at it. 

Mr. HOLDEN. Okay. Chief White, as I mentioned you have done 

a wonderful job implementing this program and in your testimony 

you mentioned NRCS has entered into 953 contracts to help producers apply conservation treatment on more than 156,000 acres. 

The Executive Order identifies a goal of conservation practices of 

4 million acres by 2025. Given budget and staffing constraints, how 

is NRCS preparing to help states meet these goals set by EPA? 

Mr. WHITE. Okay. Well, you, this Committee—Congress gave us 

certain priorities within the Chesapeake Bay Program, the identified watersheds. So we are focusing our efforts right there and we 

are working with our state partners, local partners to further identify where we target those funds to do the most good. I think 

156,000 acres is a lot. Four million is a lot more, but we have an 

expanded time frame to do that. I think we could do it, Mr. Holden. 

I think that if we pull together working with our partners, the 

states, the farmers, I think this is doable, sir. 

Mr. HOLDEN. From 156,000 to 4 million acres in that time period? 

Mr. WHITE. I am not afraid. 

Mr. HOLDEN. I yield back, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. Now I recognize full 

Committee Ranking Member, Mr. Peterson. 

Mr. PETERSON. Thank you, Mr. Chairman. Mr.——

Mr. PERCIASEPE. I would be okay if the Committee called me 

Bob. 

Mr. PETERSON. Well, Bob, I don’t know if we want to get that intimate, but anyway, my constituents will wonder what happened to 

me. The fellow here from Virginia said that they weren’t part of 

this settlement. Were the farmers part of this settlement? Were 

they talked to when you settled with these groups that sued you? 

Mr. PERCIASEPE. I apologize. I didn’t hear the last part. 

Mr. PETERSON. The groups that sued you, and you settled this 

apparently the states weren’t part of that deal. Were the farmers 

talked to? Were they part of it or did you just talk to the environmental groups that sued you? 

Mr. PERCIASEPE. Well, the original settlement that the Secretary 

referred to occurred in 1999. 

Mr. PETERSON. No, but this is the—you know I am concerned. I 

have been looking into this deal where people sue you and then you 

end up settling and you—and it looks like you don’t include anybody else. It almost looks like to me like you are asking people to 

do this and then you settle it so you can do a regulation. 

You know, and I have bent into a pretzel to help these guys get 

this money for the Chesapeake Bay in the last farm bill. This was 

not easy and I am not happy with what is going on because you 

have created—these people have created a hornet’s nest out here. 

And I don’t think, you know, the way I feel, we put this money in 

there, you know these other folks that have some kind of ideologVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00055 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
52

ical viewpoint that things aren’t moving fast enough. You know 

what they are going to do is get a backlash which they have gotten 

and they will probably end up doing more harm than good out of 

this whole process. 

Chief White said we have made a lot of progress with what we 

are doing with these program—voluntary programs which is how 

you have to work with agriculture. EPA puts out these requirements and you know you don’t bring any money to fix it. You know, 

we put the money in. If they don’t like what we are doing maybe 

we will take our money back and the EPA can go find the money 

in the Bay Foundation or whoever these other people are to fix 

this. 

I have a problem at home. It is not so much the water quality 

problem but it is a flooding problem. We haven’t been able to do 

anything for 20 years because we have been stopped by outside environmental groups that don’t even live there, have no idea what 

is going on, don’t bring any money to the table, or any solutions. 

All they do is bring problems and we don’t get anything done. You 

know it almost looks like what is going on here in the Bay. You 

know it—I—so I am frustrated with this whole process that is 

going on in the EPA where you guys are settling things and then 

doing regulations. I just don’t think that is the right way to do 

things. 

Mr. PERCIASEPE. Whatever approach that generates a schedule 

for EPA to do a regulation, we cannot do anything through a regulatory process that is not authorized under the Clean Water Act in 

the case of the Chesapeake Bay. And in fact we have not done, 

other than working with the states to do these Total Maximum 

Daily Load pollution diet targets, any specific regulation that has 

gone through the normal notice and comment period that you 

would do resulting from this TMDL process. 

However, in addition to whatever the courts had said or whatever settlements might have been made in the courts, the actual 

Bay partnership of the states and EPA, and I think it is important 

for the Members of the Committee to understand this. Back in 

2000, that group, what is called the Principle Staff Committee 

which is those cabinet level people from the Federal and state 

agencies along with the executive council set a schedule themselves 

in addition to whatever the courts may have done that we would 

do this. 

Mr. PETERSON. No, I understand and we have a similar kind of 

process, and it depends on who these people are at the table and 

whether they are bringing ideology and all this other stuff. I have 

been through all of that. But one other question I have: are there 

limitations that you are putting on people, individuals, stopping 

them from fertilizing their lawns, and stopping development and so 

forth so there is an equivalency going on? Because in a lot of cases 

we see that people want to pick on the farmers because they are 

a minority and you know there are—a lot of people have an ideology. They don’t like—they don’t like farming or they don’t like 

what they do, but is there an equivalency going on here? Where, 

like in my part of the world we have some of these issues on lakes 

and so forth and it is caused by—probably more by people fertilizing their lawns than it is by farmers, but the farmers get 

53

blamed and nobody wants to take on these rich lakeshore people 

because they have a lot of political power. Is that going on? Is 

equivalency going on here? 

Mr. PERCIASEPE. Yes, sir. We—at the EPA level we are setting 

that overall target and then working with the states to make sure 

that all the different sources in those watersheds do the share that 

is required to meet those overall targets. And that includes runoff 

from urban and suburban land through stormwater management 

practices. Every state’s plan includes those stormwater practices as 

does the District of Columbia’s. 

I want to add, there is another important source of pollution of 

nitrogen pollution in the Chesapeake Bay, and that is atmospheric 

deposition that comes out of the atmosphere. And even that is included in the modeling work to make sure that what is going to 

be reduced there from air pollution controls that the states are 

working on and EPA is working on, even on a region bigger than 

the Chesapeake Bay is taken into account in the model reduction 

targets that are put down to the state level. So I want to assure 

you that all of the sources from power plants in faraway places like 

Kentucky perhaps as well as——

Mr. PETERSON. As well as——

Mr. PERCIASEPE.—the suburban lawns. 

Mr. PETERSON. Thank you, Mr. Chairman. I apologize for taking 

extra time. 

The CHAIRMAN. I thank the gentleman. Mr. Goodlatte? 

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

holding this hearing. I along with Mr. Holden, the Ranking Member have grave concerns about what has taken place here. Mr.—

is it Perciasepe or how do you pronounce your name? Let us get 

it out there. 

Mr. PERCIASEPE. I really would be willing to accept Bob, but this 

is if you put an h after the c, Perciasepe. 

Mr. GOODLATTE. Perciasepe? 

Mr. PERCIASEPE. Perciasepe, you got it. 

Mr. GOODLATTE. I have a name that people struggle with, too. 

They think it is related to coffee and it is not, but I thank you for 

being here and taking our questions. The concern I have, and Secretary Domenech has expressed concerns even after they submitted 

a plan that you agreed to, they are very concerned about the legality of the pressures that you have brought to bear on these states 

and have not removed from the table the possibility that the Virginia Attorney General might bring suit against you. The problem 

is all of these folks don’t think you are obeying the law. And that, 

I think, is the number one concern. 

We have an Executive order that we think exceeds the authority 

of the Clean Water Act and we had an effort here in the Congress 

by Senator Cardin and Congressman Cummings from Maryland to 

codify that Executive Order, put it into law to answer this question, and it went absolutely nowhere. Why? Because there is no 

cost-benefit analysis. You have this model that you says takes into 

account all these different things, but if I asked you how much it 

would cost to implement any one of these particular things, you 

can’t answer that question and that is the main concern we have. 

54

And you say well, these are, this is just a TMDL and the states 

go ahead and they implement the watershed plan, but in order for 

the State of West Virginia to get into compliance you required 

them to have 3⁄4 of their small animal feeding operations, small 

farms in West Virginia to be treated like CAFOs, something that 

I think exceeds your authority. And yet if I asked you right now 

how much it will cost 3⁄4 of those operations in the states of West 

Virginia to comply with this requirement that you imposed upon 

the State of West Virginia in order to accept their plan you couldn’t 

tell me how much it cost. Could you? 

Mr. PERCIASEPE. Not at this time until we get the more detailed 

plan from——

Mr. GOODLATTE. And yet the Environmental Protection Agency 

went ahead and rejected every single plan from every single state, 

threatened them with actions of usurping the states powers and 

proceeding if they didn’t modify those plans. And lo and behold 

every one of them went ahead and modified the plans, and then 

you went ahead and accepted them. But you can’t tell me how 

much additional cost it has, how much additional cost it has to 

farmers, communities—I am not interested in putting cities who 

also are covered by this against farmers. You know I have a city 

in my district that estimates this will cost—a city of 75,000 people, 

it will cost them $150 million or more to comply with this. And 

there are cities like that all across this six state region. 

There are homebuilders. There are manufacturing businesses. 

There are other concerns that will increase costs of all kinds of 

things for the taxpayers, for people attempting to create jobs, to 

have jobs in this region, and you can’t tell us how much all of this 

is going to cost. 

And here is the even greater concern, Mr. White outlined tremendous progress that has been made over the past 25 years and 

continued progress over the last 5 years, 15 to 20 percent more reduction in sediment, in phosphorous, in nitrogen. Over the last 5 

years we are making steady progress, but somebody has got it into 

their head that the system that has worked all these years voluntary, incentivized, incentivized by funding that Congressman 

Holden and I worked with the Chairman—the last Chairman of 

this Committee to get substantial sums of money. We are not going 

to be able to sustain that because of the dire straits that the Federal budget is in over the next 15 years, and yet you can’t tell us 

what it is going to cost. Here is the clincher though. You also can’t 

tell us what difference it will make in improving the Bay. Everyone 

here wants to improve the Chesapeake Bay, but we want to know 

how much this is going to cost in jobs and we want to know what 

we are going to get in exchange for it. And you can’t answer that 

question. 

Mr. PERCIASEPE. Well, can you—if you would please, sir, I would 

try to answer that right now. We can tell what we are going to get 

from the progress that has been made we can see what the results 

are from many of the practices that have already been talked about 

by Chief White and others. And we do know from robust modeling, 

not only EPA’s but USDA’s and others that at the levels of reduction we are talking about across the Bay watershed that the ChesaVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
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peake Bay’s water quality will improve to the level that the states 

would like to see it improved at. We can absolutely know that. 

Mr. GOODLATTE. There is no question about it. And the Bay’s improving now and there is no question that if we spent enormous 

sums of money on all the things that you would like to see cities 

and farmers and others do, it would improve more. But you can’t 

tell us what the economic benefit of that would be in terms of increased oyster production. What it will be in terms of increased recreational values, other uses of the Bay. All of which are important 

and all of which are great treasures, but all of this has been done 

without telling us here in the Congress, without telling farmers, 

without telling the people that live in these six states what it is 

going to cost and how much you will get in return in benefit for 

that if we were to go ahead and do what the EPA thinks we all 

should do. 

Mr. PERCIASEPE. Mr. Chairman, may I just make one last 

point——

The CHAIRMAN. Sure, quickly. 

Mr. PERCIASEPE.—if it pleases the chair. There have been blue 

ribbon panels on finance that have looked at the overall costs of 

that baseline work that is going on in the Chesapeake Bay. That 

is sewage treatment plants, stormwater management, agricultural 

practices, and the estimates that were made range from $2 to $3 

billion a year annual cost. These estimates are out there and we 

will have better ability to make finer estimates when we have the 

more detailed plans after the Phase II of this water implementation plan. 

On the other side is an oyster industry that is already lost. On 

the other side are a sports fishery that is several billion dollars a 

year of economic benefit to the region. Those are the things that 

are on the other side of that balance and I don’t disagree that we 

need to lay those out in a clear form. 

The CHAIRMAN. Thank you. The chair now recognizes the gentleman from New York, Mr. Owens. 

Mr. OWENS. Thank you, Mr. Chairman. I am not going—I am 

going to accept your invitation and ask Bob if he would reply to my 

question. 

Mr. PERCIASEPE. Yes, sir. 

Mr. OWENS. During Phase II of the WIP development, New York 

State must demonstrate that it is working with local jurisdictions 

and I am quoting from your—from the EPA’s November 4, 2009, 

letter ‘‘to further divide nonpoint source allocations among smaller 

geographic areas, or facilities, or sources where appropriate.’’ Because New York’s portion of the watershed is relatively small and 

homogeneous with a symbiotic agricultural conservation network of 

resources already in place, this finer scale strategy is in our view 

counterproductive for New York agricultural conservation. I would 

like to hear your response to that. 

Mr. PERCIASEPE. It is—did you say the finer scale was counterproductive? 

Mr. OWENS. Correct. 

Mr. PERCIASEPE. Well, we—in the case of New York we have basically created a load target at the Susquehanna River as it enters 

Pennsylvania. And what we are trying to do with the State of New 

56

York and the Department of Environmental Conservation is work 

on how they will distribute the work that has to be done in that 

basin. I think we are—we will be open to their approach that they 

would want to take, but you are going to have to get down to some 

granular level to be able to allocate how they go about doing the 

work. 

Keep in mind that the—the load that—the amount of nitrogen or 

phosphorus, let’s just use those two that are coming from the New 

York State part of the drainage area in the western part of the 

state is made up of discharges from sewage treatment plants, runoff from urban area, agricultural runoff, and deposition on the land 

from pollution that is coming from other parts of the country. So 

the air pollution, all of that together we look at how much the air 

pollution rules are going to reduce the deposition. The state looks 

at what might happen when it—when they make adjustments at 

the sewage treatment plant, and then what their stormwater program would be, and then what their agricultural conservation programs would be. We think all of those together are going to be 

needed to make an equitable distribution and we certainly would 

be open to how the state would distribute that. But they are going 

to have to get down to some fine level to be able to do a good technical job of it. 

Mr. OWENS. Thank you. I also want to go back to a statement 

that you made in response to an earlier question regarding the fact 

that other industries have—are adversely impacted by the level of 

pollution in the Chesapeake Bay. And my question really goes to 

when you do this analysis are you in fact distributing that information to the public and to Congress in terms of laying out here is 

the process we went through? We are balancing for instance the 

oyster industry, the sport fishing industry, and other industries 

that are impacted, or is this something that is kept internal and 

not necessarily distributed? 

Mr. PERCIASEPE. I believe we are doing a very good job of that. 

I think that the Chesapeake Bay Program that has been in existence in its modern from since the 1980’s has a good 20 almost 25 

years now of experience and information flow and technical information as well as high level planning information. 

I think it is really important to note that no one thing will solve 

all the problems of the Chesapeake Bay. Doing pollution reduction 

is an important lynchpin to that or I will use the Chairman’s term, 

a keystone to that. And we won’t get there without that pollution 

reduction. However, we also have to look at how we manage crabs, 

how we manage rock fish, what we can do to get shad back up into 

New York by working with the utilities in Pennsylvania to deal 

with the dams there. Habitat as well as fisheries management, as 

well as pollution all of those are together in the Chesapeake Bay 

Agreements between the states. And I know today we are talking 

about the pollution part, but they do all have to work together. 

Mr. OWENS. Thank you and I yield back. 

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

gentleman from Kansas, Mr. Huelskamp, for 5 minutes. 

Mr. HUELSKAMP. Thank you, Mr. Chairman. In my part of the 

state we don’t usually have water problems. But, I find this issue 

I have dealt with at the state level is a reference. TMDL is someVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00060 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
57

thing that impacts many states as well. I had a question for the 

EPA. Under the Clean Water Act who has primary authority over 

implementation of TMDLs? 

Mr. PERCIASEPE. TMDLs are a part of a multiple step process. 

States have the authority and the responsibility under the Clean 

Water Act to set the water quality standards. That is number one. 

You have to know what is the water quality standard. Then the 

states are responsible to do surveys. Are there any waters in their 

state that are not achieving those water quality standards? And 

those are the waters that are required under the Clean Water Act 

to have a Total Maximum Daily Load plan done, a pollution diet 

as we have called it to what pollution reduction would be needed 

to bring those waters into the state identified standards. 

In the case of interstate waters it is not an unknown phenomenon for states to ask EPA to provide technical assistance and 

analysis on how you would do that on an interstate level. But if 

it is inside the state it would be those requirements. In the Chesapeake Bay situation there are watersheds that are completely, obviously, inside states where they have done some work already on 

those, and then there are the interstate impacts that we have been 

talking about. 

I might add in final note on your question is there have been 

many tens of thousands of TMDLs done around the United States 

by states and there are probably dozens where there has been an 

EPA multi-state involvement. 

Mr. HUELSKAMP. Is the state required to submit its plan to the 

EPA? 

Mr. PERCIASEPE. Yes, sir. 

Mr. HUELSKAMP. I find that interesting. I thought the correct answer was no. And so if it is submitted to EPA is it approved by the 

EPA? 

Mr. PERCIASEPE. The TMDLs are—and maybe I should double 

check on this, but I know—I believe the TMDLs that the states do 

to meet the water quality standards are looked at by the EPA. 

Mr. HUELSKAMP. Are they approved by the EPA rather than reviewed? 

Mr. PERCIASEPE. I would like to double check that. If you have 

an uncertainty about it, it makes me want to make sure I am giving you the exact right answer. 

Mr. HUELSKAMP. That goes to the question of regulation and the 

authority of the EPA that the Administrator had indicated that I 

had some questions about. If the state or region does not prepare 

a TMDL implementation plan does the EPA have the authority to 

impose one on the states or the region? 

Mr. PERCIASEPE. If a state doesn’t implement its water quality 

program as delegated under the Clean Water Act there are provisions in the Clean Water Act for EPA to carry out some of those 

activities whether it be setting the standards or doing some of the 

permitting for some of the sources. But I want to be clear that EPA 

does not have the authority even in those instances to do any kind 

of pollution control on nonpoint sources that are not regulated 

under the Clean Water Act. And in many respects a way to have 

a more equitable distribution and more cost effective distribution 

of how the water quality standards are met by a state is to be able 

58

to not only have those sources that might be federally regulated 

but are delegated to the states, but also other sources in the state 

that the state may have the ability to work with to achieve those 

balances of pollution reductions. 

Mr. HUELSKAMP. And last, a question for the gentleman from 

Virginia given his responses. Your thoughts as a state and who has 

the authority and who implements and submits those? 

Mr. DOMENECH. Well, I would say to answer that I am also not 

an expert in exactly who has the authority, but it feels like EPA 

has that authority. I think the difference is as the Deputy Administrator said, Virginia has many, many TMDLs for different water—

state waters depending on what the pollution source is. The Chesapeake Bay being a multi-jurisdictional body of water from their 

perspective of course felt—they felt like they had to set that TMDL 

because multiple states were involved. And at least that is how we 

have approached it. 

Mr. HUELSKAMP. All right, thank you, Mr. Chairman. I yield 

back my time. 

The CHAIRMAN. I thank the gentleman, and I now yield to the 

gentleman from Wisconsin, Mr. Ribble, for 5 minutes. 

Mr. RIBBLE. Thank you, Mr. Chairman. Good morning, panel it 

is good to have you here today. I am sure that given the tenor 

sometimes in the room it is not always the most fun place to be 

if you are member of the EPA, but I appreciate you coming here 

anyway. Thanks. In your testimony, Bob, you mentioned that this 

whole thing started in 1970 with an Act of Congress and they commissioned a study and then over the course of the last 4 decades 

EPA along with the states have been working on this. How much 

money have the taxpayers spent on this project? 

Mr. PERCIASEPE. On the studies? 

Mr. RIBBLE. None of the studies, but from 1970 to today what—

how much investment have the U.S. taxpayer put into this thing? 

Mr. PERCIASEPE. In the Chesapeake Bay? 

Mr. RIBBLE. Yes. Yes, what is a number. Can you get that for 

me? 

Mr. PERCIASEPE. I don’t—I can get that number for you. I can get 

that estimate but it would include things like the studies——

Mr. RIBBLE. Sure. 

Mr. PERCIASEPE.—for instance which would probably not be a 

large sum. But it also includes all the investment that the U.S. taxpayers have made since the 1970s on building water and waste—

and particularly in this case wastewater sewage treatment plant 

infrastructure. You know as—in 1972 when the Clean Water Act 

was first enacted it was $5 billion a year and then for several years 

that was a 75 percent Federal grant which the states would match 

with 20 percent and the locals would come up with ten percent or 

15 and 20. Fifteen and ten—and so that went on for a number of 

years. And if you can run the numbers back with inflation $5 billion a year in 1972 is probably close to over $10—easily over $10 

billion a year if we were doing it today. Those were big investments 

that the Congress authorized back in—and appropriated back in 

the early 1970’s to jumpstart getting all of the sewage treatment 

plants in the United States up to a better level. And I would imagine and we could find this out that virtually every sewage treatVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00062 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
59

ment plant in the watershed of the Chesapeake Bay has utilized 

those kinds of funds. So that would probably be where the largest 

investment of Federal funds were. 

Second, or may almost equal will be this significant investment 

that has been made in conservation work on agriculture through 

conservation programs through the farm bill that the Congress has 

authorized. It is a $622,000—622,000 acre or square mile—I am 

sorry. Square—I will get this right—62,000 square mile watershed 

with a lot of agriculture. About 20, I think, Chief, 20 to 25 percent 

of that watershed is agricultural working land, and I think a significant contribution is made by the conservation work on those 

lands through the farm bill. So those probably would be the two 

biggest public investments. 

Mr. RIBBLE. It is fair to say that the taxpayers spent a lot of 

money? Tens of billions, maybe hundreds of billions of dollars so 

far? 

Mr. PERCIASEPE. I am not sure about hundreds of billions, but 

certainly on a national level, on water quality there has been significant funds spent. 

Mr. RIBBLE. Based on your history and understanding of the improvements in the Bay, how are we doing? 

Mr. PERCIASEPE. Well, since that time the population of the Bay 

went up quite a bit. It was probably around—I am going to say 

around 11 million people living in the Bay maybe at that time and 

there are almost 20 million living in the Bay now. So given the fact 

that we have had that kind of population increase and given the 

fact that that results in more runoff from suburban areas and 

urban areas and more sewage treatment, and those investments in 

a sewage treatment plant, water quality has gotten better in the 

Bay and it has not gotten worse. But we know what we need to 

do to get it over the hump to getting it to a level that the states 

have identified that they would like. 

And I want to be really clear on this. The states asked EPA—

sorry to go back to this. The states asked EPA to work on this 

interstate TMDL through the Chesapeake Bay Program that we 

are all partners in. But I would think that there has definitely 

been improvement in the water quality over that time period even 

in the fact of that growth in population. 

Mr. RIBBLE. Yes, but the change in population though would be—

are you mainly concerned—we are talking about farm runoff. 

Change of growth of an urbanized area should improve it, it would 

seem to me. Not water flowing off from hard surfaces, less phosphorus, less nutrients to be picked up. You would think that actually more population might actually, along with improved water 

treatment, would actually be better for the watershed. 

Mr. PERCIASEPE. I think it has improved. The Chesapeake Bay 

has improved but there are and there are studies and the Chief 

may have information on this. There are studies that on an acre 

by acre basis. Maybe not on the whole total volume, but on an acre 

by acre basis there is definitely significant impacts of nutrients 

from urban development as it—and in many cases there could be 

more than you might get from agriculture—particularly agriculture 

that is being conducted with the full suite of conservation practices 

that most farmers are in the desire to have on their land now. 

60

Mr. RIBBLE. Okay. Thank you. Mr. Chairman, I am out of time. 

I will submit any follow-up for question directly to the EPA. Thank 

you. 

The CHAIRMAN. Very good. Thank you. I now recognize the gentleman from Indiana, Mr. Stutzman, for 5 minutes. 

Mr. STUTZMAN. Thank you, Mr. Chairman, and thank you, gentlemen for being here. I would like to start off first of all with the—

last week the EPA Administrator, Ms. Jackson, testified before this 

Committee. In her testimony the Administrator said that the Bay 

plan was developed in consultation with the agricultural community. What role has the ag community played in developing the 

process? 

Mr. PERCIASEPE. Well, there have been numerous—over 20 years 

of interaction with the agricultural community. There is significant 

input to the Bay program from all the agricultural colleges in the 

region and that has expanded recently. There are members of the 

agricultural community on a number of the advisory committees 

that go to the Bay program, so there has been significant involvement back and forth on—with the agricultural community over the 

years. And I can provide for the record a much more detailed accounting of that if you would like. 

[The information referred to is located on p. 158] 

Mr. STUTZMAN. Yes, if you could do that because I hear this a 

lot back in Indiana, and I am sure it is very relevant in the situation here. You know, that farmers and those in agriculture continue to be very frustrated and downright just fearful of what your 

agency has done, what is continually coming out of Washington, 

and how are you and the USDA relating and working together on 

this particular issue? 

Mr. PERCIASEPE. USDA is a charter member of the Bay Program 

through the principal staff committees and the other programs we 

have. And we rely on a lot of their data to do some of the work 

that is done. We now have some new information and new improved information that we will be starting to work through. I 

think it is really exciting to me that with the work that Chief 

White and others have shown is that there is a capacity for additional conservation work, and a desire clearly in the agricultural 

community for it. And even at the larger scale when we start to 

look at what our different analyses show which it is kind of confirming. 

You know if you are an accountant, sometimes you like to add 

the rows in all the different directions to make sure they add up. 

But when we start looking at a model that runs in one way and 

then a model that runs in the other way and at the bottom of the 

column it is—the numbers start to look pretty similar, I find that 

as very confirming in my—from my perspective. So I think that we 

have work to do. 

I mean clearly on the implementation side one of the primary 

drivers for helping farmers achieve their own on farm conservation 

objectives and also be participants in the overall Bay Program, for 

many, many years now there has been the conservation programs 

of the USDA. And so they are intimately involved. The effectiveness of the practices that get applied on the land and how they are 

resulting in pollution reduction—you talked—the Chief earlier 

61

talked about, and it is in the written testimony, about how we are 

now getting more information on the effectiveness of the different 

practices. All that feeds into our—we have a 20 year knowledge 

base that we use that is intimately involved with information we 

also get from agriculture. 

Mr. STUTZMAN. But in going back to my original question, how 

do you feel that you are seeking enough input from the agricultural 

community? I know you have mentioned you are going to get me 

the groups that you have been working with, but is this a top down 

dialogue or is it a bottom up dialogue where you are hearing from 

the groups that are out in the field that are living this practically 

day by day and having to feel the effects of the realities of what 

is coming down from your agency and other agencies. I mean, are 

we—are you communicating well enough with the agricultural community? 

Mr. PERCIASEPE. You know it would never be proper for a person 

in my position to say we could never communicate enough. And I 

mean and so I am—I mean that we are communicating enough. I 

shouldn’t—I am sorry I said that wrong. There is always room for 

more communication and I personally would be committed to doing 

anything possible to personally increase that level of communication working with USDA or with our state partners. 

I mentioned earlier in my testimony that I used to be the Secretary of Environment for the State of Maryland and in that job 

I worked very closely with, obviously, the state department of agriculture. And we worked together on a whole host of issues on agriculture in Maryland and including dealing with chicken carcasses 

when there were big kill-offs or die-offs from heat problems, all 

kinds of problems. We put our sleeves up and we solved those problems in a way that was appropriate for the farmers in Maryland 

and the producers. 

So I would personally be interested in anything I could do to increase that communication, but I would say it would not be ever 

proper to say that there can’t be more. 

Mr. STUTZMAN. Well, I can tell you this and Mr. Chairman, I will 

wrap this up. I just saw a polling done in a current agricultural 

magazine that asked farmers what keeps them awake at night. It 

is more than taxes, more than machinery costs, more than commodity prices. It is government regulation and I think that communication is crucial and key. And also the practices that you are implementing is detrimental to our current agricultural practices. So, 

I would encourage not only better dialogue, but also a more realistic approach to ag. 

Mr. PERCIASEPE. Well, I am anxious to do that and as my colleague here from Virginia is pointing out, both the states and EPA 

did help hold stakeholder hearings throughout the watershed on all 

these TMDL issues. I want to point out that it is in all of our interests, EPA’s, the states, USDA’s, and the producers, and the agricultural community, that we are able to sit down and talk about the 

facts. Because the more that we can talk about what is really happening and what the implications really are and how things will 

unfold and what the flexibilities are—the Deputy Secretary of Agriculture and myself signed a letter that we sent to all the states 

providing a framework that they would provide more certainty for 

62

the agricultural community. We are anxious to continue those 

kinds of processes, but it is—the more we can all sit down and talk 

the more we will be talking on a foundation of a common set of 

knowledge, and I think that that is vitally important. And I appreciate this hearing because I think it will help. 

Mr. STUTZMAN. Thank you. 

The CHAIRMAN. The chair recognizes Mr. Hultgren for any questions you might have? Okay. No more for this panel? Very good. 

The chair will—before we adjourn we will recognize Mr. Goodlatte 

for some follow-up questions. 

Mr. GOODLATTE. Thank you, Mr. Chairman. Secretary 

Domenech, first of all welcome. We are glad to have our Secretary 

of Natural Resources here. 

Mr. DOMENECH. Thank you. 

Mr. GOODLATTE. In November of 2009, the EPA sent a letter to 

the watershed states, including Virginia, requiring them to draft 

Watershed Implementation Plans or WIP’s and if plans were not 

developed, the letter stated the EPA would take ‘‘appropriate independent actions or consequences.’’ Is that not correct? 

Mr. DOMENECH. That is correct. 

Mr. GOODLATTE. And after Virginia submitted their draft WIP to 

the EPA, the EPA rejected it. Is that correct? 

Mr. DOMENECH. That is correct. 

Mr. GOODLATTE. Would you say that the Agency compelled the 

Commonwealth of Virginia through the ‘‘use of independent actions 

or consequences’’ to alter your WIP or through threats to do that? 

Would you have stuck with the first WIP that you submitted if you 

hadn’t received those threats? 

Mr. DOMENECH. We would have stuck with that initial one. That 

is correct. I probably wouldn’t use the word threats, but consequences. 

Mr. GOODLATTE. But let me turn to Bob Perciasepe. 

Mr. PERCIASEPE. Perciasepe. 

Mr. GOODLATTE. Perciasepe. I am getting there. In November of 

2009 the EPA wrote to Secretary Domenech’s predecessor, Secretary Bryant and in a enclosure to that you said if any of the six 

watershed states, or the District of Columbia, do not develop Watershed Implementation Plans, identify 2 year milestone commitments, and/or fulfill those commitments consistent with EPA’s expectations, EPA will take appropriate independent action or consequences to ensure that the necessary water quality restoration 

and protection activities are carried out. 

And then I have here a list of eight actions that the EPA told 

the states that they would take including expanding permitting requirements which we have heard about, increasing oversight of the 

state issuance of the permits, requiring additional pollution reduction from federally regulated sources, increasing Federal enforcement and compliance, prohibiting new or expanded pollution discharges, conditioning or redirecting EPA grants, revising water 

quality standards to better protect local and downstream waters, 

discounting nutrient and sediment reduction progress, and so on 

and so forth. 

Now, can you tell me what section of the Clean Water Act—we 

all agree and Secretary Domenech agrees you get to set the TMDL. 

63

Can you tell us what gives you the authority to threaten the states 

if they don’t submit an action or WIP that meets your satisfaction? 

What authority under the law do you have to do that? 

Mr. PERCIASEPE. Well, let me be clear. States have the primary 

responsibility. I think—I believe as I read the governor’s comments 

on his plan, I believe that the governor believes that he is proud 

of the plan that the state has produced. 

Mr. GOODLATTE. That is not the question. 

Mr. PERCIASEPE. Well, and I—you know the chance of——

Mr. GOODLATTE. The question is what authority do you have——

Mr. PERCIASEPE. What Title III of the Clean Water Act requires 

the states to implement programs that will meet the water quality 

standards that they set. If they don’t have a program that meets 

the water quality standards that they set—they have probably two 

outcomes. They can do—they can change their water quality standards and in this case they are not doing that. Or in the case where 

they fail to act the EPA can act on certain permits that we have 

the authority to do. We cannot do nonpoint sources, but we can 

look at permits if they are not designed to meet the water quality 

standards that the state set. We very rarely do this, but it is in 

Title III of the Clean Water Act. 

Mr. GOODLATTE. And your contention is that the Clean Water 

Act gives you authority to supersede the decision of the states regarding to the—regarding the Water Implementation Plan? That is 

obviously the subject of at least one lawsuit. You have had your 

ears pinned back on several others in the Ninth Circuit and now 

in the Fifth Circuit. You have been told you don’t have those authorities. Is it really your contention in spite of growing legal decisions that the EPA has this authority? And if it has the authority 

why is it that we have legislation to codify it, to codify the President’s Executive order? We wouldn’t need it. If it is already in the 

law you wouldn’t need that would you? 

Mr. PERCIASEPE. I don’t have any comment on any legislation, 

but I can tell you that there is a series of constructions in the original Clean Water Act of 1972 that once we delegate the authorities 

to the states that they are required to set the standards and put 

the plans in place to meet those standards. And the EPA if those 

are not sufficient does have the authority in the Clean Water Act 

to backstop that. We do not want to do that. I want to be clear. 

We do not want to do that. 

[The information referred to is located on p. 174] 

Our objective is to work with the states cooperatively to get the 

work done. We think that the plans that have been submitted are 

excellent and will meet our objectives that we have jointly set for 

each—ourselves and that is what we are going to pursue. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

The CHAIRMAN. I now recognize the gentleman from Illinois for 

5 minutes. 

Mr. HULTGREN. Thank you, Mr. Chairman, and thank you all 

very much. I just have a quick question and for this panel and 

focus it to Mr. Perciasepe and also Mr. White. There have been significant concerns with the assumptions made by the Chesapeake 

Bay model EPA is using to determine allocations for the Bay 

TMDL. There are even inconsistencies within the Administration 

64

on nutrient load estimates. Given the difference between EPA’s 

Bay model and USDA’s Conservation Effects Assessment Project 

Study, why has EPA continued to move forward with the accelerated TMDL for the Chesapeake Bay? And shouldn’t the Administration just take a time out and until the load nutrient level allocations have been reconciled? 

Mr. WHITE. Thank you, sir. You mentioned discrepancies between the CEAP and the Bay model. Sometimes I am not the most 

politically correct and I made a statement out at a Cattleman’s Association Meeting where I said—I think I said that everything in 

the Bay model isn’t 100 percent correct or accurate and then I referenced the conservation tillage information that we had in our 

CEAP study are showing 88 percent of the cropland is conservation 

tillage and the Bay model had 50. And I actually met with Mr. 

Perciasepe and the Deputy Secretary of Agriculture after that and 

EPA said they will take that data. We recognize that and they said 

they will take it. And we actually agreed that over the next 30 days 

the techies on both sides are going to sit down and say okay, what 

in this can you take and what is in the longer term? 

I think we are going to be working together to that end to try 

and reconcile them. There are some real differences. Like we are 

only—our data’s only good at the four digit HUC (Hydrologic Unit 

Code). The statistical reliability falls apart if you go below that. So 

there are some differences in definition and what we did it for. But 

I will defer to you for the TMDL. 

Mr. PERCIASEPE. Okay. I will just add a little bit and I appreciate 

the Chief’s and the NRCS’s willingness to help us look at some of 

that conservation tillage data. But the Chesapeake Bay watershed 

model that is used as part of the TMDL is part of a complex set 

of models. There is the model that looks at the water quality in the 

Bay proper, the actual Chesapeake Bay, the largest estuary in the 

North American Continent. And it—or at least in the United 

States, I should be clear. And that model is based on whatever 

input comes into it, will determine what goes on there. But we also 

have air models to look at the deposition on nitrogen on the land 

and then we put that through a watershed model and then figure 

out the changes in the land use and how that will affect the loads 

that go into the main model. So it is that—it is that multiple step 

kind of process. 

The watershed model that EPA is using along with those others 

is in its fifth generation. It has 20 years of experience and data. 

One of the differences that the Chief and the NRCS are working 

on is to increase the survey information that they have to increase 

the veracity of the model that they have as well. They are—I think 

your current version is based on 700 surveys of actual producers 

and we want to see that grow a little bit with them as well. Ours 

is based on 20 years of looking at data across the whole watershed. 

They are really two different models, but the thing as I mentioned earlier and I think is really confirming to me is that at the 

bottom they are very, very close. So if we can get improved data 

on what practices are actually in place and improved data on the 

effectiveness of those practices, my goodness we want that information so that adjustments may be made. What needs to go into the 

main part of the Bay is not going to change much. What we need 

65

to do to change to improve the water quality in the main part of 

the Chesapeake Bay won’t change because of this, but how we allocate the responsibilities could change over the 15 year period for 

sure and will likely change over the 15 year period as we implement different practices. I think we have an ongoing discussion and 

we have a commitment to each other to make sure that we share 

this stuff for the betterment of both of our efforts. 

Mr. WHITE. Again, I should tell you that that 700 points that he 

is talking about we are going to double that this year. We have already contracted with National Agricultural Statistics Service to go 

back and look at those 700 which we think is rock solid. And in 

your packet there is a question in the survey that an enumerator 

sits down with the farmer on and we are going to add another 700 

or 800. We may have data in some cases that go to the eight digit 

HUC level and it is going to be rock solid. And we are going to 

have it about this time next year and we are going to——

Mr. PERCIASEPE. We will proceed. 

Mr. HULTGREN. Okay. Well, again, that is all good. My concern 

is were we still continuing with the acceleration here when there 

is still some admitted discrepancies and desire to bring that together. To me it makes sense maybe to slow that project down a 

little bit. 

Mr. PERCIASEPE. The only thing that again I think is important 

to note that also the work that has been done by NRCS shows that 

there is almost 80 percent of the cropland, for instance, still has 

the capacity to have additional conservation practices. So I think 

we know there is a great amount of work to be done and these adjustments are only going to continue to refine our work. 

Mr. HULTGREN. Thank you, Mr. Chairman. I yield back. 

The CHAIRMAN. All right, I thank the gentleman. I thank the 

panel. Gentlemen, thank you for your time, your experience. It is 

very much appreciated and we will look forward to continuing to 

work with you. I would like to welcome our second panel of witnesses to the table. 

Mr. Carl Shaffer, President of the Pennsylvania Farm Bureau 

from Mifflin Township, Pennsylvania; Ms. Lynne Hoot, Executive 

Director, Maryland Association of Soil Conservation Districts, 

Maryland Grain Producers Association, Edgewater, Maryland; Mr. 

Tom Hebert, Senior Advisor, Agricultural Nutrient Policy Council 

from Washington, D.C.; and Mr. Hobey Bauhan, President of the 

Virginia Poultry Federation, Harrisonburg, Virginia. So as we get 

in place and we will begin our—begin the testimony. 

All right, once again I would like to thank our—everyone on the 

second panel for joining us. In front of you can see there are various lights, buttons for the microphone. We just ask that as you 

present your testimony whether you read it or summarize it we 

will try to keep things within the 5 minute range, and we looking 

forward to hearing the testimony from everyone. We will start out 

with Mr. Carl Shaffer and so, Mr. Shaffer, begin when you are 

ready. 

66

STATEMENT OF CARL T. SHAFFER, PRESIDENT,

PENNSYLVANIA FARM BUREAU; MEMBER, BOARD OF

DIRECTORS, AMERICAN FARM BUREAU FEDERATION,

MIFFLIN TOWNSHIP, PA 

Mr. SHAFFER. Thank you, Chairman Thompson. And I want to 

thank Ranking Member Holden, and Mr. Goodlatte, and the rest 

of the Committee for convening this hearing and inviting me to testify. 

As you said, my name is Carl Shaffer. I am President of the 

Pennsylvania Farm Bureau. I am also on the Board of Directors of 

the American Farm Bureau Federation. I personally am a full-time 

farmer. I farm just under 2,000 acres in Columbia County. I raise 

green beans for processing, corn, and wheat for cash sales. All the 

land I farm lays within the Chesapeake Bay watershed. Also I am 

in very close proximity to the Susquehanna River. You know, over 

the years one of the biggest concerns facing farmers was Mother 

Nature. We were worried about too much rain, not enough rain, too 

hot, too cold, things like that. Now recently EPA and regulatory 

uncertainty really haunts farmers in Pennsylvania the most. Farmers have never felt so challenged and threatened by the onslaught 

of Federal environmental regulations and guidance as they do 

today. 

It is really impossible to go to any meeting where there are farmers gathered and not hear about their fear of the Chesapeake Bay 

regulations. You know recently, as it was stated before, the finalized regulation of the Total Maximum Daily Load was put out, and 

our concern is that that will actually displace farmers from the Bay 

watershed. EPA’s own numbers state that 20 percent of the cropland needs to be converted to grasses or trees to be able to meet 

the water quality goals. EPA is basically saying either farm somewhere else or get another job. 

Last week there was a high ranking EPA official testifying in 

front of the Agriculture Committee and what she said was that 

facts were very important to the Agency. Well, we really consider 

facts really important in this problem, but facts really do matter. 

But EPA doesn’t take them into consideration. Under the Bay 

model as it was stated, EPA’s assumption is that 50 percent of the 

land is being tilled as it was basically in the 1800’s. Was put to 

a moldboard plow, all the residue was plowed under and the land 

was wide open for erosion. Actually, USDA and NRCS data shows 

that 96 percent of the cropland is managed with conservation practices such as no-till or strip cropping. 

Another fact is EPA said they want to work with farmers. I have 

some personal experience how we worked on our Water Implementation Plan in Pennsylvania. Our Department of Environmental 

Protection reached out to us in agriculture to try to work on this 

plan. During that process, we—about two farms in Pennsylvania. 

One, Congressman Thompson, is in your district by the way and 

that is Harpster’s Dairy farm, one of the largest dairy farms in the 

Commonwealth. It is a highly concentrated animal operation. A lot 

of manure being produced, a lot of manure being spread as fertilizer on that farm. 

Right down through dead center the middle of that farm is a also 

one of the highest quality cold water fisheries in the world as desVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00070 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
67

ignated by the State Department of Environmental Protection as 

one of the best trout streams you can find. Now you don’t have to 

ask me. There is an ex-President by the name of Jimmy Carter 

that goes there every year to fish there and he is an expert on that 

and he really thinks it is good. 

The other farm I just want to talk about in one second is my 

farm. I am a third generation farmer. I have been on the farm 61 

years, my entire life. I have grown up there. As a child going down 

to the bank of the Susquehanna River I can remember that vision 

very vividly. The rocks along the shore bank were fluorescent orange. There would be dead things laying all over—stuff floating in 

it. You wouldn’t even want to boat in that river let alone fish it or 

swim in it. You know today it is one of the best small mouth bass 

fishing tributaries in the world. 

Back then I can remember my father was farming and I was a 

young child. I can remember he had a dairy herd. On hot days the 

cattle out in the pasture would stand in the middle of the creek to 

keep cool. Now, he didn’t know any better that that was bad for 

the environment. He sure wasn’t a bad man. He just wasn’t educated enough to know better. Incidentally, a couple hundred yards 

downstream was one of our favorite swimming holes, so I guess we 

didn’t know much better either at that time. 

But my father used a moldboard plow quite frequently on the 

farm. As I said he really didn’t know better at that time. So that 

is over my lifetime. Today, I use no-till practices on a large part 

of the farming operation. I use cover crops to help save and hold 

the soil in place, contour strips. Other livestock farmers in Pennsylvania today are using stream bank fencing to keep the cows out of 

the stream. Today, we have probably the largest percentage of notill done in our state as any state in the United States. Over 57 

percent is no-till and there is up to 80 percent of conservation tillage. 

So all I can say is my best recommendation is what has worked. 

What we have seen over my short lifetime has really worked and 

made an improvement. I think it is key to enhance the progress we 

have been making by pursuing Best Management Practices. I think 

the key is to keep funding land-grant universities like Penn State 

University that develops the technology to help us stay economically valuable and protect the environment together, and pursue 

with the help of extension services delivering that technology to the 

farm. I think that is going to be the secret to clean up the Bay and 

still produce food at a very safe and affordable manner. 

I just want to really thank you for the opportunity to testify here 

today. The comments I gave are just the tip of the iceberg. If you 

would take the time, read my written comments, they are more 

elaborate on some of the things I said. Thank you very much, Mr. 

Chairman. 

[The prepared statement of Mr. Shaffer follows:]

PREPARED STATEMENT OF CARL T. SHAFFER, PRESIDENT, PENNSYLVANIA FARM

BUREAU; MEMBER, BOARD OF DIRECTORS, AMERICAN FARM BUREAU FEDERATION, MIFFLIN TOWNSHIP, PA 

Mr. Chairman, my name is Carl Shaffer, and I have the privilege of serving on 

the Board of Directors of the American Farm Bureau Federation and as President 

of the Pennsylvania Farm Bureau. I own and operate a farm in Columbia County, 

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1 Natural Resource Conservation Service, Assessment of the Effects of Conservation Practices 

on Cultivated Cropland in the Chesapeake Bay Region (October 2010) (‘‘NRCS 2010’’) (available 

at http://www.regulations.gov/#!documentDetail;D=EPA-R03-OW-2010-0736-0482.2). 

Pennsylvania where I raise green beans for processing, corn and wheat. All the land 

I farm is in the Chesapeake Bay watershed, and most of the land is within sight 

of the Susquehanna River. I appreciate this opportunity to appear before you today 

and to provide testimony on behalf of farm and rural families that belong to Farm 

Bureau, the nation’s largest general farm organization. 

Let me begin by saying that farmers have never felt more challenged and more 

anxious about the future of their operations than they do today. This is because of 

the continuous onslaught of regulations, guidance and other requirements being 

issued by the Environmental Protection Agency (EPA). Some say EPA simply wants 

to control how individuals farm. EPA claims that is not the case. But whether or 

not this is EPA’s intent, it clearly will be the result. The outcome of EPA’s requirements will be to drive production costs so high that many farms face a heightened 

risk of going out of business. And although EPA promulgates regulations in the 

name of ‘‘environmental protection,’’ we assert that very little real environmental 

gain will result. 

Nowhere is the impact of EPA activity more obvious than in the Chesapeake Bay 

watershed (the Bay), where the recently finalized EPA-issued Chesapeake Bay Total 

Maximum Daily Load (TMDL) could push hundreds of thousands of acres of productive farmland out of cropland. EPA itself projects that roughly 20 percent of cropped 

land in the watershed (about 600,000 acres) will have to be removed from production and be converted to grassland or forest in order to achieve the required loading 

reductions. 

EPA’s focus on agriculture and its over-reaching restrictions are particularly troublesome because agriculture has worked successfully with the U.S. Department of 

Agriculture (USDA) to reduce our environmental impact on the Bay. Use of crop inputs is declining. No-till farming has reduced soil erosion and resulted in more carbon being stored in the soil. Milk today is produced from far fewer cows. Nitrogen 

use efficiency has consistently improved. Farmers are proud that their environmental footprint is dramatically smaller today than it was 50 years ago, and we are 

committed to continuing this progress. 

In the Chesapeake Bay watershed, agricultural practice improvements to reduce 

nutrients are well documented. USDA’s National Resource Conservation Service 

(NRCS) is in the process of completing its October 2010 draft report on the progress 

made by agriculture in conservation and natural resource improvements from 2003–

2006.1 In its draft report, NRCS reports that farmers were actively implementing 

erosion control practices on about 96 percent of the cropland acres in production in 

the watershed. These practices included various forms of erosion control involving 

no-till or minimum tillage, and structural and vegetation management practices like 

contour farming, grass waterways and filter strips. As a result of these and other 

nutrient management practices, the NRCS draft report found that sediment contributions from cultivated cropland to the Bay’s rivers and streams are reduced by 

64 percent, nitrogen by 36 percent and phosphorus by 43 percent. The report also 

found that these practices are responsible for reducing total loads of sediment, nitrogen and phosphorus from all sources by 14 percent, 15 percent and 15 percent. 

Ignoring the substantial effort and progress of recent years, EPA moved forward 

with an aggressive and unnecessarily inflexible new plan to regulate farming practices in the Chesapeake Bay watershed. In the last 2 years, EPA has set in motion 

a significant number of new regulations that will fundamentally alter the face of 

agriculture, not just in the Bay, but nationwide. These new regulations will determine how farmers raise crops and livestock and will increase the likelihood of expensive lawsuits filed by activist organizations. 

Policies already in place, or those being contemplated by EPA, will greatly expand 

Federal control over crop farmers and extend the scope of existing regulations to 

livestock producers, regardless of size or footprint. Some examples of how EPA is 

exerting its authority over livestock farms include:

• In 2010, EPA released a document, ‘‘Coming Together for Clean Water,’’ that 

proposed new, more stringent regulations for livestock producers. In the document, EPA indicated that it will propose regulations to make it easier to designate small- or medium-sized livestock operations as Concentrated Animal 

Feeding Operations (CAFOs) regardless of whether a farm is actually discharging anything into water. This is in conflict with a 2005 ruling by the 2nd 

Circuit Court of Appeals which said that EPA could only regulate actual discharges, not potential discharges or CAFOs that do not discharge. It is a fact 

69

that complying with EPA regulations increases costs which we believe will force 

small- and medium-sized operations to get much bigger or go out of business 

just as many have done over the last 20 years.

• In addition to new aggressive regulations, EPA has entered into a number of 

settlement agreements with environmental plaintiffs that all but explicitly commit EPA to finalize additional regulations. One recent settlement agreement resulted in a guidance document that is being used to require permits for dust 

and feathers blown out of poultry house ventilation fans, regardless of the quantity. Another will allow EPA to collect and post on the Internet personal information about livestock operations, regardless of size. We believe it is wrong for 

EPA to be able to post livestock producers’ personal information, and we question how the action will help improve the environment.

• EPA is also proposing regulations that will limit the use of manure nutrients 

and another to limit a farmer’s ability to sell manure nutrient to crop farmers 

to use in lieu of petroleum-based fertilizers.

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

Farm Bureau believes that EPA is intentionally working to circumvent Congress’s 

deliberate decision to leave regulation of nonpoint sources to the states. We offer 

these examples:

• For years, EPA has been narrowing the scope of the agricultural stormwater exemption. As part of the EPA-mandated Watershed Implementation Plans for 

each Bay state, EPA virtually eliminated the exemption by requiring that the 

states regulate farmers through enforcement controls.

• EPA has entered into settlement agreements with environmental plaintiffs in 

which EPA agreed to take regulatory actions that have enormous impact on agriculture. For example, EPA agreed to issue (and has now issued) numeric nutrient criteria in Florida that are unrealistic and unattainable. In another settlement agreement, EPA agreed to issue (and now has issued) a TMDL in the 

Chesapeake Bay watershed, threatening severe ‘‘backstop measures’’ to prohibit 

new and expanding Clean Water Act permits unless states force nutrient reductions from other permittees and sources, such as farmers.

While many of these regulatory changes are nationwide, one of the most extreme 

examples of EPA over-reaching its authority is in the Chesapeake Bay watershed. 

Farm Bureau believes so strongly that EPA has over-reached its statutory authority 

that the American Farm Bureau Federation has initiated a lawsuit against EPA. 

The outcome of this case will not only impact farming in the Bay watershed but 

across the nation, because EPA acknowledges that its strategy in the Bay is a template for other major watersheds across the nation, the Mississippi River watershed 

in particular. 

Let me emphasize that our litigation is not about whether or not to clean up the 

Chesapeake Bay. Farmers in the Bay watershed have been working diligently for 

years, if not decades, with local and state governments and other organizations, including the Chesapeake Bay Foundation, to improve farming practices in order to 

clean up the Bay. Everyone wants a clean and healthy Bay and farmers want to 

continue to be part of the solution to improve water quality in the Chesapeake Bay 

region and across the country. AFBF’s lawsuit is about a specific plan for achieving 

clean water and EPA’s legal authority to develop and implement that specific plan.

EPA is imposing an incredibly complex and detailed prescription—what EPA calls 

a ‘‘pollution diet’’—for a 64,000 square mile watershed. While we support the goal 

of clean water, we believe that goal has to be achieved within the confines of the 

law and should consider impacts on the economy. 

Farm Bureau has three basic objections to EPA’s actions: 

First, Farm Bureau believes EPA’s ‘‘pollution diet’’ unlawfully micromanages 

states, as well as the farmers, homeowners and businesses within the region. EPA’s 

plan imposes specific pollutant ‘‘allocations’’ on activities such as farming and homebuilding, sometimes down to the level of individual operations. The Federal Clean 

Water Act does not authorize such binding allocations. Instead, the Clean Water Act 

requires that states decide how to improve water quality, including allocations of 

loading among sources, and to take into account economic and social impacts on 

local businesses and communities. EPA claims to be working in ‘‘partnership’’ with 

the states, but by including its own ‘‘allocations’’ in the TMDL, it is exercising control by unlawfully limiting the states’ flexibility to change and adapt their plans. 

70

Second, EPA relied on wrong assumptions and on a scientific model that EPA 

itself admits was flawed. EPA failed to meet a basic level of scientific validity that 

the public expects and that the law requires. 

Third, EPA failed to give the public a meaningful opportunity to review EPA’s assumed facts. Law requires agencies to disclose their methodologies so that the public 

can review it and comment on its accuracy. EPA failed to provide critical information about how it determined pollution ‘‘allocations’’ and allowed the public only 45 

days to digest and respond to incomplete, highly technical information. Because 

EPA did not allow meaningful public participation, the ‘‘diet’’ it produced is unlawful. 

Last, EPA’s TMDL wrongly establishes binding allocations and timelines regardless of cost. Clean Water Act and EPA regulations specifically allow states to consider economic consequences and to modify water quality goals when necessary to 

avoid substantial economic and social disruption. EPA asserts that the TMDL will 

restore jobs and help the Bay economy, but it has not provided any data to support 

these claims. The Bay states, however, estimate that implementation will cost billions of dollars (e.g., $7 billion for Virginia, $3 billion to $6 billion for New York). 

Farm Bureau believes the TMDL threatens the economic health of businesses, individuals and communities throughout the Chesapeake Bay watershed. 

AFBF’s suit seeks to restore the states’ authority to decide how to achieve clean 

water and to consider economic and social harm in making those decisions. AFBF 

also seeks to affirm basic requirements for sound science and transparency with the 

public. AFBF’s lawsuit does not seek to benefit agriculture at the expense of others 

in the watershed. The implementation of TMDLs typically involves the allocation of 

pollutant loading among sources. AFBF is not seeking any particular re-allocation 

of responsibilities or to shift clean-up burdens onto other sectors. The case is about 

whether the Federal Government or states set the allocations, who sets the timeline, 

and the basic requirement for valid science and public participation. While we all 

support the goal of clean water, Farm Bureau strongly believes that the manner in 

which EPA has determined and prescribed this ‘‘pollution diet’’ for the Chesapeake 

Bay watershed is unlawful and ignores the economic and social costs to the Bay 

community. 

Farmers and ranchers across the nation, including those in the Chesapeake Bay 

watershed, want to continue to produce food and fiber and to do so in a way that 

has diminishing impacts on the environment. We are deeply concerned that the 

over-reacting environmental regulations issued by EPA for the Chesapeake Bay watershed threaten our businesses and circumvent the intent of Congress. We believe 

EPA should be held accountable to the laws that prescribe how it regulates production agriculture and that it should rely on sound science in its proceedings. The economic impact of how EPA is allowed to proceed in the Chesapeake Bay watershed 

is significant, and the repercussions will have a national impact on agriculture. 

Mr. Chairman, I commend you for convening this hearing and for all your hard 

work on behalf of agriculture across the country. I will be pleased to respond to 

questions.

The CHAIRMAN. Thank you, Mr. Shaffer. I assure you we will. 

Ms. Hoot, thank you for joining us today. Go ahead and proceed. 

STATEMENT OF LYNNE C. HOOT, EXECUTIVE DIRECTOR, 

MARYLAND ASSOCIATION OF SOIL CONSERVATION

DISTRICTS AND MARYLAND GRAIN PRODUCERS

ASSOCIATION, EDGEWATER, MD 

Ms. HOOT. Thank you for inviting me. Chairman Thompson, 

Ranking Member Holden, Members of the Committee, my name is 

Lynne Hoot and I am Executive Director the Maryland Association 

of Soil Conservation Districts and the Maryland Grain Producers 

Association. My task here today is a pleasant one, to discuss what 

Maryland farmers have done to support the cleanup of the Chesapeake Bay. 

Over the past 25 years, Maryland agriculture has made tremendous progress. As of 2007, with Federal and state support, Maryland farmers have reduced nitrogen loads to the Bay by 62 percent, 

phosphorus by 73 percent, and sediment by 59 percent. We now 

have fellow farmers across the Bay watershed working towards the 

71

same common goal. In fact, agriculture has consistently outpaced 

all but sewage treatment plants in reducing nutrient loads. In 2010 alone, Maryland farmers matched $17 million in public cost-share funds with roughly $5 million of their own funds to install 2,300 conservation projects. Ninety-nine point nine percent of 

Maryland farmers are in compliance with Maryland’s Water Quality Improvement Act of 1998 that requires farmers to utilize nutrient management plans. And this fall, Maryland farmers broke all 

records and installed close to 400,000 acres of cover crops. This 

practice alone will reduce nitrogen by 2.4 million pounds. 

Across the Bay watershed, Bay—Best Management Practices are 

installed on—that are installed on farms using Federal and state 

cost-share funds are documented in the Bay model. Excluded from 

the Bay model are BMP’s that farmers have installed on their own 

at their own cost as a result of their strong stewardship ethic. It 

is imperative to our farmers that the EPA includes this information 

and provides credit in the Bay model to all farm BMP’s not just 

those funded with public cost-share, and that they also provide nutrient and sediment reduction values for these BMP’s. 

We recognize that those BMP’s that do not meet NRCS standards will have lower nutrient reductions, but they must be counted. 

Without a true counting in the Bay model of what has already been 

done there cannot be an accurate determination of what more can 

or needs to be done. 

We believe that the agricultural BMP’s in—identified in Maryland’s Phase I Watershed Implementation Plan are reasonable, but 

only if we are provided—the farmers and the conservation agencies 

are provided with adequate technical and financial resources. But 

we are worried that current government funding will be reduced. 

What happens then? We have concerns that with EPA’s indication 

that if implementation lags they will expand NPDES and CAFO requirements to smaller animal operations and that they will try to 

regulate other agricultural operations. This will create inequities 

between Chesapeake Bay farmers and farmers in other states and 

impact our competitiveness in national and international markets. 

As we enter Phase II, Maryland must develop the 58 Watershed 

Implementation Plans by December 31, 2011, and yet EPA has not 

been provided the necessary allocation information to the states 

and say they won’t have that until July. This timetable is unrealistic. In the meantime, Maryland’s conservation districts are establishing agricultural working groups to get feedback and develop 

consensus among farmers on reasonable approaches to reach the 

Bay goals. 

We believe this process is impacting the willingness of the next 

generation to continue farming. As they look at the new regulations, development pressure, and the bombardment of negative 

rhetoric in the press, many are deciding against a future in agriculture. This is a major concern as farmland provides local food security and offers the best and most cost effective means of protecting Bay water quality. 

Conservation practices like no-till have both cost and benefits to 

the farmer, but many such as stream buffers, diversions, and grass 

waterways take land out of production and add implementation 

and maintenance costs as well as reducing productive land. While 

72

farmers are committed conservation stewards, expanded efforts will 

require Federal cost-share programs and technical assistance. 

We commend you for your past support and encourage you to 

continue to support allocations for conservation funding in the 

Chesapeake Bay as part of the next farm bill. The country is 

watching us. We want to prove that agriculture can do what is necessary as long as it is reasonable, science based, and we are provided with adequate technical and financial assistance. Thank you. 

[The prepared statement of Ms. Hoot follows:]

PREPARED STATEMENT OF LYNNE C. HOOT, EXECUTIVE DIRECTOR, MARYLAND

ASSOCIATION OF SOIL CONSERVATION DISTRICTS AND MARYLAND GRAIN PRODUCERS

ASSOCIATION, EDGEWATER, MD 

Mr. Chairman, Members of the Committee, my name is Lynne Hoot and I serve 

as the Executive Director for the Maryland Association of Soil Conservation Districts and the Maryland Grain Producers Association. My task here today is a pleasant one—to discuss what Maryland farmers have done to support the cleanup of the 

Chesapeake Bay. 

My time working on this issue goes back to the early 1980’s when I was working 

for the Maryland Department of Agriculture and the first EPA report on the Chesapeake Bay, commissioned by U.S. Senator Mac Mathias, was released. Under the 

leadership of Governor Harry Hughes and Secretary of Agriculture Wayne A. 

Cawley, the Maryland agricultural community came to the table accepted they were 

part of the problem and would be part of the solution. Farmers have been at the 

table since that time with the same mantra and their efforts are evident in the 

landscape. 

If we wind forward 25 years, I am proud to announce the progress agriculture has 

made and is verified in the latest Chesapeake Bay model run. With state and Federal support, as of 2007, Maryland farmers had reduced nitrogen loads by 62%, 

phosphorus loads by 73% and sediment loads to the Bay by 59%. We know our fellow farmers across the Bay watershed have been working towards the same common goal. In fact, the agriculture industry has consistently outpaced most other sectors in reducing nutrient loads. 

In 2010 alone, Maryland farmers matched $17 millions in Maryland Agricultural 

Cost-Share Program (MACS) funds and $14 million in Federal (EQIP & CBWI) costshare funds with roughly $5 million of their own money to install 2,300 conservation 

projects on their farms to prevent 1.2 million pounds of nitrogen, 41,000 pounds of 

phosphorus and 17,000 tons of sediment from entering the Bay. This fall, Maryland 

farmers broke all records and installed roughly 400,000 acres of cover crops to protect water quality. This practice alone will achieve 2.4 million pounds of nitrogen 

reduction, but as with many practices, it is an annual practice, and farmers must 

maintain a significant level of performance every year. 

Maryland passed the Water Quality Improvement Act in 1998, requiring farms 

with over $2,500 gross income or more than eight animal units to develop and implement a nutrient management plan. Although the first deadline for nutrient management planning was 2001, livestock and poultry producers had until July 2005 

to prepare for nutrient applications based on soil phosphorus levels. In 2010, more 

than 99.9% of farmers had nutrient management plans for 1.3 million acres and 

97.2% filed an Annual Implementation Report (AIR?) documenting use of nutrients 

and compliance with the law. Maryland Department of Agriculture conducts field 

audits of 8–10% of regulated farm operations annually. 

Best management practices (BMPs) installed on farms are currently documented 

when they are implemented using Federal and state cost-share funds. The information we do not have at present relates to the water quality benefits of BMPs that 

farmers across the Bay region have installed on their own, at their own cost, as a 

result of their strong stewardship ethic. Not all of these practices meet Natural Resource Conservation Service (NRCS) standards and specification and therefore they 

do not have an established nutrient reduction value for purposes of EPA Model accounting. For example—a 10′ buffer along one of the many farm ditches on Maryland’s Eastern Shore or an electric fence keeping animals out of a Western Maryland stream will both improve water quality; but as neither meets NRCS standards 

and specifications, they have not been assigned a nutrient and/or sediment reduction value. Why does this matter? EPA does not recognize BMPs that do not meet 

NRCS standards and specifications—in fact at this point, they do not recognize any 

73

BMPs that were installed without Federal or state assistance because currently we 

have no mechanism by which to collect this important contribution to Bay water 

quality. 

In 2009, the Maryland Department of Agriculture developed Conservation Tracker, a geo-referenced database system to record the location of BMPs installed on 

Maryland farms and to calculate the nutrient reduction credits. District staff across 

the state scoured every soil conservation and water quality plan (SCWQP) in their 

offices and entered the data into Conservation Tracker on all the BMPs that have 

been installed with public support and are still functional. The system has the capacity to track farm data on all BMPs regardless of their funding source and whether or not they meet NRCS standards and specifications. Maryland is piloting a 

method to track this information with funding from an NRCS Conservation Innovation Grant and is working with the National Association of Conservation Districts 

(NACD), who is actively engaged across all six-Bay states, to determine a method 

to collect this data so it meets EPA requirements of accountability and verification. 

It is imperative to our farmers that EPA accepts this information and provides 

credit in the Bay model for all farm BMPs, not just those funded with public costshare and that they provide nutrient and sediment reduction values for these BMPs. 

We recognize that BMPs that do not meet NRCS standards will have lower nutrient 

reductions—but they must be counted. Without a true accounting in the Bay model 

of what has already been achieved—there cannot be an accurate determination of 

what more can, or needs to, be done. 

Maryland’s Phase I Watershed Implementation Plan (WIP) has been approved by 

EPA to meet the Total Daily Maximum Load (TMDL) allocations. We believe that 

the agricultural BMPs identified in Maryland’s Phase I WIP and the 2 year milestones are reasonable if, and only if, farmers and conservation agencies are provided 

with adequate technical and financial resources. We are concerned that the current 

economic decline and its impact on Federal and state budgets will reduce the necessary level of support. What happens then? We have concerns with EPA’s indication that they will expand NPDES/CAFO requirements to smaller poultry and livestock producers if implementation lags and that they will try to regulate other agricultural operations. This creates inequities between Chesapeake Bay farmers and 

farmers in other states and impacts their competitiveness in national and international markets. 

As we enter Phase II, Maryland must develop 58 WIPs, for every county and for 

all Bay sub-watersheds in each county. Yet EPA has not provided allocation information for these plans to be developed and has indicated that this information will 

not be available until July. Allowing less than 6 months to develop Phase II WIPs 

is unrealistic. In the meantime, Maryland’s soil conservation districts are establishing agricultural working groups to get feedback and develop consensus among 

farmers that any proposed WIP II agricultural BMPs are reasonable. 

We believe this process is impacting the willingness of the next generation to continue farming. The average age of farmers is 58; as the next generation looks at 

the new regulations facing their parents, the development pressure on farmland, 

and are bombarded by the negative rhetoric in the press, many are deciding against 

a future in agriculture. This is a major concern as farmland provides local food security and offers the best and most cost effective means for protecting Bay water quality. 

To ensure the viability of agricultural enterprises in the Bay region, Maryland 

grain farmers have spent $2.9 million, of the $12.5 million Checkoff funds collected 

since 1991, to fund research on projects to explore management, new products and 

technologies that support agricultural production and water quality. The funds are 

collected through the Maryland Grain Checkoff program from farmer contributions 

of half of one percent (1⁄2%) of their net income from grain. The Checkoff funded 

research has enhanced the states cover crop program, reduced fall fertilizer use on 

small grains, assessed the value of slow release fertilizers, and evaluated the use 

of new equipment like vertical tillage to incorporate poultry litter in no-till cropping 

systems and GPS with variable rate nitrogen applicator equipment, such as the 

GreenSeekerTM to apply crop nutrients at different levels throughout each field. 

This farmer funded research shows our commitment to clean water and will help 

the state reach the goals set out in the WIP. 

Conservation practices like no-till have costs and benefits for the farmer. Maryland boasts having over 80% no-till cultivation, which is one the highest adoption 

rates of any state in the country. Other conservation measures such as stream buffers, diversions and grassed waterways take land out of production and add implementation and maintenance costs as well as reducing income producing land. While 

farmers are committed conservation stewards, expansion and continuation of these 

efforts will require Federal cost-share programs and technical assistance. 

74

We commend you for your past support and encourage you to continue to support 

the allocation of conservation funding for the Chesapeake Bay as well as conservation programs and operating funds to support technical staff as part of the next 

farm bill. The country is watching us; we want to prove that agriculture can do 

what is necessary as long as it is reasonable, science-based and we are provided 

with adequate technical and financial assistance. Thank you.

The CHAIRMAN. Thank you, ma’am. Mr. Hebert. 

STATEMENT OF TOM HEBERT, SENIOR ADVISOR,

AGRICULTURAL NUTRIENT POLICY COUNCIL, WASHINGTON, 

D.C. 

Mr. HEBERT. Chairman Thompson, Ranking Member Holden, 

Members of the Committee, my name is Tom Hebert and I am a 

Senior Advisor to the Agricultural Nutrient Policy Council. I am 

very pleased to be here today testifying before you. 

Started just last year, the Council includes more than 30 participants from the agricultural and forestry sectors at work here in 

D.C. and across the country brought together to work specifically 

on agriculture, nutrients, and water quality issues. The Council 

has worked on many national issues over its short history, but we 

have worked also a great deal on the Chesapeake Bay TMDL because of agriculture’s concerns with the accuracy and transparency 

of EPA’s efforts, as well as the speed of the process. Furthermore, 

the Council believes that the USDA analysis for the Bay under the 

Conservation Effects Assessment Program, the CEAP that we have 

heard so much about this morning merits significant inclusion in 

EPA’s work as they move forward. 

The Council retained a nationally recognized firm, LimnoTech, to 

prepare a report comparing the draft USDA Bay CEAP that was 

issued last October to EPA’s draft TMDL when it was open during 

the comment period last fall. We did that to draw attention to the 

positive role that the CEAP could play in the TMDL itself, and to 

investigate agriculture’s serious concerns with the TMDL. 

You have heard a great deal this morning already from Chief 

White, from other members of this panel about the great conservation achievements that the CEAP reports on. I am not going to repeat those numbers. But, it is important to note that it is clear that 

USDA has documented the really tremendously strong foundation 

of conservation practices that farmers have built over the last several decades and are in place today to support them moving forward on improving the health of the Bay. The CEAP shows also 

that more can be accomplished. We all know that and farmers are 

ready to do that and we know that as well. But there is a tremendously solid foundation in place today on farms across the Bay region and EPA should be taking all of that foundation into account. 

Turning to the TMDL and the LimnoTech report, we are very 

concerned that EPA has in fact failed to take this foundation properly into account. For example, we looked at the loads coming from 

ag lands and being delivered to the Bay as reported in the CEAP. 

We compared the same loads being delivered to the Bay in the Bay 

TMDL and we found some really startling things. In terms of the 

baseline conditions, before the TMDL would be implemented we 

found that EPA sediment baseline loads delivered to the Bay were 

almost three times that estimated by NRCS in the CEAP. The difference between 930,000 tons, and 2.6 million tons between EPA 

75

and USDA: three times more in EPA’s baseline. That may in part 

be because as you have heard, EPA assumes that only 50 percent 

of the acres in the Bay are under conservation tillage. The rest are 

under plow while the CEAP shows that almost 100 percent either 

have conservation tillage in some form or structural practices in 

place to control erosion. 

Also we are concerned that EPA may not be accounting well for 

the sediments that are reaching the Bay through steam bank erosion and other so called legacy sediments and has instead assigned 

them to agriculture and other nonpoint sources. I—EPA’s nitrogen 

estimates are about 25 percent lower than USDA’s perhaps due to 

the fact that USDA has one million more cropland acres under cultivation in their model than EPA, and total of about 3 million more 

crop, pasture, and hay acres in agricultural practices in the Bay 

than EPA. 

Deputy Administrator Perciasepe made a statement that despite 

these differences, at the bottom of the Bay the two models are very, 

very close. We disagree respectfully so. These are big, big differences and when you put them into the TMDL itself you come up 

with some startling findings. In the case of sediment and phosphorus, USDA’s baseline loads are already lower than the EPA allocations even without any further treatments. In the case of nitrogen, the CEAP makes it very clear that nitrogen loads can be reduced in absolute terms as much as the EPA requires although the 

loads don’t get below the EPA allocation level itself. What do you 

make of that? 

We are not sure. It is maybe due to the fact that as Mr. Shaffer 

referenced, EPA removes about 630,000 acres out of agricultural 

crop production in the Bay region over the TMDL period. Maybe 

they had to do that in order to reach this water quality standard 

number that Mr. Perciasepe spoke about. USDA does not do that 

in their model. The problem is is that we just don’t understand. We 

don’t think EPA understands this either. Looking at the number 

differences ranging from 25 percent for nitrogen, almost 300 percent for sediments, the accuracy of the TMDL has to be examined 

further and EPA and USDA should recognize and reconcile this 

and work on these numbers together. 

EPA did not follow our report’s recommendation that they not 

finish the TMDL before this reconciliation has taken place. It still 

needs to be done in our opinion, although we are not sure exactly 

how these changes can get reflected at this point in the now final 

TMDL which is law. Our strong caution though is against anyone 

thinking that the numbers in the TMDL can be fixed somehow 5 

years down the road, that somehow they can come back together, 

fix this, and in 5 years down the road we will fix the TMDL. Everyone in the Bay, not just farmers, everyone is going to start spending money today to meet these requirements. No one can afford to 

find out in 5 years that the dollars have gone to the wrong issues 

or in the wrong places, or to work on the wrong solutions and that 

we have to go back to the drawing board in any way. 

This will not help restore the health of the Bay. It will not help 

anybody in the watershed. So thank you for the chance to present 

this information to the Committee. The Council hopes that this reVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00079 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
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port and our further efforts will help you and everyone else get this 

TMDL right. 

[The prepared statement of Mr. Hebert follows:]

PREPARED STATEMENT OF TOM HEBERT, SENIOR ADVISOR, AGRICULTURAL NUTRIENT

POLICY COUNCIL, WASHINGTON, D.C. 

Chairman Thompson, Ranking Member Holden, and Members of this Committee, 

my name is Tom Hebert and I am here today as Senior Advisor to the Agricultural 

Nutrient Policy Council—the ANPC. The ANPC has worked on multiple issues in 

the 6 short months that it has been in existence and among these are the topics 

of this hearing—the Chesapeake Bay and the U.S. Environmental Protection Agency’s (EPA) Total Maximum Daily Load (TMDL) for the Bay and its tidal tributaries. 

Thank you for this opportunity to share some of the ANPC’s work on this topic. We 

hope you find this testimony helpful to your deliberations concerning policies involving agriculture, nutrient and sediment loss and the health of the Chesapeake Bay. 

The ANPC is a new organization, started this past September by five agricultural 

organizations. It has grown to include more than 30 participants from the agricultural and forestry sectors that share the goal of sound Federal policy involving nutrients and environmental quality. The purpose of the ANPC is to support participants’ efforts to achieve that goal by drawing on and applying their expertise in the 

relevant areas of science, technology, law and policy, and coordinating those efforts 

with outside experts on these matters. These are tough, highly complicated issues, 

particularly when considered through the lens of the Clean Water Act. The ANPC 

works to help its participants make sense of all that is happening by charting a 

path forward that is informed, thoughtful, and reasoned. 

While the ANPC will speak to the meaning, substance and implications of technical, legal or policy matters, the council does not serve as the policy voice for its 

participants. That remains the participants’ role as individual organizations or in 

their collective efforts as expressed through ad hoc coalitions that they might form 

around specific issues. But in the case of agriculture, forestry, nutrients, and water 

quality, it is fair to say that ANPC participants are absolutely supportive of protecting and improving water quality. The ANPC members share this view with respect to waters across the country, and relative to today’s hearing, the Chesapeake 

Bay and the waters of the basin. 

The fact that these organizations and all of agriculture embrace this objective can 

be too often lost in the rancor of debate. Perhaps that is because these groups are 

also unabashed supporters of farmers and ranchers as business people, and there 

are often no easy answers able to address the multiple challenges facing agriculture. 

America’s farmers and ranchers are committed to doing their part to reduce the loss 

of nutrient and sediment from their land to help improve the health of the Bay, 

though they cannot pursue this to the exclusion of the other integral objectives for 

their operations. The ANPC is proud to be part of and contributing their efforts. 

The ANPC’s Examination of Agriculture’s Loadings to the Chesapeake Bay 

The ANPC has spent considerable time examining agriculture’s contributions of 

nutrients and sediments to the Chesapeake Bay, its tributaries and to the waters 

of the entire watershed. This is of course a critical issue for water quality in the 

Bay and in the context of the Chesapeake Bay TMDL (Bay TMDL) rulemaking and 

the associated state watershed implementation plans (WIPs). Many in the agricultural community have been deeply concerned that the process and speed with which 

EPA was moving to conclude the TMDL rulemaking was going to encumber sound 

and accurate supporting analysis. 

These were not just hypothetical concerns. They stemmed directly from things we 

learned in public meetings with EPA staff about how agriculture was being addressed in the Chesapeake Bay Model (Bay Model) and its associated ‘‘Scenario 

Builder.’’ Scenario Builder is the model EPA developed for sectors like agriculture 

for use in the Bay Model. Critically important data about the historical levels of conservation practices were, from agriculture’s perspective, seriously incomplete. Assumptions regarding crop yields, nutrient and manure use levels, and how loads not 

assigned to point sources were to be distributed led to enormous concerns. 

EPA was attempting to bring considerable sophistication and expertise to the 

challenge of modeling the hydrology and all of the relevant activities in the entire 

Bay region. The Bay Model represents the product of many years of work by qualified people. However, the model is unprecedented in its scope and complexity; it is 

not a single TMDL, rather a combination of 92 distinct TMDLs for different segments of the Bay. Still, the task given to the model was and remains enormously 

77

1Draft Assessment of the Effects of Conservation Practices on Cultivated Cropland in the 

Chesapeake Bay Region, USDA–NRCS, October 2010. 

complex and largely untested in the scope of the landscape and the level of detail 

it purported to represent. Agriculture expressed our serious concerns with the speed 

of the process and the possible inaccuracy of its estimates regarding agriculture’s 

contributions to the Bay. 

Concerns about the accuracy of EPA’s estimates for agriculture’s baseline contributions of nutrients and sediments to the Bay translate directly into concerns 

about the accuracy of the reductions in loads EPA would expect of farmers and 

ranchers under the Bay TMDL. While they have and will be committed to reducing 

nutrient and sediments losses, in the case of this particular TMDL it becomes nearly impossible for farmers and ranchers to embrace the assigned reductions if they 

are not considered accurate. It is bad enough to be worried that you are being relegated to failure before the process even begins. Adding to these worries is the 

knowledge that the load reductions and practices required to achieve them are expensive, and perhaps in many instances prohibitively so. And yet the Bay TMDL 

development process lacks economic analysis of the costs of what these practices will 

entail for agriculture or any other sector. 

As if those concerns are not enough, EPA has sought to ensure that states would 

adopt ‘‘enforceable or otherwise binding’’ measures on row crop agriculture to 

achieve the assigned load reductions, a considerable break from the past and the 

Clean Water Act provisions that provide exemptions for discharges associated with 

agricultural stormwater—so-called agricultural nonpoint source discharges. Mandating practices of unknown cost and efficacy could spell disaster for many farmers 

and ranchers in the Chesapeake Bay, yet the very prospect confronts them in this 

case. 

The USDA–NRCS Conservation Effects Assessment Program Report for the 

Bay 

The ANPC welcomed the U.S. Department of Agriculture (USDA) Natural Resources Conservation Service’s (NRCS) release this past October of its draft analysis 

of agriculture in the Bay.1 We hoped and still hope that it might be able to better 

quantify agriculture’s contributions and additional efforts needed and ultimately 

used in conjunction with the Bay Model in the development of load reduction expectations for agriculture. This draft report is one of 12 assessments that USDA–NRCS 

is conducting of basins nationwide under the Conservation Effects Assessment Program (CEAP). The Bay CEAP was the second of these assessments and was issued 

for public comment this fall while the proposed Bay TMDL rulemaking was out for 

public comment. 

Because it is an estimate, the Bay CEAP will not be perfect. The estimates are 

based on data and observations collected from 2003 to 2006 and the conditions it 

represents are already dated. We have reason to expect that it underestimates farmers’ use of improved and advanced nitrogen management techniques and practices, 

and therefore over-estimates the baseline loss of nitrogen from agriculture. As is the 

case with the Bay Model and the Bay TMDL, it lacks estimates of the practice costs 

that it suggests producers could adopt to lower their loadings, and it lacks estimates 

of the economic effects of practice adoption. As such, we also have questions about 

whether the additional conservation measures proposed for use on Bay cropland are 

practical and achievable. 

Despite these shortcomings, the Bay CEAP (as well as the other 11 CEAP analyses that USDA–NRCS is conducting) has many strengths. It is based on a thoroughly peer reviewed statistical and modeling process of the National Resources Inventory (NRI), one that has been in use for several decades and with which agriculture has considerable familiarity. It combines the NRI findings in the Bay with 

detailed survey results of farmers and farm operations in the region, allowing CEAP 

to be based on a statistically valid sample of farmland and farming practices in use 

in the Bay. The CEAP is therefore grounded in the actual conservation practices, 

crops and crop rotations, soil types, and other land features that directly shape how 

many nutrients and how much sediment leaves farm fields and makes its way into 

waterways that ultimately reach the Bay. For these reasons we welcomed the draft 

Bay CEAP results as a solid contribution to the Federal effort to set goals and objectives for load reductions in the Chesapeake Bay. 

Before I review the findings of the analysis the ANPC commissioned to compare 

some of the key results of the Bay CEAP to those in the Bay TMDL derived from 

the Bay Model, I would like to share a few of the findings from the Bay CEAP itself. 

The picture it conveys as to what farmers have achieved in the Chesapeake Bay is 

quite remarkable. It is a testament to the work farmers in the Bay are doing to reVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00081 Fmt 6633 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
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2See pages 8 and 9 of the draft CEAP report. 

3See page 11 of the draft CEAP report.

duce nutrient and sediment loads, and the success of the partnership of Federal, 

state and local officials that constitutes today’s conservation delivery system. 

I would like to draw to your attention the following draft CEAP findings relative 

to agriculture’s baseline (2003–2006) conservation conditions for cropland in the Bay 

region:

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

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

• 96 percent of the crop acres have some residue, tillage management, and/or 

structural practices in use.

Most crop acres have some nitrogen or phosphorus management, with significant 

percentages having the appropriate rate, timing or method of application in use—

but most of these acres lack the consistent use of all these tools simultaneously.2

The CEAP model shows that as a result of these and other conservation practices 

for cropped acres in the region, the amount of nutrient and sediment loss from these 

acres has been reduced significantly from what would be the case if farmers were 

not using these practices. For example, these practices have resulted in:

• Reduction in sediment loss from fields by 62 percent;

• Reduction in total nitrogen loss from fields by 30 percent and reduced nitrogen 

lost with surface runoff by 42 percent; and

• Reduction in total phosphorus loss from fields by 43 percent.3

Clearly, more can be accomplished by farmers and ranchers in the Bay region. 

More practices can be adopted, or those in use today can be consistently applied simultaneously. The Bay CEAP estimates what could be possible were such practices 

adopted on all the acres that could benefit from their use. While these estimates 

are not accompanied by any cost and economic analysis to indicate how truly feasible they are, they are indicative of the further contributions that agriculture could 

be making to water quality in the Bay. Through the adoption of further sediment 

controls and nutrient management practices on some 2⁄3 of the acres in the region, 

USDA estimates that the total sediment and nutrient loads actually delivered to the 

Chesapeake Bay from all sources could be reduced (relative to baseline conditions) 

as follows:

• Sediment by 7 percent;

• Nitrogen by 16 percent; and

• Phosphorus by 17 percent.

Of course, these are the draft estimates from the October version of the report. 

We understand that NRCS will be issuing in the near future their final Bay CEAP 

report. As such, the numbers above are subject to change. 

A Comparison of the Draft Bay CEAP Results to those from the Draft Bay 

TMDL 

Agriculture generally has a significant degree of comfort with the NRCS’ NRI, as 

it has been used to report on the conservation efforts of farmers for decades. Its coupling with farmer survey results and models to make the CEAP analysis possible 

is a newer effort and agriculture is just now becoming familiar with its use. Nonetheless, agriculture is given a high degree of confidence in the CEAP analysis by 

the fact that its foundation is the NRI’s statistically valid field level observations 

of the actual conservation and nutrient management practices, soils and conditions 

in place. Its statistical validity yields confidence because it is representing what is 

in fact happening on the ground. 

It is this physical grounding in actual, observed practices that lead the ANPC to 

want to compare the CEAP loading estimates to those from the Bay TMDL. The 

hope was that the CEAP results would allow agriculture to assess the accuracy of 

the Bay TMDL baseline conditions and the load allocations. The CEAP is not the 

only other sound source of data and information that could help Federal policy makers assemble an accurate understanding of what is happening on the ground in the 

Bay region. State and local agencies also have good data that could be used in the 

effort. The CEAP information, though, is critical to reaching this goal. 

79

4The comparison of the USDA and EPA draft estimates can also be found on the ANPC 

website at http://www.nutrientpolicy.org/ANPClNews.html. 5These are the results of the analysis of two draft documents—the proposed TMDL rulemaking, and the draft Bay CEAP report. These numbers will certainly change once the final 

Bay CEAP findings are compared to the final Bay TMDL. 

In an effort to highlight the importance of using the CEAP data to inform Federal 

decision making, the ANPC commissioned a study from LimnoTech, one of the nation’s leading environmental science, engineering and modeling firms. The report, 

Comparison of Draft Load Estimates for Cultivated Cropland in the Chesapeake Bay 

Watershed, was completed on December 8, 2010, and a copy of the report was provided with this testimony.4

LimnoTech analyzed the available documentation (both of which were draft) and 

compared the two efforts, looking in particular at:

• Land use and total acreage of the Bay watershed;

• Hydrology;

• Assumptions about conservation practices;

• Model frameworks; and

• Model results.

These models were constructed, designed and used for very specific yet different 

purposes. Different modeling techniques are used and the data sources vary. That 

said, it is reasonable to expect that two models prepared by two Federal agencies, 

estimating loads from agriculture delivered to the Bay over roughly the same period, 

could very well come up with comparable results—or at least the differences in their 

results could be explained in a straightforward way. 

LimnoTech did not find comparable estimates of the loads delivered to the Bay, 

nor were they able to discern how to reconcile these differences. This finding, and 

several others, led LimnoTech to conclude that EPA should not finalize the Bay 

TMDL until it had reconciled these differences in the estimates. I will not detail 

here the differences that LimnoTech found and the questions and concerns that 

were raised. A comparison of the actual estimates of baseline loads to the Bay from 

agriculture should be sufficient to demonstrate why these concerns arose.5

Figure 1 below, which is drawn directly from the LimnoTech report, graphically 

compares the EPA (Bay TMDL) and USDA (Bay CEAP) estimates of the baseline 

delivered loads to the Chesapeake Bay from agriculture as well as all other sources. 

Looking at the largest difference (on a percentage basis) in estimated loadings from 

agriculture, those for sediments, EPA’s estimate is almost three times the size of 

the USDA estimate. The Bay TMDL baseline assigns about 65 percent of all sediments reaching the Bay to agricultural sources, while USDA assigns only 14 percent 

of the total. These are enormous differences and give many in agriculture cause for 

serious concerns.

80

6For example, 14 hours before the WIPs were due, EPA reported to Virginia that they needed 

to find an additional one million pounds of nitrogen. 

Figure 1—Differences in estimates of baseline delivered loads to the Chesapeake Bay from agriculture and all sources. 

Turning to the estimates for nitrogen with the next lower differences, USDA’s agricultural load estimates are about 25 percent higher than EPA’s estimates. Although the differences between EPA’s and USDA’s estimates of phosphorus loads 

are smaller, it is still very large. USDA’s loads are 25 percent lower than EPA’s estimates, amounting to some 1.8 million pounds per year. This is a sizable amount, 

given that EPA is holding states accountable for every single estimated pound that 

must be reduced.6

Absent full access to EPA and CEAP model inputs, LimnoTech was unable to fully 

explain these differences in baseline estimates, although there are some good, educated guesses that could be made. First, there are significant differences in the 

amount of land designated as agricultural. USDA’s estimate for the amount of crop 

and pasture land in the Bay region is more than 3 million acres greater than EPA. 

Second, the draft Bay TMDL assumed only 50 percent of the crop acres in the 

Bay region were farmed under conservation tillage, while the draft Bay CEAP used 

the NRI estimate of 88 percent, with another eight percent or so that had structural 

erosion control measures. Having more acres under conventional tillage would certainly translate into estimates of greater sediment loss under the Bay TMDL baseline than you would from the Bay CEAP. Yet important as this is, it seems unlikely 

it would explain almost a three-fold difference in sediment loads. 

The ANPC has no explanation at this point for the 25 percent difference in the 

nitrogen baseline load estimates for agriculture. We understand that this difference 

was far smaller for EPA’s 2005 estimate of nitrogen loads compared to Bay 

CEAP’s—not an explanation. It just raises further questions. In the case of phosphorus, sizable differences in sediment load estimates would certainly lead to differences in phosphorus load estimates. This is because most phosphorus is lost due 

to erosion, where the phosphorus bonds tightly with a soil particle and goes wherever that particle goes. What to make of the varying magnitude in percent differences between the sediment estimates and those for phosphorus is still unclear. 

Figure 2 below is a graphical representation of LimnoTech’s assessment of the 

comparability of the two baseline agricultural load estimates and the possible load 

reductions estimated by the Bay CEAP. Four estimates are depicted for loads of nitrogen, sediment and phosphorus. The first of the estimates is EPA’s baseline number. The next is the USDA baseline number. These are the same values depicted 

for agriculture in Figure 1. The next two bars depict the USDA (Bay CEAP) estimates of the loads that would result if additional acres were to receive more intensive conservation treatments (an additional 2 million acres and an additional 3.5 

million). The horizontal redline that accompanies the estimates for nitrogen, sediment and phosphorus depicts the allowable level of loads for each pollutant EPA assigned to agriculture in the draft TMDL. 

Figure 2 indicates that as more acres receive intensive treatment, the estimated 

loadings of sediments and phosphorus are below the TMDL allocation. Interestingly, 

USDA’s baseline loads of sediment and phosphorus start out below the TMDL alloVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00084 Fmt 6633 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN

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cation. The pattern is different in the case of nitrogen, where USDA’s baseline load 

is greater than that for EPA’s, and the intensively treated acre scenarios do not 

yield loads below the TMDL allocation. Perhaps this is due to the fact that EPA’s 

TMDL scenarios assume that approximately 600,000 acres leave crop production, 

about 20 percent of the crop acres in the region. USDA has no comparable acres 

change. We simply do not know the reason for these differences.

Figure 2—USDA estimates of delivered loads under baseline and two treatment scenarios, compared to EPA’s Draft TMDL baseline loads and 

TMDL load allocations. 

Conclusion 

Taken at face value, it appears that in terms of sediment and phosphorus, agriculture has already met its TMDL obligations. And in the case of nitrogen it might 

appear that somehow EPA’s nitrogen load under the TMDL is unachievable for agriculture. Such conclusions, while feasible, are probably premature to draw at this 

point. 

The most reasonable conclusions to draw from the differences depicted in Figures 

1 and 2, along with the several others LimnoTech investigated, is that something 

important and seriously confounding is creating these differences. USDA and EPA 

should work together to find out what this is and reconcile their work. If possible, 

they should include agriculture and other stakeholders fully in that process, and as 

appropriate find ways to incorporate other useful datasets and sources of information that can improve the outcomes. The goal would be two-fold. First, to understand how the two models operate, reconcile their differences in a way that makes 

sense, and arrive at sound TMDL load reductions. The second would be for these 

reductions to be accepted by agriculture and the general public as accurate, fair, 

trustworthy and capable of making a lasting contribution to improving the health 

of the Chesapeake Bay. 

Thank you.


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The CHAIRMAN. All right, thank you. Mr. Bauhan, welcome to the 

panel. 

STATEMENT OF HOBEY BAUHAN, PRESIDENT, VIRGINIA

POULTRY FEDERATION, HARRISONBURG, VA; ON BEHALF OF 

NATIONAL CHICKEN COUNCIL; NATIONAL TURKEY

FEDERATION; U.S. POULTRY AND EGG ASSOCIATION 

Mr. BAUHAN. Thank you. Chairman Thompson, Ranking Member 

Holden, and Members of the Subcommittee, thank you for inviting 

me to testify on the Chesapeake Bay TMDL. I am Hobey Bauhan, 

President of Virginia Poultry Federation which represents all sectors of the poultry industry in Virginia. I am also testifying today 

on behalf of the National Chicken Council, the National Turkey 

Federation, and the U.S. Poultry and Egg Association. 

In Virginia, we are proud of the environmental progress and the 

innovative steps we have taken to protect water quality. For well 

more than a decade, poultry farmers have expanded their conservation practices to enhance water quality. The vast majority of poultry farms in Virginia use nutrient management plans, and a large 

majority have also constructed litter storage sheds. Litter storage 

sheds which are beyond—above and beyond state or Federal requirements are very effective in minimizing runoff. 

We have also adopted feed management practices, a natural enzyme phytase added to poultry feed has achieved major phosphorus 

reductions in manure more than 25 percent on average. We have 

also collaborated with environmental groups, universities, and government agencies on innovative solutions for surplus animal manure. In addition, poultry processing plants in the Bay have spent 

millions of dollars to upgrade their wastewater treatment facilities 

with state of the art technology. This has reduced wastewater discharges for phosphorous and nitrogen to levels that not long ago 

were unheard of. 

The results of these actions are reflected in EPA’s own estimates 

that between 1985 and 2005 nutrient loads from agriculture decreased in the Chesapeake Bay while load levels from developed 

lands increased by 16 percent. Poultry in the Bay has been moving 

forward, not backwards in improving water quality. 

Virginia’s experience also shows the effective roles—role that 

states are playing in water quality regulations as opposed to the 

top down approach sought by EPA. My state has adopted some of 

the most expansive regulations in the country for poultry farms. 

These include new plant management plans which are required for 

some 80 percent of poultry growers in the state. Only the very 

smallest growers are not under this framework and we also have 

state requirements for all transporters and end-users of poultry litter. 

Yet, despite the steps that we have taken to minimize or eliminate water quality impacts the Bay TMDL sets unprecedented Federal nutrient reduction targets that could adversely impact agriculture. EPA has made it clear that it will tie its strict nutrient 

diet to an aggressive framework of Federal permitting and paperwork requirements that expand the Federal CAFO universe. The 

agency supports highly restrictive nutrient management standards 

and seeks costly controls and additional enforcement. These addiVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00108 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
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tional burdens and bureaucracy are counterproductive to environmental progress. 

We are also concerned about the flaws in the data used to justify 

these new Federal mandates, particularly the data used in EPA’s 

modeling for Bay. For poultry, EPA’s TMDL nutrient targets are 

based on flawed modeling assumptions about manure management 

practices. For example, the agency estimates that 15 percent of all 

manure from poultry farms is lost during storage and runs off in 

into the waterways of the Chesapeake. Fifteen percent—that is an 

absurdly large number. We informed EPA over a year ago that the 

number has no basis in actual practice and grossly exaggerates 

EPA’s estimated loadings of nutrient runoff from poultry farms. 

EPA has acknowledged this may be an issue but has—the agency 

has never addressed it satisfactorily. 

We have outlined other concerns in 2 years of comments to EPA. 

These includes EPA’s methods to justify its nutrient reduction 

mandates, the threat of Federal backstop requirements and sanctions against states that don’t meet TMDL milestones, and EPA’s 

questionable legal authority to promulgate the Bay TMDL in the 

first place. 

To conclude, EPA should recognize the tools and programs that 

are working in Virginia and across the watershed. Imposing heavyhanded mandates based on questionable data and modeling assumptions burdens family farms with few real benefits for water 

quality. Future progress is best achieved through consistent and reliable cost-share funding, more collaboration, and strong technical 

assistance through local conservation agencies. We are ready to do 

more, but we must focus on what actually works and what is economically feasible. Thank you and I would be pleased to answer 

any questions you may have. 

[The prepared statement of Mr. Bauhan follows:]

PREPARED STATEMENT OF HOBEY BAUHAN, PRESIDENT, VIRGINIA POULTRY

FEDERATION, HARRISONBURG, VA; ON BEHALF OF NATIONAL CHICKEN COUNCIL; 

NATIONAL TURKEY FEDERATION; U.S. POULTRY AND EGG ASSOCIATION

Chairman Thompson, Ranking Member Holden, and Members of the Subcommittee, thank you for inviting me to testify on the Chesapeake Bay Total Maximum Daily Load (TMDL). I am Hobey Bauhan, President of Virginia Poultry Federation (VPF), a nonprofit, statewide trade association representing all sectors of the 

poultry industry since 1925. VPF’s members include poultry processors, poultry 

farmers and allied companies that provide goods and services to the poultry industry. I am also testifying today on behalf of the National Chicken Council, the National Turkey Federation and the U.S. Poultry and Egg Association, the leading 

poultry trade associations in the United States. 

The National Chicken Council (NCC) represents the vertically integrated companies that produce, process and market more than 95 percent of the young meat 

chickens (broilers) in the United States. NCC serves as the industry’s voice in 

Washington in the development of national legislative and regulatory policy. 

The National Turkey Federation (NTF) represents nearly 100 percent of the turkeys produced in the United States, including all segments of the turkey industry 

from breeders and hatcheries to growers and processors. Like the other poultry organizations, NTF has strong membership support from companies allied to the poultry business. 

The U.S. Poultry and Egg Association is the world’s largest poultry organization, 

whose membership includes producers of broilers, turkeys, ducks, eggs and breeding 

stock, as well as allied companies. The association focuses on research, education 

and technical services, as well as communications to keep members of the poultry 

industry current on important issues. 

106

Poultry contributes more than $1.5 billion annually to the Virginia economy, supports the livelihood of some 1,100 family farms and employs more than 10,000 people. The poultry industry, which has an overall economic impact in Virginia in excess of $1.5 billion, generates significant farm income that helps keep farmland in 

production and slow conversion of farmland for other less environmentally friendly 

uses, a benefit acknowledged by many, including the EPA Administrator. 

Poultry Industry Environmental Stewardship 

The Chesapeake Bay is an iconic water body with a rich history. In a May 2009 

Executive Order, President Obama stated, ‘‘The Chesapeake Bay is a national treasure constituting the largest estuary in the United States and one of the largest and 

most biologically productive estuaries in the world.’’ The Bay is indeed a tremendous 

natural resource. It deserves our active stewardship. However, we believe EPA’s approach in the Chesapeake Bay TMDL raises significant technical, policy and legal 

questions, and imposes unnecessary costs and burdens on agriculture, without generating meaningful results for the environment. 

States and the District of Columbia that are part of the Chesapeake Bay watershed have worked cooperatively on strategies to improve the Bay since the 1980s. 

Much progress has been made to reduce nitrogen and phosphorus discharges from 

wastewater treatment plants, and in implementing agricultural and urban best 

management practices through voluntary and regulatory programs. However, litigation over failure to reach certain water quality goals has led EPA to develop a 

Chesapeake Bay TMDL. This strict ‘‘pollution diet’’ sets new limits on nutrient (nitrogen and phosphorus) and sediment ‘‘loadings’’ into rivers and streams throughout 

the 64,000 square mile Bay watershed. 

Through compliance with existing government regulations and the implementation of voluntary practices, the poultry industry in Virginia, along with other states 

in the watershed and across the country, has been a responsible and proactive environmental steward. The industry has long been part of the solution to a cleaner Bay 

and local waterways. It is our hope that the industry continues to be able to provide 

the rural jobs and economic base for years to come. Please consider the following:

• In 1995, Virginia’s poultry industry received a ‘‘Friend of the Bay’’ award from 

the Commonwealth of Virginia for its voluntary initiative to implement Nutrient Management Plans (NMPs) on all Shenandoah Valley poultry farms by the 

year 2000, a goal largely achieved.

• VPF estimates at least 80 percent of poultry producers in the Shenandoah Valley have constructed sheds for storing poultry litter before it is utilized. (Those 

with or without sheds must store litter according to state regulatory criteria.)

• For feed management, the poultry industry has adopted new feed management 

practices using phytase as an enzyme in poultry feed resulting in a more than 

25 percent, on average, reduction in phosphorus in poultry litter.

• VPF has also reached out and collaborated with a wide range of organizations 

to minimize impacts on our water resources. A few examples include:

» VPF participation in the Virginia Waste Solutions Forum, a collaboration of 

agriculture, environmental groups, academia, government agencies, and others that have worked since 2004 to identify economically viable solutions for 

surplus animal manure;

» VPF’s founding membership of the Shenandoah Valley Pure Water Forum, 

another group of diverse interests working collaboratively toward improved 

water quality;

» VPF participation in a coalition of agricultural and conservation groups that 

worked successfully together to obtain increased funding for the Virginia Agricultural Best Management Program cost-share program.

The results of these and other actions are reflected in EPA’s own estimates that 

between 1985–2005 nutrient loads from agriculture decreased to the Chesapeake 

Bay, while nutrient loadings from developed lands increased by 16 percent. The 

good news is that the poultry industry in the Bay watershed has been moving forward, not backward, in improving water quality. 

Virginia’s experience shows the appropriate role that states are already able to 

play in water quality regulation and progress versus that of Federal EPA. In 1999, 

the Virginia General Assembly enacted the Poultry Waste Management Program 

(House Bill 1207). This law charged the State Water Control Board with developing 

a regulatory program requiring a general permit, incorporating a state-approved, 

phosphorus-based, nutrient management plan and mandating adequate waste storage for growers. 

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This program requires tracking and accounting of litter transferred off poultry 

farms. Growers with 20,000 or more broilers or laying hens, or 11,000 or more turkeys, are required to obtain a state-approved nutrient management plan and file for 

the general permit. This requirement is at nutrient levels far below the threshold 

at which Federal regulations define a Concentrated Animal Feeding Operation or 

CAFO. These nutrient management plans and nutrient controls are in place at more 

than 80 percent of all family farms in the state. Only the very smallest growers are 

not under this framework. 

Furthermore, the State Water Control Board recently adopted amendments to the 

Virginia Poultry Waste Management Program to impose additional regulatory requirements upon litter transporters and non-poultry farmers that receive poultry litter for use on their farm. The regulation now imposes enforceable requirements governing ‘‘end-users’’ land-application and storage of poultry litter. 

In addition, poultry processors are being required, with no cost-share funding, to 

spend millions of dollars on wastewater treatment plant and stormwater upgrades. 

New permits must meet close to ‘‘limits of technology’’ reductions for total nitrogen, 

in some cases reducing nitrogen by 95 percent—99 percent at a cost of up to $3 million per plant. This is on top of previous reductions in phosphorus to limits as low 

as 0.1 mg/liter that cost upwards of $2 million for some plants. 

In light of these and other efforts highlighted above, Virginia’s poultry industry 

continues to be a responsible and proactive environmental steward on a voluntary 

basis and through compliance with government regulations. 

Selected Industry Concerns 

Yet, despite the steps the industry has taken to minimize or eliminate water quality impacts, the Bay TMDL sets unprecedented Federal nutrient-reduction targets 

for states like Virginia that could adversely impact agriculture. EPA has made it 

clear that it will:

• tie its strict nutrient ‘‘diet’’ to an extremely ambitious framework of Federal 

permitting and paperwork requirements that expand the Federal CAFO universe;

• make questionable changes to nutrient management plans;

• impose more costly controls and additional enforcement.

This will not necessarily achieve meaningful environmental progress in the future. 

We also believe that EPA’s approach to the Bay TMDL may exceed the authority 

granted to the agency by Congress. The Clean Water Act prescribes specific requirements and procedures for EPA and states to develop TMDLs for impaired waters, 

yet it appears that the agency may not have followed them. We will continue to 

monitor EPA’s legal authority on this issue. 

With respect to the development of the TMDL, while the poultry industry has expressed several of its concerns to the agency in the past year, EPA provided very 

little time to study and provide input on the Bay TMDL. A mere 45 days of public 

notice and comment is inadequate and inappropriately brief to receive the critically 

important input on the massive, complex materials with notice posted by EPA in 

the Federal Register on September 22. The draft TMDL document itself was 370 

pages, with 22 appendices, consisting of 1,672 pages. It contains highly technical information that made it impossible for citizens to analyze this volume of material 

and correctly assess its impact within 45 days. Even with the short comment period, 

EPA received more than 1,120 comments. 

Moreover, the poultry industry believes that the agency’s policy of threatening 

TMDL ‘‘backstops’’ is counterproductive. The term ‘‘backstops’’ refers to the tightest 

possible limits on point source permits. The agency’s proposed backstops called for 

greater nutrient reductions at municipal wastewater treatment facilities and greater 

regulation of Animal Feeding Operations (AFO’s), while both wastewater plants and 

poultry AFO’s in Virginia have already complied with stringent regulatory requirements at considerable expense. There are legitimate questions of the authority of 

EPA to require Clean Water Act permits for AFOs. 

The poultry industry is also concerned about the accuracy of EPA’s ‘‘Scenario 

Builder’’ data input tool used to inform the Chesapeake Bay Model and the TMDL’s 

targeted nutrient reductions. It is essential that the assumptions in these tools are 

correct so that solutions can be tailored to actual problems. Yet EPA’s required nutrient reductions throughout the watershed are based on flawed assumptions in the 

agency’s model regarding manure management practices in the poultry industry. In 

one instance, the agency estimated that 15 percent of all manure from poultry farms 

is lost and runs off into waterways in the Chesapeake Bay. This is an absurdly large 

number and not based on actual data. The poultry industry informed EPA that not 

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only did the number have no basis in actual practice, but it grossly exaggerates 

EPA’s estimated loadings of litter run-off from poultry farms. While EPA has recognized its estimate was potentially exaggerated, an entire year has elapsed and the 

agency has failed to address the flawed data. Voluntary conservation and nutrient 

management practices must also be accounted for in the Chesapeake Bay Model, 

and the model must utilize up-to-date animal production data. At this point, EPA 

does not use such data. 

Finally, it is important for EPA to obtain all applicable data on poultry litter 

transport and appropriately factor it into the agency’s modeling efforts and loadings 

estimates. Now that Virginia has adopted its new ‘‘end-user’’ regulations, all litter 

applied on farmland anywhere in Virginia must follow management practices that 

limit phosphorus buildup in soils and address other environmental risk factors. It 

is essential that EPA provides industry with proper credit in the model for implementing these best management practices. 

Cost, Economic and Social Impacts 

Tens of billions of dollars have already been spent on efforts to improve the 

Chesapeake Bay. The poultry industry has been a willing and proactive steward of 

the environment, and allocated millions of dollars toward this objective, many directly related to restoration efforts for the Bay. The industry will continue to play 

an active role, guided by scientific research, technological advancements and costfeasibility considerations. 

The Chesapeake Bay watershed TMDL and associated mandates will require a 

commitment of tremendous resources at a time when our economy is already struggling. Poultry processors and farmers operate on thin margins, and cannot bear the 

burden of substantial new regulatory costs, especially if they cannot be scientifically 

justified. Such costs will make the Bay region struggle to be competitive against 

other poultry production regions. 

Causing the poultry industry to shift production to other areas of the nation or 

oversees would be damaging for the Bay area economy. The industry currently provides substantial farm income that helps maintain well-managed farmland, which 

is widely recognized as a one of the best land-uses for maintaining water quality. 

Jeopardizing the economic viability of the poultry industry will only lead to more 

farm land being converted into municipal development, such as residential neighborhoods and shopping malls. 

Recognizing Successful State Programs 

Rather than exceed the limits of its regulatory authority, EPA should recognize 

and reward the efficiency and effectiveness of state programs. For example, the Virginia Poultry Waste Management Act and regulations can in some cases be more 

effective for water quality protection than Federal CAFO permits. Ultimately requiring more farmers to be covered under Federal CAFO permits, which are not based 

on sound-science, only burdens them with more paperwork and does nothing for 

water quality. 

Conclusion 

EPA should do more to recognize the tools and programs that are working in Virginia, in other states in the Chesapeake Bay watershed, and across the nation. 

Overrunning states with a heavy handed Federal permitting and penalty scheme—

using the Federal TMDL’s questionable data and modeling assumptions—only imposes more costs and paperwork for family farms, and achieves marginal benefits 

at best to water quality. 

Future progress is best achieved through consistent and reliable cost-share funding, more collaboration and strong technical assistance through local conservation 

agencies. We’re ready to do more, but we must focus on what actually works and 

what is economically feasible. 

I’d be pleased to answer any questions. Thank you again for the opportunity to 

share our views.

The CHAIRMAN. Thank you, sir. And now with the consent of the 

Ranking Member we are going to recognize Mr. Goodlatte for 5 

minutes. 

Mr. GOODLATTE. Well, thank you for your forbearance, Mr. 

Chairman. I do have to get to something else and I wanted to have 

an opportunity to ask a couple of questions. Mr. Hebert, I really 

appreciate your work on this—the statistical information that you 

have provided is pretty compelling. And since you work with many 

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groups that are not solely in the Chesapeake Bay watershed I 

would like to direct this question to you. 

The EPA has stated in the documents called, Coming Together 

for Clean Water, EPA’s Strategy to Protect America’s Waters, that 

‘‘The Chesapeake Bay watershed will be a model for watershed protection in other parts of the country.’’ Does this statement concern 

you and do you think that farmers and ranchers in other parts of 

the country would want to abide by the Draconian requirements 

that the Chesapeake Bay producers will have to meet under this 

TMDL? 

Mr. HEBERT. Yes, it is—that is a very fair statement and the answer is yes. Agriculture as a whole knows what happens in the 

Chesapeake Bay could be facing them throughout the rest of the 

country and very much want to make sure this is done right. 

Mr. GOODLATTE. It is really a model in that the EPA has said 

as much. Mr. Bauhan, welcome. It is always good to see you and 

I am glad to have one of my constituents here today. In its final 

implementation plan, Virginia included a new commitment to pursue state legislation that would mandate enforcement controls on 

agriculture if an agricultural load target for a particular milestone 

period is not met, provided that sufficient funding is provided. The 

first milestone is in 2013, just 2 years from now. Do you have concerns about this commitment by the state, and do you think Virginia can achieve their load requirement to prevent this new legislation? 

Mr. BAUHAN. I think as we heard from the Secretary that Virginia worked under extremely difficult circumstances to deal with 

the cards they were dealt with them, yes, I do have significant concerns. 

Mr. GOODLATTE. And do you think it is likely that Virginia farmers can meet the commitments in that short period of time? 

Mr. BAUHAN. Well, I—Virginia farmers are committed to conservation and in playing their appropriate role, but we have to recognize that farmers are operating on very thin margins to help feed 

this country and the world. And that it will impose very much difficulty upon them if it comes down to a mandate. 

Mr. GOODLATTE. And then I will just go down the row there 

starting with you, Hobey, and following up on that. The EPA has 

stated that the Phase II Watershed Implementation Plans be developed by the end of this year. What exactly does that mean for you? 

Mr. BAUHAN. Well, I am not sure exactly what it means. There 

really hasn’t been a whole lot done on that so far as we come to 

the conclusion of the first quarter of the year. I am certainly waiting for more information as to the detail of what exactly that does 

mean, but I am concerned that it will mean a rationing down of 

mandates and expectations, and potential consequences of——

Mr. GOODLATTE. The rationing up? 

Mr. BAUHAN.—mandates. I think that is what I meant to say. 

Rationing up. 

Mr. GOODLATTE. Thank you—those regulations tightening closer 

around you and the farmers that your industry relies upon. 

Mr. BAUHAN. Yes. 

Mr. GOODLATTE. Mr. Hebert? 

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Mr. HEBERT. I think it means that there—that the implementation of the numbers in the TMDL, as it is currently constituted, 

which is not just the single number for nonpoint sources and point 

sources at the state level but the TMDL allocates them all the way 

down to the individual farmer level, individual community level, 

and those numbers are going to start to be made real right now. 

And it is a concern. 

Mr. GOODLATTE. And the concern that you expressed earlier that 

the costs are going to start hitting now——

Mr. HEBERT. Right now. Right now. 

Mr. GOODLATTE. The benefits we are not going to know for years. 

Mr. HEBERT. Any farmer, any sewage treatment plant that is serious about meeting these commitments has to begin planning of 

for the investments to meet them now. 

Mr. GOODLATTE. Ms. Hoot? 

Ms. HOOT. I think it is a tremendous task and we really don’t 

know what that task is, and we won’t know what the final figures 

are until after July. Certainly from an agricultural standpoint 

there are 58 TMDLs to be produced in Maryland, and we don’t 

have the staffing level within the soil and conservation districts 

who have the expertise to work with the agricultural community. 

So, what is going to end up happening, we either meet the deadline 

with a rushed product that maybe doesn’t do as good a job, or we 

could spend a little bit of time and do something that is more accurate and more likely to succeed. 

Mr. GOODLATTE. Mr. Shaffer? 

Mr. SHAFFER. I am not sure we can deal with Phase I. So Phase 

II is way beyond even our comprehension. I would say what is happening is when we look at the conservation districts now they are 

spending so much of their time trying to educate farmers as far as 

what the regulations are coming down rather than actually doing 

their prime objective which is to help the farmer to become a better 

environmental steward of the land. I think we have proven beyond 

any doubt that we want to clean up the waters of the United 

States. Just if nothing else for the fact the amount of Best Management Practices like cover cropping which we aren’t mandated to do 

we do it voluntarily. We do it because we care about the environment and we want to do a better job in cleaning it up. I think that 

we have already proven that our heart is in the right place on this 

issue. 

Mr. GOODLATTE. Good point. Every farmer has an incentive to 

conserve the use of fertilizer, to preserve their land from eroding, 

from washing away, and we certainly want to support that, give 

good information, and help in any way we can. But the mandates 

have untold consequences. Mr. Chairman and Ranking Member, 

thank you. This has been an excellent hearing and I appreciate 

your allowing me to jump ahead here. 

The CHAIRMAN. Thank you, sir. Now I recognize the Ranking 

Member for 5 minutes. 

Mr. HOLDEN. Thank you, Mr. Chairman. Mr. Shaffer, good to see 

you again. Mr. Shaffer, Mr. Perciasepe told the gentleman from Indiana that during development of the state plans there was consultation with the agricultural community. And in your oral remarks you said there really wasn’t a dialogue. It was just basically 

111

my way or the highway. Can you elaborate? Did the Pennsylvania 

Farm Bureau or the Pennsylvania producers try to reach out to 

DEP and EPA to say give us some guidance and you were told to 

submit a plan in its entirety and we will either approve it or disapprove it? Is that what you said? 

Mr. SHAFFER. That is exactly what happened because there—it 

was such a daunting task to come up with this WIP plan to begin 

with. The State DEP’s opinion that we ought to ask about certain 

aspects of it so we don’t have to repeat ourselves and we can do 

it right. But whenever we would reach out and ask about certain 

aspects of the plan EPA said submit the plan in its entirety and 

we will tell you whether it is acceptable. But we found out very 

quick it wasn’t acceptable. 

Mr. HOLDEN. No guidance, no consultation, just my way, or the 

highway? 

Mr. SHAFFER. Correct. 

Mr. HOLDEN. I believe Mr. Perciasepe also said that there was 

consultation with the universities. I know you are close to Penn 

State. Do you have any idea if Penn State had any input at all or 

any discussions with the plan? 

Mr. SHAFFER. It is—the only role that I know right now that 

Penn State is playing is trying to do, through extension service, 

trying to help conservation districts also educate farmers as far as 

what the regulations are that are coming down. Penn State has 

done a lot of research and has proven over a 20 year period how 

you can clean up a small watershed or large watershed with nothing but Best Management Practices. They have proven that and 

they have that documented. It is a matter that we have to decide 

what course we are going to take when we do this. 

Mr. HOLDEN. So, but when the state was developing the plan you 

don’t think that wealth of knowledge at Penn State was used? 

Mr. SHAFFER. I don’t believe that was used at all because the 

model is so flawed. You know, the only thing I can look at is the 

way this is done, and the only thing I can analyze this as—compare 

it to if I would take a gun and hold it to somebody’s head and tell 

them to go rob a convenience store. Would that person be thought 

of as the person responsible for voluntarily robbing the convenience 

store? I don’t think so and I think that is the way the states are 

being treated. There is a gun being held to their head until they 

come up with a plan that EPA feels is desirable. 

Mr. HOLDEN. And finally, Mr. Shaffer, you worked very closely 

with Mr. Goodlatte and I in the 2008 Farm Bill that we put together the Chesapeake Bay Watershed Initiative. How has that 

been working in Pennsylvania? I know Chief White elaborated on 

watershed—why, how successful it has been. How have Pennsylvania producers taken advantage of this program? 

Mr. SHAFFER. That has been very valuable. I commend the whole 

Committee for the work they did in providing the funds in the farm 

bill because we know how important it is. You can go through 

there. That money through EQIP and things like that has put an—

manure storage on a lot of farms so that they don’t have to spread 

on frozen ground in the winter. They are able to hold that liquid 

manure until spring or fall and apply it on the—we need to do it 

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at a pace and in a way that we are going to be able to stay on the 

farms economically. If we can’t it really doesn’t matter. 

Mr. HOLDEN. Thank you. Thank you, Mr. Chairman. 

The CHAIRMAN. I thank the gentleman. I recognize the gentleman from Indiana for 5 minutes. 

Mr. STUTZMAN. Thank you, Mr. Chairman, and thank you panel 

for being here. I enjoyed your testimony today and I think it is very 

practical and sometimes when you get outside the Beltway you 

hear more commonsense, and I think that is what we need. I am 

glad you are here today. 

Not every Member on this Subcommittee or even the Agriculture 

Committee represents a district in the Chesapeake Bay watershed 

and someone asked why a Member like myself in Indiana would 

really care about this situation. And I guess I would ask, why 

should I care? And I will just go down the line and any one of you 

can answer that starting with Mr. Shaffer. 

Mr. SHAFFER. I think if you look right in where this started with 

the Executive Order, if you read the Executive Order it states right 

in there this could be a model to be used across the United States. 

Whatever is happening to the six states in this watershed we have 

already seen it. The Executive Order has now been decreed for the 

Gulf of Mexico watershed. There are 30+ states and yours is one 

of them that would be rolling into that. So as I shared with my colleagues of other states a year ago, I said if you snooze on this issue 

you are going to wake up next year and it is going to be the Gulf 

of Mexico watershed. And sure enough that is just what exactly 

has happened. 

Mr. STUTZMAN. Thank you. 

Ms. HOOT. I would like to agree with that comment that you are 

definitely going to be following in our footsteps not that I would 

like for us to be the guinea pigs, but I do think that we are learning ways to do this better. Our showcase watersheds, we are learning how to work with every farmer and do everything. There are 

a lot of farmers to work with, and I think we will come up with 

some good models to help you as long as you give us the resources 

so we can learn how to do it right. 

Mr. STUTZMAN. Yes. 

Mr. HEBERT. To put a little more fine point on what Mr. Shaffer 

said, it is the dissolved oxygen standards in the deep waters of the 

Chesapeake Bay that are driving EPA to push the states to get 

farmers to do things all the way up in New York and throughout 

Pennsylvania, and beyond the Shenandoahs in West Virginia in 

portions far away from the Bay. It will be the same dissolved oxygen concerns in the northern Gulf of Mexico that will drive this 

right up past the Wabash. And I imagine right into your farmer’s 

districts and their discharges, whether or not the waters that they 

are actually farming around are impaired or not. 

Mr. STUTZMAN. Yes. 

Mr. HEBERT. And it is a model that EPA is trying to use and aggressively pursue and it can be done right. We can make this work 

we believe, or it can be done wrong, and we are worried about how 

it is being done in the Bay. 

Mr. BAUHAN. Yes, I would like to think there are a lot of ancillary issues that go along with this that have national impacts. I am 

113

well acquainted with my counterpart in Indiana in the poultry industry and I understand you have a significant poultry industry 

there. But some of the things that we are concerned about are 

plans for EPA to expand their universe of farms that would be covered under CAFOs. 

Now, certainly there was a lawsuit announced yesterday that 

will impact that. Also there are discussions and EPA has advocated 

a very, very stringent level of—for a phosphorous standard that 

could severely restrict the ability of farmers to apply manure on 

farmland. And those efforts, while I think they are being driven by 

the Chesapeake Bay TMDL will have national implications. 

Mr. STUTZMAN. I agree and just kind of a follow-up question, as 

you know the EPA backstopped West Virginia’s plan to require 

that 75 percent of West Virginia’s small animal feeding operations 

should be treated in the TMDL as if they were regulated CAFOs. 

Do you all have the same concerns EPA would take similar backstop actions in your respective states? 

Mr. BAUHAN. Well, as I have mentioned in my testimony, Virginia already has a permitting program for animal feeding operations. It goes down to a very small level of—in terms of size. And 

it has all the BMP’s in it that would be in the Federal CAFO permit. So really from a water quality protection standpoint the CAFO 

program does not add anything that we don’t already have in Virginia. It just adds a lot of bureaucracy and costly red tape and 

more severe penalties that could have an adverse impact on our 

producers. 

Mr. HEBERT. Yes. EPA has made it very clear that they want to 

amend the CAFO rule so that it is easier nationwide to designate 

smaller AFOs, medium-sized AFOs as CAFOs and subject them to 

the permit requirements, so yes, very much so. 

Mr. STUTZMAN. And that is my fear is that you know I come from 

the state legislature in Indiana and you—we have varying operations across the state. And you know there is—counties have different challenges from top to bottom and we are just trying to put 

everybody in the same box that is going to continue to squeeze agriculture more and more. So thank you, Mr. Chairman. I yield 

back. 

The CHAIRMAN. I thank the gentleman. My Congressional district, it speaks to the question of why should somebody else outside 

of the Chesapeake Bay be concerned. And I put it in the context 

of my farmers, the agricultural community. Because my district in 

Pennsylvania I have the Chesapeake Bay watershed. I have the 

Gulf of Mexico watershed. I have the Great Lakes watershed. And 

I don’t care where my farmers are, they are aware of what is 

going—you know the ones that are not currently impacted by what 

is going on in the Chesapeake Bay they clearly, those other farmers, all the farmers understand and they are very concerned. They 

see these mandates and they are all concerned about the environment as well. 

I consider farmers the original environmentalists. They live on 

the land; they love the land. Mr. Shaffer, you talked about the dichotomy between the conditions of the Susquehanna River when 

you were growing up versus the state of water quality today. Other 

than your anecdotal evidence are you aware of any hard data sugVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00117 Fmt 6633 Sfmt 6601 I:\DOCS\112-06\65502.TXT BRIAN
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gesting that the Susquehanna’s water quality is actually improving? 

Mr. SHAFFER. Yes, sir. The Susquehanna River Basin Commission has—I believe it has since in the mid 1980’s they have had 

six monitoring stations on the Susquehanna River Basin. And what 

they have shown in their data that all six of those stations have 

shown a very sizable reduction in nitrogen. All six of them have 

shown a very sizable reduction in sediment, and four out of the six 

have shown sizable reductions in phosphorus, and the other two 

have shown no increase. They have held their own in those two 

monitoring stations. So that shows me what the progress has been. 

Also, I can just look at—this is where I get confused. I read an article just last year in the Baltimore Sun that said it is about the 

Chesapeake Bay: it has been the best fishing and crabbing and oyster season in 30 years. And that is what we seem to keep focusing 

on or is to get the fishing and the oysters back. Well, if it has been 

the best in 30 years it tells me something is being done right. 

Maybe that is just too simplistic, but it is just things like that that 

I look at makes me feel that we are on the right track. 

The CHAIRMAN. The NRCS draft report found that sediment contributions from the—actually I think I am taking this from your 

written testimony, Mr. Shaffer, cultivated cropland from the bays, 

rivers, and streams were reduced by 64 percent nitrogen—nitrogen 

by 36 percent and phosphorus by 43 percent and this is for all the 

members of the panel. Are you—you know I—last week when Ms. 

Jackson was here I really tried to push her for data that showed 

longitudinal studies and analysis that showed—you know we know 

where the Bay was. It was unfortunate. It is tragic, but we know 

for 30 years we have invested literally hundreds of billions of dollars. And the EPA is involved, the USDA has been key with their 

work, the Army Corps of Engineers and I just had one of the Colonel’s in from the Baltimore regional office. They have Chesapeake 

Bay initiatives that they have been investing tremendous amounts 

of money, monies that have been flowing. There are municipalities 

used; they are investing and a lot of money coming from all over 

the place. So and I haven’t gotten good data from the EPA. I want 

to know are there—what other statistics are you aware of showing 

quantifiable progress in both the Susquehanna River and the Bay? 

Ms. HOOT. I certainly, to Mr. Shaffer’s point, we have seen an 

increase in oysters and recovery, some in crabs and rock fish has 

been very successful. So we definitely have seen some quantifiable 

areas there and we just know that by the Best Management Practices that we are putting on when you plant 400,000 acres of cover 

crop, you know there is going to be reduction of nutrients getting 

into the Chesapeake. So we are very comfortable that there is 

progress being made and the water quality is improving. 

But one of the things I would like to point out is if you—the Corsica River watershed is a pretty small watershed over on the Eastern Shore and if you look at the work they have done in that watershed it shows that even in that small watershed work that takes 

place on the land of some areas of that small watershed today it 

is going to be 20 years before that impacts the water quality in the 

Chesapeake Bay. I think a lot of what we have done has not 

115

showed up in the watershed yet. So, I think there is a lot about 

to happen and if we continue our good work it will continue. 

The CHAIRMAN. Allowing time to see some of those quantifiable 

outcomes to occur. I would agree. Mr. Hebert? 

Mr. HEBERT. Mr. Chairman, I would just add I am not an expert 

in the data about the Chesapeake Bay. It is clear to me though 

that it is one of the things that we are not lacking which is data. 

And the Chesapeake Bay program will have a lot of information 

about how the quality of the Bay has progressed. What we haven’t 

had is a good tool to be able to link up in any kind of comprehensive sense what farmers are doing and how that is affecting the 

Bay. And that is why we are very excited about this CEAP analysis 

because now we can say exactly what our farmers are doing in a 

statistically valid way, and link that up to reductions and loads 

leaving their farms and reaching the Bay and use the models to 

predict what that means for water quality and ultimately observe 

it in the way that Mr. Shaffer and Ms. Hoot are talking about. And 

so we are excited about the capability that has been developed. But 

to your basic question I believe that with some work we could get 

you some good numbers about how the Bay has progressed over 

time and it has certainly gotten better in many, many ways. 

The CHAIRMAN. Very good. Mr. Bauhan, any thoughts? 

Mr. BAUHAN. I don’t really have anything to add on that question. Thank you. 

The CHAIRMAN. Okay. Very good. Well, I just want to wrap up 

with one question. Mr. Shaffer and bringing back to my home 

state—no actually let me throw this out because we have a number 

of states represented here: Pennsylvania, Maryland, Virginia, with 

your nutrient policy work impacting all the—what in your view 

would be the cumulative result on agriculture in your respective 

states should the TMDL go into effect as it is proposed? Start with 

Pennsylvania and we will work our way across. 

Mr. SHAFFER. Are you asking what I feel the——

The CHAIRMAN. Yes. 

Mr. SHAFFER.—consequence is with? 

The CHAIRMAN. Of the TMDL if it goes unchecked and is on agriculture. 

Mr. SHAFFER. I feel the consequence is it is going to drive a lot 

of the farmers in Pennsylvania just plain out of business especially—we have a lot of Plain Sect farmers also in Pennsylvania 

who are very, very concerned because they don’t know if they are 

able to cope with what is going on. Understand one thing and I 

don’t know if this is their ultimate goal. It seems in my opinion it 

is. They would like to require every farmer to get an NPDES permit, a National Pollutant Discharge Elimination System. That is a 

very expensive permit to get. It is very expensive to maintain. The 

paperwork that goes with that is tremendous and it really opens 

you up of a citizen suit. So, the bottom line of how it is going to 

help the Bay it is a paper fix in my opinion. I don’t think it has 

anything to do with improving the Bay. But what it will do it will 

put some farmers out of business. I am pretty sure about that and 

if that wasn’t the case, the members of Pennsylvania Farm Bureau 

wouldn’t be nearly as concerned as they are today. 

The CHAIRMAN. Very good. Ms. Hoot? 

116

Mr. HOOT. I think there is a tremendous amount of concern 

amongst the agricultural community about what it may mean. As 

we look at the Phase I WIP in Maryland, the milestones that are 

there for the next 2 years are doable, but it is only if the resources 

are there for technical assistance and financial assistance. I think 

our biggest concern is because it is more cost effective to do Best 

Management Practices on agriculture than stormwater, sediment, 

and all these other urban practices. But what happens when they 

don’t do their part? And we have a major concern because they certainly haven’t done it yet. Those areas have gone backwards. I 

think our biggest concern is what happens down the road when the 

Bay is still not clean because agriculture is doing its part but everybody else probably isn’t. So that is a concern we have. 

The CHAIRMAN. All right, thank you. Mr. Hebert? 

Mr. HEBERT. I think four things will happen. Farmers are going 

to adopt a lot of practices. We know that and they will continue to 

do that. They will reduce loads. Because the TMDL very well might 

be wrong in terms of the way it has characterized agriculture’s contribution to the Bay, they still might not be able to say using the 

TMDL and the Bay models that agriculture is meeting—helping to 

meet the water quality standards in the Bay. And if that happens 

under the WIPs the states are told, have agreed to, seek, explore 

seeking mandatory controls on farmers under state law to control 

those discharges, all of which may prove to be unnecessary because 

the Bay model as it is applied in this case to agriculture is wrong. 

And we will all be back in this room 2 or 3 years from now having 

to talk about it all again. 

Mr. BAUHAN. Someone earlier indicated that farmer’s biggest 

fear is not taxes or other issues, but government regulation and I 

think we are in a situation where some farmers are ready to hang 

it up as it is. The talk in the farm community back in the Shenandoah Valley, where I come from, is the fact that EPA has flown 

airplanes over the valley, doing surveillance of farms and then 

coming through with inspections of agricultural operations. And so 

the biggest fear is that regulations will get ratcheted up as Mr. 

Goodlatte indicated and this will be a tightening noose around operations that are already under very thin margins. And you know 

that it will result in more farmers going out of business and conversion of farmland to other less environmentally friendly uses, 

which is not going to be good for the Chesapeake Bay. 

The CHAIRMAN. Thank you. Well, before we adjourn I invite the 

Ranking Member to make any closing remarks he has. None? Well, 

I want to thank the panel certainly for your expertise, your commitment to agriculture, for being here on a very important issue. 

You know, as Mr. Shaffer well remarked, America is blessed with 

the highest quality and the most affordable food supply anywhere 

in the world, and that is something we can never take for granted 

and we have to watch where we create regulatory burdens that 

would prevent that from happening. This is—the Chesapeake Bay 

Initiative, the TMDL is something that—cleaning up the Bay is 

very important but it is an issue that needs to be done in a way 

that is very transparent and a way that is accountable and takes 

into consideration that we have to have—always have a balance between the environment and the economy. And the economics of an 

117

affordable food supply, USDA is an important partner in that, and 

frankly, it is a partner that I view and I have observed to be a collaborative, progressive problem solver working with our agriculture 

community. On the other hand, my observations with Environmental Protection Agency, at least it is perceived by many, comes 

across as a punitive mandate. In this situation where the EPA has 

imposed and have stated with no provided cost-benefit analysis, a 

basic element of any time that you are looking at imposing these 

types of changes. So I thank the panel. Under the rules the Committee, the record of today’s hearing will remain open for 10 calendar days to receive additional material and supplementary written responses from the witnesses to any question posed by a Member. This hearing of the Subcommittee on Conservation, Energy, 

and Forestry is adjourned. 

[Whereupon, at 12:28 p.m., the Subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

118

119

1 Eastern Brook Trout Joint Venture, Status and Threats. Available at http://

www.easternbrooktrout.org/docs/brookiereportfinal.pdf. 2 Jeffrey W. Lilly, Regulatory Violations in the Mining Industry: Mountaintop Removal Mine 

Valley Fills Violate the Federal Clean Water Act. 100 W. VA. L. REV. 691, 728–29. (1998) (summarizing a telephone interview with Dan Ramsey, Environmental Contaminants Specialist, U.S. 

Fish and Wildlife Service). 3See, e.g., S.M. Reid, S. Stoklosar, S. Metikosh, & J. Evans, Effectiveness of isolated pipeline 

crossing techniques to mitigate sediment impacts on brook trout streams, WATER QUALITY RESEARCH JOURNAL OF CANADA. Vol. 37, No. 2, pp. 473–88 (2002) (noting that stream populations 

of brook trout are sensitive to sediment-caused changes to habitat, including increased 

embeddedness of bed material); J.P. Hakala & K.J. Hartman, Drought effect on stream morphology and brook trout populations in forested headwater streams, HYDROBIOLOGIA. Vol. 515, 

pp. 203–13. 

SUBMITTED LETTER BY KEITH CURLEY, DIRECTOR OF GOVERNMENT AFFAIRS, TROUT

UNLIMITED

March 15, 2011

Hon. GLENN THOMPSON,

Chairman,

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.;

Hon. TIM HOLDEN,

Ranking Minority Member, 

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.

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

Dear Chairman Thompson and Ranking Member Holden:

I am writing on behalf of Trout Unlimited to express our support for finalizing 

and implementing the Chesapeake Bay Total Maximum Daily Load (TMDL). The 

TMDL would require reductions in nitrogen, phosphorous and sediment pollution 

flowing to the Chesapeake Bay. The health of the Chesapeake Bay is dependent 

upon a steady source of clean, cold water from its headwater streams. The TMDL 

will help reduce pollution throughout the Chesapeake Bay watershed, including 

headwater areas where water quality improvements will benefit native brook trout 

and other wild trout. 

Trout Unlimited’s mission is to conserve, protect and restore North America’s 

trout and salmon fisheries and their watersheds. Trout Unlimited has more than 

10,000 members living in the Chesapeake Bay watershed and a long history of 

grassroots habitat restoration work in the Bay’s headwater streams. On average, 

each Trout Unlimited chapter contributes more than 1,000 volunteer hours working 

with government agencies, private landowners, local schools, and others in their 

communities to improve rivers and streams though clean-up days, tree plantings 

and other activities. 

Throughout the 64,000 square mile Chesapeake Bay watershed, hundreds of 

mountain streams and valley spring creeks provide habitat for native brook trout 

and contribute clean, cold water to the Chesapeake Bay. However, the same pollutants that plague the Chesapeake Bay impair trout habitat in the headwaters. Nutrient pollution fuels algal blooms, which deprives the water of dissolved oxygen. Reductions in dissolved oxygen negatively affects trout, a species that requires relatively high amounts of dissolved oxygen to survive. 

Sedimentation also has serious impacts on trout habitat. Brook trout are highly 

reliant on clean substrate for spawning and rearing, and a great deal of their decline is due to increased sedimentation and water temperatures.1 Increased sediment loads can cause fish mortality by ‘‘clogging gills and opercular cavities’’ and 

also create distributional changes such as ‘‘avoidance behavior, reduced feeding and 

growth, respiratory impairment, and general physiological stress that can lead to a 

reduced tolerance to diseases and toxicants.’’ 2 The negative effects of increased sedimentation on brook trout populations in particular are well documented in the scientific literature.3 Controlling sediment is critical to maintaining habitat for brook 

trout and other coldwater species. 

Trout Unlimited is working extensively throughout the Bay watershed to restore 

trout habitat and reduce pollution. In addition to numerous grassroots-level projects, 

TU currently operates three watershed-scale conservation efforts in the Chesapeake 

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Bay watershed: instream and riparian habitat restoration in cooperation with agricultural landowners in the Potomac and Shenandoah River headwaters, and restoration of streams impaired by acid mine drainage in Pennsylvania’s West Branch Susquehanna watershed. For example, in West Virginia’s Potomac River headwaters 

Trout Unlimited has worked with the Fish and Wildlife Service and private landowners to install between 100,000 and 120,000 feet of livestock exclusion fencing annually over the past several years, helping to stabilize streambanks and filter pollutants. 

These restoration efforts have resulted in real, on-the-ground improvements to 

habitat and water quality. Such restoration work is an essential component to 

bringing back healthy trout populations in headwater streams and to meeting pollution reduction goals under the TMDL. The TMDL will help concentrate attention 

and funding on successful partnerships so that Trout Unlimited and others can dramatically increase the amount of restoration work we accomplish in the coming 

years. 

Given the scale of the challenge, however, restoration alone will not succeed. Robust restoration efforts must be accompanied by effective regulations that reduce 

pollution levels and prevent new sources from undermining hard-earned water quality gains. The TMDL will result in an increased level of focus and accountability 

that helps spur water quality and habitat improvements throughout the Bay watershed. 

Trout Unlimited supports the TMDL and looks forward to working with state, 

Federal and private partners in the Chesapeake Bay headwater areas to achieve 

pollution reduction goals. 

Sincerely,

KEITH CURLEY.

SUBMITTED LETTER BY JON P. DEVINE, JR., SENIOR ATTORNEY, WATER PROGRAM, NATURAL RESOURCES DEFENSE COUNCIL

March 15, 2011

Hon. GLENN THOMPSON, Chairman,

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.;

Hon. TIM HOLDEN, Ranking Minority Member, 

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.

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

Dear Chairman Thompson and Ranking Member Holden:

On behalf of its members who reside and recreate in the Chesapeake Bay watershed, thank you for the opportunity to submit comments for the record of your 

March 16, 2011 hearing on the Chesapeake Bay total maximum daily load (TMDL), 

the pollution cleanup plan for the Bay and its tributaries. The Natural Resources 

Defense Council (NRDC) is a national nonprofit environmental organization with 1.3 

million members and online activists. NRDC uses law, science and the support of 

its members to safeguard the Earth: its people, its plants and animals, and the natural systems on which all life depends. One of NRDC’s priorities is to protect and 

restore the integrity of water systems that sustain and benefit its members. As part 

of its efforts to achieve this goal, NRDC has undertaken a wide range of activities 

to stem water pollution from numerous sources. NRDC has engaged in advocacy 

with Executive and Legislative Branch officials, has produced material for public 

education, and has participated in litigation, all to promote better regulation of 

water pollution. 

The Bay TMDL Is Necessary To Restore Health to the Bay and Overcome 

Decades of Missed Deadlines and Opportunities 

The Chesapeake Bay is the nation’s largest estuary and the third largest estuary 

in the world. Considered a national treasure, the Bay drains an immense 64,000 


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1 U.S. EPA, Draft Chesapeake Bay Total Maximum Daily Load, at p. 1–5 (Sept. 24, 2010) 

(hereinafter ‘‘Draft TMDL’’) (citation and footnote omitted). 2 Id. at p. 1–13. 3See generally 33 U.S.C. 1313(d)(2) (concerning EPA action where states fail to submit approvable TMDLs); Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517, 1520 (9th Cir. 1995) 

(Oregon, Washington & Idaho ‘‘requested the EPA to issue the proposed and final TMDL as a 

Federal action under the authority of § 1313(d)(2)’’). 4 33 U.S.C. §§ 1267(g)(1)(A) & (B).

square miles in six states: New York, Pennsylvania, West Virginia, Delaware, Maryland and Virginia, as well as Washington, D.C. The watershed is not only the largest in landscape, but also population. The area’s population is growing by more than 

170,000 residents a year, and has surpassed 17 million people. 

For more than thirty years, Federal and state governments have sought to reverse 

the decline of the Bay’s water quality through legislative, regulatory, and voluntary 

programs. These efforts have led to the creation of inter-governmental working 

groups, a dedicated EPA program office, and the amendment of the Clean Water Act 

with Chesapeake Bay-specific provisions. The lack of progress by the states in completing TMDLs for these Bay tributaries eventually led to litigation, which in turn 

led to commitments to develop TMDLs for Bay waters and tributaries. 

In June, 2000, after decades of effort and enormous expenditures failed to achieve 

the desired restoration of the Bay’s health, the Chesapeake Executive Council 

signed the Chesapeake 2000 Agreement. This Agreement created new, stronger nutrient and sediment reduction goals, buttressed by a package of regulatory and voluntary actions intended to either ensure that the 2010 clean up goals would be met, 

or that EPA issued its own TMDL no later than May 1, 2011. In October 2007, ‘‘the 

seven watershed jurisdictions and EPA reached consensus that EPA would establish 

the Bay TMDL on behalf of the jurisdictions with a target restoration date of 

2025.’’ 1 EPA’s release of its final TMDL in December 2010 is the culmination of this 

lengthy process, and critical to the ultimate reduction of the excess nutrients and 

sediment that have diminished the health and productivity of this national treasure. 

EPA Has a Legal Obligation To Develop the TMDL and Assure It Will Be 

Achieved 

The Bay TMDL is premised upon, and is essential to implement, EPA’s general 

obligations under the Clean Water Act and its specific duties concerning the Chesapeake Bay watershed. We strongly believe that the Agency’s action in establishing 

the TMDL and insisting on watershed implementation plans (WIPs) from the Bay 

states is consistent with sections 303(d) and 117 of the Clean Water Act, the resolution of a number of lawsuits concerning the Bay and its tributaries, and EPA regulations and guidance. 

EPA notes that it is appropriate for the Agency to establish a TMDL under the 

authority of section 303 of the Act in a situation like that in the Bay region:

where impaired waters have been identified on jurisdictions’ section 303(d) lists 

for many years, where the states in question have decided not to establish their 

own TMDLs for those waters, where EPA is establishing a TMDL for those waters at the discretion or, and in cooperation with, the jurisdictions in question, 

and where those waters are part of an interrelated and interstate water

system. . . .2

While this is by no means the only circumstance in which EPA needs to act, 

NRDC agrees that the current situation in the Bay demands EPA action.3

In addition, NRDC agrees that section 117 and the Agency’s TMDL authority provide authority for EPA’s ‘‘accountability framework,’’ which includes submission of 

WIPs, biennial milestones for progress, and Federal actions as a consequence of 

state failures. First, section 117 directs EPA to ‘‘ensure that management plans are 

developed and implementation is begun by signatories to the Chesapeake Bay 

Agreement to achieve and maintain,’’ among other things, ‘‘the nutrient goals of the 

Chesapeake Bay Agreement for the quantity of nitrogen and phosphorus entering 

the Chesapeake Bay and its watershed [and] the water quality requirements necessary to restore living resources in the Chesapeake Bay ecosystem. . . .’’ 4 Second, 

as EPA’s TMDL guidance discusses: 

When a TMDL is developed for waters impaired by both point and nonpoint 

sources, and the WLA is based on an assumption that nonpoint source load reductions will occur, EPA’s 1991 TMDL Guidance states that the TMDL should 

provide reasonable assurances that nonpoint source control measures will 

achieve expected load reductions in order for the TMDL to be approvable. This 

information is necessary for EPA to determine that the TMDL, including the 

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5 U.S. EPA, ‘‘Guidelines for Reviewing TMDLs Under Existing Regulations Issued in 1992,’’ 

available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/final52002.cfm. 6See generally 40 CFR § 130.2(i) (‘‘If Best Management Practices (BMPs) or other nonpoint 

source pollution controls make more stringent load allocations practicable, then wasteload allocations can be made less stringent.’’) 7Letter from William C. Early, Acting EPA Region III Administrator, to L. Preston Bryant, 

Jr., Virginia Secretary of Natural Resources, at 16 (Nov. 4, 2009). 8See 33 U.S.C. § 1342(p)(2)(E). 9Letter from Shawn M. Garvin, EPA Region III Administrator, to L. Preston Bryant, Jr., Virginia Secretary of Natural Resources, at 3–4 (Dec. 29, 2009). 10See Letter from William C. Early, EPA Region 3 Acting Administrator to L. Preston Bryant, 

Jr., Virginia Secretary of Natural Resources, at 4 (Nov. 4, 2009). 

load and wasteload allocations, has been established at a level necessary to implement water quality standards.5

This position is consistent with EPA’s TMDL regulations, which provide for flexibility in allocating the loads between point and nonpoint sources, something that 

is appropriate only if EPA can be equally confident that the more stringent load allocations will in fact be realized as EPA can be that wasteload allocations (typically 

embodied in NPDES permits) will be met.6 Accordingly, EPA can insist that state 

WIPs’ reflect actions that are sufficient to provide ‘‘reasonable assurance’’ that 

nonpoint source reductions will actually occur. Finally, with respect to the signatories to the Chesapeake 2000 Agreement, section 117’s direction to EPA to ‘‘ensure’’ 

that states not only plan to make needed reductions, but also implement such reductions, empowers the Agency to demand that Maryland, Virginia, Pennsylvania, and 

the District of Columbia provide even more of a guarantee that WLAs and LAs will 

be met. Accordingly, we support EPA’s expectation that the signatory states will 

‘‘develop Plans to achieve needed nutrient and sediment reductions whose control 

actions are based on regulations, permits or otherwise enforceable Agreements that 

apply to all major sources of these pollutants, including nonpoint sources.’’ 7

EPA also has significant authority to secure reductions in nutrients and sediment 

directly through regulations it promulgates or through improved oversight and enforcement of state CWA programs. For example, the Agency can expand the universe of sources of runoff pollution for which it develops NPDES permit requirements under its ‘‘residual designation’’ authority.8 We believe EPA’s willingness to 

implement residual designation and other ‘‘consequences’’ in the event that states 

do not make expected progress in meeting their reduction milestones is critical to 

ensure success.9

EPA and the States Must Work Together To Reduce Pollutant Loadings to 

the Chesapeake Bay 

Throughout the TMDL, EPA has expressed its willingness to partner with the 

Bay states in identifying and scheduling specific programs and practices to control 

pollutant loadings. Some measure of deference is indeed appropriate, given the need 

for flexible responses to local conditions. However, EPA cannot simply hope the 

states’ nutrient and sediment management practices will succeed. The goal of the 

iterative approach embodied in the three phases of WIP preparation is to select, 

prioritize and localize the practices that are most locally appropriate to control nutrient and sediment loadings to the Bay.10

Through the WIP process, states are given control to address all sources of pollution, developing a plan each state believes will reach its targeted pollution reductions. The states are also working throughout the region to ensure plans are tailored 

to each local community’s needs. Of course, given the reality that nonpoint source 

pollution, including farm runoff, is a major source of pollution to the Bay and its 

tributaries, these sources too will need to contribute to the cleanup plan. 

It is likely the valuable agricultural conservation efforts some of our region’s 

farmers are implementing will be discussed during your hearings. We applaud the 

farmers who are working hard to preserve their lands and their local waters, and 

support efforts by the agricultural community to document these achievements to 

include in the Bay model. 

We urge you to allow the states to work with the EPA to finish what they have 

started and continue on a path that will provide clean water for the region. 

Respectfully submitted,

JON P. DEVINE, JR.,


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Senior Attorney, Water Program. 

SUBMITTED LETTER BY ROBERT E. HUGHES, EXECUTIVE DIRECTOR, EASTERN PA 

COALITION FOR ABANDONED MINE RECLAMATION

March 15, 2011

Hon. GLENN THOMPSON,

Chairman,

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.;

Hon. TIM HOLDEN,

Ranking Minority Member, 

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.

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

Dear Chairman Thompson and Ranking Member Holden:

On behalf of the Eastern PA Coalition for Abandoned Mine Reclamation 

(EPCAMR), we would like to thank you for the opportunity to submit comments on 

the record related to your hearing on the Chesapeake Bay TMDL. 

As the Executive Director of the Eastern PA Coalition for Abandoned Mine Reclamation (EPCAMR) for the last 14 years, who has spent the majority of his time 

working in the Chesapeake Bay watershed on abandoned mine reclamation, watershed restoration, environmental education, environmental action projects, stream 

restoration, and abandoned mine drainage remediation projects, in partnership with 

a myriad of organizations from the Federal, state, county, and local grassroots level, 

I would like to respectfully submit comments on the Pennsylvania Department of 

Environmental Protection’s Draft Chesapeake Bay Watershed Implementation Plan 

(draft WIP) and Draft TMDL. To date, our organization has not received any official 

comment and response document to our suggestions that you will see below in the 

context of this testimony, from the U.S. EPA or the PA DEP on whether or not any 

of our positive suggestions would be or could be incorporated into the Chesapeake 

Bay TMDL or Watershed Implementation Plan. Our initial public comments to the 

Water Docket were submitted on October 20, 2010. 

EPCAMR works to provide technical and administrative support to the Conservation Districts, coordinate reclamation activities, establish a public education outreach program within the schools, and to rejuvenate local watershed groups, primarily in those areas where streams are adversely affected by abandoned mine siltation and abandoned mine drainage. EPCAMR works together with nearly 75 local 

groups to inform and educate the public and to organize environmental interests relative to the purpose and value of specific reclamation, remining, and remediation 

techniques being proposed for sites in their local community. 

I am a lifelong resident of the Wyoming Valley, and am particularly knowledgeable about the past mining impacts on the water quality of the Susquehanna River 

and its tributaries, having an extensive background in anthracite mining geology, 

aquatic biology, history, and underground hydrogeology of this area. As the Executive Director of EPCAMR, I have had the opportunity for many years to Chair the 

PA DEP’s 319 Non-Point Source (NPS) Liaison Resource Extraction Workgroup Subcommittee that updated the PA DEP and U.S. EPA Region III on project successes, 

outreach efforts, new innovative treatment technologies, implementation plans, watershed assessments, and networking opportunities that were convened on a yearly 

basis. I am also a member of the PA DEP’s Mining Reclamation Advisory Board, 

as an Alternate Member appointed by the State Conservation Commission and have 

been a technical advisor and Ad Hoc Reclamation Committee member to the full 

MRAB for over a decade. I also sit on the Susquehanna River Basin Commission’s 

Water Quality Advisory Committee and have done so for many years. A majority 

of EPCAMR’s workload has been contained within the Susquehanna River Basin, 

and therefore, the Chesapeake Bay watershed. EPCAMR Staff have assisted County 

Conservation Districts over the years to develop their Chesapeake Bay Tributary 

Implementation Strategies as well, providing statistical analyses of GIS data on 

stream segment impairments by cause and assisting with making recommendations 

on how to implement best management practices (BMPs) for those impairments, be 

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it AMD treatment, land reclamation, agricultural impacts, stormwater runoff, 

streambank erosion, and riparian buffer establishment. 

EPCAMR is aware that Pennsylvania’s draft WIP was prepared to address the 

EPA’s expectations for the Chesapeake Bay Total Maximum Daily Load (TMDL), 

scheduled for publication in December 2010. EPCAMR has reviewed many TMDL 

Reports for watersheds in our region and provided water quality data, field reconnaissance support, GIS Mapping assistance to staff biologists of the Susquehanna 

River Basin Commission, and recommendations to the PA DEP Section 319 NPS 

Program water pollution biologists on stream segments previously impacted by 

AMD for removal from the Federal List of Impaired Waters due to our analyses of 

water quality improvements and aquatic insect population improvements over time, 

as well as due to the increase in the number of AMD remediation treatment systems 

that were constructed to reduce the loading rates of common metals (iron, aluminum, and manganese) found in AMD to our impaired watersheds. 

EPCAMR understands that the U.S. EPA directed the states to develop a Phase 

II WIP which will further subdivide the loads by local area (county). We also understand that these will NOT be regulatory allocations to each of the counties. Rather, 

they are to inform local implementers (e.g., municipal elected officials and planning 

agency personnel, county conservation districts and planning commissions) and organizations like ours, or community watershed organizations, of the nutrient, metal, 

and sediment loads generated by their geographical area so we can help implement 

or plan appropriate actions to reduce the loads. Local implementation efforts should 

focus on compliance with existing rules and regulations, as well as seeking opportunities for additional management actions from EPA’s standpoint. Community groups 

are not trying to disobey or break current or existing rules and regulations, their 

watersheds, rivers, and streams, are already in non-compliance, from the standpoint 

that they do not have clean water available to them for a multitude of uses that 

others enjoy across the Commonwealth in healthier watersheds with minimal impacts. 

AMD is ‘‘abandoned’’ mine drainage. Communities are not trying to force compliance on anyone; groups like ours are trying to develop landowner relationships and 

agreements to allow for the construction and remediation of AMD on parcels of their 

properties where the discharges emanate from, for the betterment of the entire community and watershed. However, they need some protections and compensation for 

the perpetual loss of the use of those particular parcels for them to get on board 

with our recommended implementation projects. The Commonwealth of PA would 

be very hard pressed to force a single landowner where an AMD discharge comes 

to the surface and flows across their land into compliance, when the underground 

mine water complexes, from which the water flows could be miles away in all directions, and take in many additional landowners on the surface. That is why voluntary cooperation by landowners is of the utmost importance to our partnerships 

with local community groups and municipalities. 

Community awareness of the problems and the potential solutions to the impacts 

left by past mining practices is needed in our region. Most elementary aged school 

children do not even know what water pollution is. Sure they know that the streams 

are orange, red, and yellow, and have been told anecdotal stories by their parents 

or grandparents about the dangers of hanging around the local streams because of 

the mining impacts, but what they do not know is that they can become a part of 

the solution to cleaning up and restoring their own watersheds. EPCAMR has made 

it a point in our environmental education and outreach efforts to take school aged 

children and their teachers in our underserved, more impoverished, and underrepresented school districts to the streams within their local watersheds to teach them 

about historical mining impacts, water quality, fishery biology, stream ecology, and 

community volunteerism. This is where the focus should be. I’ve been in the schools 

for over a decade and you would be shocked to find that most elementary aged students do not even know the name of the Susquehanna River or their home watersheds in which they live. None of them have even heard of the Chesapeake Bay. 

Therefore, EPCAMR believes that a placed-based Environmental Education component should be involved in the WIP, not just loading reductions. We need increases 

in awareness of the problem in the communities where we want to treat the water. 

EPCAMR is currently working with the SRBC to develop an Anthracite Region 

AMD Remediation Strategy. EPCAMR and the SRBC are in the process of developing a strategy to assist in the cost-effective restoration efforts for AMD areas by 

identifying watersheds where reclamation activities would result in the greatest 

water quality improvements. We would like to seek additional funding to develop 

a comprehensive Mine Pool Evaluation of the Northern and Eastern Middle Anthracite Coal Fields. By June of 2011, EPCAMR will be reporting on and completing a 

comprehensive underground mine pool evaluation report for the Southern and WestVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00128 Fmt 6621 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
125

ern Middle Anthracite Coal Fields, based on best available mapping and water quality resources available. The anticipated evaluation would dovetail with the proposed 

remediation strategy as SRBC would be able to assess the potential for augmenting 

low flows during droughts and for the possible use of small-scale hydroelectric power 

production at selected sites to provide revenues that would help to offset treatment 

costs and reduce waste allocation loads. Tom Clark, AMD Coordinator for the SRBC 

is working side by side with EPCAMR on these two complimentary efforts and is 

continuing to seek additional funds to complete the work plans. 

EPCAMR’s geographic information system (GIS) known as the Reclaimed Abandoned Mine Land Inventory System (RAMLIS), based on PA DEP’s Abandoned Mine 

Land Inventory System estimates that there are over 1,920 miles of AMD impacted 

streams on the Integrated List of Impaired waters within the Susquehanna River 

Basin and there are around 1,924 designated Problem Areas within the Basin that 

contain abandoned mine land features and polygons that total 12,706 in number 

and just over 86,230 acres. Around ten, 417 of those features are unreclaimed for 

a total of 86,232 acres, and around 2,289 features have been reclaimed for a total 

number of 13,144 acres within the Susquehanna River Basin alone. Between 27–

29% of the Susquehanna River Basin is impaired by AMD. Over 530 miles of the 

impaired miles of streams are within 517 square mile drainage of the Anthracite 

Coal Fields. 

EPCAMR believes that the focus should also be on working with the local community groups to raise the level of the segments that are impaired either by watershed 

or stream segment to become eligible for additional funding through other state 

agency programs such as the PA DEP’s Set Aside Program, under the Title IV, Surface Mining Control & Reclamation Act (SMCRA), 2006, as amended, as a Qualified 

Hydrologic Unit (Qualified Hydrologic Unit). Currently, throughout the Susquehanna River Basin, there are only four watersheds and or segments that qualify for 

additional Federal funding under SMCRA. For instance in Luzerne County, there 

is not a single watershed or stream segment that is impaired on the Federal List 

of Impaired Waters, formerly known as the 303(d) List, that is eligible for Federal 

funding under this Title IV Program until a QHU Plan is developed. Our organization would like to assist in the development of these QHUs, provided that future 

funding is made available to provide the local community watershed associations 

and local governments with the technical expertise and assistance that would qualify segments within their watershed boundaries or political jurisdictions for funding. 

EPCAMR realizes that this is a separate funding source and that historically PA 

Growing Greener Funding under the Watershed Environmental Stewardship Fund 

through the Section 319 Program has provided funding for other types of projects, 

including AMD assessment and remediation. 

EPCAMR would like to be more actively involved with the Phase II WIP Implementation in partnership with the U.S. EPA from December 2010 until 2017 and 

learn about the details on how it will be phased into the communities and the watersheds impacted. This involvement by EPCAMR is contingent upon being able to 

secure additional funding to support our full-time staff of two to continue providing 

the expertise and community support that we have been doing since 1997 in the 

NorthCentral and NorthEastern parts of PA impacted by past mining. While it’s formidable that the U.S. EPA has looked ahead towards the second stage of implementation that will extend from 2018 to 2025, when controls will be implemented to reduce loads from the interim to final target levels. EPCAMR does not have the ability 

to see that far into the future. 

EPCAMR wants to believe that Pennsylvania is committed to protecting and enhancing our streams and watersheds and that the efforts here at home will in turn 

help in further restoring the Chesapeake Bay by 2025. There is no doubt in my 

mind that over the years, significant progress has been made to reduce nitrogen and 

phosphorus pollution of the local waters in the Pennsylvania watershed. EPCAMR 

believes that more attention needs to be paid to metal allocation loads in the tributaries of the Chesapeake Bay watershed where the AMD impacts are. EPCAMR realizes that it is a difficult concept to understand when it comes to relating AMD 

to the Chesapeake Bay, but all you have to do is look at the legacy sediments and 

coal silt that is located behind every dam on the Susquehanna River from here to 

Maryland to realize that if those dams were not in place, that the coal fines, silt, 

acidity levels, and metals contamination would be much greater at the mouth of the 

Bay. In all of the Tributary Strategies developed by EPCAMR and our supporting 

Conservation Districts, many recommendations were made to implement strategies 

to remediate AMD problems in the tributaries, but not many were followed through 

on due to lack of funding and or lack of prioritization. More needs to be done. 

Why is there not a Phase 5.3 Watershed Model for Metal Loads to the Chesapeake Bay throughout PA? 

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Milestone Implementation and Tracking 

Is the Chesapeake Bay Model incorporating AMD Treatment systems constructed 

as BMPs? Are the state’s abandoned mine land reclamation projects in terms of 

acres reclaimed and stream miles restored being added to the model? Are the reductions in loadings of metal contamination to the streams within the Chesapeake Bay 

tributaries for specific segments being incorporated into the model? If not, they 

should be. Since there is no mechanism for reporting private efforts (Anthracite Operators that are remining abandoned mine lands), private foundations such as the 

Foundation for PA Watersheds, or industry efforts such as Co-generation Plants 

that operate within the Basin under the trade association of ARIPPA 

(www.arippa.org). 

In the Anthracite Region, we cannot thank some of our regional co-generation facilities enough for the great job they do in reclaiming abandoned mine lands. These 

private companies are not obstacles, they should be considered one of the greatest 

assets we have in our region. Let us not forget that much of this work has been 

completed at no cost to the state or taxpayers. The backlog of reclamation needed 

for the nearly 190,000 acres of abandoned mine lands left unreclaimed in PA and 

over 5,500 miles of streams impacted by AMD is projected to cost more than 

$3,000,000,000 in PA, and that only includes the Priority 1 and Priority 2 Sites. 

There are still nearly 11 Million Tons of CFB—ash has being beneficially used at 

abandoned mine sites throughout PA. Over 2 Billion Tons of waste coal has been 

burned as an alternative energy fuel source in PA. 

Approximately 4,500 acres of waste coal piles have been reclaimed in the last 20 years. PA DEP estimates that is costs around $20,000 to clean up just one acre of 

abandoned mine lands. This estimate does not include the elimination of AMD that 

has detrimentally impacted our streams and rivers. 

For example, in the Wyoming Valley, Luzerne County, PA, hundreds of acres of 

abandoned culm banks have literally disappeared. The once dirty, ominous, abandoned mine land features that have dominated the landscape for nearly 8 decades 

and blocked the beautiful view of the Susquehanna River from the East side of the 

Valley from the West, have been reclaimed utilizing coal ash for abandoned mine 

reclamation. People can travel the local highways and Interstate I–81 and now see 

clear cross the Wyoming Valley. Northampton Generating Supply Company, separated the culm, hauled it away, brought back the ash, compacted in lifts on the 

same site in which it came from, filled the mine voids, and reclaimed the site. It 

was a win-win situation. In the land beneath these culm banks, there’s economic 

and environmental value. 

Within the culm banks, there is energy to be recycled, and in the continued removal of these eyesores, EPCAMR sees great satisfaction in the reclaimed aesthetic 

look for Northeastern PA and across the State of PA as a whole. We should concentrate our efforts on reclamation of these undeveloped acres for social, economic, 

as well as environmental uses. Expanding and reconnecting our communities separated by mountains of culm, creation of open space areas, wildlife habitat enhancement, water quality improvements, improving the areas quality of life, recreational 

opportunities, stream restoration, and economic development of these abandoned 

mine lands should be of the utmost importance. 

EPCAMR believes that PA has ample and effective waste disposal and management regulations already in place. It is important that we continue to support private business and industry that successfully balance economic development with environmental protection. Innovative solutions to environmental problems should be 

applauded, not restricted, or overly regulated. EPCAMR believes that these successes are being under reported and should be added to the Chesapeake Bay Model. 

Possibly the PA DEP could fund an AMD BMP tracking pilot projects to explore 

the possibility of doing county ‘‘sweeps’’ for BMP information. It is widely known 

that there are over 285 AMD Treatment Systems state-wide that have been funded 

in part, by the Federal Office of Surface Mining and the PA DEP. What are not 

known collectively for the Susquehanna River Basin is the impacts and load reductions to the Chesapeake Bay from these completed systems. Each one of them is retaining metal loadings in their designed ponds that aren’t reaching the streams and 

in some cases is being harvested and recycled by groups such as Hedin Environmental and EPCAMR. Perhaps a BMP repository can be accessed on the EPCAMR 

and WPCAMR websites for community groups and watershed organizations to add 

their projects in addition to the state and federally funded projects. 

EPCAMR is well aware of the West Branch AMD Remediation Strategy developed 

by the SRBC and its partners, but there is no comprehensive Strategy completed 

as of yet to look at the AMD pollution loads to the Susquehanna River and the 

Chesapeake Bay on a whole. There is also the West Branch Task Force, under the 

direction and leadership of Amy Wolfe—Abandoned Mine Lands Program Director 

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for National Trout Unlimited that could also provide additional insight, data, loadings, and numbers to assist with improving the overall Chesapeake Bay Model. 

New Technology and Nutrient Trading 

New technologies that can create electrical generation and power from AMD 

should be looked at further. Several of these types of projects have been funded in 

Western PA, but not in the East. The Old Forge Borehole, Jeddo Mine Tunnel, Solomon’s Creek Boreholes, Susquehanna #7 Outfall, and other AMD discharges with 

high volume flows in the other Coal Regions within the Susquehanna River Basin 

could potentially become income generators and opportunities for economic redevelopment. 

EPCAMR has been involved with the USDA, Capital Area Resource Conservation 

& Development Council, Pennsylvania Environmental Council, Chesapeake Bay 

Foundation, Foundation for PA Watersheds, Penn-State University, Conservation 

Districts within the EPCAMR Region, and other partners a few years ago to locate 

abandoned mine lands in close proximity to the more rural farms that had excess 

nitrogen and manure wastes from their Concentrated Animal Operations (CAOs) 

and Concentrated Animal Feeding Operations (CAFOs). EPCAMR provided all of 

the GIS mapping for the project and conducted the research with Conservation District Chesapeake Bay Technicians to obtain the necessary information to get the totals on the number of CAOs and CAFOs in the EPCAMR Region. Composting facilities and the Co-Generation Facilities in Eastern PA were also mapped. The Manure 

and Minelands Project was coordinated to be able to put the farmer and the land 

reclamation entities together to work out some nutrient trading or business transactions that would save them time, resources, and money. Abandoned mine lands 

need manure because they lack topsoil for the most part and farmers need to dispose of their excess manure to avoid any pollution problems to the streams within 

their farmland properties. Mushroom compost, horse manure, chicken manure, all 

have beneficial qualities to land reclamation and AMD remediation, if mixed with 

the proper constituents and are not too wet. Yet another win-win. 

EPCAMR worked with The Conservation Fund and the Keith Campbell Foundation for the Environment earlier this year to provide them with written examples, 

photographs, and project successes to inform others in the region how they can improve the environment in their communities impacted by abandoned mine lands. My 

co-worker, Mike Hewitt, and I provided details on project successes related to the 

effort mentioned in the previous paragraph to Mr. David G. Burke, President of 

Burke Environmental Associates, and Mr. Joel E. Dunn, Program Coordinator, for 

Sustainable Chesapeake—The Conservation Fund. These two individuals edited and 

authored the publication, entitled, A Sustainable Chesapeake: Better Models for 

Conservation (2010). The book can be found online on The Conservation Fund 

website at (www.conservationfund.org/sustainable-chesapeake). It is a way to take 

a look at 31 projects that summarizes the principles of sustainability illustrated by 

the profiles contained within each project with creativity, outside of the box thinking, a great deal of volunteer time and effort, and much needed partnerships and 

funding sources to make them stand out from many others around the Chesapeake 

Bay. 

Compliance 

EPCAMR realizes that construction and post-construction stormwater management is being addressed in the recently adopted revisions to Chapter 102, erosion 

and sedimentation regulations and that the PA DEP is also developing the next-generation general permit for Municipal Separate Storm Sewer System (MS4) communities. EPCAMR was integral to authoring a four page section of a guide book 

(http://www.stormwaterresourcesformunicipalities.com/) for municipalities on 

Stormwater Management in partnership with the Pocono NE Resource Conservation 

& Development Council that took into consideration the post-construction 

stormwater impacts on downstream areas of recently reclaimed abandoned mine 

lands and on not encouraging the BMP of infiltration in areas of the Coalfields that 

were previously mined due to the potential for creating additional abandoned mine 

drainage (AMD), subsurface, in areas that were previously mined. Nearly 400 copies 

of the guidebook were distributed by the Pocono NE RC & DC just a few years ago 

and are still readily available to other municipalities online. 

Next Steps 

EPCAMR would like to be represented on the WIP workgroup in the near future, 

if you are looking for additional input from another organization that has already 

demonstrated the commitment to help protect and restore the Chesapeake Bay. We 

would hope to think that we are a leader in the environmental restoration of AMD 

impacted watersheds in Eastern PA and throughout the Chesapeake Bay watershed. 

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EPA’s Legal Framework for the Chesapeake Bay TMDL 

EPCAMR understands that the Chesapeake Bay TMDL addresses ONLY the restoration of aquatic life uses for the Bay and its tributaries that are impaired from 

excess nutrients and sediment. EPCAMR has performed biological sampling on 

stream segments over the years where aquatic life has been restored to segments 

of streams that have been previously impaired by AMD and are now being restored 

due to the implementation of AMD remediation strategies and implementation of 

construction projects. Perhaps a more comprehensive biological assessment review 

needs to be completed in the tributaries of the Chesapeake Bay, particularly downstream of treated AMD stream segments or pollution sources. Since sediment is a 

major contributor to the problems within the Chesapeake Bay, the TMDL should 

consider that AMD in its iron hydroxide form, and in the form of fine coal silt, once 

it settles out on the streambed are sediments that can choke out all aquatic life, 

stream habitats, spawning grounds, promote algal growth, and create areas of low 

dissolved oxygen levels. In areas where the coal silt basins and abandoned culm 

banks are directly along the streambanks of some of our rivers and streams, riparian corridor establishment would help to prevent further streambank erosion and 

siltation into the watersheds during peak stormflows and flooding events. Air deposition to the watershed, particularly in the Northeast Region of the Basin, contribute much of the acid impaired headwater streams that lack the buffering capacity to handle the acid rain contributions from the Western Ohio and Pittsburgh Region that tends to fall over our portion of the basin. See http://www.tu.org/conservation/eastern-conservation/brook-trout/education/threats/acid-deposition for 

details. 

Watershed Implementation Plans 

EPCAMR believes that before some WIPS can be completed that watershed assessments still remain to be completed for several watersheds in the Basin. Comprehensive watershed assessments should be completed before developing implementation plans. In the last round of PA’s Growing Greener, watershed assessments 

were not a priority for funding, and in order for them to be eligible for other types 

of state and Federal funds they need to be. In the Coal Region, implementation 

plans need to take in to consideration the underground mining hydrogeology and 

complex geology of the Anthracite Region before we can jump to conclusions that 

treating in one location is going to improve another that is tied to an underground 

reservoir that fluctuates temporally and seasonally with rainfall and drought conditions. Loadings will also fluctuate in this situation. EPCAMR staff has assisted the 

PA DEP and many of our community watershed organizations in the completion of 

Watershed Implementation Plans in the past. 

Development of Phase I Watershed Implementation Plan and Public Participation 

EPCAMR had been involved with many of the Conservation Districts in the development of their Chesapeake Bay Tributary Strategies and would like to continue to 

do so in the future implementation of the other phases. We will keep in touch with 

our Conservation District Chesapeake Bay Technicians within our Region to provide 

updates to their County Implementation Tributary Strategies. 

Resource Extraction 

1,575 Resource Extraction operations are within the Susquehanna River Basin according to PA DEP’s eFACTs tracking system in 2010. The resource extraction activities subject to NPDES permitting in the Bay watershed include coal mining, 

noncoal mining and the earth disturbance related to abandoned mine reclamation 

activities. Oil and Gas development activities are not subject to NPDES permitting. 

Coal mining permits are typically accompanied by an NPDES permit. Most coal 

mining permit areas include erosion and sedimentation controls that are permitted 

stormwater outfalls under an NPDES permit. Some coal mining activity permits include BMPs that are designed to prevent a stormwater discharge. A typical example 

of this is in the anthracite coal fields where new mining reaffects abandoned mine 

lands (AML), and all stormwater is contained in the pit. However, an unlined pit 

that is not compacted with a liner or bentonite clay might as well have an open conduit to the underground mine pools beneath the mining affected regions because 

without it, promotion of AMD is likely to occur in those areas, and an increase in 

the amount of groundwater reaching a subsurface mine pool complex is possible. 

EPCAMR encourages and supports remining of abandoned mine lands by the Anthracite Industry and other operators in the Northern Bituminous Region to reclaim 

additional acres of abandoned mine lands and to eliminate further generation of pyVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00132 Fmt 6621 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
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ritic material and AMD from getting into our watersheds and underground mine 

pool complexes. 

Current Programs and Capacity 

Resource extraction activities and abandoned mine lands (AML) have the potential to release sediment into nearby surface waters. EPCAMR firmly believes that 

abandoned mine drainage (AMD) from AML can impair the ability of streams to assimilate these nutrients effectively. My reason for repeating some of the information 

in the draft TMDL WIP Report is so that the general public interested in the abandoned mine issues can hone in directly on parts of the draft that could potentially 

impact their local watersheds, so I apologize for some redundancy, however, in this 

case I think it is warranted. 

Reclamation methods include PA DEP’s primary efforts to improve water quality 

through reclamation of abandoned mine lands (for abandoned mining) and through 

the National Pollution Discharge Elimination System (NPDES) permit program (for 

active mining). EPCAMR currently receives the majority of its funding for projects 

designed to achieve water quality benefits from the U.S. EPA Section 319 Grant 

Program and Pennsylvania’s Growing Greener Program. Federal funding is from the 

Department of the Interior’s Office of Surface Mining (OSM) for reclamation and 

mine drainage treatment through the Appalachian Clean Streams Initiative and 

through Watershed Cooperative Agreements have also been a part of EPCAMR’s 

historical funding streams to work with community groups to design, build, construct, operate and maintain AMD treatment systems within the Chesapeake Bay 

watershed. 

The DEP Bureau of District Mining Operations (DMO) administers an environmental regulatory program for all coal and noncoal mining activities. DEP offers remining incentives for coal mining which are geared toward reclaiming abandoned 

mine features and stabilizing the areas. Regulatory programs are assisting in the 

reclamation and restoration of Pennsylvania’s land and water. DEP has been effective in implementing the NPDES program for mining operations throughout the 

Commonwealth. This reclamation was done through the use of remining permits 

that have the potential for reclaiming abandoned mine lands, at no cost to the Commonwealth or the Federal Government. EPCAMR is unsure if these remining sites 

are being considered by the Chesapeake Bay Model, and if not, they should be. 

Programmatic 

The primary concept employed by the mining program in dealing with sediment 

issues is prevention. The permitting process provides the framework for the necessary measures, typically collection ditches and sedimentation ponds, to have effective controls. Standard BMPs are employed on most permits. Coal mining permits 

and large noncoal permits typically include site-specific engineered Erosion and 

Sedimentation control plans. 

There are about 1,750 permitted mine sites in Pennsylvania in the Bay watershed. Each of these permits include Best Management Practices for prevention of 

erosion and sedimentation. These permits also include revegetation plans to stabilize the post-mining reclamation area. There are about 475 mining sites in the 

Bay watershed for which there are NPDES permits. These permits include effluent 

limits for suspended solid and/or settleable solids. These measures prevent contributions of sediment in the watershed. 

The point of planning and permitting is to prevent increased sediment loads as 

the level of earth disturbance increases. Mine sites and oil and gas development 

sites are subject to permitting which minimizes their impact on loads. In the case 

of coal mining, most new mine permits include some remining where AML is reclaimed in the course of mining. While the potential impact of the earth disturbance 

for mining is temporary, the overall improvement (i.e., the reclamation of AML) is 

permanent. 

Funding/Staffing 

DEP BAMR, which administers the program to address the Commonwealth’s 

abandoned mine reclamation program, has established a comprehensive plan for 

abandoned mine reclamation to prioritize and guide reclamation efforts for throughout the Commonwealth to make the best use of valuable funds (http://

www.portal.state.pa.us/portal/server.pt/community/

pennsylvania%27slcomprehensivelplanlforlabandonedlminelreclamation/

13964). In developing and implementing a comprehensive plan for abandoned mine 

reclamation, the resources (both human and financial) of the participants must be 

coordinated to insure cost-effective results. 

EPCAMR and WPCAMR assisted in the development of the PA Comprehensive 

Plan for Abandoned Mine Reclamation. EPCAMR and WPCAMR have served as the 

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local liaison for the Commonwealth of PA for more than 20 years in WPCAMR’s 

case, and for more than 14 years, in the case of my organization. I was previously 

employed by the PA DEP Bureau of Abandoned Mine Reclamation’s Wilkes-Barre 

Office in the Northeast Region as a Science Intern in 1993 and as a Hydrogeological 

Intern for the Hawk Run District Mining Office in Western PA, now the Moshannon 

District Mining Office, in 1994 and 1995, prior to graduating from Penn-State. 

The following set of principles guides this decision making process:

• Partnerships between DEP, EPCAMR, WPCAMR, watershed associations, local 

governments, environmental groups, other state agencies, Federal agencies, & 

other groups organized to reclaim abandoned mine lands are essential to achieving reclamation & abating acid mine drainage in an efficient & effective manner.

• Partnerships between AML interests and active mine operators are important 

and essential in reclaiming abandoned mine lands.

• Preferential consideration for the development of AML reclamation or AMD 

abatement projects will be given to watersheds or areas for which there is an 

approved rehabilitation plan.

• Preferential consideration for the use of designated reclamation monies will be 

given to projects that have obtained other sources or means to partially fund 

the project or to projects that need the funds to match other sources of funds.

• Preferential consideration for the use of available monies from Federal and 

other sources will be given to projects where there are institutional arrangements for any necessary long-term operation and maintenance costs.

• Preferential consideration for the use of available monies from Federal and 

other sources will be given to projects that have the greatest worth.

• Preferential consideration for the development of AML projects will be given to 

AML problems that impact people over those that impact property.

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

Since 2000, new approaches to mine reclamation and mine drainage remediation 

have been explored and projects funded to address problems in innovative ways. 

EPCAMR has been an instrumental partner in the development of these new approaches. EPCAMR co-coordinates State-wide Conferences on Abandoned Mine Reclamation with its’ sister organization, WPCAMR, and a Planning Committee made 

up of state-wide regional nonprofits, state representatives, Foundation representatives, and Colleges and Universities to network and exchange ideas on these new 

approaches and innovative AMD Treatment technologies. See our websites at 

(www.epcamr.org, www.amrclearinghouse.org and www.treatminewater.com). 

These include: Awards of grants for: (1) proposals with economic development or 

industrial application as their primary goal and which rely on recycled mine water 

and/or a site that has been made suitable for the location of a facility through the 

elimination of existing Priority 1 or 2 hazards; and (2) new and innovative mine 

drainage treatment technologies that provide waters of higher purity that may be 

needed by a particular industry at costs below conventional treatment in common 

use today or that reduce the costs of water treatment below those of conventional 

lime treatment plants. 

Projects using water from mine pools in an innovative fashion, such as the 

Shannopin Deep Mine Pool (in southwestern Pennsylvania), the Barnes & Tucker 

Deep Mine Pool (the Susquehanna River Basin into the Upper West Branch Susquehanna River), EPCAMR’s Mine Pool Mapping Project and Groundwater Modeling for 

the Western & Southern Anthracite Coal Fields) and the Wadesville Deep Mine Pool 

(Exelon Generation in Schuylkill County) have also been funded. 

Current and Future Reclamation Efforts in the Watershed 

EPCAMR agrees that while numerous remediation projects have already been 

completed and others are underway, it will take decades at current funding levels 

until the entire problem areas in the Chesapeake Bay watershed are addressed. 

EPCAMR thinks that Pennsylvania should place an even higher priority on efforts 

throughout the entire Chesapeake Bay watershed, particularly in the Anthracite 

Coal Region. If the Chesapeake Bay Tributary Strategy is to be effective, than funding needs to be provided to projects in the tributaries. In addition to the problems 

associated with the water quality itself, tremendous amounts of recreation and tourism dollars have been lost in the watershed due to the mining impacts. EPCAMR 

feels that additional funding should be provided to community groups under the 

State’s Set-Aside Program to conduct the necessary watershed assessments to make 

them eligible for the Title IV Funding that is currently being held in an interest 

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bearing account while a re-prioritization of the criteria to become eligible for the 

funding is finalized. 

Tracking and Reporting Protocol 

EPCAMR’s RAMLIS GIS Tool (http://epcamr.org/index.php?name=

Content&pa=showpage&pid=81) can also provide reports that can be developed that 

present data about the number of active mining permits and the overall disturbed 

area associated with these permits. EPCAMR uses (lat/long) coordinates to locate 

projects, however, the projections of our data are not tied to the NHD on the larger 

national scale, it is very localized and layered based on much smaller watershed 

units within the Chesapeake Bay watershed, that we believe gives it a more accurate reflection of the data and leaves less room for error. AML is also tracked in 

our RAMLIS GIS Tool and is updated by EPCAMR and its community partners, in 

addition to information provided by the Commonwealth’s Bureau of Abandoned 

Mine Reclamation. EPCAMR has the ability to statistically summarize the percentage of problem areas reclaimed in a watershed area, municipal boundary, legislative 

district, and the PA portion of the Chesapeake Bay. Stream miles restored can also 

be provided as well as water quality analyses. Much of our current work right now 

is in developing the Anthracite Region AMD Remediation Strategy with the SRBC. 

Mining Stormwater General Permit 

EPCAMR supports the PA DEP in developing a stormwater NPDES General Permit (GP) for mining activities. The intent of this permit should be to manage 

stormwater from mine sites where the hydrologic impact is limited to surface water. 

The GP requires the use of BMPs to manage stormwater to prevent sedimentation. 

It is anticipated that this GP will be finalized during the summer of 2010. However, 

again, it must be stated that the encouragement of infiltration into stormwater detention basins that are unlined on abandoned mine lands only encourage surface infiltration of runoff into the deeper mine pool complexes and local underground 

groundwater reservoirs. The PA DEP should consider looking into the underground 

effects of infiltration of stormwater runoff from abandoned mine sites (http://

www.stormwaterresourcesformunicipalities.com/). 

Oil and Gas Development 

While oil and gas development activities are not subject to NPDES permitting, 

EPCAMR understands and is aware that the PA DEP has in place an Erosion and 

Sedimentation Control General Permit (ESCGP–1). In response to the EPA’s rulemaking and the effect of the Federal Energy Policy Act of 2005, DEP issued the 

ESCGP–1 for oil and gas activities that disturb 5 acres or greater at one time over 

the life of the project. This permit applies to earth disturbance activities for oil and 

gas exploration, production, processing, treatment operations or transmission facilities (oil and gas industry). The added protection gained through this permit will ensure that proper best management practices (BMPs) will be planned, implemented 

and maintained for erosion and sediment control and post construction stormwater 

runoff from these activities. In addition, this approach is an incentive for the operator to minimize the disturbed area and restore the area promptly after completion 

of the well or installation of the pipeline. However, this does not deal with subsurface potential for contamination or underground mine pool complexes and the effects the project may have on AMD discharges that are not located at the site of 

the project location. 

Riparian Forest Buffer Guidance 

In 2009, the Department published the draft Riparian Forest Buffer Guidance, 

Commonwealth of Pennsylvania, Department of Environmental Protection, Document #395–5600–001 (2009), as amended and updated. The guidance lists various 

design, construction, and maintenance standards for developing a riparian forest 

buffer. 

If initial WIP results indicate that a change in this approach is warranted, these 

funds can be targeted to specific locations and to specific BMPs. PA DEP could also 

target the specific BMPs identified by EPA Region III as their most critical for Bay 

model loadings. One of the five BMPs, which track closely to those that have been 

given priority in the effort, is: riparian buffers. Riparian buffers can still be implemented and planted along many of our rivers and streams in the Coal Region to 

reduce the overall sedimentation loads to the watershed and can be mapped by 

EPCAMR based on our RAMLIS GIS tool in relation to those abandoned mine lands 

that are adjacent to rivers and streams and have problem areas where sedimentation is prevalent and continues to downcut, undercut, and erode the culm banks. 

A good example would be along the Lackawanna River in Lackawanna County, 

where acres of culm banks lay along the streambank of the Lackawanna River and 

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during storm events and flooding events, slough off into the River and the sediments 

are carried downstream. Increased volume of stormwater runoff results in an increase in the frequency of bank full or near bank full flow conditions in stream 

channels. The increased presence of high flow conditions in riparian sections has a 

detrimental effect on stream shaping, including stream channel and overall stream 

morphology. Stream bank erosion is greatly accelerated. As banks are eroded and 

undercut and as stream channels are gouged and straightened, meanders, pools, riffles, and other essential elements of habitat are lost or greatly diminished. 

Laws, Regulations, Funding, Staffing and Technical Capacity 

EPCAMR supports the increase in funding to support and fund the Pennsylvania 

Department of Environmental Protection, Department of Agriculture, County Conservation Districts, organizations such as ours, and Critical Programs such as Growing Greener and Clean Water Act, Section 319 so as to assure robust levels of personnel to provide outreach, technical assistance and cost-share funding in the implementation of necessary BMPs and to assure, where applicable, compliance inspections and enforcement of all existing regulations are being adhered to. EPCAMR 

works to reclaim abandoned mine land and watersheds impacted by abandoned 

mine drainage throughout the North Central Bituminous Region and Anthracite 

Coal Region of Northeastern PA, in partnership with our sponsoring Conservation 

Districts. Conservation Districts sustain, protect and restore the natural resources 

for the Commonwealth of Pennsylvania. 

EPCAMR supports Conservation Districts within the EPCAMR Region who are 

seeking dedicated sources of funding to provide 50% cost-share for basic staff positions and cost-of-living increases to meet their goals. One possible source of dedicated funding for all Conservation Districts is through a severance tax in Pennsylvania for extraction of oil and gas deposits. Although Pennsylvania has never initiated a severance tax, many other states in the country have established this type 

of tax to fund various budgetary items. For instance, Oklahoma has a gross production tax on oil, a small portion of which is earmarked for natural resource protection. Wyoming has a severance tax that subsidizes their state’s general fund, thus 

indirectly partially funding Conservation District activities. 

EPCAMR also supports a portion of any severance tax for the Environmental 

Stewardship Fund, which has funded many ‘‘Growing Greener’’ grant projects that 

EPCAMR has been awarded in the past or where EPCAMR has been a partner. 

Funding for our organization and our sister organization (WPCAMR) is also vital 

to continue the reclamation of abandoned mine lands, remediation of streams and 

rivers impacted by abandoned mine drainage (AMD), and to further the economic 

redevelopment potential of the reuse of underground abandoned mine pools throughout PA. Only $6 Million is anticipated to be allocated state-wide in the most recent 

round of Growing Greener for watershed restoration projects. EPCAMR firmly believes that a small, predictable portion of any state mandated severance tax should 

be allocated directly to the Conservation District Fund to help all Conservation Districts across the state maintain their environmental protection programs. Using a 

natural gas severance tax of 5% on the value of the natural gas at the wellhead, 

plus 4.7¢ per 1,000 cubic feet of natural gas taken from the ground, $178.6 million 

would be generated in the 2010–2011 Fiscal Year and increase to $475.6 million by 

2014–2015. We recommend 3% of the severance tax, or approximately $5.358 million 

in the 2010–2011 Fiscal Year, be dedicated to the Conservation District Fund. 

By the 2014–2015 Fiscal Year as the severance tax revenue grows, approximately 

$14.3 million would be generated for the Conservation District Fund. Obviously this 

type of dedicated funding would resolve many of the financial challenges our Conservation Districts collectively face on a daily basis. 

EPCAMR is also in need of additional administrative funds that can be found 

through grant funds under the Environmental Stewardship Fund. We are in a position as a regional nonprofit environmental organization, founded by Eastern PA 

Conservation Districts and other reclamation related partners and watershed 

groups that has been providing technical assistance, grant writing assistance, 

project coordination, project management, grant administration, Geographic Information System mapping assistance, research on AMD Treatment technologies, innovative AMD Treatment Design and Construction, environmental education, and the 

continued building of diverse partnerships and leveraged funds to reclaim our Commonwealth’s abandoned mines and watersheds impacted by AMD. For more nearly 

15 years, EPCAMR has been providing support to our Conservation Districts, watershed organizations, and local governments within the EPCAMR Region on abandoned mine reclamation issues, environmental education, and watershed improvement projects. 

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It is undisputed that EPCAMR and Conservation Districts provide much needed 

services to Commonwealth citizens to help them identify and resolve critical natural 

resource concerns. EPCAMR and Conservation Districts deliver essential services 

that protect our soil, water and air for a reasonable cost. Since there is a direct link 

between the removal of natural resources and natural resource protection activities, 

it makes sense to consider advocating a portion of a severance tax for natural resource protection activities. A severance tax, a portion of which would be dedicated 

to the Conservation District Fund and to the Environmental Stewardship Fund 

should be enacted. We do not underestimate the power on a local level of other regional nonprofits, nor do we claim that we are the only organizations that can provide some assistance to the PA DEP and the U.S. EPA. We just want to make the 

Commonwealth and the U.S. EPA Region III know that our organization would like 

to have an integral relationship in the protection and restoration of the Chesapeake 

Bay watershed and that we have been supporting such efforts for nearly 15 years. 

We do not have all the answers either, but we are part of the solution. 

Urban and Rural Reforestation 

The two additional DCNR-based programs that promote reforestation of urban 

and rural parts of the Bay watershed, TreeVitalize could be promoted more widely 

to our community groups and watershed associations in the mining impacted areas 

to assist with the replanting of riparian buffers along our rivers and streams where 

culm banks are a part of the landscape in the urban and rural settings. This program is not often promoted to these organizations. The Scranton-Wilkes-Barre Area, 

Pottsville, Shamokin, Mt. Carmel, Hazleton Area, are all urban communities that 

this Program could be expanded into. EPCAMR would be willing to promote it within these communities to our partners. 

Riparian Forest Buffer Initiative 

EPCAMR in the past had played an important role in implementing small riparian forest buffers along stream channels that had been recently reclaimed through 

the construction of rip rap channels to control overland flows off of the reclaimed 

mine sites. In 2005, Plymouth Township, Luzerne County, we were able to plant 

willow sheens, native shrubs, viburnum, and other wetland plants donated by the 

Octoraro Nursery in partnership with the Chesapeake Bay Foundation, Alliance for 

the Chesapeake Bay, and the Plymouth Township Planning Commission along a 

1500’ section of an unnamed tributary to the Susquehanna River that we called 

Sickler Run, locally. It is anticipated that more of these riparian buffer projects can 

be completed to add to the Stream ReLeaf, or Riparian Forest Buffer database in 

years to come. 

Appalachian Regional Reforestation Initiative 

The Appalachian Regional Reforestation Initiative (ARRI), a Federal partnership 

program that supports planting trees for water quality, is a coalition of citizens, 

nonprofit groups, the Federal Office of Surface Mining (OSM), and states who are 

dedicated to restoring forests on coal mined lands in the Eastern United States. GIS 

analysis indicates that there are 120,000 acres of abandoned mine lands within the 

Upper Susquehanna–Lackawanna River Basins. These lands represent a great opportunity to expand forest cover within the Bay watershed while reintroducing native trees to the region. The restoration has already begun. EPCAMR, SRBC, Earth 

Conservancy, and the Lackawanna River Corridor already have existing relationships with many landowners, community watershed organizations, regional nonprofits, and coal operators in this Region. EPCAMR is also already an ARRI partner 

and has signed its Statement of Mutual Intent. EPCAMR is very supportive of The 

American Chestnut Foundation and its mission to help restore the American Chestnut propagation back into our landscape, including on abandoned mine lands. 

Many of the forested acres are managed with best management practices are not 

currently recognized or counted in the Chesapeake Bay model either and should be 

added to the mix. EPCAMR believes that every tree planted on an abandoned mine 

site, be it by the private coal mining industry, or volunteers, or through ARRI 

should be counted for consideration as an innovative approach to sequester carbon. 

Trees are growing on these sites over the years as a part of the reclamation plan 

and are providing additional root zones to fixate nitrogen and to trap CO2. Some 

of the Pennsylvania Game Commission’s 1.04 million acres of forestland in the Bay 

watershed, are all well-managed and follow multiple best management practices, 

and do include some abandoned mine lands that can fall under the ARRI Initiative. 

Even reclamation mixes of grasses, legumes, and other ground-cover vegetation 

plant species are reducing the runoff from abandoned mine sites following the reclamation phase of mining. Vegetated reclamation sites should also be included in 

the Chesapeake Bay Model under number of reclaimed acres. 

134

Remediation of Acid Mine Drainage Sites 

EPCAMR agrees that remediation of abandoned mine drainage (AMD) sites in forested areas represents an opportunity for increased biological activity and algal uptake of nutrients and should be accounted for as reductions to the forest load in the 

Chesapeake Bay model. A study completed by Stroud Water Research Center 

showed that ‘‘despite near-neutral pH in the AMD-impacted stream (Lorberry 

Creek), iron hydroxide deposition interferes with normal periphyton colonization 

and enzyme activities’’. Rattling Run, an Exceptional Value stream in the Anthracite region, had chlorophyll a levels nearly fifteen times greater than Lorberry 

Creek. Stroud also stated that the ‘‘most important implication of these findings is 

that, although water chemistry in a stream might be technically within a range that 

can sustain aquatic life (i.e., circumneutral pH and low dissolved metals concentrations), metal deposition on substrata clearly inhibits microbial colonization and severely limits phosphorus availability to aquatic bacteria, fungi, and algae.’’ 

EPCAMR has numerous other project locations within the Anthracite Region that 

concur with the Stroud Water Research Center’s example. 

For example, here in Luzerne County, many of the tributary streams impacted 

by AMD are circumneutral with a pH of 6–6.5, are more alkaline than acidic, often 

have high sulfate concentrations, Total suspended solids, area large volume flows, 

and have heavy loadings of suspended iron that are severely coating the bottoms 

of the stream channels for miles until reaching the Susquehanna River. This iron 

hydroxide coating, prevents the aquatic populations from reproducing in these 

areas, leaving them with little biological diversity and stagnant. However, if additional AMD treatment systems are designed and constructed, the metal loadings can 

be reduced through the use of artificially constructed wetland systems, specifically 

constructed for the removal of the iron loadings that will reduce the overall iron 

loadings to the Susquehanna River and eventually the Chesapeake Bay. EPCAMR 

has even found several ways to recycle, harvest, dry, and re-use the iron hydroxide 

from these treatment systems to help fund its environmental education programs 

in the Region. 

We’ve been doing this for nearly a decade. See our link at (http://epcamr.org/

storage/EnvEdBrochure2010.pdf). EPCAMR has had the iron hydroxide tested for 

pigment quality and it is very high in a number of discharges within the Chesapeake Bay, upwards in the range of 92–98% pure iron oxide, once dried. EPCAMR 

makes its own wood stains for public recreational and trail projects, iron oxide chalk 

programs in schools, AMD Tie Dye Workshops, Art Shows with various regional Art 

Leagues, mixes its own paint, and has sold it to over ten states to community 

groups interested in utilizing it for similar projects that we’ve initiated in PA. See 

our link (http://epcamr.org/storage/ironloxidelrecoverylpamphlet2.pdf). 

There are many uses for iron oxide in the United States and worldwide. The current markets for low-grade iron oxides in the United States alone is approximately 

175,000 tons per year (1995 estimate; Hedin Environmental SBIR research), while 

the current world market for a similar grade product is approximately 850,000 tons 

per year. The typical revenue from this quality of material is approximately $0.10–

$0.75/lb (Hoover Color; Bayferrox Corp). Higher value ‘‘specialty’’ iron oxide products 

are typically used in the animal vitamin supplement or cosmetics markets and have 

a higher associated economic value, as much as $3.00–$4.00/lb. EPCAMR has been 

able to sell the iron oxide that we process in-house in 5 gallon buckets collected by 

ourselves or seasonal interns and dried in a small soil oven, big enough to make 

four batches of cookies for $5.00/oz. and it still does not cover the costs of our time 

to get it to the final form to get it to market. However, we are utilizing the iron 

oxide to support our educational programs and not for a profit. These load reductions in terms of pounds of iron oxide removed from the AMD treatment systems 

should also be included in the Chesapeake Bay Model. 

EPCAMR totally agrees with the logic presented by the Stroud Water Research 

Center that the nutrients (especially phosphorus) being transported to Chesapeake 

Bay associated with metal hydroxide-based sediments, to which dissolved phosphorus has a strong affinity, could be reduced through remediation of the mined site 

and restoration of aquatic life to the stream. Similarly, even though the nitrogen 

species do not have the same affinity for sediments as the dissolved phosphorus, nitrogen uptake within the watershed by the benthic algae would decrease that available to be delivered to Chesapeake Bay. EPCAMR agrees that these reductions 

should be credited to the forested areas because the load was probably attributed 

to forest in the original modeling as the calibration gages are downstream of primarily forested sites. 

However, EPCAMR does feel that not only should there be an emphasis on the 

restoration of the publicly owned lands, but in the urban environments, where the 

larger number of communities and population centers are being directly affected by 

135

the AMD pollution problem. Funding spent in these areas where there is a much 

higher incidence of local traffic by the local community would not only benefit them 

in achieving a higher quality of life, but it could lead to an increase in personal 

property values, increased recreational opportunities like swimming and fishing, 

economic redevelopment opportunities, conversion of abandoned mine lands into recreational spaces like trails constructed by the Earth Conservancy and others, an increase in water quality and improved aquatic stream health, and an increase in the 

number of visits to their local places as opposed to having to drive much further 

to State Parks and State Game Land areas during economic hard times. 

EPCAMR Staff worked and participated with The American Chestnut Foundation, 

the Pennsylvania Game Commission, OSM’s Patrick Angel, other OSM staff, volunteers from the OSM/VISTA Appalachian Coal Country Watershed Team, Schuylkill 

County Conservation District, and the Schuylkill Headwaters Association community volunteers to planted the 2,500 trees on an abandoned mine land site in 

Schuylkill County in 2009 in partnership with a local Anthracite Coal Company Operator. The ACCWT is a national team of AmeriCorps VISTA volunteers supported 

by the Corporation for National Service, the Office of Surface Mining, and local 

sponsors, such as EPCAMR and the Anthracite Heritage Alliance. They are providing much needed additional on the ground support to groups like EPCAMR, 

Schuylkill Headwaters Association, Schuylkill County Conservation District, and 

other community groups. See more details on the ACCWT Team on 

(www.accwt.org). 

EPCAMR understands that without clean water, land, and water, the social, recreational, economic, and environmental vitality of the Commonwealth and in the 

Chesapeake Bay watershed, our children will be severely disadvantaged for future 

generations. PA DEP and the U.S. EPA should continue to be the true leader in 

the continuing efforts to research and implement remediation and reclamation techniques on abandoned mine lands and the other environmental issues that have 

plagued the Bay for decades. Not all decisions are best made at the Federal level 

or state level through regulations and compliance. 

EPCAMR believes that given the adequate amount of funding, expertise, engineering assistance, technical assistance, and guidance from the Commonwealth, 

groups like ours and other community groups and municipalities at the local level 

CAN effectively and HAVE implemented many of the ideas presented or suggested 

in this public comment document. Too many stream miles have been on the Federal 

List of Impaired Waters due to AMD for as long as I have been the Executive Director for EPCAMR, and slowly some of them are being removed due to the hard work 

and efforts of community volunteers, watershed organizations, and assistance from 

various state, Federal, county, and local level partners. Additional funding has to 

find a way down to the local level for implementation. Other states should follow 

our lead. Let’s Change the Chesapeake! While I firmly believe the motto that ‘‘We 

All Live Downstream’’, I also believe that we need to lead by example and take care 

of PA’s watersheds first. 

Article I, Section 27 of the Pennsylvania Constitution provides as follows:

Sec. 27. Natural Resources and the Public Estate

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common 

property of all the people, including generations yet to come. As 

trustee of these resources, the Commonwealth shall conserve and 

maintain them for the benefit of all the people.

This amendment, which was adopted in 1972, encompasses two basic principles. 

First, Pennsylvanians have a right to a decent environment, and second, Pennsylvania government has a trusteeship responsibility to protect that environment on 

behalf of future generations. EPCAMR is doing its part to uphold these Constitutional principles. As a public citizen, community leader, and active community volunteer, speaking on behalf of other Coalfield residents, I feel that I have done my 

part and continue to do so by actively contributing in this democratic public participation process of having my voice heard. 

The Chesapeake Bay is an iconic national treasure and an over $1 trillion resource. The Clean Water Act, three major Bay Agreements and scores of minor ones, 

three consent decrees, dozens of Memoranda of Agreement/Understanding (MOA/

MOU) and a Presidential Executive Order all require development of a Bay-wide 

TMDL. It is not only legally required, but perfectly logical, appropriate and fair for 

EPA to develop this TMDL. Moreover, EPA has used this authority wisely, engaging 

in a transparent public process developing the TMDL (and seeking comments on the 

136

draft), providing states opportunity to prepare and revise draft Watershed Implementation Plans, (WIPs), and seeking to implement allocations that are substantially equivalent to those the states have had since 2003. 

Through the WIP process states are given control to address all sources of pollution, developing a plan each state believes will reach its targeted pollution reductions. The reality is that nonpoint source pollution is the largest source of pollution 

to the Bay and its tributaries. 

We urge you to allow the states to work with the EPA to finish what they have 

started and continue on a path that will provide clean water for the region. 

EPCAMR is here to help at the local level. 

Sincerely, 

Respectfully submitted,

ROBERT E. HUGHES, EPCAMR Executive Director.

CC:

EPCAMR Region Congressmen, State Representatives, and Senators within the 

Chesapeake Bay Watershed; 

Water Docket, Environmental Protection Agency—Region III; 

EPCAMR Board of Directors; 

Chesapeake Bay Foundation; 

Alliance for the Chesapeake Bay; 

Susquehanna River Basin Commission; 

Lackawanna River Corridor Association; 

Sustainable Chesapeake—The Conservation Fund; 

Burke Environmental Associates; 

PA DEP Office of Policy and Communications; 

PA DEP Section 319 Program; 

PA DEP Bureau of Abandoned Mine Reclamation; 

PA DEP Bureau of District Mining Operations—Pottsville & Moshannon Office; 

Pocono NE RC & DC; 

Capital Area RC & DC; 

PA Mining & Reclamation Advisory Board; 

PA DCNR Bureau of Forestry; 

PA Citizens Advisory Council; 

PA Environmental Council; 

PA Anthracite Council; 

PennFuture; 

Office of Surface Mining—Harrisburg Office; 

State Conservation Commission; 

Appalachian Coal Country Watershed Team; 

Earth Conservancy; 

National Trout Unlimited; 

Appalachian Region Reforestation Initiative (ARRI); 

ARIPPA; 

WPCAMR. 

SUBMITTED LETTER BY MELINDA HUGHES-WERT, PRESIDENT, NATURE ABOUNDS

March 14, 2011

Hon. GLENN THOMPSON, Chairman,

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.;

Hon. TIM HOLDEN, Ranking Minority Member, 

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.

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


11206052
137

Dear Chairman Thompson and Ranking Member Holden:

On behalf of Nature Abounds, a national nonprofit located in Congressman 

Thompson’s District, we would like to thank you for the opportunity to submit comments on the record related to your hearing on the Chesapeake Bay TMDL. As you know, the Chesapeake Bay is an iconic national treasure and an over $1 

trillion resource. The Clean Water Act, three major Bay Agreements and scores of 

minor ones, three consent decrees, dozens of Memoranda of Agreement/Understanding (MOA/MOU) and a Presidential Executive Order all require development 

of a Bay-wide TMDL. It is not only legally required, but perfectly logical, appropriate and fair for EPA to develop this TMDL. Moreover, EPA has used this authority wisely, engaging in a transparent public process developing the TMDL (and 

seeking comments on the draft), providing states opportunity to prepare and revise 

draft Watershed Implementation Plans, (WIPs), and seeking to implement allocations that are substantially equivalent to those the states have had since 2003. 

We all must do our part to protect water resources in the region because millions 

of residents pull their drinking water directly from the rivers that flow to the 

Chesapeake Bay—from Richmond and Lynchburg, Virginia all the way up to Elmira 

and Binghamton, New York, and many places in between like Washington, D.C. 

More locally on the West Branch of the Susquehanna River, there are 580,000 citizens that rely on safe drinking water. 

The reality is that nonpoint source pollution is the largest source of pollution to 

the Bay and its tributaries. Scientists calculate that agriculture is responsible for 

almost half of the nutrient pollution discharged into rivers that flow into the Bay 

watershed, and 60% of the sediment pollution. It is likely the valuable agricultural 

conservation efforts some of our region’s farmers are implementing will be discussed 

during your hearings. We applaud the farmers who are working hard to preserve 

their lands and their local waters, and we hope the agricultural community finds 

a way to document these achievements to include in the Bay model. 

Likewise, in our area located near the headwaters of the West Branch of the Susquehanna, in addition to agriculture run off, we are once again experiencing more 

natural resource extraction and timbering due to the Marcellus Shale development. 

This of course is a concern as well as the Abandoned Mine Drainage that has already contaminated some of our streams. 

Through the WIP process, states are given control to address all sources of pollution, developing a plan each state believes will reach its targeted pollution reductions. The states are also working throughout the region to ensure plans are tailored 

to each local community’s needs. For example, each state addresses agriculture differently within their WIPs, but the plans would not be successful without addressing agriculture in the scope of all pollution sources. Allowing the EPA to continue 

their work with the states allows us all to work together towards a healthy economy 

as well as a healthy environment for the Chesapeake Bay region. 

Pollution is affecting the community that we live in. Water pollution isn’t just 

dangerous to fish; it can be a detrimental to human health. We urge you to allow 

the states to work with the EPA to finish what they have started and continue on 

a path that will provide clean water for the region, not only for the Chesapeake Bay 

itself, but for the people living upstream, as we do in Congressman Thompson’s District. 

Sincerely,

MELINDA HUGHES-WERT,

President. 

SUBMITTED LETTER BY JAN JARRETT, PRESIDENT & CEO, CITIZENS FOR

PENNSYLVANIA’S FUTURE

Hon. GLENN THOMPSON,

Chairman,

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.;

Hon. TIM HOLDEN,

Ranking Minority Member, 

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.


11206053
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RE: Hearing to review the Chesapeake Bay TMDL, agricultural conservation practices, and their implications on national watersheds

Dear Chairman Thompson and Ranking Member Holden:

On behalf of Citizens for Pennsylvania’s Future (PennFuture), we would like to 

thank you for the opportunity to submit comments on the record related to your 

hearing on the Chesapeake Bay TMDL and clean water throughout the region. 

The Chesapeake Bay is an iconic national treasure with an estimated value of over $1 trillion. The Clean Water Act, three major Bay Agreements and scores of 

minor ones, three consent decrees, dozens of Memoranda of Agreement/Understanding (MOA/MOU) and a Presidential Executive Order all require development 

of a Bay-wide TMDL. It is not only legally required, but perfectly logical, appropriate and fair for EPA to develop this TMDL. Moreover, EPA has used this authority wisely, engaging in a transparent public process developing the TMDL (and 

seeking comments on the draft), providing states opportunity to prepare and revise 

draft Watershed Implementation Plans, (WIPs), and seeking to implement allocations that are substantially equivalent to those the states have had since 2003. 

We all must do our part to protect water resources in the region because millions 

of residents pull their drinking water directly from the rivers that flow to the 

Chesapeake Bay—from Richmond and Lynchburg, Virginia all the way up to Elmira 

and Binghamton, New York, and many places in between like Washington, D.C. I’m 

sure you are aware of the many Pennsylvania communities that rely on our local 

waterways for drinking, recreation and tourism. 

Through the WIP process states are given control to address all sources of pollution, developing a plan each state believes will reach its targeted pollution reductions. The states are also working throughout the region to ensure plans are tailored 

to each local community’s needs. The reality is that nonpoint source pollution, including farm runoff, is the largest source of pollution to the Bay and its tributaries. 

There is no place this is more evident than right here in central Pennsylvania. Scientists calculate that agriculture is responsible for almost half of the nutrient pollution discharged into rivers that flow into the Bay watershed, and 60% of the sediment pollution. Each state addresses agriculture differently within their WIPs, but 

the plans would not be successful without addressing agriculture in the scope of all 

pollution sources. 

It is likely the valuable agricultural conservation efforts some of our region’s 

farmers are implementing will be discussed during your hearing. We applaud the 

farmers who are working hard to preserve their lands and their local waters. Many 

in the agricultural community have taken advantage of the vast state and Federal 

financial resources available to make these upgrades. Others have used personal resources to reinvest back into their operations for the sake of sustainability. We hope 

the agricultural community finds a way to document these achievements to include 

in the Bay model. 

Pollution is affecting the community that we live in; for example, City Island 

Beach in Harrisburg experiences beach closures almost every summer because of 

high E. coli levels and poor water quality. Water pollution isn’t just dangerous to 

fish; it can be a detrimental to human health because of unsafe drinking water and 

flooding. We urge you to allow the states to work with the EPA to finish what they 

have started and continue on a path that will provide clean water for the region. 

Sincerely,

JAN JARRETT,

President & CEO,

Citizens for Pennsylvania’s Future (PennFuture). 

SUBMITTED LETTER BY DAVE O’LEARY, CONSERVATION CHAIR, MARYLAND SIERRA

CLUB

March 14, 2011

Hon. GLENN THOMPSON,

Chairman,

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.;

Hon. TIM HOLDEN,


11206054
139

Ranking Minority Member, 

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.

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

Dear Chairman Thompson and Ranking Member Holden:

On behalf of the 14,000 members of the Sierra Club, we would like to thank you 

for the opportunity to submit comments on the record related to your hearing on 

the Chesapeake Bay TMDL. 

The Chesapeake Bay is an iconic national treasure and an over $1 trillion resource. The Clean Water Act, three major Bay Agreements and scores of minor ones, 

three consent decrees, dozens of Memoranda of Agreement/Understanding (MOA/

MOU) and a Presidential Executive Order all require development of a Bay-wide 

TMDL. It is not only legally required, but perfectly logical, appropriate and fair for 

EPA to develop this TMDL. Moreover, EPA has used this authority wisely, engaging 

in a transparent public process developing the TMDL (and seeking comments on the 

draft), providing states opportunity to prepare and revise draft Watershed Implementation Plans, (WIPs), and seeking to implement allocations that are substantially equivalent to those the states have had since 2003. 

We all must do our part to protect water resources in the region because millions 

of residents pull their drinking water directly from the rivers that flow to the 

Chesapeake Bay—from Richmond and Lynchburg, Virginia all the way up to Elmira 

and Binghamton, New York, and many places in between like Washington, D.C. 

Through the WIP process states are given control to address all sources of pollution, developing a plan each state believes will reach its targeted pollution reductions. The states are also working throughout the region to ensure plans are tailored 

to each local community’s needs. The reality is that nonpoint source pollution, including farm runoff, is the largest source of pollution to the Bay and its tributaries. 

Scientists calculate that agriculture is responsible for almost half of the nutrient 

pollution discharged into rivers that flow into the Bay watershed, and 60% of the 

sediment pollution. Each state addresses agriculture differently within their WIPs, 

but the plans would not be successful without addressing agriculture in the scope 

of all pollution sources. 

It is likely the valuable agricultural conservation efforts some of our region’s 

farmers are implementing will be discussed during your hearing. We applaud the 

farmers who are working hard to preserve their lands and their local waters, and 

we hope the agricultural community finds a way to document these achievements 

to include in the Bay model. 

Pollution is affecting the communities that we live in. There are countless examples throughout our State of Maryland where nutrient pollution is affecting the 

quality of life of our citizens. The inner harbor in Baltimore, for instance, is heavily 

polluted and its water quality is ranked as poor to very poor based on all major 

water quality indicators, including dissolved oxygen, bacterial growth; bio-diversity; 

and algae growth. In Anne Arundel County, based on that county’s own research, 

all streams are biologically impaired and many are impacted by erosion that leads 

to the destruction of the flood plain and requires costly reconstruction. Finally, the 

Mattawoman creek in Charles and Prince George’s county is the best and most productive tributary to the Chesapeake Bay according to Maryland Department of Natural Resources; Mattawoman creek is Chesapeake’s Bay most productive migratory 

fish nursery, yet the creek’s waters are listed as impaired by EPA, and it is at very 

high risk of further degradation. 

Water pollution is dangerous to all living beings, including people; it can be dangerous to humans when flooding occurs and detrimental to human health if water 

quality is impacted by bacteria. We urge you to allow the states to work with the 

EPA to finish what they have started and continue on a path that will provide clean 

water for the region. 

Sincerely,

DAVE O’LEARY,

Conservation Chair,

Maryland Sierra Club. 

140

SUBMITTED LETTER BY DOUG SIGLIN, FEDERAL AFFAIRS DIRECTOR, CHESAPEAKE BAY

FOUNDATION

March 15, 2011

Hon. GLENN THOMPSON,

Chairman,

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.

Dear Chairman Thompson,

On behalf of the Chesapeake Bay Foundation, I respectfully request that this letter and the accompanying paper be included in the official record of your Subcommittee’s March 16, 2011 ‘‘Public hearing to review the Chesapeake Bay TMDL, 

agricultural conservation practices, and their implications on national watersheds.’’

Earlier today the USDA’s Natural Resources Conservation Service (NRCS) released its final Assessment of the Effects of Conservation Practices on Cultivated 

Cropland in the Chesapeake Bay Region (NRCS study). As you are well aware, collectively agriculture is the largest remaining source of nutrient pollution to the 

Chesapeake Bay and its tributaries. The conservation practices highlighted in the 

NRCS study are critical to achieve the pollution reductions outlined by the states 

in their recently-submitted Watershed Implementation Plans. 

According to the NRCS study, eight out of ten cropped acres in the watershed require additional treatment to reduce nutrient and sediment losses from farm fields, 

especially nitrogen in subsurface flows. A key finding of the study is that within this 

80% of cropped acres, about 1⁄4 remains critically undertreated:

‘‘. . . 19 percent of cropped acres (810,000 acres) have a high level of need for 

additional conservation treatment. Acres with a high level of need consist of the 

most vulnerable acres with the least conservation treatment and the highest 

losses of sediment and nutrients. Model simulations show that adoption of additional conservation practices on these 810,000 acres would, compared to the 

2003–06 baseline, further reduce edge-of-field sediment loss by 37 percent, 

losses of nitrogen with surface by 27 percent, losses of nitrogen in subsurface 

flows by 20 percent, and losses of phosphorous (sediment attached and soluble) 

by 25 percent.’’

Assessment of the Effects of Conservation Practices on Cultivated Cropland in 

the Chesapeake Bay Region, page 6.

Further, the NRCS study finds that only 9% of the cropped acres in the watershed 

meet criteria for adequate treatment of both phosphorous and nitrogen (page 31.) 

The NRCS study also finds that in the Susquehanna River watershed, 84% of crop 

acres are undertreated and 32% of that acreage is critically undertreated. This critically undertreated percentage is higher than any other cited watershed or region in 

the Chesapeake Bay region. According to NRCS, targeting assistance to these and 

other critically undertreated acres greatly enhances benefits to Chesapeake Bay 

water quality almost two times as much as treating those acres with moderate or 

low conservation need. 

The NRCS report also highlights the extreme vulnerability of the Chesapeake Bay 

watershed to nutrient and sediment losses. In fact, the report says ‘‘Because of the 

higher vulnerability factors, the Chesapeake Bay region has higher per-acre average 

annual losses of sediment, nitrogen, and phosphorus from fields than does the 

Upper Mississippi River Basin.’’

We urge you to make it a very high priority in the 2012 Farm Bill to focus conservation technical and financial assistance on the 4⁄5 of cropped acres in the Chesapeake Bay watershed still in need of water quality treatment, and within that, to 

ensure that priority is given to the vulnerable acres most in need of one or more 

additional conservation practices. The 2008 Farm Bill took important steps in this 

direction through the creation of the Chesapeake Bay Watershed Initiative, which 

has a $250 million baseline for the next 5 year period. We urge you to do all you 

can to continue this program, expand it, and search for ways to make it even more 

effective on the ground. 

Improving the historically insufficient air and water quality performance of agriculture in the Chesapeake Bay region and around the nation, while at the same 

time meeting the world’s need for adequate and nutritious food, is one of the great 

challenges that our country faces in the coming decades. We ask that you and your 

colleagues on the House Agriculture Committee do all you can to begin to address 

these challenges with singular focus, energy and wisdom in the 2012 Farm Bill. 

141

Thank you for consideration of this request.

DOUG SIGLIN,

Federal Affairs Director.

CC:

Hon. TIM HOLDEN, Ranking Minority Member, Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture. 

ATTACHMENT

The LimnoTech Report: A Faulty and Misleading Distraction 

Beth McGee, Ph.D., Senior Scientist, Chesapeake Bay Foundation 

In December 2010, the Agricultural Nutrient Policy Council (ANPC) released a report, prepared by LimnoTech, entitled ‘‘Comparison of Draft Load Estimates for Cultivated Cropland in the Chesapeake Bay Watershed.’’ The ANPC is chaired by the 

American Farm Bureau Federation’s Director of Regulatory Services, Don Parrish. 

Other steering committee members include: The Fertilizer Institute, the National 

Pork Producers Council, the National Corn Growers Association and the Agribusiness Retailers Association. 

The LimnoTech report levied criticisms at the computer model used by the Environmental Protection Agency (EPA) to develop the Chesapeake Bay ‘pollution diet’ 

or Total Maximum Daily Load (TMDL). Specifically, the report compared the Chesapeake Bay Program (CBP) Partnership’s Watershed Model to one used by the U.S. 

Department of Agriculture (USDA) in its Conservation Effects Assessment Project 

(CEAP) report for the Chesapeake Bay Region. LimnoTech alleges that differences 

between the two modeling efforts draw into question the validity of using the CBP 

Watershed model to develop the Bay TMDL. This contention is completely without merit. Not only is the CBP Watershed Model a fully valid basis for the 

TMDL, the CEAP report reaffirms the need for agriculture to do far more 

to reduce its water quality impacts.

The CBP Watershed Model and the CEAP model were developed for two different 

purposes. The CBP Watershed Model was created as a management decision-making tool to assist with the development of the TMDL and includes comparable information about multiple pollution sources. The CEAP model is more narrowly focused 

on evaluating the effects of conservation practices on cropland. Because they were 

developed independently to achieve different goals, it is not surprising the modeling 

framework and several model parameters (e.g., hydrology, time frame, spatial scale) 

differ. Hence, comparing the models is like comparing apples to oranges. 

At its core, the LimnoTech report is an attempt by national agribusiness lobbying 

groups to discredit the Chesapeake Bay TMDL and delay efforts to clean up the region’s rivers, streams, and the Chesapeake Bay. The Bay TMDL is a scientificallybased tool developed over a decade in collaboration with numerous Federal, state, 

and academic partners using a state of the art model that peer reviews have validated time and time again. ANPC’s efforts to undermine the TMDL by attacking 

the credibility of the CBP Watershed Model distracts us from the real issue that 

agriculture, like all other sources of pollution, must do more if we are to restore the 

Chesapeake and the rivers that feed it. 

Flaws

1. The LimnoTech report is fundamentally wrong to compare the CBP 

Watershed Model’s estimates of TMDL caps for agriculture with the 

CEAP model’s agricultural pollution loads.

LimnoTech presents, on the front page of its report, graphs that compare pollution load estimates from cropland for the CBP Watershed Model and CEAP 

model to the Bay TMDL pollution caps or limits for each pollutant that agriculture is responsible for achieving. This comparison is misleading and inappropriate. As noted above, the two models’ designs are inherently different. 

By way of example, let’s say you go shopping for a new suit and are alarmed 

to find that you no longer fit into a size 8 of your favorite brand. Now you are 

a size 10. You decide, on the spot, to lose weight so you can fit into a size 8. 

The same day, you go into another store and try on a size 8 of a different brand 

and it fits. Does that mean you don’t need to lose weight? No! It means the 

brands are sized differently and to gauge your progress on losing weight, you 

should compare your ability to fit into your favorite brand. 


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In the case of the CEAP and CBP Watershed models, differences in things 

like time frames, rainfall inputs, and averaging period mean that the outputs 

from the models will be different. Directly comparing the estimated pollution 

loads from one model, with the TMDL pollution limits estimated by another, is 

not scientifically valid or appropriate.

2. Differences in land use are explainable.

The LimnoTech report indicates that the CBP Watershed Model assumes 

there are 41.1 million acres of land in the watershed while the CEAP model 

uses an estimate of 42.49 million acres. The reason why the CEAP model figure 

is higher is because it includes areas that are not inside the Bay watershed; 

e.g., this estimate includes most of the land on the Delmarva Peninsula, only 

part of which is in the Chesapeake Bay watershed. If one reconciles the differences, the estimates used for each model are very similar. 

Furthermore, differences in estimated acreages of cropland are also explainable if one considers the above differences in the acreage estimates for the watershed as well as the fact that LimnoTech compared crop data from the CBP 

Watershed Model from 2009 to data from 2003–2006 in the CEAP model. The 

LimnoTech report fails to highlight these important differences.

3. The LimnoTech report fails to note that differences in estimates of 

acreage under conservation tillage are a reporting issue, not a modeling issue.

Some have suggested that agricultural practices that are implemented voluntarily (i.e., without state or Federal cost-share assistance) are not being counted 

and reported by the states to EPA and thus not included in the CBP Watershed 

Model. The CEAP report based its rate of practice implementation on farmer 

surveys; i.e., on what a farmer says he/she is doing in the field. There is great 

interest from EPA, USDA, and the Bay jurisdictions in better quantification 

and accounting of implemented practices, particularly cover crops and no-till, 

that farmers often implement without cost-share assistance. USDA and EPA 

have agreed to work cooperatively to address this issue. This commitment is 

also contained within the Strategy for Protecting and Restoring the Chesapeake 

Bay developed in response to the Chesapeake Bay Executive Order (13508). 

Thus, this omission of implementation data in the CBP Watershed Model is 

a reporting issue, not a flaw in the model as concluded by LimnoTech. As 

verified implementation data are acquired, the CBP Watershed Model will be 

updated to include this new information. This omission, however, has no bearing on the TMDL allocations, another point LimnoTech fails to acknowledge.

4. LimnoTech is wrong when it concludes EPA ‘‘moved 20 percent of 

land out of crop production to pasture or forest to help achieve the allocations in the TMDL.’’

This statement typifies a number of inaccuracies found throughout the 

LimnoTech report. The Bay TMDL was based on the Bay jurisdictions’ watershed implementation plans, which detail the management measures those jurisdictions conclude are necessary to achieve the TMDL allocations. The jurisdictions, not the EPA, made the decisions about conversion of cropland to pasture, 

hayland, forest, or forested buffers. LimnoTech is wrong to state otherwise. 

Conclusion 

It is important to note that the overall conclusions drawn from both the USDA 

CEAP report and the CBP Watershed Model about agricultural runoff and Bay restoration are entirely consistent. We have made progress to date, reducing nitrogen, 

phosphorus, and sediment pollution from agricultural runoff. More is left to be done, 

and the deadline is 2025. 

We can achieve even greater reductions from the agricultural sector by implementing basic soil conservation and nutrient management plans on the region’s 

cropland. The fact that two entirely different models, with different assumptions 

and inputs, have reached the same overall conclusion is quite reaffirming in terms 

of the management decisions we are making to clean up the region’s waterways. 

SUBMITTED LETTER BY CHOOSE CLEAN WATER COALITION

March 16, 2011

Hon. GLENN THOMPSON,

Chairman,

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1 2004 Chesapeake Bay Watershed Blue Ribbon Finance Panel Report, ‘‘Saving a National 

Treasure: Financing the Cleanup of the Chesapeake Bay’’. 2 Bay Barometer: A Health and Restoration Assessment of the Chesapeake Bay and Watershed 

in 2009, EPA 2010. 

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.;

Hon. TIM HOLDEN, Ranking Minority Member, 

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture 

Washington, D.C.

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

Dear Chairman Thompson and Ranking Member Holden:

On behalf of the members of the Choose Clean Water Coalition (Coalition) listed 

below, we would like to thank you for the opportunity to submit comments on the 

record related to your March 16, 2011 hearing on the Chesapeake Bay TMDL. The Chesapeake Bay is an iconic national treasure and an over $1 trillion re- source.1 Right now is our best opportunity in a generation to restore the Bay and 

all the waters that feed it. While we have made progress on a number of fronts, 

we simply have not done enough thus far to stem pollution to our waterways. The 

U.S. Environmental Protection Agency (EPA) and the Bay states collaborated on the 

issuance of the TMDL, and we formally express our strong support to implement 

the Bay-wide TMDL. 

We have a moral, economic and legal imperative to protect these local waters 

upon which 17 million people rely. The Clean Water Act, three major Bay Agreements and scores of minor ones, three consent decrees, dozens of Memoranda of 

Agreement/Understanding (MOA/MOU) and a Presidential Executive Order all required the development of a Bay-wide TMDL. It was not only legally required, but 

perfectly logical, appropriate and fair for EPA to develop this TMDL. Moreover, EPA 

has used this authority wisely, engaging in a highly transparent public process developing the TMDL (and seeking comments on the draft), providing the states opportunity to prepare and revise draft and then final Watershed Implementation 

Plans (WIPs), and seeking to implement allocations that are substantially equivalent to those the states have had since 2003. 

The decline of this ecological national treasure stems from human activity that 

has altered the landscape throughout the Bay’s 64,000 square mile watershed comprised of parts of Maryland, Virginia, Pennsylvania, Delaware, New York, West Virginia and all of the District of Columbia (‘‘Bay states’’). The population in the watershed has doubled since 1950 (now around 17 million), and much of this growth and 

development—leveling trees, forests and wetlands and replacing farms with subdivisions and malls—has taken place close to the Bay or to its sensitive tributaries, 

harming natural filters that are critical to a healthy ecosystem. 

The Chesapeake has historically been America’s great protein factory—once producing 25 million bushels of oysters annually and, until recently, 50% of the nation’s 

blue crabs. The Bay is the spawning and nursery grounds for up to 90% of the Atlantic stocks of striped bass. But, the most recent harvest of oysters was down to 

200,000 bushels—far below historic levels—and only about 1⁄3 of the nation’s blue 

crabs now come from the Chesapeake. 

The most critical measure of the Bay’s health is water quality. A healthy and productive Bay must be safe for people and support abundant aquatic life, such as oysters, fish and crabs. The water should be clear enough for underwater grasses, a 

critical habitat for these species, to thrive. The Bay’s primary water quality problem 

is caused by excessive amounts of nutrients, specifically nitrogen and phosphorus, 

and sediment that flow from tributaries and lead to murky water and algae blooms. 

Excess algae cloud the water and block sunlight from reaching the Bay grasses on 

the bottom. Decaying algae create low oxygen levels for aquatic life throughout the 

Bay. The latest indicators of Bay health from EPA in 2009, showed the Bay to be 

meeting only 24% of its water quality goals.2

Origins of Chesapeake Bay Management and Restoration 

In 1972, Tropical Storm Agnes exacerbated the decline of the Bay, which led U.S. 

Senator Charles ‘‘Mac’’ Mathias (R-Md) to set out on a lengthy tour of the Bay in 

the summer of 1973. Six years and $27 million later, the EPA finished the comprehensive study and, in September 1983, released a lengthy report, Chesapeake 

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3Water Quality Act of 1987. 

4 In 2000, Congress passed a reauthorization of Section 117 of the Clean Water Act which increased the authorization level to $40 million annually. 5PSC Meeting minutes June 18–19, 2008. 

Bay: A Framework for Action. The report identified nutrient pollution as the greatest threat to the Bay, and recognized that the problem could not be solved without 

addressing the entire watershed—not just the tidal Bay states of Maryland and Virginia. The report also provided an innovative blueprint for the intergovernmental, 

inter-jurisdictional ‘‘Chesapeake Bay Program’’ that was formed in December when 

the Chesapeake Bay Agreement of 1983 was signed by a group that would be known 

as the Chesapeake Executive Council—the Governors of Maryland, Pennsylvania 

and Virginia, the Mayor of the District of Columbia, and the Administrator of the 

EPA. 

In February, 1987 Congress passed the reauthorization of the Clean Water Act 3

(CWA), which included a new section entitled ‘‘Chesapeake Bay’’. This provision, 

known as Section 117, basically codified the Chesapeake Bay Program and authorized Congress to continue funding the restoration effort at $13 million annually.4

In December 1987, the Chesapeake Executive Council, now expanded to include the 

chair of the Chesapeake Bay Commission, signed the 1987 Chesapeake Bay Agreement, which for the first time included specific quantitative goals and commitments. 

The centerpiece of the Agreement was a goal to reduce nutrient pollution to the Bay 

by 40% by 2000. The 1992 Amendments to the Chesapeake Bay Agreement was 

signed by the Council and ‘‘capped’’ the 40% reduction goal after 2000. In addition, 

the 1992 Amendments recognized the need to reduce nutrients in the tributaries, 

and called for the states to develop ‘‘tributary-specific strategies’’ on how to meet 

the nutrient reduction goal. The Amendments also recognized the need for ‘‘intensified efforts to control nonpoint sources of pollution, including agriculture and developed areas . . .’’, as well as the need to engage Delaware, New York and West Virginia in the efforts to reduce nutrients in the tributaries. 

In 1998, a lawsuit filed by the American Canoe and American Littoral Society 

against EPA alleged Virginia was not timely and complete in listing its Clean Water 

Act Section 303(d) impaired waters and preparing TMDLs for those waters, and that 

EPA failed in its non-discretionary duty under the Clean Water Act to take over 

when the state had failed to do so. 

Virginia submitted an incomplete list of impaired waters in 1996. That list, which 

included Virginia’s portion of the Chesapeake Bay, was partially approved by EPA 

in 1998. The lawsuit was settled with a consent agreement in the Federal Eastern 

District of Virginia court on June 11, 1999. Under the terms of the court agreement, 

EPA would ensure that Virginia completed its listing of impaired waters and developed TMDLs for all waters on the 1998 list by May 1, 2010. If Virginia did not do 

so, EPA would complete them no later than May 1, 2011. If waters met water quality standards any time up to May 1, 2011, they would be removed from the list and 

there would be no need for TMDLs for those waters. 

The Chesapeake Executive Council signed the Chesapeake 2000 Agreement on 

June 28, 2000. Delaware and New York both signed an MOU with the other Chesapeake Bay Program partners and agreed to adopt the Water Quality goals of the 

Chesapeake 2000 Agreement—West Virginia followed suit in 2002. 

All of the Bay states developed updated tributary specific strategies, most were 

final in 2004. For the past 7 years all of the Bay states have known what their load 

reduction allocations would be, and have developed strategies to meet them, which 

are now called ‘‘watershed implementation plans (WIPs)’’. 

At the 2007 Chesapeake Executive Council meeting, Maryland’s Governor Martin 

O’Malley, chair of the Chesapeake Executive Council, formally announced that the 

Chesapeake Bay Program would not meet its water quality goals by 2010. Removing 

the Bay from the Section 303(d) list would have avoided the need for development 

of a TMDL for the Bay. The failure to meet that deadline triggered the court ordered obligations found in the American Canoe and Kingman Park consent decrees 

and the MOU with Maryland to develop a Bay TMDL discussed in further detail 

below. 

This failure to meet the 2010 restoration goals was acknowledged again in 2008 

at the annual Council meeting, when EPA revealed that the current restoration 

pace would not meet the nitrogen goals until 2034 and the phosphorus goals until 

2050. In June 2008, the Principals’ Staff Committee of the Chesapeake Bay Program formally requested that EPA accelerate the Bay TMDL so it takes effect no 

later than December 31, 2010—not May 1, 2011.5 EPA agreed to the request from 

its partners and pledged to finalize the Bay TMDL by the end of 2010. 

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6This decision was formalized at the meeting of the Principals’ Staff Committee (PSC) on October 1, 2007. It was agreed that the Bay watershed TMDLs would be developed jointly between 

the six Bay watershed states, the District of Columbia and EPA, and then established by EPA. 

It was further agreed that the Water Quality Steering Committee would draft nutrient and sediment cap load allocations by tributary basin and jurisdiction, and the Principals’ Staff Committee would formally adopt these allocations. 

Congress and the Administration have increased commitments of financial and 

agency support for restoration and protection of the Chesapeake Bay watershed 

since the 1980s. There has been a considerable amount of Federal support to states, 

local governments, farmers and others to implement on-the-ground practices that 

will be needed to succeed. This funding support has been increasing over the years 

as the TMDL has gotten closer, including, the 2008 Farm Bill, in which Congress 

allocated $188 million over 6 years in mandatory spending for agricultural conservation practices on farms in the Chesapeake Bay watershed portion of the six states. 

This is a critical source of substantial funding for farmers to implement practices 

to support efforts to meet the requirements of the TMDL and their state WIPs. 

In May 2009, President Obama issued Executive Order 13508 ‘‘Chesapeake Bay 

Protection and Restoration,’’ which aligned the Federal Government with efforts 

necessary to restore the Bay’s water quality and other restoration and protection 

goals. This historic effort will ensure unprecedented Federal support for efforts to 

restore the Bay and to meet the TMDL. In September 2009, USDA Secretary 

Vilsack announced that there would be $638 million over 5 years from various 

USDA programs devoted to Chesapeake Bay restoration activities—though this is 

not all directly for water quality. 

The EPA, along with the Bay states, has worked for decades in a cooperative 

manner through a transparent and public process to reduce pollution leading to the 

Chesapeake Bay. Unfortunately, water quality goals set in the 1980s and in 2000 

have not been met, triggering the development of the TMDL. In addition there is 

a clear and lengthy record of EPA, and the Bay states, going to considerable lengths 

to ensure that both technical and economic attainability were addressed during this 

process. The new Chesapeake Bay tidal water quality standards are both scientifically valid and protective under the Clean Water Act, and at the same time, are 

economically and technically attainable. It is important to note that since the 1999 

court agreement with EPA over the listing of Virginia’s Bay waters as impaired, 

there has been ongoing progress by EPA and the Federal Government to follow that 

agreement, the Chesapeake 2000 Agreement and ultimately the development of the 

Chesapeake Bay TMDL. This progress, though sometimes delayed by technical 

issues, continued unabated through the Administrations of Presidents Bill Clinton, 

George W. Bush, and Barrack Obama. 

EPA is Legally Obligated To Develop a Bay Wide TMDL 

EPA’s statutory authority to develop the Bay-wide TMDL is derived from Section 

303(d) of the Clean Water Act.

The CWA required each state, . . . to submit by June 28, 1979 (no more than 

180 days after the EPA identified certain pollutants, pursuant to 

§ 1314(a)(2)(D)) the first of its TMDL calculations to the Administrator of the 

EPA. Within thirty days after this submission, the Administrator must take one 

of two actions. She may approve the TMDL, in which case it becomes binding 

on the states. If, however, she disapproves it, the Administrator must devise her 

own binding TMDL for the state within thirty days of disapproval. CWA 

§ 303(d)(2), 33 U.S.C. § 1313(d)(2).

Not only have none of the Bay states developed TMDLs for either their portions 

of the Bay (Maryland and Virginia) or their tributaries to the Bay, but they have 

affirmatively asserted that they were not able to develop the TMDL on their own, 

and invited EPA to assume the lead and take over developing the Bay TMDL.6 Further, states agreed that a ‘‘state by state’’ approach to develop the TMDLs was scientifically and administratively less desirable than continuing to use a regional approach as they did with the water quality criteria. The well established doctrine of 

‘‘constructive submission’’ of an inadequate TMDL by a state, which triggers EPA’s 

duty to take over, coupled with the states’ express request in this case that EPA 

take the lead in developing the Bay wide TMDL, provide ample authority for EPA’s 

action in doing so. 

In addition to the request of the states and EPA’s legal obligation under the constructive submission doctrine, there is a compelling and logical reason for EPA to 

manage or coordinate the development of the Bay TMDL. The Bay watershed includes portions of six states, and all of the District of Columbia, and it would be 

146

impossible for one state to develop a TMDL to address more than a small part of 

the problem. No matter how firm Maryland and Virginia are with polluters or dischargers in their states, they could not fix the problems alone and could not order 

polluters or dischargers in upstream states, Pennsylvania or New York, for example, 

to cut back on their discharges. 

Section 117(g) of the Clean Water Act 

EPA’s authority to issue the Bay wide TMDL is enshrined in Section 117 of the 

Clean Water Act, which states:

‘‘The Administrator, in coordination with other members of the Chesapeake 

Executive Council, shall ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement to 

achieve and maintain—

(A) the nutrient goals of the Chesapeake Bay Agreement for the quantity 

of nitrogen and phosphorus entering the Chesapeake Bay and its watershed. 

(B) the water quality requirements necessary to restore living resources 

in the Chesapeake Bay ecosystem; . . .’’

EPA is required by this language to ‘‘ensure that management plans are developed and implementation is begun’’ to, among other things, achieve and maintain 

the nutrient reduction goals of the Chesapeake 2000 Agreement—40% nutrient reduction and removal of the Bay from the Section 303(d) list. The proposed Chesapeake Bay TMDL and accompanying state developed WIPs are in fact the Congressionally required management plans to ‘‘achieve and maintain . . . the nutrient 

goals . . . [and] water quality requirements’’ referred to in Section 117(g) because 

they are tailored to achieving compliance with the water quality standards for nutrients and sediment. The TMDL is the principal tool provided in the Clean Water Act 

for this purpose, and therefore is precisely what Congress intended that EPA should 

do in implementing Sections 303(d) and 117(g). 

In addition to the statutory requirements that EPA develop a Bay-wide TMDL, 

EPA is also required to take this action pursuant to the consent decree in the 

Fowler case. In that case, EPA was sued for failing to comply with Section 117(g) 

and the Bay Agreements. Fowler v. EPA, Case No. 09–cv–00005–CKK, D. D.C., January 5, 2009. That matter was settled by agreement between the parties. The agreement provides that EPA will develop a Bay wide TMDL ‘‘[b]y December 31, 2010, 

pursuant to 33 U.S.C. §§ 1313(d) and 1267 . . .’’ Settlement Agreement Section 

III.A.1. That agreement set forth a number of other deadlines for submission and 

completion of state watershed implementation plans. Thus, EPA is also required 

pursuant to the settlement agreement in Fowler to develop a Bay wide TMDL. 

In its TMDL document EPA describes, thoroughly and accurately, the lengthy history leading to its development of the draft TMDL, including the legal framework 

(Sections 1–3). In Section 8, it describes the development by the states of their Watershed Implementation Plans, EPA’s evaluation of them, and the use by EPA of 

‘‘backstop’’ allocations which EPA developed, based on its exhaustive modeling and 

data-gathering efforts, to ensure that, where the WIPs fail to demonstrate eventual 

achievement of the loading caps, the ‘‘backstop’’ allocations will do so. 

Consistent with the statutory scheme, binding judicial agreements, and at the request of the Bay states, EPA has taken the lead in developing and proposing the 

TMDL, based on years of discussions and hard work with representatives of the Bay 

states, the scientific community, members of the public, local officials and other 

stakeholders. Given the multi-jurisdictional nature of the water quality problems in 

the Bay, it also makes immense practical sense for EPA to take the lead. EPA’s lead 

role in developing and issuing the TMDL and the final deadlines of December 2010 

and 2025, for implementation, are further supported by the final strategies developed pursuant to the President’s May 12, 2009 Executive Order. 

Chesapeake Bay Program Computer Models 

What is commonly referred to as ‘‘the Bay model’’ is actually a series of linked 

three-dimensional models. The suite of Chesapeake Bay models has been developed 

through an extensive peer reviewed scientific process over the past 20 to 30 years, 

with broad-based collaboration among Federal, state, academic and private partners. In 2003, the model simulations and other data pointed toward a nitrogen allocation of 175 million pounds annually. Federal and state decision makers ultimately 

allocated 183 million pounds of nitrogen to the seven Bay watershed jurisdictions, 

each of which developed Tributary Strategies, which were blueprints on how to meet 

each state’s nutrient and sediment allocation. Additional information, including a 

newer Phase 5 model led to a very similar allocation in 2010 of 187.44 million 

147

7http://www.chesapeakebay.net/committeelagworkgrouplinfo.aspx?menuitem=16731. 8 2007. National Academy of Public Administration. ‘‘Taking Environmental Protection to the 

Next Level: An Assessment of the U.S. Environmental Services Delivery System’’ 2048. 9 Chesapeake Bay Restoration Act of 2000, Nov. 7, 2000, P.L. 106–457, Title II, § 202, 114 

Stat. 1967. 10 NOAA 2008. 2008 Fisheries Economics of the U.S. http://www.st.nmfs.noaa.gov/st5/publication/econ/2008/MAlALLlEcon.pdf. 

pounds of nitrogen to the seven jurisdictions. The allocations in 2010 for the TMDL 

were very close to those that the states were given 6 years earlier. 

The Phase 5 Watershed Model has almost 100 collaborators and partners led by 

EPA, Virginia Department of Conservation and Recreation, Interstate Commission 

on the Potomac River Basin, University System of Maryland, Maryland Department 

of the Environment, U.S. Geological Survey, Chesapeake Research Consortium, and 

Virginia Polytechnic Institute. Special attention has been paid to the agricultural 

assumptions in the model with specific input from the Bay Program’s Agricultural 

Nutrient and Sediment Reduction Workgroup.7 In addition, the Bay Program partnership recently funded University of Maryland’s Mid-Atlantic Water Program to 

complete a 2 year study to update the effectiveness estimates of every best management practice in the model which resulted in a 900 page report that summarizes 

for each practice, all data evaluated, the technical experts involved in developing the 

recommendation, and all accounting of discussions and decisions made. 

In its April 2007 report, Taking Environmental Protection to the Next Level,8 the 

National Academy of Public Administration stated that: 

EPA’s Chesapeake Bay Program has led the way in developing a comprehensive 

water monitoring and assessment program that tracks and compiles the water 

quality conditions throughout the Bay. Based on the monitoring data, the CBP 

has developed sophisticated Chesapeake Bay watershed and airshed models 

that have enhanced the understanding of the complex problem of nutrient pollution and its effects on the Bay waters. This watershed-wide understanding provided the foundation for the 1987 Chesapeake Bay Agreement and helped to coordinate and assign responsibility among the Bay states for achieving water 

quality goals.

A public criticism of the model has been that many practices, particularly agricultural ones, implemented voluntarily, are not being accounted for in the model. While 

this statement is true, in reality, it is not a flaw of the model, but rather a failure 

to collect the proper input information to feed into the model. The solution to this 

problem is to provide better accounting, not to change any of the model parameters. 

In addition, this under-counting of implemented practices does not affect the TMDL 

load allocations to the states which were based on the relative difference between 

maximum implementation of practices and no-action. 

EPA, in cooperation with its Bay state partners and after years of allocation experience, has established sound, supportable rules and methods for the Bay TMDL. 

The Chesapeake Bay Program models are a critical tool in the adaptive management framework currently employed by the EPA and the Bay states to identify a 

path forward for restoration of the Chesapeake Bay. While water quality data and 

the actual living resources in the Chesapeake Bay will ultimately determine when 

we have restored a clean Bay, the Chesapeake Bay Program models help us develop 

a scientifically valid path to our goals. 

The Economic Argument for a Clean Bay 

Congress has recognized that the Chesapeake Bay is a ‘‘national treasure and resource of worldwide significance.’’ 9 Valued at over $1 trillion, a restored and protected Chesapeake Bay is essential for a healthy and vibrant regional economy. Failure to ‘‘save the Bay’’ threatens this economic driver and, in fact, economic losses 

have already occurred due to water quality degradation throughout the watershed. 

More importantly, investing in clean water technology creates jobs, generates economic activity, and can save money in the long run. 

Perhaps no other creature better exemplifies the Chesapeake Bay than the blue 

crab, Callinectes sapidus. For more than a half century, the blue crab has been at 

the apex of the Bay’s commercial fisheries. Over 1⁄3 of the nation’s blue crab harvest 

comes from the Chesapeake Bay. The average annual commercial harvest in Maryland and Virginia between 1999 and 2008 was about 55 million pounds.10 The dockside value of the blue crab harvest Bay-wide in 2008 was approximately $70 milVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00151 Fmt 6621 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
148

11 NOAA Fisheries: Office of Science & Technology, Annual Commercial Landing Statistics 

website, http://www.st.nmfs.noaa.gov/st1/commercial/landings/annualllandings.html. 12Tom Horton. 2003. Turning the Tide: Saving the Chesapeake Bay. Second Edition. Island 

Press. Washington, D.C. 2003. 13 Chesapeake Bay Program. 2010. http://www.chesapeakebay.net/statuslbluecrab.aspx?menuitem=19683. 14 Unpublished data. Dr. James Kirkley, Virginia Institute of Marine Science. 15 NOAA 2008. 2008 Fisheries Economics of the U.S. (see 24). 16 NOAA 2008. 2008 Fisheries Economics of the U.S. (see 24) 17Lellis-Dibble, K.A., K.E. McGlynn, and T.E. Bigford. 2008. Estuarine Fish and Shellfish 

Species in U.S. Commercial and Recreational Fisheries: Economic value as an incentive to protect 

and restore estuarine habitat. NOAA TECHNICAL MEMORANDUM. http://spo.nwr.noaa.gov/tm/

TM90.pdf. 18Morgan, et al. 2001. Benefits of water quality policies: the Chesapeake Bay. ECOLOGICAL ECONOMICS. Vol. 39: 271–284. 19 U.S. Department of the Interior, Fish and Wildlife Service, and U.S. Department of Commerce, U.S. Census Bureau. 2006 National Survey of Fishing, Hunting, and Wildlife-Associated 

Recreation. 20Papadakis, M. 2006. The Economic Impact of the 2005 Shenandoah Fish Kill: A preliminary 

economic assessment. James Madison University. www.dep.state.va.us/export/sites/default/

info/documents/fishkillReport-final.pdf.

lion.11 The recreational fishery also provides a significant financial off-set for Bay 

residents—the cost of catching crabs is far less than having to buy them. 

The overall trend, however, since the 1990’s has been a decrease in landings despite increased crabbing effort.12 In addition, the number of crabs one year and 

older dropped from 276 million in 1990 to 131 million in 2008.13 When the broader 

impact on restaurants, crab processors, wholesalers, grocers, and watermen is added 

up, the decline of crabs in the Bay meant a cumulative loss to Maryland and Virginia of about $640 million between 1998 and 2006.14

In its entirety, the fisheries industry is a significant part of local economies. The 

2008 Fisheries Economics of the U.S. report by the National Oceanic and Atmospheric Administration (NOAA) indicates that commercial seafood industry in Maryland and Virginia contributed $2 billion in sales, $1 billion in income, and more 

than 41,000 jobs to the local economy.15 In addition there are indirect benefits to 

the economy in terms of jobs and work created for those who sell fishing tackle, 

maintain and repair boats and equipment and provide other related goods and services. 

The economic benefits of saltwater recreational fishing are equally as impressive, 

contributing $1.6 billion in sales which in turn contributed to more than $ 800 million of additional economic activity and roughly 13,000 jobs.16 The majority (90–

98%) of the commercial and recreational saltwater landings in this region come from 

the Chesapeake Bay.17

A 2001 study compared the 1996 water quality of the Bay with what it would 

have been without the Clean Water Act. Results indicated that benefits of water 

quality improvements to annual recreational boating, fishing, and swimming ranged 

from $357.9 million to $1.8 billion.18 Fisheries declines since the 1990s indicates 

that early progress reducing pollution hasn’t been sustained—we must reverse this 

trend. 

These economic impacts are not restricted to the tidal regions of the Bay watershed. According to the Pennsylvania Fish and Boat Commission (PFBC), nearly two 

million people go fishing in Pennsylvania each year, contributing over $1.6 billion 

to the economy. Among the most popular species for anglers are smallmouth bass 

and coldwater species, such as brook trout. The PFBC recently passed a proposal 

to be enacted January 1 that mandates total catch-and-release of smallmouth bass 

in certain areas of the Susquehanna River because of population declines associated 

with water quality problems. Degraded stream habitat has restricted brook trout to 

a mere fraction of its historical distribution. 

Virginia, and to a lesser extent Maryland, also support significant freshwater recreational fisheries, with roughly one million anglers participating and contributing 

millions to local economies.19 By way of example, a fish kill in the Shenandoah 

River watershed in 2005, likely caused by a variety of factors including poor water 

quality, resulted in roughly a $700,000 loss in retail sales and revenues.20

If pollution to the Bay is left unabated, we will see more continued decline of the 

region’s fisheries and the resulting economic impacts. In short, we cannot afford not

to clean up the Bay. 

Unhealthy waters increase public health burdens associated with consuming 

tainted fish or shellfish or exposure to waterborne infectious disease while recreating. For example, one study estimated the cost associated with exposure to polVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00152 Fmt 6621 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
149

21 R.H. Dwight, et al. 2005. Estimating the economic burden from illnesses associated with recreational coastal water pollution—a case study in Orange County, California. JOURNAL OF ENVIRONMENTAL MANAGEMENT. Vol.: 95–103. 22 U.S. Department of the Interior, Fish and Wildlife Service, and U.S. Department of Commerce, U.S. Census Bureau. 2006 National Survey of Fishing, Hunting, and Wildlife-Associated 

Recreation. 23Lipton, D. 2007. Economic Impact of Maryland Boating in 2007. University of Maryland Sea 

Grant Program. 24http://www.fish.state.pa.us/promo/funding/factleconomiclimpact.htm. 25 Virginia Institute of Marine Science. 2009. Assessment of the Economic Impacts of Recreational Boating in the City of Hampton. http://web.vims.edu/adv/econ/MRR2009l2.pdf. 26 Rephann, T.J. 2010. Economic Impacts of Implementing Agricultural Best Management 

Practices to Achieve Goals Outlined in Virginia’s Tributary Strategy. Weldon Cooper Center for 

Public Service, University of Virginia. www.coopercenter.org/sites/default/files/publications/

BMPlpaperlfinal.pdf. 27Krop, R.A., C. Hernick, and C. Frantz. 2008. Local Government Investment in Water and 

Sewer Infrastructure: Adding Value to the National Economy. The U.S. Conference of Mayors, 

Mayors Water Council. 28http://www.cbf.org/Document.Doc?id=562. 

luted recreational marine waters to be $37 per gastrointestinal illness, $38 per ear 

ailment, and $27 per eye ailment due to lost wages and medical care.21

Roughly eight million wildlife watchers spent $636 million, $960 million and $1.4 

billion in Maryland, Virginia and Pennsylvania, respectively in 2006 on trip-related 

expenses and equipment.22 These estimates do not include other economic benefits 

of these expenditures such as job creation and the multiplier effect on local economies. Recreational boating is also a strong economic driver in Maryland, Pennsylvania and Virginia. The total impact on the Maryland economy from recreational 

boating is estimated to be about $2.03 billion and 35,025 jobs.23 Similarly, Pennsylvania residents spend $1.7 billion on boating annually. The average expenditure per 

recreational boater is $274. Of this amount, roughly $113 a year is spent in direct 

boating-related expenses and $161 is spent on trip-related expenses, including: auto 

fuel, meals, lodging and admission/entrance fees.24

A recent study in Hampton, Virginia found that resident and non-resident boaters 

were responsible for $55.0 million in economic impact to this city. This impact represents $32.5 million in new value added, $22.2 million in incomes and 698 jobs.25

The majority of expenditures were by out-of-region boating-visitors which represents 

an inflow of ‘‘new’’ capital into the community. The study also indicated that ‘‘water 

quality, fishing quality and other environmental factors’’ ranked among the most 

important, in terms of factors that influence a boater’s decision on where to keep 

his/her boat. 

A study by the University of Virginia found that implementation of the agricultural practices such as livestock stream exclusion, buffers, and cover crops, would 

generate significant economic impacts.26 Every $1 of state and/or Federal funding 

invested in agricultural best management practices would generate $1.56 in economic activity in Virginia. Implementing agricultural practices, in Virginia, to the 

levels necessary to restore the Bay would create nearly 12,000 jobs of approximately 

one year duration. 

A recent analysis of the value of investing in water and sewer infrastructure concluded that these investments typically yield greater returns than most other types 

of public infrastructure.27 For example, $1 of water and sewer infrastructure investment increases private output (Gross Domestic Product) in the long-term by $6.35. 

Furthermore, adding one job in water and sewer creates 3.68 jobs to support that 

job. 

Efforts to delay implementation of the Bay TMDL will only exacerbate the economic impacts this region has already experienced due to poor water quality. Furthermore, a recent poll in Virginia found that an overwhelming majority believe the 

state can protect water quality and still have a strong economy.28 Eighty percent 

of respondents agreed with the statement, ‘‘we can protect the water quality in rivers, creeks and the Chesapeake Bay and have a strong economy with good jobs for 

Virginians, without having to choose one over the other.’’ Of those polled, 92% believe the Bay is ‘‘important for Virginia’s economy.’’ Implementation of the TMDL 

will result in clean water, a healthy Bay and a strong regional economy. 

Conclusion 

The voluntary, cooperative efforts to restore the Bay, which began in earnest in 

1983, did not succeed in meeting any significant water quality improvement goals, 

with only 24% of the Bay’s water quality goals met in 2009. The latest estimate for 

meeting the nutrient reductions necessary to restore the Bay, at the current pace 

150

of the voluntary programs, is in 2050. That would be 67 years from when the Bay 

Program was first formed. 

The 1987 Chesapeake Bay Agreement was very specific, laying out the purpose of 

this first historic water quality goal for the Chesapeake, ‘‘To ensure the productivity 

of the living resources of the Bay, we must clearly establish the water quality conditions they require and must then attain and maintain those conditions. Foremost, 

we must improve or maintain dissolved oxygen concentration in the Bay and its 

tributaries through a continued and expanded commitment to the reduction of nutrients from both point and nonpoint sources.’’ For the first time in 24 years this water 

quality goal has a chance of being met because the Chesapeake Bay TMDL addresses everything that was laid out in 1987; the establishment of new dissolved oxygen 

water quality standards for the Bay and its tidal tributaries, and nutrient and sediment reduction allocations to the states, which will have to address both point and 

nonpoint sources of pollution. The court sanctioned Virginia consent agreement in 

1999 established the requirement and deadlines for the Chesapeake Bay TMDL and 

was the trigger for the water quality section in the Chesapeake 2000 Agreement. 

This fact should rule out any reasonable argument that there has not been enough 

notice that there would be a Chesapeake Bay TMDL. Eleven years of consideration 

is sufficient. Moreover, EPA had no choice but to develop a TMDL because the 

states had failed to do so. This action by EPA was required by the CWA and an 

abundance of other legally binding agreements. 

Given the size and complexity of the system and the failure of ‘‘voluntary’’ efforts 

to restore the Bay, the TMDL issued by EPA is consistent with the legislative recognition by the Bay states and absolutely essential. The regional commitment to restoring the Bay, and the efforts undertaken pursuant to the Executive Order, give 

us some hope that this suite of TMDLs will be more successful in restoring water 

quality than previous efforts. There were a variety of reasons for prior failures, including inadequate data, failure to update plans when progress lagged, and most 

especially, the failure to connect to a real and enforceable, approved implementation 

plan. We expect that a well implemented TMDL will provide what we have been 

lacking: strong science and implementation plans built on principles of adaptive 

management that can and will be enforced. 

Sincerely,

1000 Friends of Maryland; 

Adkins Arboretum; 

American Rivers; 

American Canoe Association; 

Anacostia Watershed Society; 

Audubon Maryland-D.C.; 

Audubon Naturalist Society; 

Chesapeake Bay Foundation; 

Chester River Association; 

Citizens for a Fort Monroe National Park; 

Citizens for Pennsylvania’s Future (PennFuture); 

Clean Water Action; 

Corsica River Conservancy; 

Delaware Nature Society; 

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation; 

Environment America; 

Environment Maryland; 

Environment Virginia; 

Environmental Working Group; 

Float Fisherman of Virginia; 

Friends of Dyke Marsh; 

Friends of Lower Beaverdam Creek; 

Friends of Powhatan Creek Watershed; 

Friends of the North Fork of the Shenandoah River; 

Friends of the Rivers of Virginia (FORVA); 

Friends of the Shenandoah River; 

Goose Creek Association; 

Loudoun Wildlife Conservancy; 

Maryland League of Conservation Voters; 

Midshore Riverkeeper Conservancy; 

National Parks Conservation Association; 

National Wildlife Federation; 

Peach Bottom Concerned Citizens Group; 

PennEnvironment; 

151

Pennsylvania Council of Churches; 

Pennsylvania Organization of Watersheds and Rivers; 

Piedmont Environmental Council; 

Potomac Riverkeeper; 

Queen Anne’s Conservation Association; 

Savage River Watershed Association; 

Southern Environmental Law Center; 

Virginia Conservation Network; 

Virginia League of Conservation Voters; 

Virginia Sierra Club; 

West Virginia Rivers Coalition; 

West/Rhode Riverkeeper; 

Western Clinton Sportsmen’s Association. 

SUPPLEMENTARY MATERIAL SUBMITTED BY BOB PERCIASEPE, DEPUTY

ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY

During the March 16, 2011 hearing entitled, Hearing To Review the Chesapeake 

Bay TMDL, Agricultural Conservation Practices, and Their Implications on National 

Watersheds, requests for information were made to EPA. The following are their information submissions for the record. 

Insert 1

The CHAIRMAN. . . . One of the things I had asked Ms. Jackson about and 

wanted to get a follow up and then a confirmation. I had requested to see if 

the EPA has longitudinal studies over the past 30 years since we began to invest in a very important initiative in cleaning up the Chesapeake Bay. And I 

had requested that whatever longitudinal study may be out there by the EPA 

in terms of showing the trajectory of the health of the Bay over time. Is that 

something that you were able to bring with you today? 

Mr. PERCIASEPE. Mr. Chairman, I don’t have it with me today. The most upto-date one will be out in about a month in April and I would like it if I can 

get you last year’s summary. It is called the Bay Barometer and it is something 

that all the states and the Federal agencies all work on together and they track 

13 important parameters in the Bay. And there is no doubt that many of them 

have improved over the last 20 years and some have stayed static and some 

have gotten a little worse as you might expect from the state of affairs. But the 

most recent one based on 2010 information will be available by April. I think 

what we would make available to the Committee and of course this is available 

on the web, but we will make it available to the Committee, the 2009 version 

and then make sure that you have 2010 version. 

2009 Health & Restoration Assessment of the Chesapeake Bay & Watershed 

Background: 

Since its inception in 1983, the Chesapeake Bay Program (CBP) has been providing periodic updates on its progress to the public. Through time, the CBP continually improved its science defining the health of the Chesapeake Bay and its watershed as well as its ability to set and measure goals for its restoration and protection. 

Since 2005, the CBP has annually produced a health and restoration assessment 

of the Bay and watershed, largely using indicators to show status and trends related 

to the health of the bay and its watershed, factors affecting that health, and measuring progress toward meeting the restoration goals committed to by the CBP partnership. 

While some indicators in the 2009 assessment, released in April 2010, show considerable progress in partners’ efforts since 1985, much more work needs to be done 

to restore the Bay and its watershed. In fact, the assessment concluded that the Bay 

continues to be degraded, illustrating a clear need to continue to accelerate restoration efforts across the region. 

This briefing paper shows trends for several indicators used in the 2009 assessment, which we believe would be of interest to your members. More information on 

these and numerous other indicators can be found at http://

www.chesapeakebay.net/indicatorshome.aspx.

152

Restoration and Protection Efforts

Implementing Efforts to Reduce Nitrogen and Phosphorus Pollution

• In December 2010, the Environmental Protection Agency established the 

Chesapeake Bay Total Maximum Daily Load (TMDL). As a result of this 

new Bay-wide ‘‘pollution diet,’’ Bay Program partners are revising their 

goals, schedules and ways to evaluate their efforts to reduce nitrogen, phosphorus and sediment pollution.

• The Bay TMDL is designed to ensure that all pollution control measures 

needed to fully restore the Bay and its tidal rivers are in place by 2025, 

with at least 60 percent of the actions completed by 2017. The 2025 date 

was established by the jurisdictions at the 2009 Chesapeake Executive 

Council meeting.

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

2009:

» nitrogen loads decreased 101 million pounds, from 368 to 267 million 

pounds/year.

» phosphorus loads decreased 7.6 million pounds, from 24.1 to 16.5 million 

pounds/year.

• Pollutant loads to the Bay in any given year are influenced by changes in 

land-use activities and management practices, as well as the amount of 

water flowing to the Bay (hydrology).

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

» To understand the effects of management actions on nutrient loads 

(independent of annual variations in hydrology), it is appropriate to use 

climate-adjusted methods, such as watershed model simulations. 

Total Pollution Loads to the Bay * in millions of pounds/year (Simulated)

* Loads simulated using 5.3 version of Watershed model. Loads include atmospheric deposition of nitrogen to tidal waters.


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Restoration and Protection Efforts

Planting Forest Buffers and Restoring Wetlands

• The Bay Program’s near-term goals are to plant 10,000 miles of forest buffers and to 

restore 25,054 acres of wetlands in the watershed portions of Maryland, Pennsylvania, 

Virginia and Washington, D.C. by 2010.

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

» Between 1998 and 2009, 13,614 acres of wetlands were established or re-established, 

achieving 54 percent of the goal. 

Restoring Forest Buffers

Restoring Wetlands


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Watershed Health

Flow Adjusted Pollutant Trends in Non-tidal Rivers

• Since the 1980s, Bay Program partners have collected data on stream flow and water 

quality at 32 locations throughout the non-tidal portions of the watershed.

• Concentrations of pollutants are highly variable, depending on the amount of water 

flowing in streams and rivers throughout the Bay watershed. Therefore, scientists calculate flow-adjusted trends to determine whether concentrations have changed over 

time. By removing the effects of natural variations in stream flow, resource managers 

can evaluate the changes in stream health that may result from pollution reduction actions or other changes in the watershed.

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

1980s. 

Long-Term Flow-Adjusted Trends for Total Nitrogen for 32 Sites in the 

Chesapeake Bay Watershed, 1985–2009

Long-Term Trend in Total Nitrogen


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Data Sources: The nontidal water quality monitoring network which is a coordinated water quality monitoring program for the nontidal streams and 

rivers in the Chesapeake Bay Watershed. Monitoring is coordinated by the 

following partners: USGS, VA DEQ, MD DNR, WV DEP, PA DEP, S RBC, 

NYSDEC, and DN REC. 

Trends in the Chesapeake Bay may differ from measured values due to 

downstream ecological processes. For more information on nitrogen trends 

in the Bay see http://www.chesapeakebay.net/statuslpollutants.aspx. 

For more information, visit www.chesapeakebay.net. 

Disclaimer: www.chesapeakebay.net/termsofuse.htm.

Factors Impacting Bay and Watershed Health

River Flow and Pollutant Loads to the Bay

• The amount of nutrients delivered to the Bay changes dramatically from 

year-to-year, depending on annual hydrological conditions.

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

» The annual variations complicate efforts to determine trends through 

time.

• It is important to calculate the amount of river flow and pollution loads to 

the Bay in any particular year in order to understand and explain changes 

in Bay water quality conditions.

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

use:

» water samples collected at river input monitoring (RIM) sites to estimate 

loads from the majority of the watershed.

» water samples collected at wastewater treatment facilities downstream 

of the RIM sites.

» computer modeling to estimate loads from nonpoint sources downstream 

of the RIM sites. 

Nitrogen Loads and Annual Average River Flow


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Phosphorus Loads and Annual Average River Flow

Bay Health

Underwater Bay Grass Abundance and Chlorophyll a Concentrations

• Underwater bay grasses serve many essential ecological functions and are among the 

most closely monitored habitats in the Bay. Their abundance is an excellent barometer 

of the health of the Bay because they depend on good local water quality and provide 

significant benefits to aquatic life.

» Bay grass abundance increased from 38,228 acres in 1984 to 85,899 acres in 2009 

(46% of the 185,000 acre goal).

• Scientists study chlorophyll a to determine the amount of algae present in the Bay. 

Algae are the foundation of the food web and are a necessary part of a balanced ecosystem. However, too much algae can block sunlight from reaching underwater grasses, 

reducing the habitat and oxygen that underwater life need to survive.

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

» Annual variations complicate efforts to determine trends, however, there has been a 

generally decreasing (degrading) trend between 1985 and 2009. 


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Bay Grass Abundance

Chlorophyll a


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Bay Health

Blue Crab

• Perhaps no species is more closely associated with the Chesapeake Bay 

than the blue crab. It is estimated that 1⁄3 of the nation’s blue crab catch 

comes from the Bay. Because they reproduce by the millions and eat virtually anything, crabs are one of the Bay’s most hardy species. Good water 

quality and adequate habitat are important for the crab’s continued health.

• The interim target is to have 200 million adult (one year and older) blue 

crabs in the Bay.

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

fi Note, abundance continued to climb in 2010 to 315 million, exceeding 

the interim target for two years in a row.

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

» A new benchmark assessment will be completed and reviewed in 2011 

and results may lead to establishing a new target level for the future. 

Blue Crab Abundance (Adults)

Insert 2

Mr. STUTZMAN. . . . I would like to start off first of all with the—last week 

the EPA Administrator, Ms. Jackson, testified before this Committee. In her 

testimony the Administrator said that the Bay plan was developed in consultation with the agricultural community. What role has the ag community played 

in developing the process? 

Mr. PERCIASEPE. Well, there have been numerous—over 20 years of interaction with the agricultural community. There is significant input to the Bay 

program from all the agricultural colleges in the region and that has expanded 

recently. There are members of the agricultural community on a number of the 

advisory committees that go to the Bay program, so there has been significant 

involvement back and forth on—with the agricultural community over the 

years. And I can provide for the record a much more detailed accounting of that 

if you would like. 


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EPA Engagement with the Agriculture Community 

EPA, USDA, the state agricultural agencies and the agricultural community have 

a long history of collaborating on Chesapeake Bay restoration to ensure a healthy 

Bay and viable agriculture in the Chesapeake Bay watershed. USDA, the state agricultural agencies, and agricultural industry groups have been active participants in 

the Chesapeake Bay Program: from helping to inform modeling efforts to working 

together to identify and credit agricultural practices, to working with the states on 

their agricultural commitments in the Watershed Implementation Plans and Bay 

TMDL. 

Continued collaboration with the agriculture community will be critical in the 

coming years to refine modeling tools, improve agricultural conservation tracking 

and verification, and accelerate agricultural nutrient and sediment reductions necessary to restore the Bay and local waters. This document summarizes EPA’s collaboration with USDA and the agriculture community on Chesapeake Bay watershed restoration efforts. 

EPA Outreach During TMDL and WIP Development 

EPA conducted an extensive, two year outreach program to exchange information 

with key stakeholders and the broader public during the development of the Chesapeake Bay TMDL. Outreach to the agriculture community was particularly focused 

and occurred throughout the region. EPA consulted with the agricultural community 

through three primary forums: stakeholder meetings, meetings with jurisdictions on 

Watershed Implementation Plan development, and meetings with agricultural community on Chesapeake Bay Program Watershed Model. 

Stakeholder meetings: The outreach program in 2009 and 2010 featured hundreds 

of meetings with interested groups; two extensive rounds of public meetings, stakeholder sessions; a series of monthly interactive webinars accessed online by more 

than 2,500 people; three notices published in the Federal Register; and a close working relationship with Chesapeake Bay Program committees. Many agricultural 

groups and stakeholders participated in these meetings including the Farm Bureau, 

agribusiness organizations, individual farmers, as well as state agricultural agencies 

and conservation districts. In addition, to the general TMDL outreach meetings, 

EPA worked with the states to host sector-specific meetings with key stakeholders 

from the agricultural community, the homebuilder community, and conservation 

groups. EPA reached out to key agricultural leaders within each state to co-host 

these meetings in order to give the farming community a chance to ask questions, 

voice concerns, and discuss what the TMDL means for agriculture. (See Attachment 

A for the complete list of public meetings and stakeholder meetings held as part of 

the TMDL outreach effort. Actual sign-in sheets from these public meetings and 

from the separate stakeholder meetings are available upon request.) 

In addition to the public outreach and sector-specific meetings, many farming 

groups and regional and national agriculture associations invited EPA to brief them 

on the Bay TMDL. An example of one of the earliest outreach efforts is an August 

2009 informal ‘‘coffee conversation’’ with EPA officials, organized by NRCS and the 

American Farmland Trust (see Attachment B for a participants list, a copy of the 

invitation, and prep questions). Other agricultural organizations that EPA met with 

over the past two years to discuss the Bay TMDL include:

• National Pork Producers.

• National Turkey Federation.

• U.S. Poultry & Egg Association representatives.

• American Farmland Trust and NRCS organized a meeting between Bay watershed farmers and EPA senior leaders to discuss TMDL and how it relates to 

farmers. Virginia’s Waste Solution Forum in the Shenandoah Valley.

• Conservation Technology Innovation Center annual tour 2010—audience: over 

100 VA farmers, conservation district, university and NRCS representatives.

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

• Mid-Atlantic Certified Crop Advisors Board—crop advisors in VA, MD, DE, and 

WV.

• Governor Harry Hughes Agro-Ecology Center Board.

• Maryland Association of Conservation Districts Board.

• National Webcast on ‘‘Changing Management of Nutrients in the Chesapeake 

Bay Watershed’’ hosted by the Extension Livestock and Poultry Environmental 

Learning Center with over 150 representatives from agricultural organizations, 

agencies, and land-grant universities.

160

• WIP development discussions with jurisdictions—In 2010, EPA had extensive 

formal and informal discussions with the state Watershed Implementation Plan 

stakeholder teams as the TMDL and Watershed Implementation Plans were 

being drafted and finalized. Many agricultural groups and stakeholders participated in these teams and were present at these meetings including the Farm 

Bureau, agribusiness organizations, as well as state agricultural agencies and 

conservation districts (See Attachment C for lists of WIP teams).

EPA senior leadership also held frequent discussions with state agricultural secretaries on topics such as Ag Certainty and WIP development and participated 

in key policy discussions with the Chesapeake Bay Program’s Principal Staff 

Committee to the Chesapeake Bay Executive Council throughout the development of the Bay TMDL.

Looking back over the past decades, the agriculture community has been engaged since the development of the Chesapeake Bay Tributary Strategy (started 

in 1995) that served as a starting point for most WIPs. 

Agriculture Participation in CBP Watershed Model 

The suite of models used for the TMDL have been developed and utilized over 20 

years through extensive collaboration with federal, state, academic and private partners. This includes extensive input from USDA, state agricultural agencies, and agricultural organizations on the CBP Agriculture Workgroup. Use and development 

of the models is fully transparent and open with all decisions and refinements to 

the model made at public meetings of the Chesapeake Bay Program. The Agriculture Workgroup holds regular public meetings to provide extensive input into all 

decisions regarding conservation practice effectiveness, tracking and verification, 

and model refinements. The Agriculture Workgroup is co-chaired by USDA NRCS 

and the University of Maryland and is comprised of the following organizations:

Leadership:

—Chair, UMD and Vice Chair, USDA NRCS

Agricultural Organizations:

—Delaware Maryland Agribusiness Association

—Virginia Poultry Association

—Mid-Atlantic Farm Credit

—U.S. Poultry & Egg Association

—MD Farm Bureau

—Virginia Agribusiness Council

—VA Grain Producers Association

—West Virginia Department of Agriculture

—Delmarva Poultry Industry, Inc.

—VA Farm Bureau

—Delaware Pork Producers Association

—American Farmland Trust

Federal and State Agricultural Agencies:

—USDA Natural Resources Conservation Service

—Maryland Department of Agriculture

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

—Delaware Department of Agriculture

—Pennsylvania State Conservation Commission

—Maryland Department of Agriculture

Land-Grant Universities and Extension:

—West Virginia University

—Pennsylvania State University

—University of Maryland—College Park

—University of Delaware

—Cornell University

—University of Maryland Cooperative Extension

Conservation Districts and Commissions/Coalitions:

161

—Lancaster County Conservation District

—Cortland County Soil and Water Conservation District

—Madison Co. SWCD

—Chesapeake Bay Commission

—Upper Susquehanna Coalition

—PA No-Till Alliance

—Center for Conservation Incentives at Environmental Defense

EPA and State Environmental Agencies:

—U.S. Environmental Protection Agency

—Virginia Department of Environmental Quality

—Maryland Department of Natural Resources

—New York State Department of Environmental Conservation

—Virginia Department of Conservation and Recreation

—Pennsylvania Department of Environmental Protection

—West Virginia Department of Environmental Protection

In addition to extensive agriculture stakeholder involvement in the Agriculture 

Workgroup, EPA has also responded to requests from the agricultural community 

for more comprehensive briefings on the Bay TMDL and the CBP Watershed Model. 

On March 22, 2010, EPA worked with USDA to host a webinar on March 22, 2010 

to answer the agricultural community’s questions about the model and to identify 

opportunities for model refinements in the future. Following the webinar, EPA held 

a session with the poultry industry to provide a forum for the poultry industry to 

discuss specific poultry modeling and data issues. 

USDA’s Natural Resources Conservation Service (NRCS) has played a critical role 

in reviewing and providing data to the CBP Watershed Model, including coordinating the CBP’s Nutrient Subcommittee over almost a decade, serving on the Agriculture Workgroup (currently vice chair) which makes all decisions related to agricultural modeling, participating on technical panels to develop conservation effectiveness estimates, and collaborating with EPA on USDA Conservation Effects Assessment Project and CBP Watershed Model efforts. 

EPA–USDA Coordination 

EPA and USDA play an active role in the Chesapeake Bay Program to work towards maintaining well-managed farms and restoring the Bay. Both agencies agree 

that maintaining the viability of agriculture is an essential component to sustaining 

ecosystems in the Bay. Both acknowledge the enormous contribution that farmers 

are making to improve Bay water quality. And, both are committed to strong partnerships and collaboration with states and local governments, urban, suburban and 

rural communities, and the private sector to achieve environmental objectives for 

the Bay. Throughout the TMDL process, EPA and USDA had on-going discussions 

and extensive briefings on the TMDL, models, state Watershed Implementation 

Plans, etc. Recent examples of that collaboration include:

• Developing and implementing the Strategy for Protecting and Restoring the 

Chesapeake Bay Watershed pursuant to Executive Order 13508.

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

• Working with the National Association of Conservation Districts, state agricultural agencies, and agricultural community to ensure that non-cost shared data 

can be tracked, verified, and credited in the CBP Watershed Model as committed to in the E.O. Strategy.

• Supporting the states in implementing the commitments outlined in their 

TMDL Watershed Implementation Plans.

• Aligning innovation grants programs to support key priorities for addressing 

water quality challenges facing agriculture (EPA’s Innovative Nutrient and 

Sediment Reduction program and NRCS’s Conservation Innovation Grants program).

• Working together to coordinate respective modeling efforts. 

ATTACHMENT A

Washington, D.C. 

Wednesday, September 29

162

1:00 p.m.–3:00 p.m. 

Public Meeting and Webinar 

Washington National Zoo Visitor Center Auditorium, 3001 Connecticut Avenue, 

NW, 

Washington, D.C.

4:00 p.m.–5:30 p.m. 

Stakeholder Outreach—Local Government 

Location: Metropolitan Washington Council of Governments, 777 North Capitol 

Street, NE; Suite 300, Washington, DC 20002, 3rd Floor Board Room 

Contact: Ted Graham, Water Resources Program Director, [Redacted], [Redacted]. 

Virginia 

Monday, October 4—Harrisonburg

11:00 a.m.–12:30 p.m. 

Stakeholder Outreach—Agriculture 

Location: Virginia Cooperative Extension Northwest District Office, 2322 Blue Stone 

Hills Drive, Suite 140, Harrisonburg, VA 

Contact: Hobey Bauhan, Virginia Poultry Federation and co-chair of the Waste Solutions Forum, [Redacted], [Redacted].

2:30 p.m.–4:00 p.m. 

Stakeholder Outreach—Environmental groups 

Location: DEQ Valley Regional Office, 4411 Early Road, Harrisonburg, VA 22801 

[Redacted] 

Contact: Patrick Felling, Policy Director for Virginia & West Virginia, [Redacted], 

[Redacted]; Leslie D. Mitchell-Watson, Executive Director, Friends of the North 

Fork of the Shenandoah River, [Redacted], [Redacted].

6:00 p.m.–8:00 p.m. 

Public Meeting 

Location: Grafton Theatre, James Madison University, 281 Warren Service Drive, 

Harrisonburg, VA

Tuesday, October 5—Northern Virginia

10:00 a.m.–11:30 a.m. 

Stakeholder Outreach—Environmental Groups 

Location: Northern Virginia Regional Commission, 3060 Williams Drive, Suite 510, 

Fairfax, VA 22031

Contact: Stella Koch, Audubon Naturalist Society, [Redacted], [Redacted].

12:30 p.m.–2:00 p.m. 

Stakeholder Outreach—Local Government 

Location: Northern Virginia Regional Commission, 3060 Williams Drive, Suite 510, 

Fairfax, VA 22031

Contact: Norm Goulet, [Redacted], Sr Environmental Planner & Occoquan Program Mgr. Phone: [Redacted].

2:30 p.m.–4:00 p.m. 

Stakeholder Outreach—Developers and Homebuilders 

Location: Dewberry, 8403 Arlington Boulevard, Fairfax, VA (ESI Conference Room) 

Contact: Phil Abraham, Director and General Counsel, The Vectre Corporation and 

Homebuilders Association of Virginia, [Redacted], [Redacted].

6:00 p.m.–8:00 p.m. 

Public Meeting 

Location: Northern Virginia Community College, Annandale Campus, Ernst Community Cultural Center, 8333 Little River Tpke, Annandale, VA

Wednesday, October 6—Richmond

8:30 a.m.–10:00 a.m. 

Stakeholder Outreach—Wastewater 

Location: Hunton & Williams, Riverfront Plaza, East Tower, 951 East Byrd Street, 

Richmond, Virginia 23219–4074—20th floor 

Contact: Bobbie Suggs, AquaLaw, [Redacted], [Redacted].

10:30 a.m.–12:00 p.m. 

Stakeholder Outreach—Developers and Homebuilders 

Location: Homebuilders Association of Virginia, 707 East Franklin Street, Richmond, VA 23219

Contact: Mike Toalson, Homebuilders Association of Virginia executive vice president, [Redacted], [Redacted].

2:30 p.m.–4:00 p.m. 

Stakeholder Outreach—state legislators 

163

Location: Room 4 West in the General Assembly Building 

Contact: Ann Swanson, Chesapeake Bay Commission executive director, [Redacted], [Redacted].

6:00 p.m.–8:00 p.m. 

Public Meeting 

Location: Robins Pavilion Jepson Alumni Center, University of Richmond, 28 

Westhampton Way, Richmond, VA

Thursday, October 7—Richmond and Hampton

9:00 a.m.–10:30 a.m. 

Stakeholder Outreach—Environmental Groups 

Location: Chesapeake Bay Foundation, 1108 East Main Street, Richmond 23219, 

2nd floor conference room 

Contact: Ann Jennings, Virginia director of CBF, [Redacted], [Redacted].

1:00 p.m.–3:00 p.m. 

Meeting and Webinar—Hampton Roads Planning District 

Location: 723 Woodlake Drive, Chesapeake, Virginia 23320

Contact: John Carlock, [Redacted].

6:00 p.m.–8:00 p.m. 

Public Meeting 

Location: Crowne Plaza Hampton Marina Hotel, 700 Settlers Landing Road, Hampton, VA 

Delaware-Maryland 

Monday, October 11—Georgetown, DE

9:00 a.m.–10:30 a.m. 

Stakeholder Outreach—Agriculture 

Location: 16686 County Seat Hwy. Georgetown, DE 19947

Contact: Jennifer Volk, Delaware Department of Natural Resources and Environmental Control, [Redacted], [Redacted].

11:00 a.m.–12:30 p.m. 

Stakeholder Outreach—Local Government 

Location: Seaford City Council Chambers, 414 High Street, Seaford DE 

Contact: Jennifer Volk, Delaware Department of Natural Resources and Environmental Control, [Redacted], [Redacted].

2:00 p.m.–3:30 p.m. 

Stakeholder Outreach—Developers and Homebuilders 

Location: TBD 

Contact: Jennifer Volk, Delaware Department of Natural Resources and Environmental Control, [Redacted], [Redacted].

5:00 p.m.–7:00 p.m. 

Public Meeting 

Delaware Tech, Owens Campus, Arts and Science Center, Theatre, Route 18, 

Georgetown, DE

Tuesday, October 12—Easton

11:00 a.m.–12:30 p.m. 

Stakeholder Outreach—Environmental Groups 

Location: General Tanuki’s restaurant, 25 Goldsborough St. Easton, MD 21601

Contact: Ryan Ewing, Choose Clean Water Coalition, [Redacted], [Redacted].

2:00 p.m.–4:00 p.m. 

Public Meeting 

Location: The Easton Club, 28449 Clubhouse Drive, Easton, MD

Wednesday, October 13—Annapolis

8:30 a.m.–10:00 a.m. 

Stakeholder Outreach—Developers and Homebuilders 

Location: Fish Shack, Chesapeake Bay Program Office, 410 Severn Avenue, Annapolis, MD 21403

Contact: Katie Maloney, Maryland Homebuilders Association, [Redacted], [Redacted].

10:30 a.m.–12:00 p.m. 

Stakeholder Outreach—state legislators 

Location: House Office Building, room 250, Annapolis, MD 

Contact: Ann Swanson, Chesapeake Bay Commission executive director, [Redacted], [Redacted].

2:00 p.m.–4:00 p.m. 

164

Public Meeting 

2010, Sheraton Annapolis, 173 Jennifer Road, Annapolis, MD 21403

Thursday, October 14—Frederick and Hagerstown

8:00 p.m.–9:30 a.m. 

Stakeholder Outreach—Local Government 

Location: Maryland Municipal League, 1212 West Street, Annapolis, MD 21401

Contact: Leslie Knapp, Jr., Maryland Association of Counties, [Redacted], [Redacted]; Candace L. Donoho, Maryland MunicipalLeague, [Redacted], or [Redacted], [Redacted].

11:00 a.m.–12:30 p.m. 

Stakeholder Outreach—Agriculture 

Location: University of Maryland Cooperative Extension—Frederick County Office, 

330 Montevue Lane, Frederick, MD 21702

Contact: Mark Dubin, [Redacted], [Redacted].

2:00 p.m.–4:00 p.m. 

Public Meeting 

Location: Hagerstown Hotel and Convention Center, 1901 Dual Hwy, Hagerstown, 

MD 

Pennsylvania 

Friday, October 15

10:30 a.m.–11:30 a.m. 

Media conference call with Pennsylvania press 

Radio Talk Show—Guest on live public affairs talk/call-in program heard on two 

NPR stations covering nearly the entire Pennsylvania portion of the Bay watershed. Radio Smart Talk on WITF, 9 a.m.–10 a.m. 

Contact: Scott LaMar, director, Radio Smart Talk, [Redacted], [Redacted].

Monday, October 18

8:30 a.m.–10 a.m. 

Meet with local government officials in Lancaster, Location: Southern Market Center, 100 South Queen Street, Lancaster. 

Contact: Mary Gattis, senior environmental planner, Lancaster County Planning 

Commission, [Redacted], [Redacted].

11 a.m.–12:30 p.m. 

Meet with key agriculture representatives and area farmers, Location: Farm and 

Home Center, 1383 Arcadia Road, Lancaster. 

Contact: Don McNutt, district administrator, Lancaster County Conservation District, [Redacted], [Redacted]. 

Notes: Attendees will include mix of area farmers and representative of groups and 

agencies such as the PA Farm Bureau, PennAg Industries, Wenger Feeds, PA Association of Conservation Districts, PA State Conservation Commission and others. Secretary Redding will attend and give remarks. Kelly and Hank will be 

there to assist.

2 p.m.–4 p.m. 

Public Meeting, Lancaster 

Location: Best Western Eden Resort, 222 Eden Road, Lancaster. 

Media availability—1:30 p.m.–1:50 p.m.

6 p.m.–8 p.m. 

Meet over dinner with Pennsylvania legislative delegation and staff 

Location: Harrisburg Hilton, Bridgeport Room, 1 North Second Street, Harrisburg. 

Contact: Marel Raub, Pennsylvania Director, Chesapeake Bay Commission (CBC), 

[Redacted], [Redacted]. 

Notes: Attendees will include the CBC state legislative delegation, area state legislators, majority staff from the House Environment and Energy Committee, and 

majority and minority staff from the House Agriculture Committee.

Tuesday, October 19

Meet with Pennsylvania Municipal Authorities Association members 

Location: PMAA office, 1000 North Front St., Suite 401, Wormleysburg, PA 

Contact: John Brosious, deputy director, PMAA, [Redacted], [Redacted]. 

Notes: More than a dozen attendees confirmed.

9:30 a.m.–11 a.m. 

Meet with environment/watershed groups in person and via conference line 

Location: PennFuture, 610 North Third Street, Harrisburg. 

Contact: Tanya Dierolf, Central Pennsylvania Outreach Coordinator, Citizens for 

Pennsylvania’s Future (PennFuture), [Redacted], [Redacted]. 

165

Notes: More than a dozen representatives of environmental groups are expected, including PennFuture, CBF, Clean Water Action, American Rivers, PA Council of 

Churches, Pennsylvania Environmental Council, Alliance for the Chesapeake Bay, 

Nature Abounds and Senior Environmental Corps, among others.

2 p.m.–4 p.m. 

Public Meeting, State College, 

Location: Knights of Columbus, 850 Stratford Drive, State College. 

Media availability—1:30 p.m.–1:50 p.m.

5 p.m.–7 p.m. 

Meet with Penn State agriculture representatives over dinner. 

Location: TBD. 

Contact: Kristen Saacke Blunk, senior extension associate and director, Penn State 

Agriculture & Environment Center, [Redacted], cell: [Redacted], [Redacted].

Wednesday, October 20

8:30 a.m.–10 a.m. 

Meet with Pennsylvania Builders Association members, 

Location: Lycoming County Executive Plaza Building, 330 Pine St., First Floor Commissioner’s Board Room, Williamsport. 

Contact: Grant Gulibon, regulatory specialist, PBA, [Redacted], [Redacted].

10:30 a.m.–12 p.m. 

Meet with Lycoming County area officials 

Location: Lycoming County Executive Plaza Building, 330 Pine St., First Floor Commissioner’s Board Room, Williamsport. 

Contact: Megan Lehman, environmental planner, Lycoming County, [Redacted], 

[Redacted]. 

Notes: Attendees will include members of the Lycoming County Chesapeake Bay 

Tributary Strategy Advisory Committee: state, county and local officials; and business, environmental, point- and nonpoint source representatives.

12:00 p.m.–1 p.m. 

Meet with Commissioner Wheeland and small group 

Location: Ross Club, 201 W. 4th Street, Williamsport.

2 p.m.–4 p.m. 

Public Meeting/Webinar, Williamsport, 

Location: Lycoming College, Wendle Hall, 700 College Place, Williamsport. 

Media availability—1:30 p.m.–1:50 p.m.

Thursday, October 21

9:30 a.m.–10:30 a.m. 

Meet with Scranton Times Tribune editorial board and reporter Laura Legere. 

Location: Scranton Times Tribune office, 149 Penn Ave., Scranton. 

Contact: Laura Legere, [Redacted], [Redacted] or Patrick McKenna, [Redacted], 

[Redacted].

11:30 a.m.–12:30 p.m. 

Meet with Wilkes-Barre Times Leader editorial board. 

Location: Times Leader office, 15 N. Main Street, Wilkes-Barre. 

Contact: Mark Jones, editorial page editor, [Redacted], [Redacted].

2 p.m.–4 p.m. 

Public Meeting, Wilkes-Barre 

Location: Bentley’s, 2300 Route 309, Ashley. 

Media availability—1:30 p.m.–1:50 p.m. 

New York 

Tuesday, October 26

1:00 p.m.–2:00 p.m. 

Binghamton Press and Star Editorial Board 

33 Lewis Rd., Binghamton, NY 13905–1044

3:15 p.m.–4:15 p.m. 

Steel Memorial Library, 101 East Church Street, Elmira, NY 14091

Notes: NY WWTP Operator’s Scheduled by DEC, for 27 WWTP in the Upper Susquehanna River Watershed. Congressional Offices (Acuri and Hinchey) maybe in 

attendance.

6:00 p.m.–8:00 p.m. 

Public Meeting Riverview Holiday Inn Elmira 

760 East Water Street, Elmira, NY

Wednesday October 27

166

8:00 a.m.–9:00 a.m. 

Chemung County Storm Water Coalition 

851 Chemung Street, Horseheads, NY 14845

10:00 a.m.–11:30 a.m. 

Upper Susquehanna Coalition 

Owego Town Hall,2354 State Route 434, Apalachin, NY, 13732

11:30 a.m.–12:30 p.m. 

Farm Bureau 

Owego Town Hall, 2354 State Route 434, Apalachin, NY, 13732

2:00 p.m.–4:00 p.m. 

Public Meeting Binghamton Regency Hotel 

225 Water Street, Binghamton, NY 

West Virginia 

Wednesday, November 3—Martinsburg, WV

10:30 a.m.–12:00 p.m. 

Stakeholder Outreach—Environmental Groups 

Location: Freshwater Institute, 1098 Turner Road, Shepherdstown, WV 25443

Contact: Michael Schwartz, senior environmental associate, Freshwater Institute, 

[Redacted], [Redacted].

1:00 p.m.–2:30 p.m. 

Stakeholder Outreach—Developers and Homebuilders 

Location: Eastern Panhandle Home Builders Association Inc., 430 Randolph Street 

Suite C, Martinsburg, WV 25401

Contact: David Hartley, Eastern Pandhandle Home Builders Association, [Redacted], [Redacted].

3:00 p.m.–4:30 p.m. 

Stakeholder Outreach—Local Government 

Location: Berkeley County Public Sewer Service District, 65 District Way, Martinsburg, WV 25402

Contact: Carol Crabtree, executive director, Region 9 Eastern Panhandle Regional 

Planning and Development Council, [Redacted], [Redacted].

6:00 p.m.–8:00

Public Meeting 

Location: Comfort Inn, 1872 Edwin Miller Blvd., Martinsburg, WV

Thursday, November 4—Romney, WV

10:00 a.m.–11:30 a.m. 

Stakeholder Outreach—Agriculture 

Location: NRCS Building, Heritage Hill Complex, 500 East Main Street, Romney, 

WV 26757. (2nd floor ) 

Contact: Matt Monroe, environmental programs supervisor, WV Dept. of Ag., [Redacted], [Redacted].

12:30 p.m.–2:00 p.m. 

Stakeholder Outreach—Local Government 

Location: Old Courthouse, junction of Route 50 or Main Street, with Route 28 or 

High Street, Romney, WV 

Contact: Alana Hartman, West Virginia Department of Environmental Quality, [Redacted] office, [Redacted] cell, [Redacted].

2:30 p.m.–4:00 p.m. 

Stakeholder Outreach—Developers and Homebuilders 

Location: Old Courthouse, junction of Route 50 or Main Street, with Route 28 or 

High Street, Romney, WV 

Contact: Alana Hartman, West Virginia Department of Environmental Quality, [Redacted] office, [Redacted] cell, [Redacted].

6:00 p.m.–8:00 p.m. 

Public Meeting 

Location: South Branch Inn, Route 50 East, Romney, WV 

167

ATTACHMENT B

Our Collective Challenge: Viable Ag and Clean Water in the Chesapeake 

Bay Watershed

Date: August 7 Gather at 9 for coffee. 

Meeting will go to 12:30. Those who can to stay for lunch, we will 

go to a near by restaurant.

Where: Maryland State Highway Administration, 

Training Room # 1, 

5111 Buckeystown Pike, 

Frederick, Maryland 21704 (Directions below)

Objectives:

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

leaders;

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

and clean water;

3. Identify some approaches to moving forward; and

4. Some possible next steps.

Facilitators: Jim Baird Mid-Atlantic States Director, American Farmland Trust 

and Dana York Senior Advisor to the Bay Program from NRCS. 

Invitation List 

State County Name Work and Volunteer Positions 

MD St. Marys Buddy Hance Secretary, MDA; grain farmer; Past President MDFB Grain 

MD Q. Anne’s Luke Howard Organic & specialty crop producer. Former Ag Commission 

Chair, County Farm Bureau Director, County Planning 

Commission 

MD Q. Anne’s Jenny Rhodes Poultry, grain, Extension Agent 

MD Dorchester Terry Wolf-King Poultry, Young farmers Commission 

MD Montgomery Robert N. Stabler Grain and beef farmer. Mid Atlantic Farm Credit Maryland 

Ag Commission Montgomery County Soil Conservation (supervisor). Montgomery County Ag, MD Cattlemen’s Assn, 

NCBA, MDGPA, NCGA, MD & County Farm Bureau Farm 

Bureau. 

MD Washington Don Spickler Former dairy farmer. Independent Crop Insurance business.Active in MACD & NACD. 

MD Howard Bob Ensor County Conservation District Manager, retired NRCS, former 

head of MD Water Quality Cost Share Program 

MD Frederick James Stup Dairy 

PA State-wide Russell Reading PDA Asst. Secretary 

PA Lancaster Don McNutt District Administrator 25 yr career teaching and advisingHigh 

School, college and farmers, 10 years with Lanc Distr 6 as 

Administrator. Born and raised on a dairy farm in W. 

PA . . . Still involved in the 250 cow operation remotely. 

PA State-wide George Hazard PAFB Environmental Coordinator. Former Crop Consultant 

PA Lancaster Ron Kreider Dairy, private label mink products and produce. 

PA York Jack Dehoff Dairy farmer, State Conservation Commission Member 

PA Snyder Jim Brubaker Swine, Nutrient Mgt Advisory Board 

PA Lancaster Christ Plank Old Order Amish Steering Committee Represents, retired 

dairy farmer 

PA Lancaster J.B. Byler Retired dairy farmer. Old Order Amish Steering Committee 

PA Dauphin Keith Oellig Grain Farmer and PFB member 

VA Orange Monk Sanford Dairy farmer; VA Dairymen’s Association representative 

VA Montgomery Bill McKinnon Cattle farmer; Executive Director VA Cattlemen’s Association 

VA ? Steve Sturgis Vegetable and grain farmer; VA Potato and Vegetable Grower 

Association President 

VA Cumberland Will Sanderson Poultry Farmer; VA Poultry Federation representative; Young 

Farmer 

VA Katie Frazier VA Agribusiness Council 

VA Wilmer Stoneman VA Farm Bureau Federation 

VA Christina Hyre VA Grain Producers Association, Communications Director 

VA Rockingham Buff Showalter Beef, poultry, partner in Poultry Specialties, Valley Conservation Council 

VA Rockingham Anthony Beery Dairy and Poultry 

Chuck Fox Special Assistant to the Administrator for Chesapeake Bay 

and Anacostia River 

168

* Editor’s note: the phone numbers and e-mail addresses have been redacted.

Invitation List—Continued

State County Name Work and Volunteer Positions 

Larry Elworth Agricultural Counselor to the Administrator; former Exec. Director of Center for Agricultural Partnerships, USDA and 

the Domestic Policy Council. 

Kelly Shenk EPA Agricultural Policy Coordinator, EPA Chesapeake 

BayProgram Office 

Dana York Special Advisor to the Chesapeake Bay Program, NRCS 

Jim Baird MidAtlantic States Director, American Farmland Trust 

American Farmland Trust and the National Conservation Resource Service are 

pleased to invite you to a conversation with representatives from the Environmental 

Protection Agency. 

Our Collective Challenge: Viable Ag and Clean Water in the Chesapeake 

Bay Watershed

Date: August 7 Gather at 9 for coffee. 

Meeting will go to 12:30. Those who can to stay for lunch, we will 

go to a near by restaurant.

Where: Maryland State Highway Administration, 

Training Room # 1, 

5111 Buckeystown Pike, 

Frederick, Maryland 21704 (Directions below)

Objectives:

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

leaders;

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

and clean water;

3. Identify some approaches to moving forward; and

4. Some possible next steps.

Facilitators: Jim Baird MidAtlantic States Director, American Farmland Trust 

and Dana York Senior Advisor to the Bay Program from NRCS. 

Agenda 

Viable Farms and Clean Water in the Chesapeake Bay Watershed Producer 

and Ag Industry Conversation with EPA 

Time Activity 

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

(2) Welcome to My World—Describing the current situation from sector perspectives

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

(3) Break

(a) Bay Farmers from Maryland, Pennsylvania and Virginia

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

(5) Next steps—Where/how can this conversation be carried on?

(6) Comments and Feedback on the meeting

12:30 Close

Jim Baird * Dana York *

169

Directions to District 7, State Highway Administration, 5111 Buckeystown 

Pike, Frederick, MD 21704

From Western Maryland: (Cumberland/Hagerstown) 

1. Follow I–68 East to I–70 East at Hancock, Maryland.

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

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

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

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

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

Facility.

Go straight—training rooms are on the right. 

From East of Frederick: (Mount Airy/Columbia) (Baltimore) 

1. Take I–70 West to Exit 53 A, this is I–270 South (Washington)

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

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

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

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

Maintenance Facility.

Go straight—training rooms are on the right. 

From Washington/Rockville Via I–270: (Gaithersburg/Rockville) 

1. Follow I–270 North to Frederick, Maryland. Continue on I–270 to Exit 31 

(Buckeystown) Route 85 South.

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

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

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

Facility

Go straight—training rooms are on the right. 

From Virginia Line: 

1. Follow Route 340 to the I–70/I–270 split and take I–270 South (Washington).

2. Proceed on I–270 for approximately 1 mile to Exit 31B (Buckeystown), which 

is Route 85.

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

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

Facility.

Go straight—training rooms are on the right. 

American Farmland Trust 

Dear Participant:

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

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

a. from EPA?

b. from producers?

2. What are the main challenges that you face in trying to achieve both clean 

water and viable farms?

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

viable farms?

If you send us your responses (soon!) we will compile them and pick out the major 

themes, concerns and ideas prior to the meeting. This is voluntary and no names 

will be used. The point is to get a feeling of what the group sees as the priority 

issues and ensure they get talked about. You can send your responses as follows:

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

to the address below.

2. Visit this website and respond electronically.

3. Call Jim Baird at [Redacted] and tell him over the phone. 

170

ATTACHMENT C

State Watershed Implementation Plan (WIP) Teams 

Pennsylvania 

Chesapeake Bay Watershed Implementation Plan (WIP) Agricultural 

Workgroup Chair/ Co-Chair: Karl Brown and Mike Pechart, Co-Chair: 

Frank Schneider 

EPA met frequently with the PA WIP Agricultural Workgroup which had a number of key agricultural stakeholders represented such as the PA Farm Bureau, 

PennAg Industries, PA Conservation Commission, PA Department of Agriculture, 

PA conservation districts, Pennsylvania State University, and individual farmers.

Name Organization 

1. Don McNutt Lancaster Co. Con. Dist. 

2. Mark Richards Ag Coalition 

3. John Shuman LandStudies—Lycoming County 

4. David Brown (Susan Burky to 

coordinate) 

USDA–NRCS 

5. Jennifer Reed-Harry PennAg Industries 

6. Eric Hershey HRG 

7. Paul Lyskava PA Forest Products Assn. 

8. Tracey Coulter (alternate) DCNR BOF 

9. Tanya Dierolf PennFuture 

10. Susan Marquart PACD 

11. Brenda Shambaugh PACD 

12. Kristen Saacke Blunk PSU 

13. Larry Martick Adams CCD 

14. Marel Raub Chesapeake Bay Commission 

15. Suzanne Hall EPA 

16. John Dawes Foundation for Pennsylvania Watersheds 

17. Karl Brown SCC 

18. Mary Bender SCC 

19. John Bell (when position is 

field it will be the Natural Resources Director) 

PA Farm Bureau 

20. Sara Nicholas DCNR 

21. Grant Guilbon Pa Builders Association 

22. Kim Snell-Zarcone PennFuture 

23. John Seitz York County Planning Commission 

24. Grant Guilbon Pa Builders Association 

25. Jeff Wendle CET 

26. Scott Wyland Hawke McKeon & Sniscak 

27. Lamonte Garber Chesapeake Bay Foundation 

28. Rebecca Wiser Cumberland County Planning Dept. 

29. Mike Brubaker Brubaker Farms 

30. Matt Ehrhart Chesapeake Bay Foundation 

31. Pam Eyer Cumberland County Conservation Dist 

32. Dr. Beegle PSU 

33. Andy Zemba DEP 

34. Steve Taglang DEP 

35. Ann Smith Road DEP 

36. Pat Buckley DEP 

37. Kenn Pattison DEP 

38. Michael Pechart PDA 

39. Frank Schneider DEP 

Editor’s note: the e-mail address column for this table have been redacted. 

Staff: Andy Zemba, Pat Buckley, Steve Taglang, Kenn Pattison, and Ann Roda 

(please copy on all e-mails sent regarding this workgroup). 

171

Virginia TMDL Stakeholder Group Membership 

The Commonwealth established and engaged this stakeholder group to help develop the Watershed Implementation Plan. EPA attended many of the meetings to 

be available to answer questions. EPA also met with a subset of this group to discuss the agricultural portion of the plan with the Assistant Agriculture Secretary, 

Virginia Farm Bureau, Virginia Agribusiness, Virginia Department of Conservation 

and Recreation, and the Virginia Department of Environmental Quality.

Ag Industry:

—VA Agribusiness Council—Katie Frazier

—VA Farm Bureau Federation—Wilmer Stoneman

—VA Poultry Federation—Hobey Bauhan

—VA State Dairymen’s Association—Eric Paulson

—VA Grain Producers—Molly Pugh

—VA Forestry Association—Paul Howe

Wastewater:

—VAMWA—Chris Pomeroy & James Pletl

—Virginia Manufacturers Association—Brooks Smith & Tom Botkins

—Navy—DOD—David Cotnoir

Developed and Developing Lands:

—Homebuilders of Virginia—Mike Toalson

—Virginia Municipal Stormwater Association—Randy Bartlett

—James River Green Builders Council—Richard K. Friesner

—VA Association of Planning District Commissions—Deirdre Clark & Stuart 

McKenzie (Norm Goulet alternate)

—Fountainhead Alliance—David Anderson

—VA Association for Commercial Real Estate—Phil Abraham

—Wetland Studies and Solutions—Mike Rolband

Conservation/Environmental:

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

—James River Association—Bill Street

—Friends of the Rappahannock—John Tippett

—Southern Environmental Law Center—Rick Parrish

—Shenandoah Riverkeeper—Jeff Kelble

—Wetlands Watch—Skip Stiles

Local/Federal Gov’t:

—VML—Joe Lerch

—VaCo—Larry Land

—Rappahannock River Basin Commission—Eldon James

—Rivanna River Basin Commission—Leslie Middleton

—NRCS—Jack Bricker

Other:

—Virginia Seafood Council—Francis Porter

—Virginia Watermen’s Association—Ken Smith

—Virginia Chamber of Commerce—Tyler Craddock

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

—Chesapeake Bay Commission—Suzan Bulbulkaya

—VA CAC Member—Stella Koch

—VA STAC Member—Carl Hershner

—VA LGAC Member—Sally Thomas

Other Private Sector Stakeholders:

—CDM—Chris Tabor

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

Agency Staff to Stakeholder Group:

172

—VA DCR

—VA DEQ

—VDH

Agencies to Consult:

—VA DOF

—VDACS

—VDOT 

Delaware Phase I Watershed Implementation Plan Agriculture Subcommittee 

EPA met frequently with the Delaware Phase I Watershed Implementation Plan 

Agriculture Subcommittee during the development and refinement of the Watershed 

Implementation Plan. The members of the Subcommittee are as follows: 

Agriculture Subcommittee Member Organization 

Farmer Representatives:

—David Baker Farmer Representative

—Laura Hill Farmer Representative

DE Department of Agriculture:

—Mark Davis, DE Department of Agriculture

—Chris Cadwallader, DE Department of Agriculture

—William Rohrer, DE Department of Agriculture

U.S. Department of Agriculture:

—Dastina Johnson USDA

—Denise Macleis USDA

—Jack Tarburton USDA

—Lynn Manges USDA

—Marianne Hardesty USDA

—Paul Petrichenko USDA

—Robin Talley USDA

Conservation Districts:

—Debbie Absher Sussex Conservation District

—Kevin Donnelly New Castle Conservation District

—Fred Mott Kent Conservation District

—Paul Morrill New Castle Conservation District

—Timothy Riley Kent Conservation District

Scientists:

—Dave Hansen University of Delaware

—Judy Denver and Mark Nardi USGS

DNREC:

—Robert Baldwin DNREC

—Thomas Barthelmeh DNREC

—Bryan Bloch DNREC

—Michael Brown DNREC

—Elizabeth Goldbaum DNREC

—Jennifer Nelson DNREC

—Robert Palmer DNREC

—Jennifer Walls DNREC

—Jennifer Volk DNREC 

Maryland Watershed Implementation Plan Action Team and MD Watershed 

Implementation Plan Stakeholder Advisory Group 

The MD WIP Action team is an internal agency focus group, representing the primary state contacts. EPA met frequently with the Action Team which included the 

Maryland Department of Agriculture, during the development and refinement of the 

173

WIPs. MD also created the Watershed Implementation Plan Stakeholder Advisory 

Group to serve as the external focus group. This stakeholder group, along with public meetings and the online suggestion box served as the venue for soliciting agricultural and other public stakeholder input into the WIP development process.

Action Team:

—Maryland Department of Agriculture

—Maryland Department of Natural Resources

—Maryland Department of the Environment

—Maryland Department of Planning

Stakeholder Advisory Group:

—Carlton Haywood, Chair—Middle Potomac Tributary Team

—Les Knapp—Maryland Association of Counties (MACo)

—Candace Donoho—Maryland Municipal League (MML)

—Katie Maloney—Maryland State Homebuilders Association

—Jen Aiosa Chesapeake Bay Foundation (CBF)

—Valerie Connelly—MD Farm Bureau

—Bill Satterfield—Delmarva Poultry Industry Inc.

—Bruce Williams—Chesapeake Bay Local Government Advisory Committee

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

—Jamie Brunkow—Sassafras River Association

—Terry Matthews—State Water Quality Advisory Committee (SWQAC) (Sarah 

Taylor)

—Katheleen Freeman—Coastal & Watershed Resources Advisory Committee 

(CWRAC)

—Lisa Ochsenhirt—Maryland Association of Municipal Wastewater Agencies

—Jim Gracie—Sport Fisheries Advisory Commission

—Richard Young—Tidal Fisheries Advisory Commission

—Tom Filip—P/B Tributary Team

—Jen Dindinger—Choptank Tributary Team

—Julie Pippel—Upper Potomac Tributary Team

—Rupert Rossetti—Upper Western Shore Tributary Team

—Bob Boxwell—Lower Potomac Tributary Team

—Ginger Ellis—Lower Western Shore

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

MD State Staff:

—Beth Horsey—MDA

—John Rhoderick—MDA

—Sara Lane—DNR

—Catherine Shanks—DNR

—Mike Bilek—DNR

—Claudia Donegan—DNR

—Chris Aadland—DNR

—Jim George—MDE

—Maria Levelev—MDE

—Paul Emmart—MDE

—Joe Tassone—MDP

—Jason Dubow—MDP

—Dan Baldwin—MDP

Others:

—Peter Bouxein—CBF

—Moira Croghan—Sassafras Rive Association 

174

West Virginia Phase I Watershed Implementation Plan Team 

EPA met frequently with the WV Watershed Implementation Plan Team which 

was comprised of key agricultural agencies such as the WV Department of Agriculture and WV Conservation Agency.

WV Department of Agriculture:

—Steve Hannah

—Matt Monroe

WV Conservation Agency:

—Carla Hardy

—Pam Russell

WVU Extension Service:

—Rick Herd

—Jeff Skousen

West Virginia Department of Environmental Protection:

—Theresa Koon

—Dave Montali

Jefferson County, WV:

—Jennifer Brockman

Potomac River Keepers:

—Brent Walls 

New York Watershed Implementation Plan Team 

EPA met frequently with the NY Watershed Implementation Plan Team which 

was comprised of key agricultural agencies and land grant universities such as the 

Upper Susqhehanna Coalition, the NYS Soil and Water Conservation Committee, 

NRCS, and Cornell University.

—Upper Susquehanna Coalition

—New York Department of Environmental

—NYS Soil and Water Conservation

—Natural Resources Conservation Service

—Cornell University 

Insert 3

Mr. GOODLATTE. And your contention is that the Clean Water Act gives you 

authority to supersede the decision of the states regarding to the—regarding the 

Water Implementation Plan? That is obviously the subject of at least one lawsuit. You have had your ears pinned back on several others in the Ninth Circuit 

and now in the Fifth Circuit. You have been told you don’t have those authorities. Is it really your contention in spite of growing legal decisions that the EPA 

has this authority? And if it has the authority why is it that we have legislation 

to codify it, to codify the President’s Executive order? We wouldn’t need it. If 

it is already in the law you wouldn’t need that would you? 

Mr. PERCIASEPE. I don’t have any comment on any legislation, but I can tell 

you that there is a series of constructions in the original Clean Water Act of 

1972 that once we delegate the authorities to the states that they are required 

to set the standards and put the plans in place to meet those standards. And 

the EPA if those are not sufficient does have the authority in the Clean Water 

Act to backstop that. We do not want to do that. I want to be clear. We do not 

want to do that. 

Clean Water Act Section 303(d) 

(d)(1)(A) Each State shall identify those waters within its boundaries for which 

the effluent limitations required by section 301(b)(1)(A) and section 301(b)(1)(B) are 

not stringent enough to implement any water quality standard applicable to such 

waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters. 

(B) Each State shall identify those waters or parts thereof within its boundaries 

for which controls on thermal discharges under section 301 are not stringent enough 

to assure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife.

175

(C) Each State shall establish for the waters identified in paragraph 

(1)(A) of this subsection, and in accordance with the priority ranking, the 

total maximum daily load, for those pollutants which the Administrator 

identifies under section 304(a)(2) as suitable for such calculation. Such load 

shall be established at a level necessary to implement the applicable water 

quality standards with seasonal variations and a margin of safety which 

takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.

(D) Each State shall estimate for the waters identified in paragraph (1)(D) of this 

subsection the total maximum daily thermal load required to assure protection and 

propagation of a balanced, indigenous population of shellfish, fish and wildlife. Such 

estimates shall take into account the normal water temperatures, flow rates, seasonal variations, existing sources of heat input, and the dissipative capacity of the 

identified waters or parts thereof. Such estimates shall include a calculation of the 

maximum heat input that can be made into each such part and shall include a margin of safety which takes into account any lack of knowledge concerning the development of thermal water quality criteria for such protection and propagation in the 

identified waters or parts thereof. 

(2) Each State shall submit to the Administrator from time to time, with 

the first such submission not later than one hundred and eighty days after 

the date of publication of the first identification of pollutants under section 

304(a)(2)(D), for his approval the waters identified and the loads established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection.

The Administrator shall either approve or disapprove such identification and load 

not later than thirty days after the date of submission. If the Administrator approves such identification and load, such State shall incorporate them into its current plan under subsection (e) of this section. If the Administrator disapproves such 

identification and load, he shall not later than thirty days after the date of such 

disapproval identify such waters in such State and establish such loads for such waters as he determines necessary to implement the water quality standards applicable to such waters and upon such identification and establishment the State shall 

incorporate them into its current plan under subsection (e) of this section. 

(3) For the specific purpose of developing information, each State shall identify 

all waters within its boundaries which it has not identified under paragraph (1)(A) 

and (1)(B) of this subsection and estimate for such waters the total maximum daily 

load with seasonal variations and margins of safety, for those pollutants which the 

Administrator identifies under section 304(a)(2) as suitable for such calculation and 

for thermal discharges, at a level that would assure protection and propagation of 

a balanced indigenous population of fish, shellfish and wildlife.

(4) LIMITATIONS ON REVISION OF CERTAIN EFFLUENT LIMITATIONS.—

(A) STANDARD NOT ATTAINED.—For waters identified under paragraph (1)(A) 

where the applicable water quality standard has not yet been attained, any effluent 

limitation based on a total maximum daily load or other waste load allocation established under this section may be revised only if (i) the cumulative effect of all such 

revised effluent limitations based on such total maximum daily load or waste load 

allocation will assure the attainment of such water quality standard, or (ii) the designated use which is not being attained is removed in accordance with regulations 

established under this section. 

(B) STANDARD ATTAINED.—For waters identified under paragraph (1)(A) where the 

quality of such waters equals or exceeds levels necessary to protect the designated 

use for such waters or otherwise required by applicable water quality standard, any 

effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any water quality standard established under 

this section, or any other permitting standard may be revised only if such revision 

is subject to and consistent with the antidegradation policy established under this 

section. 

(Emphasis added.) 

Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus and 

Sediment 

December 29, 2010

* * * * *

176

3 33 U.S.C. 1313(d)(1)(C). 

4Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir. 2002). 5 40 CFR 122.44(d)(1)(vii)(B). 

6 Clean Water Act section 117(g)(1)(A)–(B), 33 U.S.C. 1267(g)(1)(A)–(B). 

1.4 Legal Framework for the Chesapeake Bay TMDL 

1.4.1 What is a TMDL? 

As discussed more fully in Section 1.1, a TMDL specifies the maximum amount 

of a pollutant that a waterbody can receive and still meet applicable WQS. Allocations to point sources are called wasteload allocations or WLAs, while allocations 

to nonpoint sources are called load allocations or LAs. A TMDL is the sum of the 

WLAs (for point sources), LAs (for nonpoint sources and natural background) (40 

CFR 130.2), and a margin of safety (CWA section 303(d)(1)(C)). Section 303(d) requires that TMDLs be established for impaired waterbodies ‘‘at a level necessary to 

implement the applicable [WQS].’’ 3

TMDLs are ‘‘primarily informational tools’’ that ‘‘serve as a link in an implementation chain that includes federally regulated point source controls, state or local 

plans for point and nonpoint source pollutant reduction, and assessment of the impact of such measures on water quality, all to the end of attaining water quality 

goals for the nation’s waters.’’ 4 Recognizing a TMDL’s role as a vital link in the implementation chain, federal regulations require that effluent limits in NPDES permits be ‘‘consistent with the assumptions and requirements of any available WLA’’ 

in an approved TMDL.5

In addition, before EPA establishes or approves a TMDL that allocates pollutant 

loads to both point and nonpoint sources, it determines whether there is reasonable 

assurance that the nonpoint source LAs will, in fact, be achieved and WQS will be 

attained (USEPA 1991b). If the reductions embodied in LAs are not fully achieved, 

the collective reductions from point and nonpoint sources will not result in attainment of the WQS. 

The Bay TMDL will be implemented using an accountability framework that includes the jurisdictions’ WIPs, 2 year milestones, EPA’s tracking and assessment of 

restoration progress and, as necessary, specific federal actions if the Bay jurisdictions do not meet their commitments. The accountability framework is being established, in part, to demonstrate that the Bay TMDL is supported by reasonable assurance. The accountability framework is also being established pursuant to CWA 

section 117(g)(1). Section 117(g) of the CWA directs the EPA Administrator to ‘‘ensure that management plans are developed and implementation is begun . . . to 

achieve and maintain . . . the nutrient goals of the Chesapeake Bay Agreement for 

the quantity of nitrogen and phosphorus entering the Chesapeake Bay and its watershed, [and] the water quality requirements necessary to restore living resources 

in the Chesapeake Bay ecosystem.’’ 6 In addition, Executive Order 13508 directs 

EPA and other federal agencies to build a new accountability framework that guides 

local, state, and federal water quality restoration efforts. The accountability framework is designed to help ensure that the Bay’s nitrogen, phosphorus, and sediment 

goals, as embodied in the Chesapeake Bay TMDL, are met. While the accountability 

framework informs the TMDL, section 303(d) does not require that EPA ‘‘approve’’ 

the framework per se, or the jurisdictions’ WIPs that constitute part of that framework. 

1.4.2 Why is EPA establishing this TMDL? 

In 1998, data showed the mainstem and tidal tributary waters of the Chesapeake 

Bay to be impaired for aquatic life resources. EPA determined that the mainstem 

and tidal tributary waters of the Chesapeake Bay must be placed on Virginia’s section 303(d) list. EPA therefore added the mainstem of the Chesapeake Bay to Virginia’s final section 303(d) list. As described in Section 2, each tidal river, tributary, 

embayment, and other tidal waterbody that is part of the Chesapeake Bay TMDL 

is included on a jurisdiction’s section 303(d) list. 

EPA established the Chesapeake Bay TMDL pursuant to a number of existing authorities, including the CWA and its implementing regulations, judicial consent decrees requiring EPA to address certain impaired Chesapeake Bay and tidal tributary and embayment waters, a settlement agreement resolving litigation brought by 

the Chesapeake Bay Foundation, the 2000 Chesapeake Agreement, and Executive 

Order 13508. In establishing the Bay TMDL, EPA acted pursuant to the consensus 

direction of the Chesapeake Executive Council’s PSC and in partnership with each 

of the seven Chesapeake Bay watershed jurisdictions. 

The CWA provides EPA with ample authority to establish the Chesapeake Bay 

TMDL. CWA section 117(g)(1) provides that ‘‘[t]he Administrator, in coordination 

177

7Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517 (9th Cir. 1995); Scott v. City of Hammond, 741 F.2d 992(7th Cir. 1984); American Canoe Assn. v EPA, 54 F.Supp.2d 621 (E.D.Va. 

1999). 8 American Canoe Association v. EPA, 98cv979 (June 11, 1999).

with other members of the [CEC], shall ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement 

to achieve and maintain [among other things] the nutrient goals of the Chesapeake 

Bay Agreement for the quantity of nitrogen and phosphorus entering the Chesapeake Bay and its watershed [and] the water quality requirements necessary to restore living resources in the Chesapeake Bay ecosystem.’’ Because it establishes the 

Bay and tidal tributaries’ nutrient and sediment loading and allocation targets, the 

Chesapeake Bay TMDL is itself such a ‘‘management plan.’’ In addition, the Bay 

TMDL’s loading and allocation targets both inform and are informed by a larger set 

of federal and state management plans being developed for the Bay, including the 

Bay watershed jurisdictions’ WIPs and the May 2010 Strategy for Protecting and Restoring the Chesapeake Bay (FLCCB 2010). 

CWA section 303(d) requires jurisdictions to establish and submit TMDLs to EPA 

for review. Under certain circumstances, EPA also has the authority to establish 

TMDLs. The circumstances of this TMDL do not necessarily identify the outer 

bounds of EPA’s authority. However, where—as here—impaired waters have been 

identified on jurisdictions’ section 303(d) lists for many years, where the jurisdictions in question decided not to establish their own TMDLs for those waters, where 

EPA is establishing a TMDL for those waters at the direction of, and in cooperation 

with, the jurisdictions in question, and where those waters are part of an interrelated and interstate water system like the Chesapeake Bay that is impaired by 

pollutant loadings from sources in seven different jurisdictions, CWA section 303(d) 

authorizes EPA to establish that TMDL.7

On May 12, 2009, President Barack Obama signed Executive Order 13508—

Chesapeake Bay Protection and Restoration. The Executive Order’s overarching goal 

is ‘‘to protect and restore the health, heritage, natural resources, and social and economic value of the Nation’s largest estuarine ecosystem and the natural sustainability of its watershed.’’ The Executive Order says the federal government ‘‘should 

lead this effort’’ and acknowledges that progress in restoring the Bay ‘‘will depend 

on the support of state and local governments.’’ To that end, the Executive Order 

directs the lead federal agencies, including EPA, to work in close collaboration with 

their state partners. To protect and restore the Chesapeake Bay and its tidal tributaries, the President directed EPA to ‘‘make full use of its authorities under the 

[CWA].’’ In establishing the Bay TMDL, EPA is doing no more-or less-than making 

full use of its CWA authorities to lead a collaborative and effective federal and state 

effort to meet the Bay’s nutrient and sediment goals. 

A number of consent decrees, memoranda of understanding (MOUs), and settlement agreements provide additional support for EPA’s decision to establish the 

Chesapeake Bay TMDL addressing certain waters identified as impaired on the 

Maryland, Virginia, and the District of Columbia’s 1998 section 303(d) lists and on 

the Delaware 1996 section 303(d) list. EPA established the Chesapeake Bay TMDL 

consistent with those consent decrees, MOUs, and settlement agreements, described 

below. 

Virginia-EPA Consent Decree 

The American Canoe Association, Inc., and the American Littoral Society filed a 

complaint against EPA for failing to comply with the CWA, including section 303(d), 

regarding the TMDL program in the Commonwealth of Virginia. A consent decree 

signed in 1999 resolved the litigation.8 The consent decree includes a 12 year schedule for developing TMDLs for impaired segments identified on Virginia’s 1998 section 303(d) list. The consent decree requires EPA to establish TMDLs for those waters, by May 1, 2011, if Virginia fails to do so according to the established schedule. 

Virginia has requested that EPA establish TMDLs for the nutrient- and sedimentimpaired tidal portions of the Chesapeake Bay and its tributaries and embayments 

in accordance with the Virginia consent decree schedule (CBP PSC 2007). Table 1–

3 provides a list of the Virginia consent decree waters that were addressed by the 

Chesapeake Bay TMDLs for nitrogen, phosphorus, and sediment. 

178

9 Kingman Park Civic Association v. EPA, 98cv00758 (June 13, 2000). 10 Kingman Park Civic Association v. EPA, 98cv00758 (Order February 12, 2008). 11 Anacostia Riverkeeper, et al. v. Jackson, 1:2009cv00098 (D.D.C.) (Mem. and Order May 25, 

2010).

Table 1–3. Virginia consent decree (CD) waters impaired for dissolved 

oxygen (DO) and/or nutrients addressed by the Chesapeake Bay TMDL 

Waterbody Name CD Segment 

ID Chesapeake Bay Segment ID CDImpairment 

Bailey Bay, Bailey Creek—Tidal VAP–G03E JMSTF1 DO 

Broad Creek VAT–G15E ELIPH, WBEMH, SBEMH, EBEMH DO 

Chesapeake Bay Mainstem Narrative a CB5MH, CB6PH, CB7PH Nutrients 

Chesapeake Bay Mainstem VACB–R01E CB5MH, CB6PH, CB7PH DO 

Elizabeth River—Tidal Narrative b ELIPH, WBEMH, SBEMH, EBEMH Nutrients 

Hungars Creek VAT–C14R CB7PH DO 

James River—Tidal Narrative c JMSTF2, JMSTF1, JMSOH, JMSMH, 

JMSPH 

Nutrients 

King Creek VAT–F27E YRKPH DO 

Mattaponi River—Tidal Narrative d MPNTF, MPNOH Nutrients 

Messongo Creek VAT–C10E POCMH DO 

North Branch Onancock Creek VAT–C11E CB7PH DO 

Pagan River VAT–G11E JMSMH DO 

Pamunkey River—Tidal Narrative e PMKTF, PMKOH Nutrients 

Queen Creek VAT–F26E YRKMH DO 

Rappahannock River Narrative f RPPMH Nutrients 

Rappahannock River VAP–E25E RPPMH Nutrients 

Rappahannock River VAP–E25E RPPMH DO 

Rappahannock River VAP–E26E RPPMH Nutrients 

Rappahannock River VAP–E26E RPPMH DO 

Thalia Creek VAT–C08E LYNPH DO 

Williams Creek VAN–A30E POTMH DO 

York River Narrative g YRKMH, YRKPH Nutrients 

York River VAT–F27E YRKPH DO 

Source: American Canoe Association v. EPA, 98cv979 (June 11, 1999). 

Notes: 

a = Chesapeake Bay Mainstem (VACB–R01E) impaired for nutrients. 

b = Elizabeth River (VAT–G15E) impaired for DO, nutrients. 

c = James River (VAP–G01E, VAP–G03E, VAP–G02E, VAP–G04E, VAP–G11E, and VAP–

G15E) impaired for nutrients. d = Mattaponi River (VAP–F24E and VAP–F25E) impaired for nutrients. 

e = Pamunkey River (VAP–F13E and VAP–F14E) impaired for DO, nutrients. 

f = Rappahannock River (VAP–E24E) impaired for DO. 

g = York River (VAT–F26E) impaired for nutrients. 

District of Columbia-EPA Consent Decree 

In 1998 Kingman Park Civic Association and others filed a similar suit against 

EPA.9 The lawsuit was settled through the entry of a consent decree requiring EPA 

to, among other things, establish TMDLs for the District of Columbia’s portions of 

the tidal Potomac and tidal Anacostia rivers if not established by the District of Columbia by a certain date. 

The impairment of the District of Columbia’s portion of the upper tidal Potomac 

River by low pH is directly related to the Chesapeake Bay water quality impairments because the low pH is a result of excess nutrients causing algal blooms in 

the tidal river. Establishing a tidal Potomac River pH TMDL is directly linked to 

establishing the Chesapeake Bay TMDL because of their common impairing pollutants (nitrogen and phosphorus) and the hydrologic connection between the District’s 

portion of the tidal Potomac River and the Chesapeake Bay. EPA and the Kingman 

Park plaintiffs jointly sought, and received on February 12, 2008, a formal extension 

of the District of Columbia TMDL Consent Decree so that EPA could complete the 

Potomac River pH TMDL on the same schedule as the Chesapeake Bay TMDL.10

The District of Columbia requested that EPA establish the pH TMDL for the District’s portion of the tidal Potomac River (CBP PSC 2007). Table 1–4 provides a list 

of the District’s consent decree waters that were addressed by the Chesapeake Bay 

TMDLs for nitrogen, phosphorus, and sediment. 

In addition, Anacostia Riverkeeper and Friends of the Earth filed suit against 

EPA challenging more than 300 TMDLs for the District of Columbia, including the 

Anacostia River TMDLs, because the TMDLs were not expressed as daily loads. On 

May 25, 2010, the District Court for the District of Columbia ordered the vacatur 

of the District of Columbia’s TMDL for pH for the Washington Ship Channel, with 

a stay of vacatur until May 31, 2011.11 With publication of the Bay TMDL, the 

179

12 American Littoral Society, et al. v. EPA, et al., 96cv591 (D.Del. 1997). 

Washington Ship Channel pH impairment has been addressed and the pH TMDL 

for the Ship Channel approved by EPA on December 15, 2004 has been superseded. 

Table 1–4. District of Columbia consent decree (CD) waters impaired for pH 

addressed by the Chesapeake Bay TMDL 

Waterbody Name CD Segment 

ID Chesapeake Bay Segment ID CDImpairment 

Washington Ship Channel DCPWC04El00 POTTFlDC pH 

Middle Potomac River DCPMS00E POTTFlDC pH 

Source: Kingman Park Civic Association v. EPA, 98cv00758 (June 13, 2000). 

Delaware-EPA Consent Decree 

In 1996 the American Littoral Society and the Sierra Club filed a suit against 

EPA to ensure that TMDLs were developed for waters on Delaware’s 1996 section 

303(d) list, one of which is a tidal Bay segment (Upper Nanticoke River). The parties entered into a consent decree resolving the lawsuit.12 The consent decree required EPA to establish TMDLs if Delaware failed to do so within the 10 year 

TMDL development schedule. Although Delaware established TMDLs for the one 

listed tidal Bay segment (DE DNREC 1998), the TMDLs were established to meet 

prior WQS and are insufficient to attain Chesapeake Bay WQS. 

Maryland-EPA MOU 

In 1998 Maryland and EPA Region 3 entered into an MOU that, among other 

things, established a 10 year schedule for addressing waters on Maryland’s 1998 

section 303(d) list, with completion by 2008 (MDE 1998). Because of funding constraints, the complexity of some TMDLs, and limited staff resources, Maryland determined that it would not be able to address all 1998 listed waters by 2008. Further, the Chesapeake 2000 Agreement established a goal of meeting water quality 

standards in the Chesapeake Bay by 2010 (CEC 2000). Many of the waters on Maryland’s 1998 section 303(d) list were open waters of the Bay or tidal tributaries and 

embayments to the Bay. Maryland determined that developing TMDLs for those 

tidal waters before the deadline established by the MOU, as would be required 

under the schedule established in 1998, ‘‘would undermine the spirit of the agreement’’ because of a lack of integration between the CBP partnership and Maryland 

efforts (MDE 2004). Therefore, Maryland decided to postpone development of 

TMDLs for Maryland’s listed Chesapeake Bay and its tidal tributary and 

embayment waters until the two programs could coordinate efforts. 

In September 2004, Maryland and EPA Region 3 entered into a revised MOU that 

extended the schedule for TMDL development to 13 years (by 2011) (MDE 2004). 

Although neither Maryland nor EPA is under a consent decree for establishing 

TMDLs for Maryland waters, the state has requested that EPA develop the TMDLs 

for the Maryland portion of the Chesapeake Bay and tidal tributaries and 

embayments impaired by excess nitrogen, phosphorus, and sediment as recognized 

in the MOU between Maryland and EPA (CBP PSC 2007). 

Chesapeake Bay Foundation Settlement Agreement 

In January 2009, the Chesapeake Bay Foundation and others filed suit against 

EPA in U.S. District Court for the District of Columbia (1:09–cv–00005–CKK) alleging, among other things, that EPA had failed to carry out nondiscretionary duties 

under CWA section 117(g) designed to restore and preserve the Chesapeake Bay. 

In May 2010, EPA signed a settlement agreement with the plaintiffs promising to 

take a number of actions to restore and preserve the Bay. In particular, EPA promised that by December 31, 2010, it would establish a TMDL for those segments of 

the Chesapeake Bay impaired by nitrogen, phosphorus, and sediment. EPA is establishing this TMDL, in part, to meet that commitment. 

* * * * *

Response to Public Comments 

Chesapeake Bay TMDL for Nitrogen, Phosphorus and Sediment 

December 29, 2010

Docket #: EPA–R03–OW–2010–0736

* * * * *

180

Chapter 1—Comments and Responses 

Part 1

* * * * *

Legal Comments 

* * * * *

Comment ID 0288.1.001.036

Author Name: Pomeroy Christopher 

Organization: Virginia Association of Municipal Wastewater Agencies, Inc. 

(VAMWA) 

The American Canoe AND Kingman Park Consent Decrees Do Not Address Virginia’s Chlorophyll a 

EPA continues to assert in it must complete the Bay TMDL by 2011 (the December, 2010 deadline is a self-imposed acceleration) because of two consent decrees 

issued in the late 1990/early 2000 timeframe, American Canoe Association, Inc., et 

al. v. EPA, Civil Action No. 98–99–A (U.S. D.Ct. ED VA, 1999)[FN102] and Kingman Park Civic Association, et al. v. EPA, Case No. 1:98CV00758 (U.S. D.Ct. D.C., 

2000). Draft TMDL at 1–14 to 1–16. 

VAMWA submits that EPA’s obligations to develop a TMDL by May, 2011 do not 

extend to establishing loadings on the James River for chlorophyll a. As the earlier 

discussion of the history of the establishment of the standard (see Section VI above) 

illustrates, the James River chlorophyll a standard was not even adopted until 2005. 

In contrast, the American Canoe Consent Decree, was signed and filed in Federal 

Court in 1999 and covers TMDLs on the then-existing 1998/99 303(d) list for Virginia. It is therefore impossible that EPA’s obligation from the American Canoe 

Consent Decree extends to chlorophyll a on the James given that the standard did 

not even come into existence until six years later. Although EPA has wrapped the 

James chlorophyll a issue up into this TMDL, it is not obligated to do so, and should 

not have done so in light of the major concerns expressed by the State and VAMWA 

regarding the existing standard. 

[FN102] Attached hereto as Appendix 51. [Comment Letter contains additional information in the form of an attachment. See original comment letter 0288.A51] 

Response: Thank you for the comment. For a comprehensive discussion of legal 

issues see EPA Essay Response to Legal Issues provided in response to comment 

number 0293.1.001.014. 

Comment ID 0293.1.001.014

Author Name: Pomeroy Christopher 

Organization: Virginia Municipal Stormwater Association, Inc. (VAMSA)

VAMSA does not dispute that TMDL implementation planning is important for 

moving clean-up programs ahead after TMDL adoption and for illustrating NPS reductions plans. However, because WIPs are not derived from CWA section 303(d) 

authority,[FN30] the details of these plans are not subject to EPA approval or control. EPA’s decision in its Draft TMDL to create ‘‘backstops’’—requirements that in 

effect revise the Virginia’s Draft WIP—is not supported by federal law. 

In addition to acting without specific authorization from federal law, EPA’s actions are also inconsistent with state primacy granted by Section 510 of the Act:

‘‘Except as expressly provided in this Act, nothing in this Act shall (1) preclude 

or deny the right of any state or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of 

pollutants, or (B) any requirement respecting control or abatement of pollution; 

except that if an effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance is in effect under 

this Act, such State or political subdivision or interstate agency may not adopt 

or enforce any effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent 

than the effluent limitation, or other limitation, effluent standard, prohibition, 

pretreatment standard, or standard of performance under this Act; or (2) be 

construed as impairing or in any manner affecting any right or jurisdiction of 

the States with respect to the waters (including boundary waters) of such 

States.’’) [FN31]

Federal law clearly gives Virginia the authority to develop its own requirements 

and programs, so long as they are not less stringent than those established under 

181

the Act.[FN32] Because EPA has no statutory authority to establish WIPs, it is impossible for Virginia’s Draft WIP to be less stringent. 

For these reasons, Virginia should have the discretion to establish its own WIP, 

without EPA passing judgment and usurping what is rightfully the state’s role in 

this process. 

[FN30] Section 303(d) of the Clean Water Act mandates that states must prepare 

TMDLs for impaired waters, and authorizes EPA to approve or disapprove the loadings. If EPA chooses to disapprove, it has the authority to develop loadings on its 

own accord (‘‘If the Administrator disapproves such identification and load, he shall 

not later than thirty days after the date of such disapproval identify such waters 

in such state and establish such loads for such waters as he determines necessary 

to implement the water quality standards applicable to such waters and upon such 

identification and establishment the State shall incorporate them into its current 

plan under subsection (e) of this section.’’) 33 U.S.C. § 1313. Section 303(e) specifically gives the State the authority and responsibility to develop a ‘‘continuing planning process’’ for addressing navigable waters. A part of this planning process is 

TMDLs (again, TMDL implementation plans are not mentioned). Nowhere in the 

text of Section 303(d) or (e) is EPA permitted to pass judgment on state implementation plans. 

[FN31] 33 U.S.C. 1370. 

[FN32] Virginia law (Chesapeake Bay and Virginia Waters Clean-Up and Oversight Act) includes a provision for the development of a Bay clean-up plan. Va. Code 

62.1–44.117. 

Response:

EPA Response to Legal Comments Regarding the Chesapeake Bay TMDL 

EPA received a number of comments that raise legal issues in connection with 

EPA’s establishment of the Chesapeake Bay TMDL. Identical (or very similar) 

issues were raised by a number of different commenters. In hopes of providing a 

more readable and understandable response to these legal comments, EPA has developed this consolidated response, rather than responding ‘‘piecemeal’’ to all the individual comments raising legal issues. In addition, readers are referred to those 

sections of the draft and final TMDL discussing TMDL’s and the CWA and the Bay 

TMDL’s legal framework. 

A. Comments regarding EPA authority to establish the TMDL and its allocations

1. While some commenters appeared to concede that EPA had authority to establish the Bay TMDL at least for waters covered by the Virginia, D.C., and 

Delaware consent decrees, other commenters challenged EPA authority to establish the Bay TMDL for any of the Bay’s waters.

Response: As discussed in the draft and final TMDLs, EPA is establishing the 

Chesapeake Bay TMDL pursuant to a number of existing authorities, including the 

CWA and its implementing regulations, judicial consent decrees requiring EPA to 

address certain impaired Chesapeake Bay and tidal tributary waters, a settlement 

agreement resolving litigation brought by the Chesapeake Bay Foundation, the current Chesapeake Bay Agreement, and Executive Order 13508. In establishing the 

Bay TMDL, EPA has acted pursuant to the consensus direction of the Chesapeake 

Executive Council’s PSC and in partnership with each of the seven Chesapeake Bay 

watershed jurisdictions. 

The CWA provides EPA with ample authority to establish the Chesapeake Bay 

TMDL. CWA section 117(g)(1) provides that [t]he Administrator, in coordination 

with other members of the [CEC], shall ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement 

to achieve and maintain [among other things] the nutrient goals of the Chesapeake 

Bay Agreement for the quantity of nitrogen and phosphorus entering the Chesapeake Bay and its watershed [and] the water quality requirements necessary to restore living resources in the Chesapeake Bay ecosystem. Because it establishes the 

Bay and tidal tributaries’ nutrient and sediment loading and allocation targets, the 

Chesapeake Bay TMDL is such a management plan. In addition, the Bay TMDL’s 

loading and allocation targets both inform and are informed by, a larger set of federal and state management plans being developed for the Bay, including the jurisdiction WIPs and the May 2010 Bay strategy. 

CWA section 303(d) requires jurisdictions to establish and submit TMDLs to EPA 

for review. Under certain circumstances, EPA also has the authority to establish 

TMDLs. The circumstances of this TMDL do not necessarily identify the outer 

bounds of EPA’s authority. However, where impaired waters have been identified 

on jurisdictions‘ section 303(d) lists for many years, where the states in question 

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have decided not to establish their own TMDLs for those waters, where EPA is establishing a TMDL for those waters at the direction of, and in cooperation with, the 

jurisdictions in question, and where those waters are part of an interrelated and 

interstate water system like the Chesapeake Bay that is impaired by pollutant loadings from sources in seven different jurisdictions, CWA section 303(d) authorizes 

EPA authority to establish that TMDL. Dioxin/Organochlorine Center v. Clarke, 57 

F.3d 1517 (9th Cir. 1995); Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984); 

American Canoe Ass’n. v. EPA, 54 F.Supp.2d 621 (E.D.Va. 1999). 

On May 12, 2009, President Barack Obama signed Executive Order 13508—

Chesapeake Bay Protection and Restoration. The Executive Order’s overarching goal 

is to protect and restore the health, heritage, natural resources, and social and economic value of the Nation’s largest estuarine ecosystem and the natural sustainability of its watershed. The Executive Order says the federal government should 

lead this effort and acknowledges that progress in restoring the Bay will depend on 

the support of state and local governments. To that end, the Executive Order directs 

the lead federal agencies, including EPA, to work in close collaboration with their 

state partners. To protect and restore the Chesapeake Bay and its tidal tributaries, 

the President directed EPA to ‘‘make full use of its authorities under the [CWA].’’ 

In establishing the Bay TMDL, EPA is doing no more-or less-than making full use 

of its CWA authorities to lead a collaborative and effective federal and state effort 

to meet the Bay’s nutrient and sediment goals. 

In addition, as discussed in the TMDL itself, a number of consent decrees, MOUs, 

and settlement agreements provide additional authority and support for EPA’s decision to establish the Chesapeake Bay TMDL addressing certain waters identified as 

impaired on the Maryland, Virginia, and District of Columbia’s 1998 section 303(d) 

lists and on the Delaware 1996 section 303(d) list. EPA is establishing the Chesapeake Bay TMDL consistent with those consent decrees, MOUs, and settlement 

agreements. It is immaterial whether Virginia was a party to the litigation that resulted in the Virginia consent decree. The decree represents a judicially-enforceable 

obligation that EPA must fulfill if necessary, as is the case here.

2. One commenter said that EPA had inappropriately relied on Dioxin/

Organochlorine Center v. Clarke, 57 F3d 1517 (9th Cir. 1995), Scott v. City of 

Hammond, 741 F.2d 992 (7th Cir. 1984) and American Canoe Ass’n v. EPA, 54 

F.Supp.2d 621 (E.D.Va. 1999) as support for including Bay TMDL allocations 

for New York. The commenter said those cases were inapposite because (1) New 

York (and presumably the other Bay headwaters States) did not have impaired 

waters addressed by the Bay TMDL and (2) the Bay TMDL (and its headwaters 

allocations) was based on Bay-State water quality standards and not on water 

quality standards adopted by New York (and the other headwaters jurisdictions) that already accounted for how local conditions affected the downstream 

Bay impairments.

Response: It is true that none of the cited cases had a need (based on their facts) 

to expressly address the issue of whether EPA has the authority to establish allocations for upstream States (and sources) in a TMDL for an interstate waterbody 

whose impairments are caused, in significant part, by pollutants originating in upstream states. The fact that the cited cases did not specifically address the out-ofState allocation issue does not make EPA’s reliance on them ‘‘inappropriate.’’ Indeed, all three cases clearly support the proposition that EPA has authority to establish this watershed TMDL for the 92 impaired Bay segments on the four Bay 

States’ 303(d) lists. That being the case, it follows logically that—in establishing a 

TMDL for these 92 segments—EPA also must have authority to establish allocations 

within the entire Bay watershed at levels necessary to implement the water quality 

standards ‘‘applicable’’ to those 92 segments. If EPA does not have such authority, 

it is limited to establishing a TMDL for the 92 Bay segments that either (1) makes 

no allocations to (or assumptions about reductions from) the headwaters States and, 

instead, allocates or assumes reductions only from VA, MD, D.C., and DE and 

places the burden on those States alone to meet the Bay’s water quality standards; 

or (2) assumes (but does not allocate) reductions from the three headwaters States 

and makes allocations to VA, MD, D.C., and DE at a level consistent with the assumed headwater State reductions. In the context of this TMDL and this interstate 

waterbody—where a significant portion of the nutrient and sediment loads originate 

in the headwaters States—EPA believes it is unreasonable to read the CWA as constraining its authority to make allocations only to the four tidal Bay jurisdictions. 

EPA also believes it is unreasonable to interpret the CWA as forcing EPA to establish TMDL allocations for the tidal bay jurisdictions that rely only on unspecified 

and unsupported ‘‘assumed’’ reductions from the headwaters States. In light of the 

CWA’s goals and objectives, EPA believes this to be an unnecessarily narrow readVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00186 Fmt 6621 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
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ing of the Act and—based on past history—one not likely to result in attainment 

of the Bay’s applicable water quality standards.

3. One commenter says that EPA did not follow the CWA’s ‘‘statutory scheme’’ 

for setting the TMDL’s allocations for New York because it based those allocations on water quality standards applicable to the tidal Chesapeake and not on 

New York’s own water quality standards.

Response: EPA did establish New York’s (and other headwater States’) allocations 

consistent with CWA authority. EPA established the Chesapeake Bay TMDL to address 92 impaired segments of the Bay and its tidal tributaries within the boundaries of Virginia, D.C., Maryland, and Delaware. Section 303(d) requires that the 

Bay TMDL be established at a ‘‘level necessary to implement the applicable water 

quality standards . . .’’ For the Bay TMDL, the applicable water quality standards 

are those standards established by Virginia, D.C., Maryland, and Delaware (and approved by EPA) for the 92 impaired tidal Bay segments. Pursuant to EPA’s regulations (130.2(i)), a TMDL is defined as the sum of its wasteload allocations and load 

allocations. Accordingly, EPA was required by the CWA and its regulations to establish the TMDL’s allocations (including allocations for headwater States like New 

York) consistent with implementing water quality standards applicable to the tidal 

Bay waters. This is what EPA did. 

As a legal matter, EPA is authorized to consider downstream water quality standards (including those in other states), when establishing or approving a TMDL. The 

U.S. Supreme Court in Arkansas v. Oklahoma, 503 U.S. 91 (1992), held that EPA 

has the authority to impose NPDES permit limitations and conditions based on 

downstream water standards. At issue in that case was EPA’s issuance of an 

NPDES permit to an Arkansas facility that imposed conditions derived from the 

downstream state’s water quality standards. Noting that ‘‘the statute clearly does 

not limit the EPA’s authority to mandate such compliance,’’ the Court held, ‘‘The 

regulations relied on by the EPA were a perfectly reasonable exercise of the Agency’s statutory discretion. The application of state water quality standards in the 

interstate context is wholly consistent with the Act’s broad purpose ‘to restore and 

maintain the chemical, physical, and biological integrity of the Nation’s waters.’ 33 

U.S.C. § 1251(a). Moreover, as noted above, § 301(b)(1)(C) expressly identifies the 

achievement of state water quality standards as one of the Act’s central objectives. 

The Agency’s regulations conditioning NPDES permits are a well-tailored means of 

achieving this goal.’’ The regulations considered by the court, 40 C.F.R. § 122.4(d), 

provide, ‘‘No permit shall be issued . . . [w]hen the imposition of conditions cannot 

ensure compliance with the applicable water quality requirements of all affected 

States.’’

The principle articulated by the Supreme Court in the NPDES permitting context 

applies with equal force to TMDLs, which are an important tool for implementing 

section 301(b)(1)(C) with respect to point source discharges. As the Supreme Court 

held, EPA as the permitting authority is authorized to consider water quality standards in downstream segments (including those in other states) when establishing 

NPDES permit limitations and conditions for sources whose discharges ultimately 

flow to the downstream segments. For sources discharging to waters flowing into 

the Chesapeake Bay, those permit limitations would be derived from the TMDL for 

the Chesapeake Bay. See 40 C.F.R. § 122.44(d)(1)(vii)(B). Therefore, it follows that 

EPA is authorized to establish or approve TMDLs for impaired Bay waters with 

wasteload allocations and load allocations for upstream sources that take into account the downstream water quality standards that the TMDL is designed to meet.

4. One commenter seemed to suggest that EPA did not have authority ‘‘to establish a Bay TMDL for New York’’ because (1) New York had not failed to submit 

an appropriate TMDL and (2) EPA had not first required New York to revise 

its State water quality standards.

Response: EPA disagrees with the comment and its underlying assumption that 

any Bay-related TMDL allocations affecting nutrient and sediment pollutant loadings originating in New York (or the other headwater States) must be established 

by those headwaters States and based solely on their own State water quality standards. In the 38 years since passage of the CWA, none of the Bay headwaters States 

(New York, Pennsylvania, and West Virginia) has established or submitted a TMDL 

to EPA that allocates nutrient or sediment loadings in their jurisdictions at a level 

necessary to implement water quality standards in the Bay or its tidal tributaries. 

Moreover, the headwaters States requested and collaborated with EPA in the establishment of this Bay TMDL and its allocations. Accordingly, EPA has acted within 

its authority under CWA 303(d) to establish allocations to the headwater States in 

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the Bay TMDL consistent with the need to implement tidal Bay water quality 

standards. 

Nor was it necessary for EPA to first require that the headwaters States revise 

their own water quality standards to ‘‘take into consideration’’ the applicable tidal 

Bay water quality standards and ‘‘ensure’’ that their ‘‘upstream’’ standards provide 

for ‘‘downstream’’ standards attainment. EPA is establishing the Bay TMDL to implement the tidal Bay standards, not the headwater States’ own ‘‘upstream’’ standards. (Reductions made to achieve the Bay TMDL are expected to improve the local 

water quality of the nontidal receiving waters.) The fact that a headwater State’s 

standards may not already be stringent enough per 131.10(b) to ensure implementation of the tidal Bay standards does not constrain EPA’s ability and authority under 

303(d) to establish Bay TMDL allocations that are fully protective of the applicable 

downstream tidal Bay standards. To interpret CWA 303(c) and (d) otherwise would 

turn the Act on its head by subjecting a TMDL’s ability to protect its targeted waters (and their ‘‘applicable’’ water quality standards) to limitations contained in upstream water quality standards. Likewise, under the framework of the Bay TMDL, 

EPA need not establish TMDLs or allocations for specific waters on New York’s 

303(d) list because they are not meeting local water quality standards. The purpose 

of this TMDL is to achieve the applicable standards for the 92 impaired Bay segments. New York is free to develop TMDLs for waters with local impairments outside the context of this TMDL on an appropriate schedule.

5. A number of commenters said that that—rather than ‘‘usurping’’ the States’ 

roles—EPA should work ‘‘collaboratively’’ with them and recognize their ‘‘environmental stewardship.’’

Response: EPA believes the record of EPA’s actions in establishing this TMDL 

clearly demonstrates that EPA has used a collaborative process to arrive at the final 

TMDL, one that has recognized and encouraged the environmental stewardship of 

all the watershed States, without whose full cooperation restoration of the Bay will 

be not occur.

6. One commenter said EPA was attempting to expand its CWA authority by 

referencing a TMDL-establishment MOU with Maryland, the 2010 settlement 

agreement resolving Fowler v. EPA, and the Chesapeake Bay Executive Order.

Response: EPA agrees that its settlement agreement resolving Fowler v. EPA and 

the Executive Order do not expand its CWA authority to establish the Bay TMDL. 

EPA never said they did. Rather, EPA said it was establishing the Bay TMDL by 

December 31, 2010 to meet a commitment it made in the settlement agreement to 

act by that date. Regarding the Maryland MOU, EPA referenced that document 

(signed in 1998; revised in 2004) in the draft TMDL because Maryland’s commitments in that MOU were key to EPA victory (twice) in lawsuits alleging that Maryland was in default of its CWA TMDL obligations. Without Maryland’s MOU commitments (and actions), it is possible the court might have found Maryland in default and ordered establishment of TMDLs via an EPA backstop on a schedule similar to the Virginia consent decree. If that had happened, EPA’s authority to establish TMDL’s for Maryland’s impaired Bay waters would be as clear as it is for Virginia. While it is true that an MOU cannot by itself enlarge Congressionally-bestowed powers, under these circumstances the existence of the Maryland MOU in 

the context of the two Maryland TMDL lawsuits explains why it is reasonable for 

EPA to establish within the Bay TMDL—and with Maryland’s full agreement—

‘‘backstop’’ TMDLs for Maryland’s impaired Bay waters. 

B. Comments regarding the Watershed Implementation Plans (WIPs) 

1. Some commenters said that implementation plans associated with the TMDL 

are not part of the TMDL itself and, thus, not subject to EPA approval. More 

specifically, some commenters claim that EPA’s ‘‘rejection’’ of Virginia’s draft 

WIP is ‘‘legally objectionable’’ because the CWA does not give EPA the authority 

to review and/or approve WIPs, or to direct their specific terms.

Response: EPA agrees with the commenters that the CWA does not require or authorize EPA to ‘‘approve’’ or ‘‘disapprove’’ jurisdictions’ WIPs. And EPA has not done 

that here. Nor did EPA direct their specific terms. Instead, EPA identified expectations and a guide for the contours of the WIPs, and asked the jurisdictions to submit 

WIPs to support their recommendations for the decision by EPA in making its 

TMDL allocation decisions for various pollutant loading sectors. EPA reviewed the 

WIPs to determine if they provide adequate ‘‘reasonable assurance’’ to support the 

jurisdictions’ recommended allocation scenarios. Where those WIPs were determined 

to provide adequate reasonable assurance and met the respective jurisdictions pollutant cap loading, EPA used all (or those parts found adequate) as the basis for 

185

its TMDL allocations for that jurisdiction. Where portions of the WIPs did not provide such assurances, as the CWA requires, EPA establishes the backstop allocations in an appropriate manner so the resulting TMDL allocations are established 

at a level necessary to implement applicable water quality standards.

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

Response: CWA section 117(g) requires that EPA ‘‘ensure that management plans 

are developed and implementation is begun’’ to meet the Bay’s nutrient goals and 

water quality requirements. Pursuant to that authority, and to support the TMDL 

EPA is establishing pursuant to section 303(d), EPA asked the Bay jurisdictions to 

develop and submit WIPs that provided for 60% implementation by 2017 and 100% 

implementation by 2025. In light of the decades-long history of not meeting these 

goals, a two-phase implementation framework is reasonable. EPA recognizes that 

there is much work to be done to restore the Bay; hence the final implementation 

target extending to 2025. In light of the Bay’s importance, the delays so far in 

reaching those targets, and EPA’s belief that this job can be done in the projected 

time, the staged 2017/2025 implementation framework is both lawful and reasonable. That being said, the TMDL by itself is not a self implementing mechanism and 

does not contain an implementation plan. That plan, or rather plans, are set forth 

in the State WIPs, the two year milestones, and other federal actions—components 

of the broader Chesapeake Bay Restoration Accountability Framework discussed in 

TMDL section 1.2.2 and 7.2. 

C. Comments regarding ‘‘Reasonable Assurance’’

1. One commenter asserts that ‘‘reasonable assurance’’ ‘‘is a concept that does 

not originate in either the CWA or EPA regulations’’ and that EPA ‘‘created’’ 

the concept of reasonable assurance in 1997 guidance. The commenter goes on 

to assert that a TMDL is a ‘‘number’’ and ‘‘[n]othing in the statute gives EPA 

the authority to judge how that number is assigned or divided.’’

Response: EPA disagrees that ‘‘reasonable assurance’’ ‘‘is a concept that does not 

originate in either the CWA or EPA regulations’’ and that EPA ‘‘created’’ the concept 

of reasonable assurance in 1997 guidance. 

In the first place, EPA explained the concept of reasonable assurance as early as 

its initial TMDL guidance in April 1991, not 1997. The concept has been further 

explained in subsequent guidance documents. 

More importantly, the commenter is incorrect in asserting that a TMDL is merely 

a ‘‘number’’ and ‘‘[n]othing in the statute gives EPA the authority to judge how that 

number is assigned or divided.’’ A TMDL not just is a number. Rather, it is a collection of numbers representing WLAs and LAs assigned to various pollutant sources, 

all of which must add up to a ‘‘total’’ loading of pollutants consistent with meeting 

applicable water quality standards. TMDL = WLA(s) + LA(s) + MOS. When approving (or in the case of the Bay TMDL) establishing a TMDL, EPA has an obligation 

to ensure that the sum of the WLAs and the LAs adds up to a ‘‘total’’ number that 

will implement the applicable water quality standards. This is where ‘‘reasonable 

assurance’’ comes in. 

While neither the CWA nor EPA’s regulations expressly mention the phrase ‘‘reasonable assurance,’’ the congruent requirements of CWA 303(d)(1)(C) and 

301(b)(1)(C) implicitly require it. Section 303(d)(1)(C) requires that a TMDL be ‘‘established at a level necessary to implement the applicable water quality standards . . .’’ See also 40 C.F.R. 130.7(c)(1). A TMDL calculates the maximum amount 

of pollutant loadings that a waterbody can receive and still meet water quality 

standards, sometimes referred to as assimilative capacity. For waterbodies with 

both point and nonpoint sources of pollutants, a TMDL writer must decide how to 

apportion loadings between point and nonpoint sources subject to the TMDL. Section 303(d)(1)(C) requires that the point sourcenonpoint source allocation split be ‘‘at 

a level necessary to implement the applicable water quality standards.’’ Without a 

demonstration in the TMDL’s record of ‘‘reasonable assurance’’ that the chosen 

nonpoint source load allocations will in fact be met, there is no assurance that the 

TMDL equation will not add up to a sum that exceeds a level necessary to implement the applicable water quality standards. 

Section 301(b)(1)(C) and EPA’s permitting regulations provide additional support 

for reading a ‘‘reasonable assurance’’ requirement into a TMDL. Section 301(b)(1)(C) 

requires that point source permits have effluent limits as stringent as necessary to 

meet water quality standards. EPA’s permitting regulations echo that requirement 

and, in addition, require that permits include effluent limits ‘‘consistent with the assumptions and requirements of any available wasteload allocation for the discharge’’ 

186

approved by EPA. 40 CFR 122.44(d)(1)(vii)(A) & (B). For WLAs to serve as a basis 

for a WQBEL, they must themselves be stringent enough so that (in conjunction 

with the waterbody’s other loadings) they meet water quality standards. In the absence of reasonable assurance that a TMDL’s LAs will in fact be met, the TMDL’s 

WLAs cannot serve as an effective permitting guide. That can happen, however, if 

(1) the TMDL’s combined nonpoint source load allocations and point source 

wasteload allocations do not exceed the water quality standard-based loading capacity and (2) there is ‘‘reasonable assurance’’ that the load allocation will be achieved. 

Such a demonstration ensures that an effluent limitation that is ‘‘consistent’’ with 

a TMDL’s wasteload allocation pursuant to 122.44 (d)(1)(vii)(B) will also mees water 

quality standards as required by CWA 301(b)(1)(C) and 122.44 (d)(1)(vii)(A). 

D. Comments regarding TMDL’s ‘‘Backstop allocations’’

1. Some commenters said EPA should ‘‘delay adoption of the TMDL and backstops for at least one year’’ because (1) there is no legal authority for the urban/

suburban retrofits necessary to implement the TMDL and (2) such measures 

would be far more expensive and cost-effective than POTW upgrades or agricultural BMPs.

Response: EPA disagrees with the commenter’s assertion about lack of CWA legal 

authority for urban/suburban stormwater controls necessary to implement the Bay 

TMDL. Moreover, these arguments do not support delaying the TMDL. It is important that EPA establish the Bay TMDL as soon as possible. The TMDL is an important element in Bay restoration, and the Bay’s waters have been impaired and restoration delayed for many years. EPA afforded the Bay jurisdictions two opportunities (draft Phase I WIPs and final Phase II WIPs) to describe the mix of implementation measures (informed by cost and other considerations) they intend to pursue 

in order to meet the TMDL’s nutrient and sediment targets. EPA has taken the jurisdiction’s WIPs into account in establishing allocations in the TMDL. Because this 

is EPA’s TMDL, the CWA requires that EPA establish nutrient and sediment allocations at a level necessary to implement applicable water quality standards. To the 

extent EPA backstop assumptions serve as a basis for the TMDL’s final allocations, 

those assumptions would have been necessitated by inadequacies in the jurisdictions’ WIPs. That being the case, EPA would have been obligated to make allocations stringent enough to meet applicable standards sooner or later based, in part, 

on such assumptions. EPA has reasonably decided to establish the Bay TMDL and 

its allocations sooner rather than later. For further information on retofits please 

see response to comment number 0232.1.001.004. 

E. Comments regarding James River allocations 

1. Some commenters said it was not EPA’s responsibility under the Virginia or 

D.C. consent decrees to establish a TMDL to meet the James River’s 2005 chlorophyll standards.

Response: EPA disagrees. The Virginia consent decree requires EPA to establish 

a TMDL at a level necessary to implement the applicable water quality standards 

for ‘‘each water and pollutant identified in Attachment A and C’’ of the decree if 

Virginia has not done so by a date certain. The James River’s tidal tributaries are 

identified on Attachment A (Part 2) of the 1999 Virginia consent decree as impaired 

by ‘‘nutrients,’’ with specific focus on ‘‘aquatic life concerns.’’ It is immaterial that 

Virginia did not establish a numeric chlorophyll standard for those segments until 

2005. The numeric chlorophyll a criteria adopted by Virginia specific to the James 

is to provide additional protection to aquatic life uses from the harmful effects of 

excess nutrients. These numeric criteria reinforce and support the restoration of 

those portions of the James River identified on the 1998 303(d) listing for impaired 

aquatic life uses. At the time EPA established this TMDL, the segments remained 

listed and impaired, and the 2005 chlorophyll standard was an ‘‘applicable’’ water 

quality standard for purposes of section 303(d)(1)(C). Accordingly, the 1999 Virginia 

consent decree requires that EPA establish a TMDL for those segments at a level 

that implements the applicable chlorophyll standard.

2. Some commenters said the James River has ‘‘very little impact’’ on the main 

stem and dead zone of the Bay and achievement of the proposed James River 

nutrient allocations ‘‘will not improve the Bay water quality.’’

EPA provides responses to that comment elsewhere in this document.

3. Some commentators said the James River chlorophyll standard ‘‘lacks a 

sound scientific foundation.’’

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Response: EPA approved this submission of revised James River numeric chlorophyll a criteria (WQS) by Virginia in 2005 as effective and applicable water quality 

standards (WQS) for purposes of the CWA. On that basis EPA disagrees with this 

comment. This comment is outside the scope of the TMDL, since the CWA requires 

TMDLs to be established to ‘‘applicable’’ WQS, and the numeric chlorophyll a criteria are such standards. See above response. EPA suggests the commenter review 

the 2005 submission by Virginia and EPA’s approval if the commenter has further 

questions. 

F. Comments re length of comment period and modeling information 

1. Many commenters requested EPA to extend the TMDL’s 45 day comment period.

Response: It is true EPA declined to extend the TMDL’s 45 day comment period. 

To do so would have made it impossible for EPA to establish the Bay TMDL by December 31, 2010. EPA places a very high value on meeting its public commitment 

to establish the TMDL by that date. EPA does not want to break faith with the 

States who requested it or the public who expects it. Moreover, EPA is acting pursuant to Executive Order 13508 to ‘‘make full use of its authorities’’ to protect the Bay, 

as well as a promise EPA made in a May 2010 settlement agreement resolving 

Fowler v. EPA. While EPA could have attempted to negotiate an extension of the 

Fowler agreement date, EPA believes that—under all the circumstances of this 

TMDL, including the considerable transparency of the process to date and EPA’s 

considerable efforts to engage in public outreach—its efforts were better spent finishing work on the TMDL in order to avoid any further delays in implementing 

EPA’s and States’ 27+ year old commitment to restore the Bay’s water quality. 

EPA agrees that its settlement agreement resolving Fowler v. EPA and the Executive Order do not expand its CWA authority to establish the Bay TMDL. EPA never 

said they did. Rather, EPA said it was establishing the Bay TMDL by December 

31, 2010 to meet a commitment it made in the settlement agreement to act by that 

date.

2. Some commenters stated that EPA did not make information on Scenario 

Builder model available and requested EPA to make more modeling-related information available.

Response: EPA disagrees that it had not made information on Scenario Builder 

and other essential models available. For example EPA posted scenario builder information that was used for all of the calibration model inputs (the same thing as 

SB output) except for the acres of BMPs, which was calculated outside of SB in 

March 2010 at: ftp://ftp.chesapeakebay.net/modeling/phase5/

Phase%205.3%20Calibration/Model%20Input/. 

In addition the following information on the Watershed Model calibration was 

posted on the following websites spring of 2010:

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

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

This information was also available through links provided in Section 5 of the 

draft TMDL, which was released for a 45 day public comment period on September 

24th. Further, the Watershed Model code and calibration data, as well as the Scenario Builder documentation, were linked to our website before the draft TMDL was 

released. 

The Scenario Builder programming codes are available for download at: http://

ftp.chesapeakebay.net/modeling/ScenarioBuilder/ScenarioBuilderSource/. 

In response to requests for more specific SB information, EPA also made additional information available in November 2010 as discussed in e-mails from EPA 

James Curtin to several persons including Susan Bodine dated November 2, 2010. 

EPA believes it has made sufficient information available for the public to reasonably and intelligently comment on the Bay TMDL. For a more detailed response on 

modeling, please see response to comment number 379.1.001.006. 

G. Comments regarding CWA 117(g) 

1. A number of commenters questioned EPA’s reliance on CWA section 117(g) 

in support of its authority to establish the Bay TMDL and headwater State allocations.

Response: EPA disagrees with commenters who believe section 117(g) does not 

provide additional authority for EPA to establish the Bay TMDL. 

188

Specifically, EPA disagrees with the comment that the term ‘‘management plans,’’ 

as used in section 117(g), may not be interpreted to include the Bay TMDL. EPA 

notes that Congress did not include within section 117(g) a definition of the term 

‘‘management plans.’’ Accordingly, there is room for reasonable interpretation of its 

meaning. Webster’s defines a ‘‘plan’’ as a ‘‘goal; aim,’’ or, alternatively, ‘‘an orderly 

arrangement of parts of an overall design or objective.’’ Defined this way, a section 

117(g) Chesapeake Bay ‘‘management plan’’ may reasonably be interpreted to include its goal, aim, or objective—in this case, the Bay TMDL and its allocations. 

In section 117(g) Congress directed EPA, in coordination with the signatories to 

the Chesapeake Bay Agreement, to ‘‘ensure that management plans are developed 

and implementation is begun to achieve and maintain, among other things (1) the 

‘nutrient goals’ of the Bay agreement ‘for nitrogen and phosphorus entering the 

Chesapeake Bay and its watershed’ and (2) ‘the water quality requirements necessary to restore living resources in the Chesapeake Bay.’ ’’ In this context it is reasonable for EPA to interpret the term ‘‘management plans’’ as used in section 117(g) 

to include, not only an identification of the actions proposed to be taken by EPA 

and the other signatories, but also the section 303(d)-based identification of the numerically-expressed ‘‘nutrient goals’’ and ‘‘water quality requirements’’ [nitrogen, 

phosphorus, and sediment allocations] that would inform those actions. The fact 

that Congress may have used similar terms in wholly different contexts, e.g., ‘‘management program’’ in section 319, ‘‘management plan’’ in section 320, ‘‘areawide 

waste treatment management plan’’ in section 208, does not mean that—for the purposes of interpreting and implementing section 117(g)—EPA may not interpret the 

section 117(g) term ‘‘management plans’’ to include that part of the plan that identifies its target or goal. 

EPA also disagrees with the comment that EPA may not allocate pollutant reductions to New York because it was not a signatory to the Bay Agreement but only 

a ‘‘voluntary partner.’’ Even if section 117(g) were not part of the CWA, section 

303(d) gives EPA all the authority it needs to establish this TMDL. Section 117(g) 

merely underscores that authority as well as specifically directing EPA to take such 

actions to further restore Bay water quality. While it is true that New York (as well 

as West Virginia and Delaware) did not sign the 2000 Bay Agreement, those States 

subsequently (in 2000 and 2002) signed a MOU with EPA and the other four Bay 

watershed jurisdictions in which they agreed to work cooperatively to meet the Bay 

Agreement’s goals by 2010 so the Bay’s impaired waters could be removed from the 

States’ section 303(d) lists. Moreover, in 2007 New York, West Virginia and Delaware reached consensus with the signatory jurisdictions that EPA should establish 

the Bay TMDL on behalf of them all. By signing the MOU, joining the consensus 

that EPA should establish this TMDL, and participating with EPA in the development of the TMDL and their own WIPs, New York and the other non-signatory 

States have made themselves functionally and—for the TMDL’s purposes—legally 

equivalent to the signatory States regarding their Bay TMDL status.

2. Some commenters said that Congress did not ‘‘provide authority to EPA to 

achieve the goals set in section 117’’ of the CWA and that regulation and enforcement is ‘‘directly in the hands of each signatory.’’ Others said Congress did 

not provide EPA in 117(g) with ‘‘regulatory authority’’ to achieve those goals, 

or authority to ‘‘approve, disapprove, or change the state WIPs.’’

Response: CWA section 117(g) requires that EPA ‘‘ensure that management plans 

are developed and implementation is begun’’ to meet the Bay’s nutrient goals and 

water quality requirements. EPA is not sure what the commenter means by saying 

that Congress did not provide EPA with authority (‘‘regulatory,’’ or otherwise) to 

achieve the goals of CWA section 117(g). EPA has ample authority in the CWA (see 

e.g., sections 301, 303(c) and (d), 402, 319 and other provisions) to achieve the water 

quality goals of section 117(g). In addition, section 117(g) expressly directs (and 

impliedly authorizes) EPA ‘‘to ensure that management plans are developed and implementation is begun’’ to meet the Bay’s nutrient goals and water quality requirements. That direction and authorization—even if it arguably does not provide EPA 

with any ‘‘additional’’ regulatory authorities—surely does not constrain use of authorities provided elsewhere in the Act. EPA has not asserted that section 117(g) 

gave it authority to ‘‘approve, disapprove, or change the state WIPs,’’ and EPA has 

not done so. EPA has exercised the leadership role accorded to it by section 117(g) 

in a responsible and appropriate way by working collaboratively with the Bay jurisdictions to ensure that their WIPs are of sufficiently high quality to achieve the 

Bay’s water quality goals. 

189

H. Comments regarding CWA 510

1. Some commenters said EPA’s disapproval of State WIPs, establishment of replacement WIPs, or establishment of the Bay TMDL is inconsistent with state 

primacy under CWA section 510.

Response: EPA disagrees with this comment. In the first place, EPA has not ‘‘disapproved’’ any State WIPs or established a replacement WIP for a State. Instead, 

EPA asked the jurisdictions to submit WIPs to support their recommendations for 

EPA’s TMDL allocation decisions for various pollutant loading sectors. EPA reviewed the WIPs to determine if they provide adequate ‘‘reasonable assurance’’ to 

support the jurisdictions’ allocations. Where the WIPs did not provide such assurances, the CWA required EPA to adjust the allocations in an appropriate manner 

so they are established at a level necessary to implement applicable water quality 

standards. CWA section 510 preserves a State’s right to adopt its own standards or 

limitations regarding discharges of pollutants, except that States may not be ‘‘less 

stringent’’ than applicable federal requirements. EPA reviewed the WIPs to determine if they provide adequate ‘‘reasonable assurance’’ to support the jurisdictions’ 

recommended allocations scenario. Where those WIPs were determined to provide 

adequate reasonable assurance and met the respective jurisdictions’ pollutant cap 

loading, EPA used all (or those portions found adequate) as the basis for its TMDL 

allocations for that jurisdiction. Where portions of the WIPs did not provide such 

assurances, as the CWA requires, EPA makes backstop allocations in an appropriate 

manner so the resulting TMDL allocations are established at a level necessary to 

implement applicable water quality standards. In so doing, EPA did not act in contravention of Section 510 because nothing in section 510 precludes EPA from establishing a TMDL at a level necessary to implement the applicable State-adopted and 

EPA-approved water quality standards.

2. Some commenters allege that EPA’s establishment of the Bay TMDL is an 

impermissible intrusion into State authority and an exercise in State ‘‘compulsion’’ in violation of the 10th Amendment and principles of federalism.

Response: EPA disagrees. Taken as a whole, the record of EPA’s and the Bay jurisdictions’ activities over the past decade demonstrates that EPA has established 

he Bay TMDL in collaborative partnership with the Bay jurisdictions and not 

through compulsion of them. EPA is under legal obligation to establish the Bay 

TMDL for certain waters in Virginia, D.C., and Delaware. 

Each of those jurisdictions has collaborated with EPA in establishing the TMDL. 

In a similar manner, Maryland (pursuant to its MOU) and the headwaters states 

of New York, Pennsylvania, and West Virginia have also collaborated with EPA, the 

Chesapeake Executive Council and the PSC in developing the Bay watershed 

TMDL. EPA has neither impermissibly intruded into State authority nor compelled 

the jurisdictions in violation of the 10th Amendment or principles of federalism. Indeed, EPA has invited the jurisdictions to take the lead in developing WIPs for their 

own States designed to inform EPA’s TMDL allocations decisions and thereafter implement the TMDL’s loading targets. In doing so, EPA demonstrated its respect for 

our federal system and the priority of the States to determine how the TMDL will 

be implemented. 

While it is true that EPA on a number of occasions provided the jurisdictions with 

its ‘‘expectations’’ regarding their implementation efforts, EPA died not ‘‘compel’’ any 

particular outcomes. The jurisdictions’ discretion was bounded only by the statutory 

requirement that their implementation proposals provide EPA with sufficient ‘‘reasonable assurance’’ that the TMDL allocations are established at a level necessary 

to implement the applicable Bay-wide water quality standards. To the extent a jurisdiction’s WIP did not do that, EPA was compelled by the CWA to establish allocations in the TMDL to meet standards. While some of those allocations may have 

been based on assumptions about additional implementation and oversight by EPA, 

that is nothing more (under the circumstances) than the federal-state scheme established by the Act contemplates and requires. This approach is fully consistent with 

CWA, the Constitution, and principles of federalism. It is also consistent with the 

Ninth Circuit’s 2002 decision in Pronsolino v. Nastri, 291 F.3d 1123. As in 

Pronsolino, EPA recognizes that implementation of the Bay TMDL is primarily a 

state responsibility. Here—as in Pronsolino—EPA did not require or include implementation plans ‘‘within the TMDL.’’ EPA asked for them—in part pursuant to section 117(g)—to inform and support the allocation setting process. As with the Garcia 

River TMDL, the Bay TMDL ‘‘serves as an informational tool for the creation of the 

state’s implementation plan.’’ It is not a substitute for it. 

Nor is it the case that assumptions about future EPA regulatory or NPDES oversight authority that support any EPA allocation decisions ‘‘commandeer’’ State legisVerDate 0ct 09 2002 14:48 May 10, 2011 Jkt 041481 PO 00000 Frm 00193 Fmt 6621 Sfmt 6621 I:\DOCS\112-06\65502.TXT BRIAN
190

lative processes in violation of the 10th Amendment to the Constitution. During the 

TMDL development process, EPA invited the jurisdictions to make the difficult 

legal, policy, and budgetary choices necessary to implement the pollution reductions 

needed to meet applicable Bay water quality standards. The Chesapeake Bay Commission (CBC), a member of the Chespeake Executive Council, represents the legislatures of the three signatory states. The CBC has been an active participant in this 

process. The States have also made such hard choices in their WIPs. If EPA believes 

some of those measures are insufficient in the aggregate to meet those standards, 

it must establish TMDL allocations that it believes (‘‘reasonable assurance’’) can, 

and will, meet standards. The Bay jurisdictions have choices and discretion regarding how to implement their WIPs in service of the TMDL. EPA has not—and will 

not—‘‘commandeer’’ their legislative and administrative processes. However, EPA 

does reserve the right to exercise its own federal authorities and prerogatives in an 

appropriate manner (either through rulemaking, enforcement, NPDES oversight, or 

other means) to ensure that the TMDL’s and CWA’s goals are met. In relying on 

assumptions about potential future federal actions, EPA is not ‘‘prejudging’’ the outcome of future rulemakings or other actions. The exact scope and design of any such 

rulemakings must of necessity await the conclusion of the APA rulemaking process, 

including the opportunity for public comment, or in the case of a designation process, as provided by the CWA and its implementing regulations. However, in assessing and providing ‘‘reasonable assurance’’ to support the TMDL’s allocations, it is 

appropriate for EPA to make allocations based on certain assumptions about what 

‘‘backstop’’ actions are available to it in the event the jurisdictions’ WIPs (or their 

implementation) are not sufficiently robust to meet the Bay’s water quality standards. 

H. Miscellaneous Legal Issues 

1. One commenter asked whether EPA considered how the TMDL might impact 

environmental justice, especially with regard to its impacts within densely populated watersheds.

Response: EPA believes the Bay TMDL and Bay restoration in general is fully 

consistent with its broader efforts to promote environmental justice. Around the watershed there are many disadvantaged and minority communities whose lives and 

livelihoods are closely tied to a healthy Bay: as a source of employment, recreation, 

food, and quality of life. EPA recognizes that restoring Bay water quality will not 

be cheap and that the costs may have to be borne broadly. However, on balance, 

EPA believes restoring Bay water quality is fully consistent with environmental justice principles.

2. Some commenters assert that the high estimated costs of stormwater retrofits 

‘‘approach’’ a ‘‘taking’’ without compensation prohibited by State and the U.S. 

Constitution.

Response: EPA disagrees. EPA’s Bay TMDL is not a federal or state regulation, 

and its wasteload and load allocations do not as a matter of law effect an unconstitutional ‘‘taking’’ of private property. Nor is the TMDL a permit that requires a private property owner to retrofit his or her property. The TMDL and its allocations 

are, instead, a reasonable and lawful exercise of EPA’s authority under CWA 303(d) 

to establish pollutant loading targets that guide the jurisdictions’ and EPA’s efforts 

to implement measures designed to implement the Bay’s water quality standards. 

See also response to Comment number 0232.1.001.004 for more discussion of the 

takings issue.

3. One commenter [0533.1.001.001] questioned whether EPA’s TMDL is based 

on data EPA collected from survey’s of communities, wastewater treatment 

plants, and other regulated entities without the proper OMB clearance.

Response: EPA disagrees. While EPA used information from a great number of 

sources, to the best of EPA’s knowledge, EPA used the OMB clearance numbers associated with general TMDL development and establishment as authorized. For 

some information, EPA relied on responses from entitles already required to submit 

information under such instruments as NPDES permits and/or other federal requirements. 

Comment ID 0293.1.001.026

Author Name: Pomeroy Christopher 

Organization: Virginia Municipal Stormwater Association, Inc. (VAMSA) 

191

The American Canoe and Kingman Park Consent Decrees Do Not Address Virginia 

Chlorophyll a 

EPA continues to assert in it must complete the Bay TMDL by 2011 (the December, 2010 deadline is a self-imposed acceleration) because of two consent decrees 

issued in the late 1990/early 2000 timeframe, American Canoe Association, Inc. v. EPA, Civil Action No. 98–99–A (E.D. Va. 1999) [FN43] and Kingman Park Civic Association v. EPA, Case No. 1:98CV00758 (E.D. Va. 2000). Draft TMDL at 1–14 to 

1–16. 

VAMSA submits that EPA’s obligations to develop a TMDL by May, 2011 do not 

extend to establishing loadings on the . . . . 

* * * * *

SUBMITTED QUESTIONS

Response from U.S. Environmental Protection Agency 

May 9, 2011

Hon. GLENN THOMPSON, Chairman,

Subcommittee on Conservation, Energy, and Forestry, House Committee on Agriculture, 

Washington, D.C.

Dear Mr. Chairman:

Thank you for the opportunity to respond to questions for the record that followed 

the March 16, 2011 hearing before the Subcommittee on Conservation, Energy, and 

Forestry regarding the Chesapeake Bay Total Maximum Daily Load (TMDL). I hope 

this information will be useful to you and the Subcommittee. 

If you have any further questions, please contact me or your staff may contact 

Greg Spraul in my office at [Redacted]. 

Sincerely,

ARVIN R. GANESAN, Deputy Associate Administrator,

Office Of Congressional and Intergovernmental Relations, 

U.S. Environmental Protection Agency. 

Question Submitted by Hon. Tim Holden, a Representative in Congress from Pennsylvania 

Question. The Commonwealth of Pennsylvania has developed a system for certifying permanent verifiable reductions in nitrogen and other nutrients. This effort 

has helped to encourage low-cost solutions to limiting run-off from farms and other 

nonpoint sources. Pennsylvania has been rigorous in its requirements for these credits, and has instituted robust and ongoing reporting requirements on those entities 

generating the credits. 

Would the EPA support intra-basin trading of those credits (or verifiable credits 

that have been certified in other states)? For example, if other states in the Chesapeake Bay basin purchased Pennsylvania-approved credits, would the EPA allow 

those credits to be used to meet their TMDL requirements? 

Answer. EPA believes nutrient credit trading can be an important part of achieving water quality standards in the Chesapeake Bay and is working with the jurisdictions and with its Federal partners to advance this approach. EPA would support 

inter-jurisdictional, intra-basin trading of nutrient credits, assuming that such trading is consistent with the Clean Water Act and the trading-related definitions, elements and safeguards in Appendix S of the TMDL. These definitions, elements and 

safeguards are designed to facilitate nutrient credit trading, including inter jurisdictional trading, as a means of improving the water quality of the Chesapeake Bay 

and its tributaries. 

EPA is currently initiating a review of the jurisdictions’ trading programs to determine the consistency of those programs with the TMDL and the Clean Water Act. 

The results of that review will be shared with the jurisdictions in the hopes that 

they will make any necessary adjustments to the programs to achieve consistency 

with the TMDL and the Clean Water Act. Until that review is complete, EPA is not 


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in a position to comment on the viability of a specific jurisdiction’s credits for interbasin or interstate trading. 

Question Submitted by Hon. Reid J. Ribble, a Representative in Congress from Wisconsin 

Question. In his testimony, Mr. Domenech highlighted a significant discrepancy 

between the loading calculations from EPA’s Bay Model and those from USDA’s 

Natural Resources Conservation Service. Can you comment on this? 

Answer. Both USDA and EPA use models to help describe the effectiveness of actions on the land and to inform decision making. 

While the Chesapeake Bay Program Partnership’s Bay Watershed Model (CBP 

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

have both been extensively peer-reviewed and represent state-of-the-art modeling 

approaches, they were developed for different purposes. 

The CEAP Chesapeake Bay report provides estimates, at a large basin scale, of 

the effectiveness of conservation activities on cultivated cropland in reducing fieldlevel nutrient and sediment losses to the Chesapeake Bay. 

The CBP Watershed Model was designed to account for all nutrient and sediment 

loading sources to the Chesapeake Bay in the context of the Bay TMDL, and focus 

specifically on describing how actions on the land from all sources affect nutrient 

loadings to the Bay and the associated Bay water quality. 

Although these and other technical differences exist in the models, they both show 

that the agricultural sector has done much to reduce nutrient and sediment loadings 

in the Bay watershed, and also that there is more to do. 

It is very affirming to have two different models, built for two different purposes, 

give us similar findings at the large basin scale in terms of relative nutrient loads 

from agricultural lands in the Chesapeake Bay watershed, and where we need to 

head next. 

EPA and USDA are committed to continuing collaboration on their respective 

modeling efforts and are developing a joint workplan that outlines short- and longterm activities for this continued collaboration.

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