89–010 

1The Chesapeake Bay Watershed http://www.chesapeakebay.net/watersheds.aspx?menuitem= 

14603. 2 Chesapeake Bay Health Report Card http://www.chesapeakebay.net/newslumcesreport 

card09.aspx?menuitem=35271. 

Calendar No. 620 

111TH CONGRESS REPORT " ! SENATE 2d Session 111–333 

S. 1816 CHESAPEAKE CLEAN WATER AND ECOSYSTEM 

RESTORATION ACT 

SEPTEMBER 28, 2010.—Ordered to be printed 

Mrs. BOXER, from the Committee on Environment and Public 

Works, submitted the following 

R E P O R T 

[To accompany S. 1816] 

together with 

ADDITIONAL VIEWS 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Environment and Public Works, to which was 

referred a bill (S. 1816) to amend the Federal Water Pollution Control Act to improve and reauthorize the Chesapeake Bay Program, 

having considered the same, reports favorably thereon with an 

amendment and recommends that the bill as amended, do pass. 

GENERAL STATEMENT AND BACKGROUND

The Chesapeake Bay encompasses 64,000 square miles. Its watershed is home to more than 17 million people, with tributaries in 

Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia.1

A recent report from the University of Maryland Center for Environmental Science finds that the ecological health of the Chesapeake Bay remains poor.2 The Bay continues to have poor water 

quality, degraded habitats and low populations of many species of 

fish and shellfish. The primary stressors of the Chesapeake Bay 


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3 Bay Stressors http://www.chesapeakebay.net/baypressures.aspx?menuitem=13959. 

4The 1983 Chesapeake Bay Agreement, The 1987 Chesapeake Bay Agreement, and the 

Chesapeake 2000 Agreement, http://www.chesapeakebay.net/committeeleclinfo.aspx? 

menuitem=16594. 

and its tributaries are pollution from excess nitrogen, phosphorus 

and sediment entering the water. Nutrient contamination contributes to algae blooms, which, when they decompose, deprive the 

water of the oxygen necessary to support diverse species. These 

algal blooms also impact water clarity, blocking sunlight from 

reaching bay grasses. Underwater grasses and wetlands are vital 

to juvenile fish and crabs, and the health and abundance of these 

animals and habitats are gauges of the Bay’s health. 

A number of critical measures have been identified to restore the 

Chesapeake Bay and its watershed, including reducing pollution, 

restoring habitats, managing fisheries, protecting watersheds and 

fostering stewardship.3 In 1983 and 1987, the states of Virginia, 

Maryland, Pennsylvania, the District of Columbia, the Chesapeake 

Bay Commission and the U.S. Environmental Protection Agency, 

representing the federal government, signed the Chesapeake Bay 

Agreement that established the Chesapeake Bay Program partnership to protect and restore the Chesapeake Bay’s ecosystem. In 

1987, the Congress formally authorized the Chesapeake Bay Program in section 117 of the Federal Water Pollution Control Act. By 

statute, the Chesapeake Bay Program is a joint federal-state partnership, predominantly led by states within the Chesapeake Bay 

Watershed. The governing Executive Council of the Program consists of the Governors of Maryland, Pennsylvania and Virginia; the 

Mayor of the District of Columbia; the Chairman of the Chesapeake Bay Commission (a tri-state legislative body); and the EPA 

Administrator, representing the entire federal government.4

In 1994, 25 federal agencies signed an Agreement of Federal 

Agencies on Ecosystem Management in the Chesapeake Bay, in 

which they agreed to coordinate Bay restoration efforts. 

In 1998 the American Canoe Association, Inc., and others 

brought suit against EPA, alleging that the Agency had failed to 

perform a non-discretionary duty—the classification of the Virginia 

waters of the Chesapeake Bay and its tidal waters as impaired, as 

required under the Federal Water Pollution Control Act, section 

303(d) (33 U.S.C. 1313(d)). In a 1999 consent decree, the civil action (American Canoe Ass’n, Inc. v. EPA, Civil No. 98–979–A (E.D. 

Va.)) was settled with an agreement that the Commonwealth of 

Virginia had until May 2010 to develop a Total Maximum Daily 

Load (TMDL), allocating load and wasteload pollution limits sufficient so that the Bay and tidal rivers in Virginia achieved water 

quality standards. In the event that the Commonwealth failed to 

do so, the Court agreed that EPA must develop the TMDL no later 

than May 2011. 

Using the cooperative partnership that had been established 

under the Chesapeake Bay Agreement, the Commonwealth of Virginia, EPA and the other partners agreed to work together to remove the Bay and its tidal waters from the impaired waters list 

by 2010, thus avoiding the need to develop a TMDL. 

Through a formal Memorandum of Understanding, the Governors 

of Delaware, New York and West Virginia committed to work with 


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5Memorandum of Understanding: Among the State of Delaware, the District of Columbia, the 

State of Maryland, the State of New York, the Commonwealth of Pennsylvania, the Commonwealth of Virginia, the State of West Virginia, and the United States Environmental Protection 

Agency Regarding Cooperative Efforts for the Protection of the Chesapeake Bay and Its Rivers 

http://chesapeakebay.net/content/publications/cbpl12085.pdf. 

the Executive Council in advancing water quality improvements in 

the Bay watershed.5

On June 28, 2000, the Chesapeake Bay Program adopted a new 

Bay agreement, ‘‘Chesapeake 2000: A Watershed Partnership,’’ that 

set Bay restoration goals for the year 2010. That new agreement, 

calling for the restoration of water quality to the Chesapeake Bay 

and its tidal segments, was a central element in the Congressional 

reauthorization of the Program in 2000. The current authorization 

of appropriations expired in 2005. 

In recent years it became apparent that efforts outlined in the 

Chesapeake 2000 plan to restore water quality to the Chesapeake 

and its tidal segments would be unsuccessful. The principals’ staff 

committee of the Chesapeake Basin Program, consisting of officials 

from each Chesapeake Bay State, the District of Columbia, the 

Chesapeake Bay Commission, and the EPA, agreed that all Basin 

States would take all required actions to restore water quality 

within 15 years, i.e., by 2025. The Executive Council also requested 

a slightly accelerated schedule under which EPA should complete 

a Chesapeake Bay TMDL so that the States would have their assigned load and wasteload allocations and could begin the restoration work with clear requirements. The revised date for EPA to 

complete the TMDL is December 31, 2010. The Executive Council 

agreed that the Chesapeake Bay TMDL would address all segments of the Chesapeake Bay and tidal tributaries that are identified on the currently applicable lists of impaired waters for nitrogen, phosphorus and sediment under section 303(d) of the Federal 

Water Pollution Control Act (33 U.S.C. 1313(d)). 

In a settlement agreement on a separate but related lawsuit, 

among other provisions, EPA agreed to meet the accelerated timetable of completing the Chesapeake Bay TMDL by the end of 2010 

(Fowler v. EPA, 2010). 

OBJECTIVES OF THE LEGISLATION

The purpose of S. 1816 is to amend the Federal Water Pollution 

Control Act to improve and reauthorize the Chesapeake Bay Program authorized in section 117 of the Act. 

The bill has four primary objectives: 

1. Establish a date-certain of 2025, along with appropriate 

milestones, for all restoration actions to be implemented 

throughout the Chesapeake Basin that will lead to attainment 

of water quality goals in the Chesapeake Bay and its tidal segments that are on the EPA list of impaired waters (Federal 

Water Pollution Control Act, Sec. 303(d)); 

2. Assure that the Basin States, as delegated authorities 

under the Federal Water Pollution Control Act, be given maximum authority and flexibility to meet the restoration load and 

wasteload allocation pollution limits; 

3. Require that the Federal government be an active partner 

in the restoration effort, by developing the overall pollution reduction targets on a state-by-state basis through the ChesaVerDate Mar 15 2010 23:52 Oct 04, 2010 Jkt 089006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR333.XXX SR333

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peake Bay TMDL, implementing the terms of Presidential Executive Order and providing clear and meaningful accountability for the Basin States; and 

4. Provide the States, municipalities, developers, and especially agricultural producers with significant new tools and financial resources to meet the restoration demands within the 

15 year time frame contained in the legislation. 

SECTION-BY-SECTION

Sec. 1. Short title 

This Act may be cited as the ‘‘Chesapeake Clean Water and Ecosystem Restoration Act’’. 

Sec. 2. Findings 

An extensive set of Findings details the pollutants that are affecting the Chesapeake Bay and its tidal rivers; the history of the 

Chesapeake Bay Program efforts to restore the Bay; and status of 

legal efforts to require stronger regulatory responses to enforce 

cleanup requirements, including EPA’s current drafting of the 

Chesapeake Bay Total Maximum Daily Load allocation for the entire watershed and the Basin States’ efforts to plan and adopt watershed implementation plans. 

Sec. 3. Chesapeake Basin Program 

This Section replaces the current Section 117 of the Federal 

Water Pollution Control Act in its entirety. 

(a) Definitions. Replaces and expands the current set of definitions. Among the key definitions are: 

Chesapeake Basin State—expands the program to include the 

‘‘headwater’’ states of Delaware, New York, and West Virginia. 

Chesapeake Bay TMDL—for the purposes of the legislation, defines the EPA-issued TMDL as including both the Bay and its impaired tidal segments and allows TMDLs to be expressed in temporal units other than daily. 

Baseline, Credit, Offset—terms that are important to the functioning of the water quality trading program contained in the legislation are defined. 

(b) Renaming And Continuation of Chesapeake Bay Program. 

The Chesapeake Bay Program is renamed the Chesapeake Basin 

Program to more accurately reflect its watershed-wide restoration 

efforts. This subsection largely duplicated the current subsection 

117(b), which establishes a Program Office for the Chesapeake 

Basin and details its functions. The Program Office is responsible 

for: 

• Implementing and coordinating scientific research, modeling, 

monitoring, and support services 

• Providing information on the environmental quality of and living resources of the Basin ecosystem. 

• Assisting the signatories to the Bay agreements in their efforts 

to restore water quality and the living resources of the Bay. 

• Coordinating actions among the Basin States, Federal partners, and other stakeholders in improving water quality and living 

resources in the ecosystem. 

• Implementing programs of public outreach. 


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This subsection also requires that the Chesapeake Executive 

Council meet at least once per year. Meetings will be open to the 

public, except when the Council meets in private executive session. 

Annual meetings with executive sessions are a long-established 

practice of the Chesapeake Bay program, but they have not previously been required. 

(c) Interagency Agreements. This subsection is unchanged from 

existing law, allowing the Administrator to enter into interagency 

agreements to support restoration efforts. The Administrator has 

made extensive use of this authority in the past to fund staff from 

other Federal agencies including USDA Natural Resources Conservation Service, USDA Forest Service, the National Park Service, 

and the U.S. Army Corps of Engineers. The Committee expects this 

inter-agency collaboration to continue. 

(d) Technical Assistance and Assistance Grants. This subsection 

largely retains the same language currently in subsection 117(d). 

The Administrator is authorized to provide technical assistance and 

assistance grants to advance the Chesapeake Basin restoration effort. Administrative costs associated with these grants cannot exceed 10 percent. The list of current eligible grantees is expanded 

to include soil conservation districts and basin commissions. Historically, the Administrator has made extensive use of this authority, providing assistance agreements to academic and non-profit organizations. The ‘‘Small Watershed Grants Program,’’ first authorized in 2000, is renamed the ‘‘Chesapeake Basin Stewardship 

Grants Program.’’ The federal share of these projects cannot exceed 

75 percent. These grants have been extremely popular and have resulted in scores of individual projects that have leveraged their 

value many times over as they bring restoration efforts to local 

communities. 

(e) Implementation, Monitoring and Centers of Excellence 

Grants. Current Section 117(e) is replaced with this new subsection 

(e). Existing authority to provide implementation and monitoring 

grants is continued, with changes. A new Centers of Excellence 

Grants program is authorized as is a Chesapeake Nutrient Trading 

Guarantee Pilot Program. 

Implementation grants are to be used to enable Basin States to 

undertake Watershed Implementation Plans, which are designed to 

meet the water quality goals for the Chesapeake through load and 

wasteload pollution reductions contained in the Chesapeake TMDL. 

Grants are provided directly to the states or their designees, which 

can include non-profit organizations, among others. Headwater 

states (DE, NY and WV) are made eligible for implementation 

grants for the first time, and are allocated at least 10 percent of 

implementation grants. These headwater States are responsible for 

just under 10 percent of the pollution that is responsible for the impairments to the Chesapeake and its tidal segments. 20 percent of 

implementation grants are set aside so farmers and forest owners 

can receive technical assistance that will help them access Farm 

Bill funds for implementing conservation practices. The Committee 

believes that technical assistance is critical to helping local farmers 

understand conservation options and plan accordingly. These technical assistance requirements do not apply to implementation 

grants to the District of Columbia. Signatory States may also use 


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implementation grant funding to achieve the broader goals of the 

Chesapeake Bay Agreement. 

For the first time, the monitoring program is divided into a program for freshwater segments and a program for estuarine segments. USGS and NOAA are given roles in planning the monitoring programs, and the Administrator must also consult with the 

Chesapeake Basin Program Scientific and Technical Advisory Committee, Basin commissions, the U.S. Department of Agriculture and 

other Federal agencies, and the States. Priority is given to measuring the water quality effectiveness of agricultural conservation 

program implementation of the Chesapeake Bay Watershed Initiative, authorized in the Food Security Act of 1985 (16 U.S.C. 

3839bb–4). 

Centers of Excellence grants are established. These grants are to 

be awarded to institutions or consortia of higher education institutions to focus on the areas of innovative agricultural practices, load 

reduction quantification, and formulation of recommendations for 

the widespread deployment of effective agricultural conservation 

technologies, policies and practices. Agricultural producers have requested assistance in identifying additional conservation practices 

and having those practices analyzed so that specific pollution reduction efficiencies can be assigned to them. Academic institutions 

with strong agricultural and clean water programs have both the 

expertise and the confidence of the producer community to make 

these recommendations with strong scientific backing and widespread acceptance among the agricultural community. 

A Chesapeake Nutrient Trading Guarantee Pilot Program is established. The program is designed to leverage public funding to 

raise private capital to accelerate the restoration effort. A Guarantee Fund is established in the Treasury. The manager of the 

pilot program, supported by an EPA-funded cooperative agreement, 

can draw on the Fund to guarantee credit purchases in the nascent 

nutrient trading market for a minimum of five years. Venture capitalists, ‘‘green’’ investors, and a number of businesses offered 

strong support for a robust trading system. Providing a price guarantee in the early years of this program can provide the market 

with stability and certainty and will leverage private capital to 

come into the market. 

(f) Federal Facilities Coordination. Federal Agencies with facilities within the Chesapeake Basin must participate in regional and 

sub-watershed planning and restoration programs. The Basin 

States are given the task of meeting the EPA-assigned load and 

wasteload allocations. Therefore, Federal property owners must coordinate with the States to achieve the required pollution reductions. They must also adhere to the goals of the Bay Agreement 

and other Program efforts. This subsection requires the Chief of 

the Forest Service to work with the EPA Administrator to coordinate efforts among Federal facilities in the Bay basin to maximize 

forest cover at their facilities. 

(g) Federal Annual Action Plan and Progress Report. Current 

Section 117(g) is replaced with this new subsection codifying the 

actions in President Obama’s Executive Order of May 12, 2009 

(E.O. 13508, 74 Fed. Reg. 23099). This subsection requires the Administrator to provide an annual action plan, including budget, and 

report annually on efforts by the Federal government to protect 


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and restore the Chesapeake Bay during the upcoming fiscal year. 

In addition, by December 31, 2010, with the concurrence of the Secretary of Agriculture, the Administrator must create and maintain 

a Basin-wide database on the implementation of agricultural conservation management practices, which is to be updated at least 

once every two years. The database is to include all conservation 

practices, not simply those supported through public funds. Data 

are to be reported in aggregate form. 

(h) Chesapeake Basin Program. The current subsection (h) regarding a Study of the Chesapeake Bay Program is deleted. This 

new subsection requires the Administrator to work cooperatively 

with Basin States to assure that management strategies are developed to meet the sediment and nutrient reduction requirements to 

restore the living resources in the Chesapeake Bay and its tidal 

tributaries. The Administrator is also required to work with the 

original Bay signatory states (MD, PA, VA and DC) on toxins reductions and prevention goals, habitat enhancements, and living 

resource restoration and protection. 

This subsection establishes a Chesapeake Basin Stewardship 

Grants Program, which is focused on locally based protection and 

restoration programs or projects. A wide variety of entities are 

made eligible for grants. The grant program promotes local water 

quality and habitat restoration efforts, including activities for increased spawning and other habitat improvements for migratory 

fish. In addition, Stewardship Grants will give preference to cooperative projects involving local governments as well as soil conservation districts, sportsmen associations, and projects that involve public-private partnerships. 

(i) Action by States. The current subsection (i) is deleted. 

Modeled on the State Implementation Plans (SIP) in the Clean 

Air Act, the new subsection (i) establishes a flexible but rigorous 

system for each Chesapeake Basin State to design a Watershed Implementation Plan (WIP) that will direct its actions in providing 

the Chesapeake with clean water and helping to restore the Chesapeake ecosystem. 

Under this subsection, Basin States are required to submit their 

Watershed Implementation Plan (WIP) to EPA no later than November 1, 2011. The WIP shall establish reduction targets, actions 

and schedules designed to meet the established point source and 

nonpoint source allocations. The allocations must be sufficient to 

meet Chesapeake Bay and Chesapeake Bay tidal segment water 

quality standards. Detailed WIP requirements are enumerated, including both regulatory and non-regulatory/voluntary components, 

compliance, and contingency plans and requirements to contain enforceable or otherwise binding commitments to meet water quality 

standards. The plans must be designed to have in place at least 60 

percent of the required restoration actions no later than May 31, 

2017 and full implementation by May 12, 2025. 

This subsection establishes biennial reporting requirements for 

Basin States, including provisions to show how any shortfalls are 

being met through adaptive management approaches. The biennial 

reports must demonstrate ‘‘reasonable additional progress’’ in 

reaching the 2017 interim and 2025 final implementation requirements. 


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Basin States are given broad authority to add nonpoint sources 

that are causing water quality impairments in the Chesapeake Bay 

and its tidal segments to their National Pollution Discharge Elimination System programs under the Federal Water Pollution Control Act. Basin States are not limited to National Pollution Discharge Elimination System permits under the Federal Water Pollution Control Act in order to achieve these reductions. Other programs with enforceable provisions may also be used. The Committee expects Basin States to continue to make extensive use of 

State Department of Agriculture programs, for example, such as requirements for nutrient management plans. Federal regulators are 

expressly prohibited from taking enforcement actions against agricultural producers who are in full compliance with the State-designed, federally-approved WIP. States are also required to develop 

de minimis exemptions for new non-point source permits to implement the State’s WIP. 

Chesapeake Basin States that submit a WIP (WIP States) must 

implement stringent stormwater permits. By 2013, each WIP State 

shall require all major new developments and redevelopment 

projects to use a variety of techniques to maintain the original hydrology of the site, thus stemming the flow of new pollution into 

the Bay and its tidal tributaries. Any unavoidable impacts related 

to water temperature, rate, volume or duration of flow will require 

mitigation. Priority will be given to in-kind mitigation (e.g., water 

temperature increases above pre-existing hydrology must be offset 

by reductions of artificially elevated temperatures elsewhere in the 

same watershed). Out-of-kind (e.g., elevations in water temperature 

mitigated by reductions in flow) and out-of-subwatershed mitigation is allowed, but only if in-kind and in-watershed mitigation options are not available. Lowest priority is given to fees-in-lieu, and 

they must be set at a high enough level to allow the permitting 

agency sufficient funds to support other watershed mitigation efforts. EPA is required to develop appropriate regulations by May 

12, 2011 to implement the stormwater permitting program. The 

Committee encourages EPA to ensure that states are given maximum flexibility and deference in making final choices on best ways 

to achieve pre-development hydrology and stormwater reduction 

goals. 

To facilitate brownfields restoration and other redevelopment 

strategies, the Administrator must take into consideration, when 

developing regulations, the overall watershed protection and restoration that comes with redevelopment of brownfields or other previously developed sites. A WIP State that fails to implement the required stormwater permits is subject to the withholding of Federal 

Water Pollution Control Act funds. 

WIP States are also required to implement a ban on phosphates 

in laundry and dish detergents. Most Basin States have already instituted such bans in phosphorus pollution prevention efforts. A 

WIP State that fails to implement the required phosphate ban is 

subject to the withholding of Federal Water Pollution Control Act 

funds. 

(j) Action by Administrator. The current subsection (j), Authorization for Appropriations, is moved to subsection (p). 

In the new subsection (j), the Administrator is required to provide guidance and prompt review of state WIPs. EPA is currently 


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working closely with Basin States and has provided written guidance to these States for over a year on what watershed implementation plans should encompass and how they can be fairly evaluated. The Committee expects EPA to continue dialoging with the 

states as watershed implementation plans are developed. The Administrator is required to establish minimum criteria that a WIP 

must meet and make a ‘‘completeness determination’’ as to whether 

each submitted plan meets those criteria. The Committee believes 

that these criteria should be based on the broad body of information already widely used and understood. For this reason, such criteria should be issued by the Administrator promptly. 

This subsection outlines methods for the approval, conditional 

approval, corrections, plan revisions, and disapproval of WIPs. 

Basin States submitting WIPs are given up to one year to correct 

deficiencies. Failure to implement a WIP that will meet water quality requirements by meeting EPA load and wasteload allocations 

will result in the Administrator taking over the program and 

issuing a Federal Watershed Implementation Plan. In these circumstances, the Basin State is subject to losing its Federal Water 

Pollution Control Act funding. 

All plans must contain 10 specified elements. Within this general 

constraint, States are empowered to develop their own suite of activities, programs and policies to meet their load and wasteload allocations. The Administrator’s role is to evaluate the completeness 

of the Plan and the effectiveness of the State-designed WIPs in 

meeting water quality standards, not to design or force specific policy choices on the Basin States. 

If a Federal Watershed Implementation Plan is required, it will 

incorporate all applicable requirements for nonpoint sources included as part of the State’s most recently approved watershed implementation plan. The Administrator may not change the state’s 

nonpoint source requirements. Existing non-point source pollution 

control programs will continue, but under Federal direction so that 

there will be no backsliding in the nonpoint sector under a Federal 

Watershed Implementation Plan. This section gives the Administrator the authority to enforce such requirements under federal law 

in the same manner and with the same stringency as required in 

the most recently approved watershed implementation plan. The 

Administrator must issue and enforce NPDES permits under Federal Water Pollution Control Act authorities to the extent necessary to control pollution sufficient to meet the pollution reductions required to meet applicable water quality standards. 

The Administrator is required to establish an interstate nutrient 

trading program by May 12, 2012 and a sediment trading program 

by May 12, 2014. Standards and procedures for the nutrient trading program are enumerated in this subsection. The methods by 

which trades can be incorporated into existing NPDES permits are 

specified. Permit compliance remains the responsibility of the permit holder, not the party with whom a trade is undertaken. This 

subsection also allows third parties to aggregate and bank credits 

for sale to permitted entities, the use of ‘‘banked’’ credits, and direct purchase of credits through an exchange. Safeguards are required to assure that trades do not result in pollution ‘‘hot spots’’ 

locally. 


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The sediment trading program will rely on the recommendations 

from a stakeholder-driven task force and the expertise of the Department of Agriculture. Every five years the Administrator must 

report to the Congress on the effectiveness of the trading program. 

State-run intrastate trading programs may continue without 

change. 

The Administrator is required to establish guidance for commercial and residential development and redevelopment projects that 

impact water quality. In addition, The Administrator shall compile 

a database of model ordinances and guidelines that states, local 

governments, and private entities may choose to implement to ensure land maintains predevelopment hydrology with regard to the 

temperature, rate, volume and duration of water flow. EPA’s role 

is to provide technical assistance. The database of model ordinances and the examples of how others are addressing stormwater 

issues is meant to facilitate the spread of best practices across the 

watershed. All decisions regarding land use and development remain solely in the hands of local governments. 

To help local governments customize stormwater control programs to meet their unique needs, the Administrator is authorized 

to provide planning grants to local governments to develop, implement, and enforce stormwater control programs. The administrator 

is also authorized to provide grants to implement projects that are 

designed to reduce or beneficially reuse stormwater discharges. 

Local governments are facing extraordinary costs associated with 

dealing with this legacy pollution from an era when stormwater 

pollution was virtually uncontrolled. This new grants program is 

designed to help communities meet this funding need. Municipalities are encouraged to work with developers on in-fill and redevelopment projects in which public and private funds can be combined 

to improve water quality while benefiting the entire community. 

The Administrator, with the Chesapeake Executive Council, is 

required to review consumer and commercial products such as lawn 

fertilizer, the use of which may affect the water quality of the 

Chesapeake. The Committee is aware of numerous reports of overapplying do-it-yourself lawn fertilizers, resulting in excess nitrogen 

and phosphorus runoff. The Administrator shall submit a report to 

Congress detailing the findings of this review. 

The Administrator is authorized to implement a new agricultural 

animal waste-to-bioenergy deployment program. This grant program will be designed to assist agricultural animal producers reduce their water quality impacts while also generating beneficial 

bioenergy and generating credits for sale in a trading market. 

(k) Prohibition on Introduction of Asian Oysters. Two diseases 

that have decimated the native oyster population in the Chesapeake were introduced into the ecosystem accidentally when a nonnative oyster was introduced into the Bay. In order to avoid future 

such disasters, this subsection requires the Administrator to designate the Asian oyster as a ‘biological pollutant’ in the Chesapeake 

Bay, prohibit the issuance of permits for the discharge of Asian 

oysters in the Chesapeake Bay, and specify conditions under which 

scientific research on Asian oysters may be conducted in the Chesapeake Bay. 

(l) Chesapeake Nutria Eradication Program. This subsection authorizes the Secretary of the Interior to provide financial assistance 


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to Delaware, Maryland and Virginia to eradicate and control the 

non-native, invasive nutria and restore marshland damaged by nutria. 

(m) Review of Studies on the Impacts of Menhaden on the Water 

Quality of the Chesapeake Bay. This subsection directs the Administrator, in cooperation and consultation with the Administrator of 

the National Oceanic and Atmospheric Administration, to prepare 

a report that reviews and summarizes research on the impacts of 

menhaden on water quality. The Administrator must report to Congress within five years on any recommendations for additional research or study. 

(n) Effect on Other Requirements. This subsection states that 

nothing in this section removes or otherwise affects any other obligation for a point source to comply with other applicable requirements under this Act. In addition, this subsection outlines enforcement actions that can be taken related to a violation under this 

section. In particular, failure of a Basin state to meet the terms of 

its WIP or to make needed changes in order to achieve the overall 

water quality goals of the Chesapeake TMDL constitutes a violation of the Federal Water Pollution Control Act. Citizens can also 

bring civil actions against the Basin State, seeking injunctive relief 

for such failures. Except for this new liability for Basin States to 

implement state WIPs, no other changes are made to the citizen 

suit provisions in current law. 

(o) Evaluations. This subsection requires the Inspectors General 

of the EPA and Department of Agriculture to evaluate the implementation of this section and submit reports to Congress every 

three years. Independent reviews by the National Academy of 

Sciences or the National Academy of Public Administration are also 

required. These must include an assessment of progress made toward meeting the goals of this section, efforts by Federal, State, 

and local governments to implement this section, and the methodologies and data used to support implementation. The independent reviews by the Academies must be completed no later than 

May 12, 2015 for the first review and no later than May 12, 2020 

for the second review. 

(p) Authorization of Appropriations. Authorizations of appropriations are provided for the following: 

• Chesapeake Basin Program Office ($20 million annually 

FY11–FY15); 

• Basin State Implementation Grants ($80 million annually); 

• Centers of Excellence for Water Quality and Agricultural 

Policies ($10 million annually); 

• Agricultural Animal Waste-to-Bioenergy grants ($30 million 

over 5 years); 

• Freshwater Monitoring ($5 million annually); 

• Chesapeake Bay and Tidal Water monitoring ($5 million annually); 

• Chesapeake Stewardship Grants ($15 million annually); 

• Stormwater Pollution Control Planning grants ($10 million 

total); 

• Stormwater Pollution Control and Reuse Implementation 

grants ($1.5 billion total); and 

• Nutria Eradication grants ($4 million annually). 


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Cost share requirements are established and a general limitation 

on administrative expenses of 10 percent is established. All funds 

are available until expended. 

(q) Severability. If any provisions of this section is invalid, unenforceable, or in conflict with any law, the validity, legality, or enforceability of remaining provisions are not affected. 

Sec. 4. Federal enforcement 

Section 4 is a conforming amendment to provide the appropriate 

cross-references to Section 309 regarding enforcement of the Federal Water Pollution Control Act. The cross-references are limited 

to civil penalties under Section 309. 

Sec. 5. Federal responsibility to pay for stormwater programs 

Section 5 amends section 313 of the Clean Water Act to clarify 

that federal facilities must pay customary stormwater management 

fees to local governments or authorities in the same manner that 

others are required to do so. Any claims of sovereign immunity are 

explicitly waived. 

Sec. 6. Relationship to National Estuary Program 

Section 6 amends section 320 to make Chesapeake Basin States 

eligible for the same flexibility afforded to National Estuary Program States for federal financial assistance programs. 

LEGISLATIVE HISTORY

On April 20, 2009, the Water and Wildlife Subcommittee of the 

Committee on Environment and Public Works held a general oversight hearing on the Chesapeake Bay. Entitled ‘‘Chesapeake Bay 

Restoration: Status Report and Recommendations,’’ the field hearing was held at the Maryland Statehouse in Annapolis, MD—Joint 

Hearing Room. 

On August 3, 2009, the subcommittee held a second oversight 

hearing. Entitled ‘‘A Renewed Commitment to Protecting the 

Chesapeake Bay: Reauthorizing the Chesapeake Bay Program.’’ 

Witnesses from the Chesapeake Basin States and other key stakeholders testified regarding the reauthorization of the Chesapeake 

Bay Program. 

S. 1816 was introduced on October 20, 2009 by Senator Benjamin 

L. Cardin (D–MD), with original cosponsors Senator Ted Kaufman 

(D–DE), Senator Tom Carper (D–DE) and Senator Barbara A. Mikulski (D–MD). The bill was read twice and referred to the Senate 

Committee on Environment and Public Works. 

On November 9, 2009, the Subcommittee on Water and Wildlife 

held a legislative hearing on two pending bills, S. 1816, The Chesapeake Clean Water and Ecosystem Restoration Act, and S. 1311, a 

bill to reauthorize the Gulf of Mexico Program. 

On June 30, 2010 the Senate Committee on Environment and 

Public Works held a business meeting to consider a number of bills, 

including S. 1816. The Committee ordered S. 1816, with an amendment in the nature of a substitute, to be reported to the full Senate. 


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ROLLCALL VOTES

On June 30, 2010 the Senate Committee on Environment and 

Public Works held a business meeting to consider a number of bills, 

including S. 1816. 

Amendments Accepted 

1. Senator Cardin (D–MD) offered an amendment in the nature 

of a substitute to S. 1816. The substitute amendment expanded the 

federal grant programs authorized under the bill, required all federal facilities to pay stormwater pollution fees to local utilities, 

added provisions related to interaction with agricultural producers, 

and required evaluation of the program by independent entities. 

The substitute amendment also corrected the constitutional concerns in the introduced bill. By unanimous consent, the substitute 

was considered as base text for the purpose of further amendment. 

2. Senator Carper (D–DE) offered an amendment that would authorize $30 million for fiscal 2010 through 2015 for a grant program to individuals and partnerships that carry out projects to deploy a technology for converting animal waste to bio-energy that 

has a significant potential to reduce agricultural animal waste volume, recover nutrients, improve water quality, decrease pollution 

and recover energy. The amendment was agreed to by voice vote. 

3. Senator Cardin, on behalf of Senator Specter (D–PA), offered 

an amendment that would prohibit federal enforcement action from 

being brought against an agriculture producer that is in compliance 

with all applicable planning and scheduling requirements consistent with approved plans for watershed implementation, government-approved soil conservation, nutrient management, erosion 

control and other applicable requirements in approved State watershed implementation plans. The amendment was agreed to by voice 

vote. 

4. Senator Gillibrand (D–NY) offered an amendment that would 

reduce the State and local cost-share requirement for Delaware, 

New York and West Virginia to 20 percent, and specify the share 

for Maryland, Pennsylvania, Virginia and the District of Columbia 

at 50 percent. Senator Gillibrand also offered an amendment to her 

amendment regarding cost-share requirements for the implementation grants authorized in the bill. The second-degree Gillibrand 

amendment would change the State and local share requirements 

for Delaware, New York and West Virginia in the underlying 

amendment to 25 percent. The second-degree amendment was 

agreed to by voice vote. The underlying Gillibrand amendment, as 

amended by the second-degree amendment, was agreed to by voice 

vote. 

5. Senator Inhofe (R–OK) offered an amendment to limit the applicability of certain standards and requirements to Chesapeake 

Basin States. With the support of Senator Inhofe, Senator Cardin 

offered a second-degree amendment as a substitute to the Inhofe 

amendment. The second degree amendment struck subsection (i) of 

the bill regarding Total Maximum Daily Loads. Several subsequent 

references to the Chesapeake TMDL were replaced with language 

referring to ‘‘water quality standards’’ for the Chesapeake Bay and 

its tidal tributaries. 


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In addition, the second-degree amendment eliminated the unlimited ability of EPA to issue permits for all pollution sources if it 

should be required to administer the watershed implementation 

plan for a State. Instead, EPA is limited to continuing the nonpoint 

source programs included as part of the most recently approved 

watershed implementation plan of the State. EPA’s ability to permit point sources is not limited. The Cardin second degree amendment was agreed to by voice vote. The Inhofe amendment, as 

amended, was also agreed to by voice vote. 

Amendments Rejected 

1. Senator Barrasso (R–WY) offered an amendment that would 

require nonpoint source permits issued to agriculture producers be 

approved by the State’s or the federal Agriculture Department. A 

permit would only be granted if it is determined it would not result 

in harm to the food supply or create economic hardship for the agricultural producer. The amendment was rejected 8–11 with Senators Alexander, Barrasso, Bond, Crapo, Inhofe, Vitter, Voinovich 

and Klobuchar voting in favor of the amendment and Senators 

Baucus, Boxer, Cardin, Carper, Gillibrand, Lautenberg, Merkley, 

Sanders, Specter, Udall, and Whitehouse voting against. 

This Committee ordered S. 1816, as amended, reported favorably 

by voice vote. 

REGULATORY IMPACT STATEMENT

In compliance with section 11(b)(2) of rule XXVI of the Standing 

Rules of the Senate, the Committee notes that the Congressional 

Budget Office has found the bill would impose requirements on private entities by requiring certain States to develop Watershed Implementation Plans. However, CBO also notes that States required 

to develop these plans, ‘‘already comply with the underlying requirements of the plans.’’ The bill will not affect the personal privacy of individuals. 

MANDATES ASSESSMENT

In compliance with the Unfunded Mandates Reform Act of 1995 

(Public Law 104–4), the Committee notes that the Congressional 

Budget Office has concluded the bill will impose intergovernmental 

and private-sector impacts but CBO also notes that ‘‘Implementing 

[Watershed Implementation Plans] plans would impose requirements on public and private entities such as wastewater facilities 

and industrial plants that discharge water into the basin. Because 

those States already comply with the underlying requirements of 

the plans, CBO estimates that the cost of those mandates would 

fall well below the annual thresholds established in UMRA for 

intergovernmental and private-sector mandates ($70 million and 

$141 million in 2010, respectively, adjusted annually for inflation).’’ 


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AUGUST 20, 2010. 

Hon. BARBARA BOXER, 

Chairman, Committee on Environment and Public Works, 

U.S. Senate, Washington, DC. 

DEAR MADAM CHAIRMAN: The Congressional Budget Office has 

prepared the enclosed cost estimate for S. 1816, the Chesapeake 

Clean Water and Ecosystem Restoration Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Susanne S. Mehlman. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 1816—Chesapeake Clean Water and Ecosystem Restoration Act 

Summary: S. 1816 would reauthorize the Chesapeake Bay program within the Environmental Protection Agency (EPA) and rename it the Chesapeake Basin program. The bill also would authorize the appropriation of $2.3 billion over the 2011–2015 period 

for EPA and the Department of the Interior (DOI) to provide grants 

to States and nonprofit organizations to support a wide range of 

water quality projects and programs aimed at restoring and protecting the ecosystem of the Chesapeake basin. 

The authorized funding also would be used by EPA to establish 

and operate trading programs for nitrogen, phosphorus, and sediment in the Chesapeake basin. The goal of the trading programs 

would be to reduce discharges of those pollutants into the bay. If 

sources of pollutants, such as farmers, reduce such discharges 

below targeted levels set by EPA, they could then sell surplus reductions (or ‘‘credits’’) to other pollution sources, such as wastewater treatment plants. (Target levels for the agriculture sector 

will be set by EPA by December 31, 2010, under current law.) Participation in the proposed trading programs would be voluntary. 

CBO estimates that implementing this legislation would cost 

about $1.9 billion over the 2011–2015 period, assuming appropriation of the authorized amounts. Pay-as-you-go procedures do not 

apply to S. 1816 because the bill would not affect direct spending 

or revenues. 

S. 1816 would impose intergovernmental and private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA). 

CBO estimates that the cost of those mandates would fall well 

below the annual thresholds established in UMRA for intergovernmental and private-sector mandates ($70 million and $141 million 

in 2010, respectively, adjusted annually for inflation). 

Estimated cost to the Federal Government: The estimated budgetary impact of this legislation is summarized in Table 1. The costs 

of this legislation fall within budget function 300 (natural resources 

and environment). 

TABLE 1. ESTIMATED BUDGETARY EFFECTS OF S. 1816 

By fiscal year, in millions of dollars— 

2011 2012 2013 2014 2015 2011–2015 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Authorization Level ....................................................................................... 451 451 451 451 451 2,255 


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TABLE 1. ESTIMATED BUDGETARY EFFECTS OF S. 1816—Continued 

By fiscal year, in millions of dollars— 

2011 2012 2013 2014 2015 2011–2015 

Estimated Outlays ........................................................................................ 204 383 451 451 451 1,940 

Basis of estimate: For this estimate, CBO assumes that the bill 

will be enacted near the beginning of fiscal year 2011, that the full 

amounts authorized will be appropriated for each year, and that 

outlays will follow the historical patterns of spending for similar 

programs. Components of the estimated costs are described below. 

This legislation would authorize appropriations totaling about 

$2.3 billion over the next five years for EPA and DOI to support 

activities related to restoring and protecting the Chesapeake basin 

ecosystem. Amounts authorized to be appropriated for individual 

programs are shown in Table 2. S. 1816 would authorize the appropriation of $1.5 billion over the 

2011–2015 period for EPA to provide grants to local governments 

to support projects and activities within the Chesapeake basin related to reducing or reusing stormwater discharges. This legislation also would authorize the appropriation of $520 

million over the next five years for EPA to establish and support 

centers of excellence for water quality and agricultural policies and 

practices; monitor the quality of freshwater supplies; and provide 

grants to support various activities related to achieving goals established under the Chesapeake Bay Agreement. (That agreement, 

first established in 1983 between EPA and the bay-area states, 

identifies actions needed to protect the Chesapeake Bay ecosystem.) Also included in that amount is an authorization of $20 

million over the 2011–2015 period for EPA to establish and implement pollutant trading programs in the basin. The remaining authorizations in the bill would total about $225 

million over the next five years. That funding would be used for 

various purposes, including administrative support for the Chesapeake Basin program office ($100 million), a grant program for DOI 

to assist the states of Delaware, Maryland, and Virginia in eradicating or controlling the nutria population and restoring marshland 

damaged by nutria ($20 million), a grant program for EPA to support the conversion of agricultural animal waste into heat, power 

or biofuels ($30 million), and a grant program for EPA to support 

the water quality and habitat in the Chesapeake basin ($75 million). 

TABLE 2. AMOUNTS AUTHORIZED TO BE APPROPRIATED FOR EPA PROGRAMS UNDER S. 1816 

By fiscal year, in millions of dollars— 

2011 2012 2013 2014 2015 2011–2015 

Storm Water Pollution Planning and Implementation Grants ..................... 302 302 302 302 302 1,510 

Implementation, Monitoring, and Centers of Excellence Grants ................. 104 104 104 104 104 520 

Chesapeake Basin Program Office .............................................................. 20 20 20 20 20 100 

Nutria Eradication Grants ............................................................................ 4 4 4 4 4 20 

Agricultural Animal Waste-to-Bioenergy Deployment Grants ...................... 6 6 6 6 6 30 

Chesapeake Stewardship Grants ................................................................. 15 15 15 15 15 75 

Total Authorization Level ..................................................................... 451 451 451 451 451 2,255 


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Intergovernmental and private-sector impact: S. 1816 would impose intergovernmental and private-sector mandates as defined in 

UMRA. The bill would require the states of Delaware, New York, 

and West Virginia to develop and implement plans for improving 

water quality and restoring living resources in the Chesapeake 

basin. Implementing those plans would impose requirements on 

public and private entities such as wastewater facilities and industrial plants that discharge water into the basin. Because those 

states already comply with the underlying requirements of the 

plans, CBO estimates that the cost of the mandates would fall well 

below the annual thresholds established in UMRA for intergovernmental and private-sector mandates ($70 million and $141 million 

in 2010, respectively, adjusted annually for inflation). 

Other impacts 

The bill would authorize a number of grant and assistance programs that would be available to state and local governments. In 

some cases, those programs would have matching or administrative 

requirements, but the costs of such requirements would be incurred 

voluntarily as conditions of participation. 

Estimate prepared by: Federal Spending: Susanne S. Mehlman; 

Impact on State, Local, and Tribal Governments: Ryan Miller; Impact on the Private Sector: Amy Petz. 

Estimate approvd by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


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1 United States Senate Committee on Environment and Public Works, Full Committee Business Meeting, Wednesday, June 30, 2010, http://epw.senate.gov/public/ 

index.cfm?FuseAction=Hearings.Hearing&HearinglID=7f356e9b-802a-23ad-45c5-6e51a788d6c2. 2 ‘‘Each of the restoration efforts takes a somewhat different approach to deal with the specific 

concerns of that region. This is as it should be. Each of these great water bodies is unique, and 

each deserves its own restoration strategy developed by its own set of stakeholders.’’ 111th Congress Congressional Record. S6046, July 21, 2010 (Statement of Sen. Cardin). 

ADDITIONAL VIEWS OF SENATORS JOHN BARRASSO AND 

DAVID VITTER 

While we appreciate the unique pollution situation in the Chesapeake Bay, and the tremendous federal involvement and cooperation in putting together the plan that inspired this bill, we remain 

concerned about a number of provisions in S. 1816, the Chesapeake 

Clean Water and Ecosystem Restoration Act. 

First and foremost, this bill was designed and tailored to meet 

the specific needs of the Chesapeake Bay, and not to serve as a 

model for the rest of the United States. In putting this bill together, Senator Cardin took input from all of the states within the 

Chesapeake Basin and provided for their unique needs. For example, New York, Delaware, and West Virginia, states that are traditionally outside of the Chesapeake Bay Program (which includes 

Virginia, Maryland, Pennsylvania, and the District of Columbia) 

have been given additional time and resources to meet the pollution goals of the aggressive 15-year timeline. During consideration 

of S. 1816, the Committee moved separate bills for the following 

water bodies: the Great Lakes, the Gulf of Mexico, Long Island 

Sound, Puget Sound, the San Francisco Bay, and the Columbia 

River.1 Each of these approaches was also carefully discussed by 

local stakeholders and tailored to meet the needs of the particular 

water bodies they address.2 The Committee believes that what 

works in one watershed should not be an automatic template that 

applies to other areas of the country. 

By placing the unique approach S. 1816 takes to watershed restoration into Sec. 117 of the Clean Water Act, we are concerned 

that, either through creative rulemaking, or through court mandate, expanded EPA authorities in S. 1816 will inevitably be used 

for waters outside of the Chesapeake Basin. We do not believe that 

this is the intent of the author and co-sponsors of this bill, and we 

know it is not the intent of the Committee to allow this. However, 

in my view, it would set a troubling precedent if this bill became 

law. 

On top of this, the bill’s new EPA enforcement backstop will significantly shift the balance of power between the states and the 

federal government in dealing with regulation and management of 

water. For 38 years, the Clean Water Act and subsequent amendments have produced a federal-state partnership to clean up and 

properly care for our nation’s navigable waters. This federal-state 

partnership has been a cornerstone of CWA legislation since its inVerDate Mar 15 2010 23:52 Oct 04, 2010 Jkt 089006 PO 00000 Frm 00018 Fmt 6604 Sfmt 6604 E:\HR\OC\SR333.XXX SR333

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3 CWA 101(b). 

4 In 2008, Chugwater Creek, a tributary to the Laramie River, in the North Platte River Basin 

of Wyoming was removed from WYDEQ’s 303(d) list of impaired waters after a stakeholder 

group including local landowners, the local irrigation district, Platte County Resource District, 

Wyoming Game and Fish Department, and Pheasants Forever adopted numerous best management practices to reduce sedimentation. This successful project was made possible through CWA 

319 program authorities. (see: http://www.epa.gov/owow/NPS/success/state/wylchug.htm) For 

more EPA 319 success stories, including dramatic pollution reduction in Chesapeake Basin 

states, see EPA’s Office of Water’s 321 page report: http://www.epa.gov/owowlkeep/NPS/ 

Success319/pdf/319lall.pdf. 5For reports regarding NEP successes, please look at testimony submitted for the June 26, 

2008, the House Subcommittee on Water Resources and Environment held a hearing on ‘‘Protecting and Restoring America’s Great Waters, Part 1: Coasts and Estuaries.’’ http://transportation.house.gov/hearings/hearingDetail.aspx?NewsID=686. At that hearing, Richard Ribb, Director of the Narrangansett Bay Estuary Program stated that ‘‘One of the successes of the program certainly is due to its non-regulatory approach. It provides a neutral forum for people to 

discuss issues and come to agreement on solutions.’’ Additionally, EPA’s website on the National 

Estuary Program boasts about their ‘‘. . . success stories demonstrate the significant work being 

done . . . the NEPs implement the Clean Water Act in Ways that are Effective, Efficient, Collaborative, and Adaptive.’’ http://water.epa.gov/type/oceb/nep/action.cfm. 

ception, successfully protecting waters of importance to the United 

States. The partnership has also given local and state governments 

important flexibility in meeting not only the goals of the CWA but 

the distinct needs of local residents. According to the CWA, ‘‘it is 

the policy of the Congress to recognize, preserve, and protect the 

primary responsibilities and rights of states to prevent, reduce, and 

eliminate pollution, to plan the development and use (including 

restoration, preservation, and enhancement) of land and water resources.’’ 3 However, S. 1816 has the potential to shift a great deal 

of power away from the states and into the hands of EPA. This is 

primarily done through states giving EPA their watershed implementation plans for approval and expanded permitting authorities. 

Section 3(i)(1) lays out the requirements for watershed implementation plans. This new scheme requires, in 3(i)(1)(A)(iv)(1), 

‘‘State adopted management measures, including rules, or regulations, permits, consent decrees, and other enforceable or otherwise 

binding measures from point and nonpoint pollution sources.’’ The 

CWA has never been able to require that states adopt implementation plans that are wholly enforceable by permit or other binding 

measures. Currently states meet their water pollution control goals 

through a combination of both binding and voluntary measures. 

Additionally, states have made great progress in improving water 

quality through voluntary partnerships and programs. Under the 

Clean Water Act, funding is set aside for a number of cooperative, 

highly successful, voluntary programs, such as the nonpoint source 

management programs under Section 319 4 and the National Estuary Program under Section 320.5 By requiring that any management measure be binding and enforceable, states will have to take 

on unnecessary regulatory burden, not just in writing the new permits, but also in enforcing them. Moreover, the requirement for 

binding, enforceable permits may prevent states from achieving 

greater participation through a voluntary program. 

S. 1816 allows, for the first time ever, CWA 402 National Pollution Discharge Permits (NPDES) to be used and enforced for any 

pollution discharge or runoff the state would like to permit in order 

to meet their watershed implementation plans. 3(i)(2)(A) reads: 

Notwithstanding any other provision of this Act (including any exclusion or exception contained in a definition 

under section 502) and in accordance with State laws (inVerDate Mar 15 2010 23:52 Oct 04, 2010 Jkt 089006 PO 00000 Frm 00019 Fmt 6604 Sfmt 6604 E:\HR\OC\SR333.XXX SR333

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6Water Permitting 101, USEPA Office of Wastewater Management—Water Permitting, http:// 

www.epa.gov/npdes/pubs/101pape.pdf. 7 CWA 502(14). 

cluding regulations), after providing appropriate opportunities for public comment, for the purpose of achieving the 

nitrogen, phosphorus, and sediment reductions required 

under a watershed implementation plan, a Chesapeake 

Basin State, or, if the State is not authorized to administer 

the permit program under section 402, the Administrator, 

may impose limitations or other controls, including permit 

requirements, on any discharge or runoff from a pollution 

source, including point and nonpoint sources, located within the Chesapeake Basin State that the program administrator determines to be necessary. 

This is a tremendous expansion of the NPDES permitting authority. Under current law, NPDES permits are for discharges of 

pollutants from any point source into waters of the United States.6

There is nothing in 3(i)(2)(A) that limits NPDES permits to just 

pollution of nitrogen, phosphorous, and sediment, as it allows any 

permits to be written for achieving the reductions required under 

the watershed implementation plan. For the first time, this bill allows permits to be written for nonpoint sources. This is a dramatic 

and fundamental expansion to the CWA permitting system. 

Without limiting the kinds of discharges that can be regulated, 

conceivably any activity that involves water moving on a property 

could be regulated by an NPDES permit. It is unknown to what extent permitting could be used for existing sources, but it is safe to 

assume that, if the water quality goals set forth in the Chesapeake 

Bay TMDL are stringent enough, permits could be widely required 

for existing structures, not being currently developed or re-developed, including businesses, farms, and private residences. Furthermore, expanding the states use of 402 permits will inevitably result 

in more lawsuits, as all 402 permits written by states will be immediately enforceable through citizen suits. 

The 402 universe is further expanded by the removal of the current 502 exemption. Under the S. 1816 regime, states may require 

NPDES permits for agricultural stormwater discharges and irrigation return flows, which have been specifically exempted from permit requirements.7 NPDES permits traditionally contain strict numeric criteria that would be incredibly difficult to adapt to agricultural stormwater situations. Because agricultural runoff is largely 

dictated by rainfall, something that agricultural producers do not 

have control over, meeting numeric limitations will be extremely 

difficult and potentially costly. 

Furthermore, it appears that the added provision against section 

309 enforcement for farmers actually fails to provide any shield 

from enforcement actions. The protection in 3(i)(2)(C) only applies 

if the agricultural producer can prove he is in compliance with the 

permit and nutrient management plans and soil conservation 

plans, and every provision of the state watershed implementation 

plan. This provision does not stop EPA or an activist from filing 

lawsuits against agricultural producers. In fact, depending on interpretation, it may make it even harder for an agricultural proVerDate Mar 15 2010 23:52 Oct 04, 2010 Jkt 089006 PO 00000 Frm 00020 Fmt 6604 Sfmt 6604 E:\HR\OC\SR333.XXX SR333

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8Testimony of the Honorable Gus Douglass, Commissioner West Virginia Department of Agriculture, Subcommittee on Water and Wildlife hearing entitled, ‘‘A Renewed Commitment to Protecting the Chesapeake Bay: Reauthorizing the Chesapeake Bay Program.’’ Monday, August 3, 

2009. http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStorelid=a0cc8539- 

a342-4fc9-bd6d-11d6cad46524. 9 EPA Office of Water: NPDES State Program Status: http://cfpub.epa.gov/npdes/statestats.cfm 

as of 15 September 2010. 10 ‘‘EPA Petitioned to Revoke West Virgina’s Clean Water Authority’’ ENS News Service, June 

22, 2009 http://www.ens-newswire.com/ens/jun2009/2009-06-22-091.asp. 11 EPA Office of Water: NPDES Specific State Program Status http://cfpub.epa.gov/npdes/ 

statestats.cfm?programlid=45&view=specific as of 15 September 2010. 

ducer to defend itself from a lawsuit because the section implies 

that a producer must not only comply with the terms of a Clean 

Water Act permit, but also any additional requirements found in 

nutrient management and conservation plans or in the watershed 

implementation plan itself. Thus, this provision provides no protection at all from lawsuits. 

I am also concerned about how S. 1816 will impact farmers in 

the Chesapeake Bay region and how they could be the ‘‘camel’s 

nose under the tent’’ for regulating agriculture in the rest of the 

country. In testimony before the committee, the Honorable Gus 

Douglass, the Commissioner of the West Virginia Department of 

Agriculture argued against additional regulatory schemes for agriculture in the Chesapeake Basin. He testified: ‘‘Additional regulations at this time will be burdensome to both the agriculture community and the state as they try to implement regulations.’’ Instead, he argued for continued support for the successful voluntary 

incentive-based approach to helping farmers achieve water quality 

goals for the Chesapeake Bay.8 Additional permit burdens will only 

further disadvantage family farmers who are struggling now. 

In the event that states do not have 402 authority, 3(i)(2)(A) 

gives EPA the authority to write these permits. Currently, the District of Columbia does not have any delegated NPDES authority 

and Pennsylvania doesn’t have NPDES authority for the State 

Pretreatment Program.9 Right now, EPA will have the sole authority to permit nonpoint sources in the District of Columbia, and, if 

EPA takes over any Chesapeake Basin state’s authority prior to S. 

1816 becoming law, then EPA will have complete authority to permit nonpoint sources in that state. This is concerning because EPA 

has been petitioned by the Sierra Club, West Virginia Highlands 

Conservancy, Coal River Mountain Watch, and Ohio Valley Environmental Coalition to begin formal proceedings to withdraw approval of West Virginia’s NPDES program.10

In the event that EPA utilizes the expanded 402 authority outside of the Chesapeake Basin, Idaho, Massachusetts, New Hampshire, New Mexico, American Samoa, Guam, Johnston Atoll, Midway Island, Northern Mariana Islands, and Wake Island would 

have EPA fully in control of their programs. Oklahoma and Texas 

would have to share authority with EPA to write nonpoint source 

permits for some of their programs, since they do not have NPDES 

authority to permit for activities associated CAFOs or with the exploration, development, or production of oil or gas or geothermal resources, including transportation of crude oil or natural gas by 

pipeline.11

S. 1816 also will alter the relationship between EPA and the 

states relationship for responsibilities for water will be altered by 


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12Fowler v. EPA, see press release ‘‘EPA Reaches Settlement in Chesapeake Bay Lawsuit’’ 

11 March 2010 http://yosemite.epa.gov/opa/admpress.nsf/ 0/ 

ac46af32562521d48525772000591133?OpenDocument. 13 ‘‘States’ Bay Cleanup Plans Fall Short Of EPA-Mandated Pollution Reductions’’ Inside EPA 

13 September 2010 http://insideepa.com/Water-Policy-Report/Water-Policy-Report-09/13/2010/ 

states-bay-cleanup-plans-fall-short-of-epa-mandated-pollution-reductions/menu-id-127.html. 

S. 1816. There are two potential scenarios in terms of watershed 

implementation plans. States can submit their plans to EPA for approval, or they can choose not to. Once a state submits its plan for 

approval, if EPA believes the plan is inadequate, it can take over 

the entire program and issue permits for whatever it wants. Even 

if EPA chooses not to take over a plan, we remain deeply concerned 

that once a plan is submitted for approval, all the provisions in the 

plan are subject to second-guessing by activist groups through citizen suits and TMDL implementation by court order. 

If a state submits a plan to EPA, and EPA approves it, any 

group that disagrees with that decision could bring an action 

against EPA to compel them to reconsider and disapprove it. Such 

speculation is not far-fetched. Current law already requires EPA to 

‘‘ensure’’ that ‘‘management plans are developed and implemented’’ 

by Chesapeake Basin states. Even though the legislative history of 

that provision states that it confers no regulatory authority and is 

to be implemented by issuing grants, the Chesapeake Bay Foundation sued EPA for failing to meet that nondiscretionary duty and 

EPA settled that case by making many commitments related to the 

Chesapeake Bay TMDL.12 This could happen as Phase I state watershed implementation plans are submitted to EPA in early September 2010 have already been criticized by environmentalists.13 If 

S. 1816 were in effect and applied to those plans, these groups 

could challenge any EPA approval of those plans by alleging a failure to meet the many mandates in this bill. 

Section (3)(j)(5) gives EPA authority to directly carry out a state 

watershed implementation plan if the state submitted that plan to 

EPA for approval and EPA decides that plan is inadequate. EPA 

can also carry out a state watershed implementation plan if the 

state fails to submit a required revised plan, fails to submit a biennial report, misses a 2-year milestone, or fails to remedy a disapproved plan. Again, citizen suits may force EPA to take over implementation of a plan on grounds that milestones are not being 

met or the plan is inadequate. Furthermore, in the event that a 

state fails to stay on its watershed implementation schedule, EPA 

has a judicially enforceable, nondiscretionary duty to withhold 

state funding, including SRF funds; develop and administer new 

watershed implementation plans; and require that any new or expanded discharges under 402 have stringent offsets. Essentially, by 

submitting a watershed implementation plan to EPA for approval, 

states will cede decision making authority over Chesapeake Basin 

water to the federal government. 

If a state does not submit a watershed implementation plan to 

EPA for approval, then S. 1816 does not grant EPA new implementation or enforcement authority. However, EPA has already threatened to compel states to submit watershed implementation plans 

to EPA for approval, even though the Clean Water Act does not 

grant EPA that authority. In a letter dated December 29, 2009, 


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14 ‘‘EPA Outlines Framework for Holding States, D.C. Accountable for Reducing Chesapeake 

Bay Watershed Pollution; Additional $11.2 Million Provided’’ Release date: 12/29/2009 http://yosemite.epa.gov/opa/admpress.nsf/e51aa292bac25b0b85257359003d925f/ 

aa36226e613bfb9e8525769b005d85b2!OpenDocument. 15 New York v. United States, 505 U.S. 144 (1992). 16 Id. at 161. 17 Id. at 162. 

EPA threatened to take the following actions against states that do 

not submit their plans to EPA: • Expanding coverage of National Pollutant Discharge Elimination System (NPDES) permits to sources that are currently unregulated. • Increasing oversight of state-issued NPDES permits. • Requiring additional pollution reductions from point sources 

such as wastewater treatment plants. • Increasing federal enforcement and compliance in the watershed. • Prohibiting new or expanded pollution discharges unless sufficient offsets are provided. • Redirecting EPA grants. • Revising water quality standards to better protect local and 

downstream waters. • Establishing finer scale load allocations in the Bay TMDL.14

S. 1816 contains additional citizen suits provisions. As citizen 

suits are already allowed in the Clean Water Act, a new citizen’s 

suit right is not necessary in this bill. Rather than allowing special 

interest groups to sue for permit violators to be enforced upon, at 

a cost to the taxpayers, a better enforcement strategy would be to 

subject a state to an enforcement action by the Administrator when 

they are found to violate this act, which is a much more appropriate measure to help clean up the bay watershed. Allowing an expanded citizens suit provision will only get the states bogged down 

with unnecessary and potentially inappropriate litigations. 

Finally, I am extremely concerned that provisions that compel 

states to take on the enforcement and enactment of a federal regulatory program may be unconstitutional. The Supreme Court has 

previously struck down 15 provisions of federal law that placed burdensome requirements on states. The Court held that Congress 

may not ‘‘commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory 

program.’’ 16 Specifically the court pointed out that such detailed 

instructions to the states on how to implement federal programs 

are outside of Congress’ purview. ‘‘While Congress has substantial 

power to govern the Nation directly, . . . the Constitution has 

never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instruction.’’ 17

The severability clause that S. 1816 contains in Section (3)(q) ‘‘A 

determination that any provisions of this section is invalid, illegal, 

unenforceable, or in conflict with any other law shall not affect the 

validity, legality, or enforceability of the remaining provisions of 

this section,’’ seems to prepare for this constitutional challenge. 

Again, we sincerely respect the process that Sen. Cardin and the 

co-sponsors of this legislation have gone through to help the Chesapeake Bay. We believe from introduction through committee mark 

up on August 30, 2010, important, beneficial changes were made 


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to this bill that allowed for its smooth passage through committee, 

and we sincerely hope more will be done before this sees further 

Congressional action. 

JOHN BARRASSO. DAVID VITTER. 

CHANGES IN EXISTING LAW

In compliance with section 12 of rule XXVI of the Standing Rules 

of the Senate, changes in existing law made by the bill as reported 

are shown as follows: Existing law proposed to be omitted is enclosed in øblack brackets¿, new matter is printed in italic, existing 

law in which no change is proposed is shown in roman: 

* * * * * * * 

FEDERAL WATER POLLUTION CONTROL ACT 

* * * * * * * 

SEC. 117. CHESAPEAKE BAY. 

ø(a) DEFINITIONS.—In this section, the following definitions 

apply: 

ø(1) ADMINISTRATIVE COST.—The term ‘‘administrative cost’’ 

means the cost of salaries and fringe benefits incurred in administering a grant under this section. 

ø(2) CHESAPEAKE BAY AGREEMENT.—The term ‘‘Chesapeake 

Bay Agreement’’ means the formal, voluntary agreements executed to achieve the goal of restoring and protecting the Chesapeake Bay ecosystem and the living resources of the Chesapeake Bay ecosystem and signed by the Chesapeake Executive 

Council. 

ø(3) CHESAPEAKE BAY ECOSYSTEM.—The term ‘‘Chesapeake 

Bay ecosystem’’ means the ecosystem of the Chesapeake Bay 

and its watershed. 

ø(4) CHESAPEAKE BAY PROGRAM.—The term ‘‘Chesapeake Bay 

Program’’ means the program directed by the Chesapeake Executive Council in accordance with the Chesapeake Bay Agreement. 

ø(5) CHESAPEAKE EXECUTIVE COUNCIL.—The term ‘‘Chesapeake Executive Council’’ means the signatories to the Chesapeake Bay Agreement. 

ø(6) SIGNATORY JURISDICTION.—The term ‘‘signatory jurisdiction’’ means a jurisdiction of a signatory to the Chesapeake 

Bay Agreement. 

ø(b) CONTINUATION OF CHESAPEAKE BAY PROGRAM.— 

ø(1) IN GENERAL.—In cooperation with the Chesapeake Executive Council (and as a member of the Council), the Administrator shall continue the Chesapeake Bay Program. 

ø(2) PROGRAM OFFICE.— 

ø(A) IN GENERAL.—The Administrator shall maintain in 

the Environmental Protection Agency a Chesapeake Bay 

Program Office. 

ø(B) FUNCTION.—The Chesapeake Bay Program Office 

shall provide support to the Chesapeake Executive Council 

by— 


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ø(i) implementing and coordinating science, research, modeling, support services, monitoring, data 

collection, and other activities that support the Chesapeake Bay Program; 

ø(ii) developing and making available, through publications, technical assistance, and other appropriate 

means, information pertaining to the environmental 

quality and living resources of the Chesapeake Bay 

ecosystem; 

ø(iii) in cooperation with appropriate Federal, State, 

and local authorities, assisting the signatories to the 

Chesapeake Bay Agreement in developing and implementing specific action plans to carry out the responsibilities of the signatories to the Chesapeake Bay 

Agreement; 

ø(iv) coordinating the actions of the Environmental 

Protection Agency with the actions of the appropriate 

officials of other Federal agencies and State and local 

authorities in developing strategies to— 

ø(I) improve the water quality and living resources in the Chesapeake Bay ecosystem; and 

ø(II) obtain the support of the appropriate officials of the agencies and authorities in achieving 

the objectives of the Chesapeake Bay Agreement; 

and 

ø(v) implementing outreach programs for public information, education, and participation to foster stewardship of the resources of the Chesapeake Bay. 

ø(c) INTERAGENCY AGREEMENTS.—The Administrator may enter 

into an interagency agreement with a Federal agency to carry out 

this section. 

ø(d) TECHNICAL ASSISTANCE AND ASSISTANCE GRANTS.— 

ø(1) IN GENERAL.—In cooperation with the Chesapeake Executive Council, the Administrator may provide technical assistance, and assistance grants, to nonprofit organizations, State 

and local governments, colleges, universities, and interstate 

agencies to carry out this section, subject to such terms and 

conditions as the Administrator considers appropriate. 

ø(2) FEDERAL SHARE.— 

ø(A) IN GENERAL.—Except as provided in subparagraph 

(B), the Federal share of an assistance grant provided 

under paragraph (1) shall be determined by the Administrator in accordance with guidance issued by the Administrator. 

ø(B) SMALL WATERSHED GRANTS PROGRAM.—The Federal 

share of an assistance grant provided under paragraph (1) 

to carry out an implementing activity under subsection 

(g)(2) shall not exceed 75 percent of eligible project costs, 

as determined by the Administrator. 

ø(3) NON-FEDERAL SHARE.—An assistance grant under paragraph (1) shall be provided on the condition that non-Federal 

sources provide the remainder of eligible project costs, as determined by the Administrator. 


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ø(4) ADMINISTRATIVE COSTS.—Administrative costs shall not 

exceed 10 percent of the annual grant award. 

ø(e) IMPLEMENTATION AND MONITORING GRANTS.— ø(1) IN GENERAL.—If a signatory jurisdiction has approved 

and committed to implement all or substantially all aspects of 

the Chesapeake Bay Agreement, on the request of the chief executive of the jurisdiction, the Administrator— 

ø(A) shall make a grant to the jurisdiction for the purpose of implementing the management mechanisms established under the Chesapeake Bay Agreement, subject to 

such terms and conditions as the Administrator considers 

appropriate; and 

ø(B) may make a grant to a signatory jurisdiction for the 

purpose of monitoring the Chesapeake Bay ecosystem. 

ø(2) PROPOSALS.— ø(A) IN GENERAL.—A signatory jurisdiction described in 

paragraph (1) may apply for a grant under this subsection 

for a fiscal year by submitting to the Administrator a comprehensive proposal to implement management mechanisms established under the Chesapeake Bay Agreement. 

ø(B) CONTENTS.—A proposal under subparagraph (A) 

shall include— 

ø(i) a description of proposed management mechanisms that the jurisdiction commits to take within a 

specified time period, such as reducing or preventing 

pollution in the Chesapeake Bay and its watershed or 

meeting applicable water quality standards or established goals and objectives under the Chesapeake Bay 

Agreement; and 

ø(ii) the estimated cost of the actions proposed to be 

taken during the fiscal year. 

ø(3) APPROVAL.—If the Administrator finds that the proposal 

is consistent with the Chesapeake Bay Agreement and the national goals established under section 101(a), the Administrator may approve the proposal for an award. 

ø(4) FEDERAL SHARE.—The Federal share of a grant under 

this subsection shall not exceed 50 percent of the cost of implementing the management mechanisms during the fiscal year. 

ø(5) NON-FEDERAL SHARE.—A grant under this subsection 

shall be made on the condition that non-Federal sources provide the remainder of the costs of implementing the management mechanisms during the fiscal year. 

ø(6) ADMINISTRATIVE COSTS.—Administrative costs shall not 

exceed 10 percent of the annual grant award. 

ø(7) REPORTING.—On or before October 1 of each fiscal year, 

the Administrator shall make available to the public a document that lists and describes, in the greatest practicable degree of detail— 

ø(A) all projects and activities funded for the fiscal year; 

ø(B) the goals and objectives of projects funded for the 

previous fiscal year; and 

ø(C) the net benefits of projects funded for previous fiscal years. 

ø(f) FEDERAL FACILITIES AND BUDGET COORDINATION.— 


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ø(1) SUBWATERSHED PLANNING AND RESTORATION.—A Federal 

agency that owns or operates a facility (as defined by the Administrator) within the Chesapeake Bay watershed shall participate in regional and subwatershed planning and restoration 

programs. 

ø(2) COMPLIANCE WITH AGREEMENT.—The head of each Federal agency that owns or occupies real property in the Chesapeake Bay watershed shall ensure that the property, and actions taken by the agency with respect to the property, comply 

with the Chesapeake Bay Agreement, the Federal Agencies 

Chesapeake Ecosystem Unified Plan, and any subsequent 

agreements and plans. 

ø(3) BUDGET COORDINATION.— 

ø(A) IN GENERAL.—As part of the annual budget submission of each Federal agency with projects or grants related 

to restoration, planning, monitoring, or scientific investigation of the Chesapeake Bay ecosystem, the head of the 

agency shall submit to the President a report that describes plans for the expenditure of the funds under this 

section. 

ø(B) DISCLOSURE TO THE COUNCIL.—The head of each 

agency referred to in subparagraph (A) shall disclose the 

report under that subparagraph with the Chesapeake Executive Council as appropriate. 

ø(g) CHESAPEAKE BAY PROGRAM.— 

ø(1) MANAGEMENT STRATEGIES.—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— 

ø(A) the nutrient goals of the Chesapeake Bay Agreement for the quantity of nitrogen and phosphorus entering 

the Chesapeake Bay and its watershed; 

ø(B) the water quality requirements necessary to restore 

living resources in the Chesapeake Bay ecosystem; 

ø(C) the Chesapeake Bay Basinwide Toxins Reduction 

and Prevention Strategy goal of reducing or eliminating 

the input of chemical contaminants from all controllable 

sources to levels that result in no toxic or bioaccumulative 

impact on the living resources of the Chesapeake Bay ecosystem or on human health; 

ø(D) habitat restoration, protection, creation, and enhancement goals established by Chesapeake Bay Agreement signatories for wetlands, riparian forests, and other 

types of habitat associated with the Chesapeake Bay ecosystem; and 

ø(E) the restoration, protection, creation, and enhancement goals established by the Chesapeake Bay Agreement 

signatories for living resources associated with the Chesapeake Bay ecosystem. 

ø(2) SMALL WATERSHED GRANTS PROGRAM.—The Administrator, in cooperation with the Chesapeake Executive Council, 

shall— 


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ø(A) establish a small watershed grants program as part 

of the Chesapeake Bay Program; and 

ø(B) offer technical assistance and assistance grants 

under subsection (d) to local governments and nonprofit organizations and individuals in the Chesapeake Bay region 

to implement— 

ø(i) cooperative tributary basin strategies that address the water quality and living resource needs in 

the Chesapeake Bay ecosystem; and 

ø(ii) locally based protection and restoration programs or projects within a watershed that complement 

the tributary basin strategies, including the creation, 

restoration, protection, or enhancement of habitat associated with the Chesapeake Bay ecosystem. 

ø(h) STUDY OF CHESAPEAKE BAY PROGRAM.— 

ø(1) IN GENERAL.—Not later than April 22, 2003, and every 

5 years thereafter, the Administrator, in coordination with the 

Chesapeake Executive Council, shall complete a study and submit to Congress a comprehensive report on the results of the 

study. 

ø(2) REQUIREMENTS.—The study and report shall— 

ø(A) assess the state of the Chesapeake Bay ecosystem; 

ø(B) compare the current state of the Chesapeake Bay 

ecosystem with its state in 1975, 1985, and 1995; 

ø(C) assess the effectiveness of management strategies 

being implemented on the date of enactment of this section 

and the extent to which the priority needs are being met; 

ø(D) make recommendations for the improved management of the Chesapeake Bay Program either by strengthening strategies being implemented on the date of enactment of this section or by adopting new strategies; and 

ø(E) be presented in such a format as to be readily 

transferable to and usable by other watershed restoration 

programs. 

ø(i) SPECIAL STUDY OF LIVING RESOURCE RESPONSE.— 

ø(1) IN GENERAL.—Not later than 180 days after the date of 

enactment of this section, the Administrator shall commence a 

5-year special study with full participation of the scientific 

community of the Chesapeake Bay to establish and expand understanding of the response of the living resources of the 

Chesapeake Bay ecosystem to improvements in water quality 

that have resulted from investments made through the Chesapeake Bay Program. 

ø(2) REQUIREMENTS.—The study shall— 

ø(A) determine the current status and trends of living 

resources, including grasses, benthos, phytoplankton, 

zooplankton, fish, and shellfish; 

ø(B) establish to the extent practicable the rates of recovery of the living resources in response to improved 

water quality condition; 

ø(C) evaluate and assess interactions of species, with 

particular attention to the impact of changes within and 

among trophic levels; and 


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ø(D) recommend management actions to optimize the return of a healthy and balanced ecosystem in response to 

improvements in the quality and character of the waters 

of the Chesapeake Bay. 

ø(j) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to 

be appropriated to carry out this section $40,000,000 for each of fiscal years 2001 through 2005. Such sums shall remain available 

until expended.¿ 

SEC. 117. CHESAPEAKE BASIN PROGRAM. 

(a) DEFINITIONS.—In this section: 

(1) ADMINISTRATIVE COST.—The term ‘administrative cost’ 

means the cost of salaries and fringe benefits incurred in administering a grant under this section. 

(2) ASIAN OYSTER.—The term ‘Asian oyster’ means the species 

Crassostrea ariakensis. 

(3) BASELINE.—The term ‘baseline’— 

(A) means the basic standard or level of the nutrient control requirements a credit seller shall achieve to be eligible 

to generate saleable nutrient credits; and 

(B) consists of the nutrient load reductions required of individual sources to meet water quality standards and load 

or waste load allocations under all applicable total maximum daily loads and watershed implementation plans. 

(4) BASIN COMMISSIONS.—The term ‘basin commissions’ 

means— 

(A) the Interstate Commission on the Potomac River 

Basin established under the interstate compact consented to 

and approved by Congress under the Joint Resolution of 

July 11, 1940 (54 Stat. 748, chapter 579) and Public Law 

91–407 (84 Stat. 856); 

(B) the Susquehanna River Basin Commission established under the interstate compact consented to and approved by Congress under Public Law 91–575 (84 Stat. 

1509) and Public Law 99–468 (100 Stat. 1193); and 

(C) the Chesapeake Bay Commission, a tri-State legislative assembly representing Maryland, Virginia, and Pennsylvania created in 1980 to coordinate Bay-related policy 

across State lines and to develop shared solutions. 

(5) CHESAPEAKE BASIN.—The term ‘Chesapeake Basin’ 

means— 

(A) the Chesapeake Bay; and 

(B) the area consisting of 19 tributary basins within the 

Chesapeake Basin States through which precipitation 

drains into the Chesapeake Bay. 

(6) CHESAPEAKE BASIN ECOSYSTEM.—The term ‘Chesapeake 

Basin ecosystem’ means the ecosystem of the Chesapeake Basin. 

(7) CHESAPEAKE BASIN PROGRAM.—The term ‘Chesapeake 

Basin Program’ means the program, formerly known as the 

‘Chesapeake Bay Program’, directed by the Chesapeake Executive Council in accordance with the Chesapeake Bay Agreement 

(including any successor programs). 

(8) CHESAPEAKE BASIN STATE.—The term ‘Chesapeake Basin 

State’ means any of— 


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(A) the States of Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia; or 

(B) the District of Columbia. 

(9) CHESAPEAKE BAY AGREEMENT.—The term ‘Chesapeake Bay 

Agreement’ means the formal, voluntary agreements executed to 

achieve the goal of restoring and protecting the Chesapeake 

Basin ecosystem and the living resources of the Chesapeake 

Basin ecosystem and signed by the Chesapeake Executive Council. 

(10) CHESAPEAKE BAY TIDAL SEGMENT.—The term ‘Chesapeake Bay tidal segment’ means any of the 92 tidal segments 

that— 

(A) make up the Chesapeake Bay; and 

(B) are identified by a Chesapeake Basin State pursuant 

to section 303(d). 

(11) CHESAPEAKE BAY TMDL.— (A) IN GENERAL.—The term ‘Chesapeake Bay TMDL’ 

means the total maximum daily load (including any revision) established or approved by the Administrator for nitrogen, phosphorus, and sediment loading to the waters in 

the Chesapeake Bay and the Chesapeake Bay tidal segments. 

(B) INCLUSIONS.—The term ‘Chesapeake Bay TMDL’ includes nitrogen, phosphorus, and sediment allocations in 

temporal units of greater-than-daily duration, if the allocations— 

(i) are demonstrated to achieve water quality standards; and 

(ii) do not lead to violations of other applicable water 

quality standards for local receiving waters. 

(12) CHESAPEAKE EXECUTIVE COUNCIL.—The term ‘Chesapeake Executive Council’ means the signatories to the Chesapeake Bay Agreement. 

(13) CLEANING AGENT.—The term ‘cleaning agent’ means a 

laundry detergent, dishwashing compound, household cleaner, 

metal cleaner, degreasing compound, commercial cleaner, industrial cleaner, phosphate compound, or other substance that 

is intended to be used for cleaning purposes. 

(14) CREDIT.—The term ‘credit’ means a unit provided for 1 

pound per year of nitrogen, phosphorus, or sediment that is— 

(A) delivered to the tidal portion of the Chesapeake Bay; 

and 

(B) eligible to be sold under the trading programs established by this section. 

(15) DIRECTOR.—The term ‘director’ means the Director of the 

Chesapeake Basin Program Office of the Environmental Protection Agency. 

(16) LOCAL GOVERNMENT.—The term ‘local government’ 

means any county, city, or other general purpose political subdivision of a State with jurisdiction over land use. 

(17) MENHADEN.—The term ‘menhaden’ means members of 

stocks or populations of the species Brevoortia tyrannus. 

(18) NUTRIA.—The term ‘nutria’ means the species Myocaster 

coypus. 


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(19) OFFSET.—The term ‘offset’ means a reduction of loading 

of nitrogen, phosphorous, or sediment, as applicable, in a manner that ensures that the net loading reaching the Chesapeake 

Bay and the Chesapeake Bay tidal segments from a source— 

(A) does not increase; or 

(B) is reduced. 

(20) SIGNATORY JURISDICTION.—The term ‘signatory jurisdiction’ means a jurisdiction of a signatory to the Chesapeake Bay 

Agreement. 

(21) TRIBUTARY BASIN.—The term ‘tributary basin’ means an 

area of land or body of water that— 

(A) drains into any of the 19 Chesapeake Bay tributaries 

or tributary segments; and 

(B) is managed through watershed implementation plans 

under this Act. 

(b) RENAMING AND CONTINUATION OF CHESAPEAKE BAY PRO- GRAM.— 

(1) IN GENERAL.—In cooperation with the Chesapeake Executive Council (and as a member of the Council), the Administrator shall— 

(A) rename the Chesapeake Bay Program, as in existence 

on the date of enactment of the Chesapeake Clean Water 

and Ecosystem Restoration Act, as the ‘Chesapeake Basin 

Program’; and 

(B) continue to carry out the Chesapeake Basin Program. 

(2) MEETINGS.— (A) IN GENERAL.—The Chesapeake Executive Council 

shall meet not less frequently than once each year. 

(B) OPEN TO PUBLIC.— (i) IN GENERAL.—Subject to clause (ii), a meeting of 

the Chesapeake Executive Council shall be held open to 

the public. 

(ii) EXCEPTION.—The Chesapeake Executive Council 

may hold executive sessions that are closed to the public. 

(3) PROGRAM OFFICE.— (A) IN GENERAL.—The Administrator shall maintain in 

the Environmental Protection Agency a Chesapeake Basin 

Program Office. 

(B) FUNCTION.—The Chesapeake Basin Program Office 

shall provide support to the Chesapeake Executive Council 

by— 

(i) implementing and coordinating science, research, 

modeling, support services, monitoring, data collection, 

and other activities that support the Chesapeake Basin 

Program; 

(ii) developing and making available, through publications, technical assistance, and other appropriate 

means, information pertaining to the environmental 

quality and living resources of the Chesapeake Basin 

ecosystem; 

(iii) in cooperation with appropriate Federal, State, 

and local authorities, assisting the signatories to the 

Chesapeake Bay Agreement in developing and impleVerDate Mar 15 2010 23:52 Oct 04, 2010 Jkt 089006 PO 00000 Frm 00031 Fmt 6604 Sfmt 6603 E:\HR\OC\SR333.XXX SR333

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menting specific action plans to carry out the responsibilities of the signatories to the Chesapeake Bay 

Agreement; 

(iv) coordinating the actions of the Environmental 

Protection Agency with the actions of the appropriate 

officials of other Federal agencies and State and local 

authorities in developing strategies to— 

(I) improve the water quality and living resources in the Chesapeake Basin ecosystem; and 

(II) obtain the support of the appropriate officials of the agencies and authorities in achieving 

the objectives of the Chesapeake Bay Agreement; 

and 

(v) implementing outreach programs for public information, education, and participation to foster stewardship of the resources of the Chesapeake Basin. 

(c) INTERAGENCY AGREEMENTS.—The Administrator may enter 

into an interagency agreement with a Federal agency to carry out 

this section. 

(d) TECHNICAL ASSISTANCE AND ASSISTANCE GRANTS.— (1) IN GENERAL.—In cooperation with the Chesapeake Executive Council, the Administrator may provide technical assistance, and assistance grants, to soil conservation districts, nonprofit organizations, State and local governments, basin commissions, and institutions of higher education to carry out this 

section, subject to such terms and conditions as the Administrator considers appropriate. 

(2) FEDERAL SHARE.— (A) IN GENERAL.—Except as provided in subparagraph 

(B), the Federal share of an assistance grant provided 

under paragraph (1) shall be determined by the Administrator in accordance with guidance issued by the Administrator. 

(B) CHESAPEAKE BASIN STEWARDSHIP GRANTS PROGRAM.—The Federal share of an assistance grant provided 

under paragraph (1) to carry out an implementing activity 

under subsection (h)(2) shall not exceed 75 percent of eligible project costs, as determined by the Administrator. 

(3) NON-FEDERAL SHARE.—An assistance grant under paragraph (1) shall be provided on the condition that non-Federal 

sources provide the remainder of eligible project costs, as determined by the Administrator. 

(4) NUTRIENT TRADING GUARANTEE PILOT PROGRAM.—The 

project manager of the Chesapeake nutrient trading guarantee 

program established under subsection (e)(1)(D) shall be eligible 

to receive technical assistance or technical assistance grants 

under this subsection. 

(e) IMPLEMENTATION, MONITORING, AND CENTERS OF EXCELLENCE

GRANTS.— 

(1) GRANTS.— (A) IMPLEMENTATION GRANTS.—The Administrator shall 

make an implementation grant to the Chesapeake Basin 

State, or a designee of a Chesapeake Basin State (including 

a soil conservation district, nonprofit organization, local 


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government, institution of higher education, basin commission, or interstate agency), for the purposes of implementing 

an approved watershed implementation plan of the Chesapeake Basin State under subsection (i) and achieving the 

goals established under the Chesapeake Bay Agreement, 

subject to such terms and conditions as the Administrator 

considers to be appropriate. 

(B) MONITORING GRANTS.—The Administrator may make 

a monitoring grant to— 

(i) a Chesapeake Basin State, designee of a Chesapeake Basin State, soil conservation district, nonprofit 

organization, local government, institution of higher 

education, or basin commission for the purpose of monitoring the ecosystem of freshwater tributaries to the 

Chesapeake Bay; or 

(ii) any of the States of Delaware, Maryland, or Virginia (or a designee), the District of Columbia (or a 

designee), nonprofit organization, local government, institution of higher education, or interstate agency for 

the purpose of monitoring the Chesapeake Bay, including the tidal waters of the Chesapeake Bay. 

(C) CENTERS OF EXCELLENCE GRANTS.—The Administrator, in consultation with the Secretary of Agriculture, 

may make grants to institutions of higher education, consortia of such institutions, or public, non-affiliated nonprofit organizations for the purpose of establishing and 

supporting centers of excellence for water quality and agricultural practices— 

(i) to develop new technologies and innovative policies and practices for agricultural producers to reduce 

nitrogen, phosphorous, and sediment pollution; 

(ii) to quantify the expected load reductions of those 

pollutants to be achieved in the Chesapeake Basin 

through the implementation of current and newly developed technologies, policies, and practices; and 

(iii) to provide to the Administrator and the Secretary recommendations for— 

(I) the widespread deployment of those technologies, policies, and practices among agricultural producers; and 

(II) the application of those technologies, policies, 

and practices in Chesapeake Basin computer models. 

(D) CHESAPEAKE NUTRIENT TRADING GUARANTEE PILOT

PROGRAM.— 

(i) IN GENERAL.—The Administrator, in consultation 

with the Chesapeake Basin States and the Secretary of 

Agriculture, shall establish a Chesapeake nutrient 

trading guarantee pilot program (referred to in this 

subparagraph as the ‘guarantee pilot program’) to support the interstate trading program established under 

subsection (j)(6). 

(ii) PURPOSES.—The purposes of the guarantee pilot 

program are— 


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(I) to develop innovative policies and practices to 

more efficiently and effectively implement best 

management practices, primarily on agricultural 

land; 

(II) to leverage public funding to raise private 

capital to accelerate the restoration of the Chesapeake Bay by providing a Federal guarantee on 

nutrient credit purchases; and 

(III) to support nutrient trading throughout the 

Chesapeake Basin. 

(iii) PROJECT MANAGER.— (I) IN GENERAL.—The Administrator shall designate a project manager to carry out the guarantee pilot program. 

(II) QUALIFICATIONS.—The project manager shall 

be an institution of higher education, a nonprofit 

organization, or a basin commission that— 

(aa) demonstrates thorough knowledge and 

understanding of best management practices 

that result in nutrient reductions in the Chesapeake Basin; 

(bb) demonstrates thorough knowledge and 

understanding of the Chesapeake watershed 

computer model of the Environmental Protection Agency; 

(cc) demonstrates thorough knowledge and 

understanding of the relevant environmental 

regulations relating to the Chesapeake Basin; 

(dd) has a demonstrated history of discharging fiduciary responsibilities with transparency and in accordance with all applicable 

accounting standards; and 

(ee) has relevant experience with pollution 

offsets and transactions involving pollution 

offsets. 

(III) DUTIES.— (aa) IN GENERAL.—The project manager 

shall provide guarantees to purchasers of nutrient credits under the interstate trading program established under subsection (j)(6). 

(bb) MANAGERIAL DUTIES.—In carrying out 

the guarantee pilot program, the project manager shall— 

(AA) identify best management practices 

that result in the greatest reduction in pollution levels; 

(BB) establish offset metrics for calculation, verification, and monitoring protocols in collaboration with Federal and 

State programs; 

(CC) manage and oversee project 

verification and monitoring processes; 

(DD) establish procedures that minimize 

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sary or duplicative administrative processes; 

(EE) take ownership of the nutrient reduction offsets from any private funding 

source for an activity carried out under 

this subparagraph; 

(FF) enter into agreements with private 

funding sources that enable a private 

funding source, at the conclusion of a 

project, to sell the verified nutrient reduction offset to the program manager at an 

agreed upon price, or to sell the verified 

nutrient reduction offsets; and 

(GG) manage the Chesapeake Nutrient 

Trading Guarantee Fund. 

(iv) CREDIT PURCHASER REQUIREMENTS.—As a condition of receiving a guarantee under this subparagraph, 

a purchaser shall comply with— 

(I) the regulations promulgated by the Administrator under subsection (j)(6); 

(II) any application procedure that the Administrator, in consultation with the project manager, 

determines to be necessary; and 

(III) any other applicable laws (including regulations). 

(v) TERMINATION.—The guarantee pilot program 

shall terminate on the date that is 5 years after the 

date of the establishment of the interstate trading program under subsection (j)(6). 

(vi) REPORTS.— (I) IN GENERAL.—The project manager shall— 

(aa) ensure public transparency for all nutrient trading activities through a publicly 

available trading registry; and 

(bb) submit an annual report to the Administrator, the Committee on Environment and 

Public Works of the Senate, and the Committee on Transportation and Infrastructure of 

the House of Representatives. 

(II) CONTENTS.—A report under subclause (I)(bb) 

shall include a description of— 

(aa) the activities funded by the guarantee 

pilot program; 

(bb) the nutrient reductions achieved by 

each project carried out under the guarantee 

pilot program; 

(cc) the efficiency of each project carried out 

under the guarantee pilot program, measured 

in pounds of pollution reduced per dollar expended; 

(dd) the total quantity of nitrogen, phosphorus, and sediment reduced; and 

(ee) the total amount of private funds leveraged. 


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(E) CHESAPEAKE NUTRIENT TRADING GUARANTEE FUND.— (i) ESTABLISHMENT OF FUND.—There is established 

in the Treasury of the United States a fund to be 

known as the ‘Chesapeake Nutrient Trading Guarantee 

Fund’ (referred to in this subparagraph as the ‘Fund’), 

to be administered by the Administrator, to be available for 5 years after the date of the establishment of 

the interstate trading program under subsection (j)(6) 

and subject to appropriation, for the purposes described in subparagraph (D)(ii). 

(ii) TRANSFERS TO FUND.—The Fund shall consist of 

such amounts as are appropriated to the Fund under 

subsection (p)(2)(v). 

(iii) PROHIBITION.—Amounts in the Fund may not be 

made available for any purpose other than a purpose 

described in clause (i). 

(iv) TERMINATION.—Subject to clause (v), the Fund 

shall terminate on the date that is 5 years after the 

date of establishment of the interstate trading program 

under subsection (j)(6). 

(v) UNOBLIGATED AMOUNTS.—On the termination of 

the Fund, the Administrator shall— 

(I) require the return of any unobligated 

amounts in the Fund to the Secretary of the Treasury; or 

(II) reauthorize the use of the Fund for the purposes described in clause (i). 

(vi) ANNUAL REPORTS.— (I) IN GENERAL.—Not later than 60 days after 

the end of each fiscal year beginning with the first 

fiscal year after the date of the establishment of the 

interstate trading program under subsection (j)(6), 

the Administrator shall submit to the Committee 

on Appropriations of the House of Representatives, 

the Committee on Appropriations of the Senate, the 

Committee on Environment and Public Works of 

the Senate, and the Committee on Transportation 

and Infrastructure of the House of Representatives 

a report on the operation of the Fund during the 

fiscal year. 

(II) CONTENTS.—Each report shall include, for 

the fiscal year covered by the report, the following: 

(aa) A statement of the amounts deposited in 

the Fund. 

(bb) A description of the expenditures made 

from the Fund for the fiscal year, including 

the purpose of the expenditures. 

(cc) Recommendations for additional authorities to fulfill the purpose of the Fund. 

(dd) A statement of the balance remaining 

in the Fund at the end of the fiscal year. 

(2) ADMINISTRATION.— (A) IN GENERAL.—Subject to subparagraph (C), in making implementation grants to each of the Chesapeake Basin 


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States for a fiscal year under this subsection, the Administrator shall ensure that not less than— 

(i) 10 percent of the funds available to make such 

grants are made to the States of Delaware, New York, 

and West Virginia (or designees of those States); and 

(ii) 20 percent of the funds available to make such 

grants are made to States (or designees of the States) 

for the sole purpose of providing technical assistance to 

agricultural producers and forest owners to access conservation programs and other resources devoted to improvements in, and protection of, water quality in the 

Chesapeake Bay and the tributaries of the Chesapeake 

Bay, in accordance with subparagraph (B). 

(B) TECHNICAL ASSISTANCE.—A State (or designees of a 

State) may use any soil conservation district, nonprofit organization, private sector vendor, or other appropriately 

qualified provider to deliver technical assistance to agricultural producers and forest owners under subparagraph 

(A)(ii). 

(C) NONAPPLICABILITY TO DC.—This paragraph shall not 

apply to any implementation grant provided to the District 

of Columbia. 

(3) PROPOSALS.— (A) IMPLEMENTATION GRANTS.— (i) IN GENERAL.—A Chesapeake Basin State described in paragraph (1) may apply for a grant under 

this subsection for a fiscal year by submitting to the 

Administrator a comprehensive proposal to implement 

programs and achieve the goals established under the 

Chesapeake Bay Agreement. 

(ii) IMPLEMENTATION GRANT CONTENTS.—A proposal 

under clause (i) shall include— 

(I) a description of the proposed actions that the 

Chesapeake Basin State commits to take within a 

specified time period, including 1 or more of actions that are designed— 

(aa) to achieve and maintain all applicable 

water quality standards, including standards 

necessary to support the aquatic living resources of the Chesapeake Bay and related 

tributaries and to protect human health; 

(bb) to restore, enhance, and protect the 

finfish, shellfish, waterfowl, and other living 

resources, habitats of those species and resources, and ecological relationships to sustain 

all fisheries and provide for a balanced ecosystem; 

(cc) to preserve, protect, and restore those 

habitats and natural areas that are vital to 

the survival and diversity of the living resources of the Chesapeake Bay and associated 

rivers; 

(dd) to develop, promote, and achieve sound 

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tershed resources and water quality, reduce or 

maintain reduced pollutant loadings for the 

Chesapeake Bay and related tributaries, and 

restore and preserve aquatic living resources; 

(ee) to promote individual stewardship and 

assist individuals, community-based organizations, businesses, local governments, and 

schools to undertake initiatives to achieve the 

goals and commitments of the Chesapeake Bay 

Agreement; or 

(ff) to provide technical assistance to agricultural producers, forest owners, and other eligible entities, through technical infrastructure, including activities, processes, tools, and 

agency functions needed to support delivery of 

technical services, such as technical standards, resource inventories, training, data, technology, monitoring, and effects analyses; 

(II) except with respect to any implementation 

grant proposal by the District of Columbia, a commitment to dedicate not less than 20 percent of the 

grant funding for the Chesapeake Bay under this 

subsection to support technical assistance for agricultural and forest land or nutrient management 

practices that protect and restore watershed resources and water quality, reduce or maintain reduced pollutant loadings for the Chesapeake Bay 

and related tributaries, and restore and preserve 

aquatic living resources; and 

(III) the estimated cost of the actions proposed to 

be taken during the year. 

(B) MONITORING GRANTS.— 

(i) IN GENERAL.—An eligible entity described in paragraph (1)(B) may apply for a grant under this subsection for a fiscal year by submitting to the Administrator a comprehensive proposal to monitor freshwater 

or estuarine ecosystems, including water quality. 

(ii) MONITORING GRANT CONTENTS.—A proposal 

under this subparagraph shall include— 

(I) a description of the proposed monitoring system; 

(II) certification by the Chesapeake Basin Program Director that such a monitoring system includes such parameters as the Chesapeake Basin 

Program Director determines to be necessary to assess progress toward achieving the goals of the 

Chesapeake Clean Water and Ecosystem Restoration Act; and 

(III) the estimated cost of the monitoring proposed to be conducted during the year. 

(iii) CONCURRENCES.—The Administrator shall— 

(I) obtain the concurrence of the Director of the 

United States Geological Survey regarding the design and implementation of the freshwater moniVerDate Mar 15 2010 23:52 Oct 04, 2010 Jkt 089006 PO 00000 Frm 00038 Fmt 6604 Sfmt 6603 E:\HR\OC\SR333.XXX SR333

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toring systems established under this subsection; 

and 

(II) obtain the concurrence of the Director of the 

Chesapeake Bay Office of the National Oceanic 

and Atmospheric Administration regarding the design and implementation of the estuarine monitoring systems established under this subsection. 

(iv) CONSULTATION.—The Administrator shall— 

(I) with regard to the freshwater monitoring system, consult with the basin commissions, institutions with expertise in clean water and agricultural policy and practices, and the Chesapeake 

Basin States regarding the design and implementation of the monitoring systems established under 

this subsection— 

(aa) giving particular attention through fine 

scale instream and infield stream-edge and 

groundwater analysis to the measurement of 

the water quality effectiveness of agricultural 

conservation program implementation, including the Chesapeake Bay Watershed Initiative 

under section 1240Q of the Food Security Act 

of 1985 (16 U.S.C. 3839bb–4); and 

(bb) analyzing the effectiveness of 

stormwater pollution control and mitigation 

using green infrastructure techniques in subwatersheds that have high levels of impervious 

surfaces; 

(II) with regard to the estuarine monitoring system, consult with institutions of higher education 

with expertise in estuarine systems and the Chesapeake Basin States regarding the monitoring systems established under this subsection; 

(III) consult with the Chesapeake Basin Program 

Scientific and Technical Advisory Committee regarding independent review of monitoring designs 

giving particular attention to integrated freshwater 

and estuarine monitoring strategies; and 

(IV) consult with Federal departments and agencies, including the Department of Agriculture, regarding cooperation in implementing monitoring 

programs. 

(f) FEDERAL FACILITIES COORDINATION.— 

(1) SUBWATERSHED PLANNING AND RESTORATION.—A Federal 

agency that owns or operates a facility (as defined by the Administrator) within the Chesapeake Basin shall participate in 

regional and subwatershed planning and restoration programs. 

(2) COMPLIANCE WITH AGREEMENTS AND PLANS.—The head of 

each Federal agency that owns or occupies real property in the 

Chesapeake Basin shall ensure that the property, and actions 

taken by the agency with respect to the property, comply with— 

(A) the Chesapeake Bay Agreement; 

(B) the Federal Agencies Chesapeake Ecosystem Unified 

Plan; 


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(C) the Chesapeake Basin action plan developed in accordance with subparagraph (g)(1)(A); and 

(D) any subsequent agreements and plans. 

(3) FOREST COVER AT FEDERAL FACILITIES.—Not later than 

January 1, 2012, the Administrator, with the advice of the 

Chief of the Forest Service and the appropriate Chesapeake 

Basin State forester, shall coordinate with the head of each 

Federal agency that owns or operates a facility within the 

Chesapeake Basin (as determined by the Administrator) to develop plans to maximize forest cover at the facility through— 

(A) the preservation of existing forest cover; or 

(B) with respect to a facility that has been previously disturbed or developed, the development of a reforestation 

plan. 

(g) FEDERAL ANNUAL ACTION PLAN AND PROGRESS REPORT.—The 

Administrator, in accordance with Executive Order 13508 entitled 

‘Chesapeake Bay Protection and Restoration’ and signed on May 12, 

2009 (74 Fed. Reg. 23099), shall— 

(1) make available to the public, not later than March 31 of 

each year— 

(A) a Chesapeake Basin action plan describing, in the 

greatest practicable degree of detail, how Federal funding 

proposed in the annual budget of the United States submitted by the President to Congress will be used to protect 

and restore the Chesapeake Bay during the upcoming fiscal 

year; 

(B) an annual progress report that— 

(i) assesses the key ecological attributes that reflect 

the health of the Chesapeake Basin ecosystem; 

(ii) reviews indicators of environmental conditions in 

the Chesapeake Bay; 

(iii) distinguishes between the health of the Chesapeake Basin ecosystem and the results of management 

measures; 

(iv) assesses implementation of the action plan during the preceding fiscal year; 

(v) recommends steps to improve progress in restoring and protecting the Chesapeake Bay and tributaries; 

and 

(vi) describes how Federal funding and actions will 

be coordinated with the actions of States, basin commissions, and others; and 

(C) an annual report, detailed at the State and sector 

level where applicable, submitted by the Administrator to 

the Chesapeake Basin States and the public on specific recently completed, pending, or proposed regulations, guidance documents, permitting requirements, enforcement actions, and other activities carried out in accordance with 

the Executive Order, including actions relating to the 

Chesapeake Bay TMDL and State watershed implementation plans. 

(2) create and maintain, with the concurrence of the Secretary 

of Agriculture, a Chesapeake Basin-wide database containing 

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servation management practices in the Chesapeake Basin 

that— 

(A) includes conservation management practice implementation data, including, to the maximum extent feasible, 

all publicly and privately funded conservation practices, as 

of the effective date of the Chesapeake Clean Water and 

Ecosystem Restoration Act; 

(B) includes data on subsequent conservation management practice implementation projects funded by, or reported to, the Department of Agriculture, the appropriate 

department of any Chesapeake Basin State, a local soil and 

water conservation district, or any similar institution; 

(C) except with respect to data associated with a permit 

or recorded in the trading registry, as provided in subsection (j)(6)(B)(viii), presents the required data to the Administrator in statistical or aggregate form without identifying any— 

(i) individual owner, operator, or producer; or 

(ii) specific data gathering site; 

(D) is made available to the public not later than December 31, 2010; and 

(E) is updated not less frequently than once every 2 years. 

(h) CHESAPEAKE BASIN PROGRAM.— 

(1) MANAGEMENT STRATEGIES.—The Administrator, in coordination with other members of the Chesapeake Executive Council, shall ensure that management plans are developed and implemented by Chesapeake Basin States to achieve and maintain— 

(A) for each of the Chesapeake Basin States— 

(i) the sediment and nutrient goals of the Chesapeake 

Bay Agreement for the quantity of sediment, nitrogen, 

and phosphorus entering the Chesapeake Bay and the 

tidal tributaries of the Chesapeake Bay; and 

(ii) the water quality requirements necessary to restore living resources in the Chesapeake Bay and the 

tidal tributaries of the Chesapeake Bay; and 

(B) for the signatory States— 

(i) the Chesapeake Bay Basinwide Toxins Reduction 

and Prevention Strategy goal of reducing or eliminating the input of chemical contaminants from all 

controllable sources to levels that result in no toxic or 

bioaccumulative impact on the living resources of the 

Chesapeake Basin ecosystem or on human health; 

(ii) habitat restoration, protection, creation, and enhancement goals established by Chesapeake Bay Agreement for wetland, riparian forests, and other types of 

habitat associated with the Chesapeake Basin ecosystem; and 

(iii) the restoration, protection, creation, and enhancement goals established by the Chesapeake Bay 

Agreement for living resources associated with the 

Chesapeake Basin ecosystem. 


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(2) CHESAPEAKE BASIN STEWARDSHIP GRANTS PROGRAM.—The 

Administrator, in cooperation with the Chesapeake Executive 

Council, shall— 

(A) establish a Chesapeake Basin Stewardship Grants 

Program; and 

(B) in carrying out that program— 

(i) offer technical assistance and assistance grants 

under subsection (d) to States (or designees of States), 

local governments, soil conservation districts, institutions of higher education, nonprofit organizations, 

basin commissions, and private entities in the Chesapeake Basin region to implement— 

(I) cooperative watershed strategies that address 

the water quality, habitat, and living resource 

needs in the Chesapeake Basin; 

(II) locally based protection and restoration programs or projects within a watershed that complement the State watershed implementation 

plans, including the creation, restoration, or enhancement of habitat associated with the Chesapeake Basin ecosystem; 

(III) activities for increased spawning and other 

habitat for migratory fish by removing barriers or 

constructing fish passage devices, restoring 

streams with high habitat potential for cold water 

fisheries such as native brook trout, or other habitat enhancements for fish and waterfowl; 

(IV) activities for increased recreational access to 

the Chesapeake Bay and the tidal rivers and freshwater tributaries of the Chesapeake Bay; and 

(V) innovative nitrogen, phosphorus, or sediment 

reduction efforts; and 

(ii) give preference to cooperative projects that involve 

local governments, soil conservation districts, and 

sportsmen associations, especially cooperative projects 

that involve public-private partnerships. 

(i) ACTIONS BY STATES.— 

(1) WATERSHED IMPLEMENTATION PLANS.— 

(A) PLANS.— 

(i) IN GENERAL.—Not later than November 1, 2011, 

each Chesapeake Basin State, after providing for reasonable notice and 1 or more public meetings, may submit to the Administrator for approval a watershed implementation plan for the Chesapeake Basin State. 

(ii) TARGETS.—The watershed implementation plan 

shall establish reduction targets, key actions, and 

schedules for reducing, to levels that will attain water 

quality standards, the loads of nitrogen, phosphorus, 

and sediment, including pollution from— 

(I) point sources, including point source 

stormwater discharges; and 

(II) nonpoint sources. 

(iii) POLLUTION LIMITATIONS.— 


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(I) IN GENERAL.—The pollution limitations shall 

be the nitrogen, phosphorus, and sediment load 

and wasteload allocations sufficient to meet Chesapeake Bay and Chesapeake Bay tidal segment 

water quality standards. 

(II) STRINGENCY.—A watershed implementation 

plan shall be designed to attain, at a minimum, 

the pollution limitations described in subclause (I). 

(iv) PLAN REQUIREMENTS.—Each watershed implementation plan shall— 

(I) include State-adopted management measures, 

including rules or regulations, permits, consent decrees, and other enforceable or otherwise binding 

measures, to require and achieve reductions from 

point and nonpoint pollution sources; 

(II) include programs to achieve voluntary reductions from pollution sources, including an estimate of the funding commitments necessary to implement the programs and a plan for working to 

secure the funding; 

(III) include any additional requirements or actions that the Chesapeake Basin State determines 

to be necessary to attain the pollution limitations 

by the deadline established in this paragraph; 

(IV) provide for enforcement mechanisms, including a penalty structure for failures, such as 

fees or forfeiture of State funds, including Federal 

funds distributed or otherwise awarded by the 

State to the extent the State is authorized to exercise independent discretion in amounts of such distributions or awards, for use in case a permittee, 

local jurisdictions, or any other party fails to adhere to assigned pollutant limitations, implementation schedules, or permit terms; 

(V) include a schedule for implementation that— 

(aa) is divided into 2-year periods, along 

with computer modeling, or other appropriate 

analysis, to demonstrate the projected reductions in nitrogen, phosphorus, and sediment 

loads associated with each 2-year period; and 

(bb) demonstrates reasonable additional 

progress toward achievement of the goals described in— 

(AA) subclause (VIII)(aa); and 

(BB) clauses (i) and (ii) of subparagraph (B); 

(VI) include the stipulation of alternate actions 

as contingencies; 

(VII) account for how the Chesapeake Basin 

State will address additional loadings from 

growth through reserved allocations, offsets, 

planned future controls, implementation of new 

technologies, or other actions; 

(VIII) provide assurances that— 


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(aa) if compared to an estimated 2008 baseline based on modeled loads, the initial plan 

shall be designed to achieve, not later than 

May 31, 2017, at least 60 percent of the nutrient and sediment reduction requirements described in clause (iii)(I)(bb); 

(bb) the Chesapeake Basin State will have 

adequate personnel and funding (or a plan to 

secure such personnel or funding), and authority under State (and, as appropriate, local) 

law to carry out the implementation plan, and 

is not prohibited by any provision of Federal 

or State law from carrying out the implementation plan; and 

(cc) to the extent that a Chesapeake Basin 

State has relied on a local government for the 

implementation of any plan provision, the 

Chesapeake Basin State has the responsibility 

for ensuring adequate implementation of the 

provision; 

(IX) include adequate provisions for public participation; and 

(X) upon the approval of the Administrator, be 

made available to the public on the Internet. 

(B) IMPLEMENTATION.— 

(i) IN GENERAL.—In implementing a watershed implementation plan, each Chesapeake Basin State shall 

follow a strategy developed by the Administrator for 

the implementation of adaptive management principles 

to ensure full implementation of all plan elements by 

not later than May 12, 2025, including— 

(I) biennial evaluations of State actions; 

(II) progress made toward implementation; 

(III) determinations of necessary modifications to 

future actions in order to achieve objectives including achievement of water quality standards; and 

(IV) appropriate provisions to adapt to climate 

changes. 

(ii) DEADLINE.—Not later than May 12, 2025, each 

Chesapeake Basin State shall— 

(I) fully implement the watershed implementation plan of the State; and 

(II) have in place all the mechanisms outlined in 

the plan that are necessary to attain the applicable 

pollutant limitations for nitrogen, phosphorus, and 

sediments. 

(C) PROGRESS REPORTS.—Not later than May 12, 2014, 

and biennially thereafter, each Chesapeake Basin State 

shall submit to the Administrator a progress report that, 

with respect to the 2-year period covered by the report— 

(i) includes a listing of all management measures 

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peake Basin State, including a description of the extent 

to which those measures have been fully implemented; 

(ii) includes a listing of all the management measures described in clause (i) that the Chesapeake Basin 

State has failed to fully implement in accordance with 

the approved watershed implementation plan of the 

Chesapeake Basin State; 

(iii) includes monitored and collected water quality 

data; 

(iv) includes appropriate computer modeling data or 

other appropriate analyses that detail the nitrogen, 

phosphorus, and sediment load reductions projected to 

be achieved as a result of the implementation of the 

management measures and mechanisms carried out by 

the Chesapeake Basin State; 

(v) demonstrates reasonable additional progress 

made by the State toward achievement of the requirements and deadlines described in subparagraph 

(A)(iv)(VIII)(aa) and clauses (i) and (ii) of subparagraph (B); 

(vi) includes, for the subsequent 2-year period, implementation goals and Chesapeake Basin Program computer modeling data detailing the projected pollution 

reductions to be achieved if the Chesapeake Basin State 

fully implements the subsequent round of management 

measures; 

(vii) identifies compliance information, including violations, actions taken by the Chesapeake Basin State to 

address the violations, and dates, if any, on which 

compliance was achieved; and 

(viii) specifies any revisions to the watershed implementation plan submitted under this paragraph that 

the Chesapeake Basin State determines are necessary 

to attain the applicable pollutant limitations for nitrogen, phosphorus, and sediments. 

(2) ISSUANCE OF PERMITS.— 

(A) IN GENERAL.—Notwithstanding any other provision of 

this Act (including any exclusion or exception contained in 

a definition under section 502) and in accordance with 

State laws (including regulations), after providing appropriate opportunities for public comment, for the purpose of 

achieving the nitrogen, phosphorus, and sediment reductions required under a watershed implementation plan, a 

Chesapeake Basin State, or, if the State is not authorized 

to administer the permit program under section 402, the 

Administrator, may impose limitations or other controls, 

including permit requirements, on any discharge or runoff 

from a pollution source, including point and nonpoint 

sources, located within the Chesapeake Basin State that the 

program administrator determines to be necessary. 

(B) ENFORCEMENT.—The Chesapeake Basin States and 

the Administrator shall enforce any permits issued in accordance with the watershed implementation plan in the 


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same manner as permits issued under section 402 are enforced. 

(C) ADDITIONAL ENFORCEMENT STANDARDS.—No Federal 

enforcement action shall be brought pursuant to section 309 

against an agricultural producer that is in compliance with 

all of the applicable planning and scheduled implementation requirements of the following, as required by Federal, 

State, or other locally-applicable law and consistent with 

an approved State watershed implementation plan: 

(i) State permits issued pursuant to section 402. 

(ii) A soil conservation plan approved by the Federal 

Government or a State or local government, soil conservation district, or other applicable agency. 

(iii) A government-approved nutrient management 

plan. 

(iv) A State or locally approved erosion and sediment 

control plan. 

(v) Any other applicable requirement described in an 

approved State watershed implementation plan. 

(D) DE MINIMIS EXEMPTIONS.—The Administrator (with 

respect to the District of Columbia) or a Chesapeake Basin 

State that is authorized to administer a permit program 

under section 402, after consultation with stakeholders (including wastewater utilities, municipalities, developers, agricultural producers, institutions of higher education, and 

other interested parties) shall establish de minimis exemptions for permits issued under this paragraph. 

(3) STORMWATER PERMITS.— 

(A) IN GENERAL.—Effective beginning January 1, 2013, 

the Chesapeake Basin State shall provide assurances to the 

Administrator that— 

(i) the owner or operator of any development or redevelopment project possessing an impervious footprint 

that exceeds a threshold to be determined by the Administrator through rulemaking, will use site planning, design, construction, and maintenance strategies 

for the property to maintain or restore, to the maximum extent technically feasible, the predevelopment 

hydrology of the property with regard to the temperature, rate, volume, and duration of flow, using onsite 

infiltration, evapotranspiration, and reuse approaches, 

if feasible; and 

(ii) as a further condition of permitting such a development or redevelopment, the owner or operator of any 

development or redevelopment project possessing an 

impervious footprint that exceeds a threshold to be determined by the Administrator through rulemaking 

will compensate for any unavoidable impacts to the 

predevelopment hydrology of the property with regard 

to the temperature, rate, volume, and duration of flow, 

such that— 

(I) the compensation within the affected subwatershed shall provide in-kind or out-of-kind 


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mitigation of function at ratios to be determined by 

the Administrator through rulemaking; 

(II) the compensation outside the affected subwatershed shall provide in-kind or out-of-kind 

mitigation, at ratios to be determined by the Administrator through rulemaking, within the tributary watershed in which the project is located; and 

(III) if mitigation of unavoidable impacts is not 

feasible, the Administrator may approve stringent 

fee-in-lieu systems. 

(B) REGULATIONS.— (i) IN GENERAL.—Not later than May 12, 2011, the 

Administrator shall promulgate regulations that— 

(I) define the term ‘predevelopment hydrology’ for 

purposes of subparagraph (A); 

(II) establish the thresholds under subparagraph 

(A); 

(III) establish the compensation ratios under 

items (I) and (II) of subparagraph (A)(ii); and 

(IV) establish the fee-in-lieu systems under subparagraph (A)(ii)(III). 

(ii) REQUIREMENT.—In developing the regulations 

under clause (i), including establishing minimum 

standards for new development and redevelopment, the 

Administrator shall take into consideration, based on 

an evaluation of field science and practice, factors such 

as— 

(I) the benefit to— 

(aa) overall watershed protection and restoration of redevelopment of brownfields or 

other previously developed or disturbed sites; 

and 

(bb) water quality improvement through lotlevel stormwater management. 

(iii) TREATMENT OF PENDING STORMWATER PER- MITS.—In consultation with the Chesapeake Basin 

States and interested stakeholders, and taking into 

consideration any compliance schedules developed by 

any Chesapeake Basin State prior to June 30, 2010, 

the Administrator shall develop guidance regarding the 

treatment of pending stormwater permits for the 

Chesapeake Basin States. 

(C) FAILURE TO PROVIDE ASSURANCES.—If a Chesapeake 

Basin State that submits a Watershed Implementation 

Plan under this subsection fails to provide the assurances 

required under subparagraph (A), effective beginning on 

May 12, 2013, the Administrator may withhold funds otherwise available to the Chesapeake Basin State under this 

Act, in accordance with subparagraphs (A) and (B) of subsection (j)(5). 

(4) PHOSPHATE BAN.— 

(A) PHOSPHORUS IN CLEANING AGENTS.—Each Chesapeake Basin State shall provide to the Administrator, not 

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peake Clean Water and Ecosystem Restoration Act, assurances that within the jurisdiction, except as provided in 

subparagraph (B), a person may not use, sell, manufacture, 

or distribute for use or sale any cleaning agent that contains more than 0.0 percent phosphorus by weight, expressed as elemental phosphorus, except for a quantity not 

exceeding 0.5 percent phosphorus that is incidental to the 

manufacture of the cleaning agent. 

(B) PROHIBITED QUANTITIES OF PHOSPHORUS.—Each 

Chesapeake Basin State shall provide to the Administrator, 

not later than 3 years after the date of enactment of the 

Chesapeake Clean Water and Ecosystem Restoration Act, 

assurances that, within the jurisdiction, a person may use, 

sell, manufacture, or distribute for use or sale a cleaning 

agent that contains greater than 0.0 percent phosphorus by 

weight, but does not exceed 8.7 percent phosphorus by 

weight, if the cleaning agent is a substance that the Administrator, by regulation, excludes from the limitation under 

subparagraph (A), based on a finding that compliance with 

that subparagraph would— 

(i) create a significant hardship on the users of the 

cleaning agent; or 

(ii) be unreasonable because of the lack of an adequate substitute cleaning agent. 

(C) FAILURE TO PROVIDE ASSURANCES.—If a Chesapeake 

Basin State that submits a Watershed Implementation 

Plan under this subsection fails to provide the necessary assurances under subparagraphs (A) and (B) by not later 

than 3 years after the date of enactment of the Chesapeake 

Clean Water and Ecosystem Restoration Act, the Administrator may withhold funds otherwise available to the 

Chesapeake Basin State under this Act, in accordance with 

subparagraphs (A) and (B) of subsection (j)(5). 

(j) ACTION BY ADMINISTRATOR.— 

(1) IN GENERAL.—Not later than 60 days after the date of enactment of the Chesapeake Clean Water and Ecosystem Restoration Act, the Administrator shall establish any minimum criteria that the Administrator determines to be necessary that any 

proposed watershed implementation plan must meet before the 

Administrator may approve such a plan. 

(2) COMPLETENESS FINDING.— 

(A) IN GENERAL.—Not later than 60 days after the date 

on which the Administrator receives a new or revised proposed watershed implementation plan from a Chesapeake 

Basin State, the Administrator shall make a completeness 

determination based on whether the minimum criteria for 

the plan established under paragraph (1) have been met. 

(B) EFFECT OF FINDING OF INCOMPLETENESS.—If the Administrator determines under subparagraph (A) that all or 

any portion of a submitted watershed implementation plan 

does not meet the minimum completeness criteria established under paragraph (1), the Chesapeake Basin State 

submitting the plan shall be treated as not having made 

the submission. 


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(3) APPROVAL AND DISAPPROVAL.— 

(A) DEADLINE.—Not later than 90 days after determining 

that a watershed implementation plan meets minimum 

completeness criteria in accordance with paragraph (2)(A), 

the Administrator shall approve or disapprove the plan. 

(B) FULL AND PARTIAL APPROVAL AND DISAPPROVAL.—In 

carrying out this paragraph, the Administrator shall— 

(i) approve a watershed implementation plan if the 

Administrator determines that the plan meets all applicable requirements under subsection (i)(1); and 

(ii) approve the plan in part and disapprove the plan 

in part if only a portion of the watershed implementation plan meets those requirements. 

(C) CONDITIONAL APPROVAL.—The Administrator shall— 

(i) conditionally approve the original or a revised 

watershed implementation plan based on a commitment of the Chesapeake Basin State submitting the 

plan to adopt specific enforceable management measures by not later than 1 year after the date of approval 

of the plan revision; but 

(ii) treat a conditional approval as a disapproval 

under this paragraph if the Chesapeake Basin State 

fails to comply with the commitment of the Chesapeake 

Basin State. 

(D) SCOPE OF REVIEW.—In reviewing watershed implementation plans for approval or disapproval, the Administrator shall— 

(i) limit the scope of the review to the adequacy of the 

plan to attain water quality standards; and 

(ii) not impose, as a condition of approval, any additional requirements. 

(E) FULL APPROVAL REQUIRED.—An original or revised 

watershed implementation plan shall not be treated as 

meeting the requirements of this section until the Administrator approves the entire original or revised plan. 

(F) CORRECTIONS.—In any case in which the Administrator determines that the action of the Administrator approving, disapproving, or conditionally approving any 

original or revised State watershed implementation plan 

was in error, the Administrator shall— 

(i) in the same manner as the approval, disapproval, 

conditional approval, or promulgation, revise the action of the Administrator, as appropriate, without requiring any further submission from the Chesapeake 

Basin State; and 

(ii) make the determination of the Administrator, 

and the basis for that determination, available to the 

public. 

(G) EFFECTIVE DATE.—The provisions of a State watershed implementation plan shall take effect upon the date of 

approval of the plan. 

(4) CALLS FOR PLAN REVISION.—In any case in which the Administrator determines that watershed implementation plan for 


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any area is inadequate to attain or maintain applicable pollution limitations, the Administrator— 

(A) shall notify the Chesapeake Basin State of, and require the Chesapeake Basin State to revise the plan to correct the inadequacies; 

(B) may establish reasonable deadlines (not to exceed 180 

days after the date on which the Administrator provides the 

notification) for the submission of a revised watershed implementation plan; 

(C) shall make the findings of the Administrator under 

paragraph (3) and notice provided under subparagraph (A) 

public; 

(D) shall require as an element of any revised plan by the 

Chesapeake Basin State that the State adhere to the requirements applicable under the original watershed implementation plan, except that the Administrator may adjust 

any dates (other than attainment dates) applicable under 

those requirements, as appropriate; and 

(E) shall disapprove any revised plan submitted by a 

Chesapeake Basin State that fails to adhere to the requirements described in subparagraph (D). 

(5) FEDERAL IMPLEMENTATION.—If a Chesapeake Basin State 

that has submitted a watershed implementation plan under 

(1)(A)(i) fails to submit a required revised watershed implementation plan, submit a biennial report, correct a previously 

missed 2-year commitment made in a watershed implementation plan, or remedy a disapproval of a watershed implementation plan, the Administrator shall, by not later than 30 days 

after the date of the failure and after issuing a notice to the 

State and providing a period of not less than 1 year during 

which the failure may be corrected— 

(A) notwithstanding sections 601(a) and 603(g), reserve 

up to 75 percent of the amount of the capitalization grant 

to the Chesapeake Basin State for a water pollution control 

revolving fund under section 603 for activities that are— 

(i) selected by the Administrator; and 

(ii) consistent with the watershed implementation 

plans described in subparagraphs (B) and (C); 

(B) withhold all funds otherwise available to the Chesapeake Basin State (or a designee) under this Act, except for 

the funds available under title VI; 

(C) develop and administer a watershed implementation 

plan for the Chesapeake Basin State until the Chesapeake 

Basin State has remedied the plan, reports, or achievements to the satisfaction of the Administrator; 

(D) in addition to requiring compliance with all other 

statutory and regulatory requirements, require that all permits issued under section 402 for new or expanding discharges of nitrogen, phosphorus, or sediment shall acquire 

offsets that exceed, by a ratio to be determined by the Administrator through rulemaking, the quantities of nitrogen, 

phosphorus, or sediment that would be discharged under 

the permit, taking into account attenuation, equivalency, 

and uncertainty; and 


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(E) for the purposes of developing and implementing a 

watershed implementation plan under subparagraph (C)— 

(i) continue all applicable requirements for nonpoint 

sources included as part of the most recently approved 

watershed implementation plan of the Chesapeake 

Basin State; 

(ii) issue such permits to point sources as the Administrator determines to be necessary to control pollution 

sufficient to meet the pollution reductions required to 

meet applicable water quality standards; 

(iii) enforce such nonpoint source requirements in the 

same manner and with the same stringency as required under most recently approved watershed implementation plan of the Chesapeake Basin State; and 

(iv) enforce such point source permits in the same 

manner as other permits issued under section 402 are 

enforced. 

(6) NITROGEN, PHOSPHORUS, AND SEDIMENT TRADING PRO- GRAMS.— 

(A) ESTABLISHMENT.—Not later than May 12, 2012, the 

Administrator, in cooperation with each Chesapeake Basin 

State, shall establish, by regulation, an interstate nitrogen 

and phosphorus trading program for the Chesapeake Basin 

for the generation, trading, and use of nitrogen and phosphorus credits to facilitate the attainment and maintenance 

of water quality standards in the Chesapeake Bay and the 

Chesapeake Bay tidal segments. 

(B) TRADING SYSTEM.—The trading program established 

under this subsection shall, at a minimum— 

(i) define and standardize nitrogen and phosphorus 

credits and establish procedures or standards for ensuring equivalent water quality benefits for all credits; 

(ii) establish procedures or standards for certifying, 

verifying, and enforcing nitrogen and phosphorus credits to ensure that credit-generating practices from both 

point sources and nonpoint sources are achieving actual reductions in nitrogen and phosphorus, including 

provisions for allowing the use of third parties to verify 

and certify credits sold within and across State lines; 

(iii) establish procedures or standards for generating, 

quantifying, trading, and applying credits to meet regulatory requirements and allow for trading to occur between and across point source or nonpoint sources, including a requirement that purchasers of credits that 

propose to satisfy all or part of the obligation to reduce 

nitrogen and phosphorus through the use of credits 

shall compensate, through further limitations on the 

discharges of the purchaser or through a new trade, for 

any deficiency in those reductions that results from the 

failure of a credit seller to carry out any activity that 

was to generate the credits; 

(iv) establish baseline requirements that a credit seller shall meet before becoming eligible to generate saleable credits, which shall be at least as stringent as apVerDate Mar 15 2010 23:52 Oct 04, 2010 Jkt 089006 PO 00000 Frm 00051 Fmt 6604 Sfmt 6603 E:\HR\OC\SR333.XXX SR333

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plicable water quality standards, total maximum daily 

loads (including applicable wasteload and load allocations), and watershed implementation plans; 

(v) ensure that credits and trade requirements are incorporated, directly or by reference, into enforceable 

permit requirements under the national pollutant discharge elimination system established under section 

402 or the system of the applicable State permitting 

authority for all credit purchasers covered by the permits; 

(vi) ensure that private contracts between credit buyers and credit sellers contain adequate provisions to 

ensure enforceability under applicable law; 

(vii) establish procedures or standards to ensure public transparency for all nutrient trading activities, including the establishment of a publicly available trading registry, which shall include— 

(I) the information used in the certification and 

verification process; and 

(II) recorded trading transactions (such as the 

establishment, sale, amounts, and use of credits); 

(viii) in addition to requiring compliance with all 

other statutory and regulatory requirements, ensure 

that, in any case in which a segment of the Chesapeake 

Basin is impaired with respect to the nutrient being 

traded and a total maximum daily load for that segment has not yet been implemented for the impairment— 

(I) trades are required to result in progress toward or the attainment of water quality standards 

in that segment; and 

(II) sources in that segment may not rely on 

credits produced outside of the segment; 

(ix) require that the application of credits to meet 

regulatory requirements under this section not cause or 

contribute to exceedances of water quality standards, 

total maximum daily loads, or wasteload or load allocations for affected receiving waters, including avoidance of localized impacts; 

(x) except as part of a consent agreement, consent 

judgment, or enforcement order, prohibit the purchase 

of credits from any entity that is in significant noncompliance with an enforceable permit issued under 

section 402; 

(xi) consider and incorporate, to the extent consistent 

with the minimum requirements of this Act, as determined by the Administrator, in consultation with the 

Secretary of Agriculture, elements of State trading programs in existence on the date of enactment of the 

Chesapeake Clean Water and Ecosystem Restoration 

Act; 

(xii) allow for, as appropriate, the aggregation and 

banking of credits by third parties; and 


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(xiii) provide for appropriate temporal consistency between the time period during which the credit is generated and the time period during which the credit is 

used. 

(C) FACILITATION OF TRADING.—In order to attract market participants and facilitate the cost-effective achievement 

of water-quality goals, the Administrator, in consultation 

with the Secretary of Agriculture, shall ensure that the 

trading program established under this paragraph— 

(i) includes measures to mitigate credit buyer risk; 

(ii) makes use of the best available science in order 

to minimize uncertainty and related transaction costs 

to traders by supporting research and other activities 

that increase the scientific understanding of nonpoint 

nutrient pollutant loading and the ability of various 

structural and nonstructural alternatives to reduce the 

loads; 

(iii) eliminates unnecessary or duplicative administrative processes; and 

(iv) incorporates a permitting approach under the 

national pollutant discharge elimination system established under section 402 that— 

(I) allows trading to occur without requiring the 

reopening or reissuance of the base permits to incorporate individual trades; and 

(II) incorporates any such trades, directly 

through a permit amendment or addendum, or indirectly by any appropriate mechanism, as enforceable terms of those permits on approval of the 

credit purchase by the permitting authority, in accordance with the requirements of the Chesapeake 

Basin Program, this Act, and regulations promulgated pursuant to this Act. 

(D) SEDIMENT TRADING.— 

(i) IN GENERAL.—Not later than 180 days after the 

date of enactment of the Chesapeake Clean Water and 

Ecosystem Restoration Act, the Administrator, in consultation with the Secretary of Agriculture, shall convene a task force, to be composed of representatives 

from the Chesapeake Basin States and public and private entities— 

(I) to identify any scientific, technical, or other 

issues that would hinder the rapid deployment of 

an interstate sediment trading program; and 

(II) to provide to the Administrator recommendations to overcome any of the obstacles to rapid deployment of such a trading system. 

(ii) INTERSTATE SEDIMENT TRADING PROGRAM.— 

(I) ESTABLISHMENT.—Based on the recommendations of the task force established under clause (i), 

the Administrator, in cooperation with each Chesapeake Basin State, shall establish an interstate 

sediment trading program for the Chesapeake 

Basin for the generation, trading, and use of sediVerDate Mar 15 2010 23:52 Oct 04, 2010 Jkt 089006 PO 00000 Frm 00053 Fmt 6604 Sfmt 6603 E:\HR\OC\SR333.XXX SR333

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ment credits to facilitate the attainment and maintenance water quality standards in the Chesapeake 

Bay and the Chesapeake Bay tidal segments. 

(II) REQUIREMENT.—The interstate sediment 

trading program established under subclause (I) 

shall include, at a minimum, definitions, procedures, standards, requirements, assurances, allowances, prohibitions, and evaluations comparable to 

the interstate nitrogen and phosphorus trading 

program established under subparagraph (A). 

(III) DEADLINE.—Upon a finding of the Administrator, based on the recommendation of the task 

force established under clause (i), that such a sediment trading program would substantially advance the achievement of Bay water quality objectives and would be feasible, the interstate trading 

program under this clause shall be established by 

the later of— 

(aa) May 12, 2014; and 

(bb) the date on which each issue described 

in clause (i) can be feasibly overcome. 

(E) EVALUATION OF TRADING.— (i) REPORTS.—Not less frequently than once every 5 

years after the date of establishment of the interstate 

nitrogen and phosphorus trading program under this 

paragraph, the Administrator shall submit to Congress 

a report describing the results of the program with respect to enforceability, transparency, achievement of 

water quality results, and whether the program has resulted in any localized water pollution problem. 

(ii) IMPROVEMENTS.—Based on the reports under 

clause (i), the Administrator shall make improvements 

to the trading program under this paragraph to ensure 

achievement of the environmental and programmatic 

objectives of the program. 

(F) EFFECT ON OTHER TRADING SYSTEMS.—Nothing in 

this paragraph affects the ability of a State to establish or 

implement an applicable intrastate trading program. 

(7) AUTHORITY RELATING TO DEVELOPMENT.—The Administrator shall— 

(A) establish, for projects resulting in impervious development, guidance relating to site planning, design, construction, and maintenance strategies to ensure that the land 

maintains predevelopment hydrology with regard to the 

temperature, rate, volume, and duration of flow; 

(B) compile a database of best management practices, 

model stormwater ordinances, and guidelines with respect 

to the construction of low-impact development infrastructure and nonstructural low-impact development techniques 

for use by States, local governments, and private entities; 

and 

(C) not later than 180 days after promulgation of the regulations under subsection (i)(3)(B), issue guidance, model 

ordinances, and guidelines to carry out this paragraph. 


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(8) ASSISTANCE WITH RESPECT TO STORMWATER DIS- CHARGES.— (A) GRANT PROGRAM.—The Administrator may provide 

grants to any local government within the Chesapeake 

Basin that adopts the guidance, best management practices, ordinances, and guidelines issued and compiled 

under paragraph (7). 

(B) USE OF FUNDS.—A grant provided under subparagraph (A) may be used by a local government to pay costs 

associated with— 

(i) developing, implementing, and enforcing the guidance, best management practices, ordinances, and 

guidelines issued and compiled under paragraph (7); 

and 

(ii) implementing projects designed to reduce or beneficially reuse stormwater discharges. 

(9) CONSUMER AND COMMERCIAL PRODUCT REPORT.—Not later 

than 3 years after the date of enactment of the Chesapeake 

Clean Water and Ecosystem Restoration Act, the Administrator, 

in consultation with the Chesapeake Executive Council, shall— 

(A) review consumer and commercial products (such as 

lawn fertilizer), the use of which may affect the water quality of the Chesapeake Basin or associated tributaries, to determine whether further product nutrient content restrictions are necessary to restore or maintain water quality in 

the Chesapeake Basin and those tributaries; and 

(B) submit to the Committees on Appropriations, Environment and Public Works, and Commerce, Science, and 

Transportation of the Senate and the Committees on Appropriations, Natural Resources, Energy and Commerce, and 

Transportation and Infrastructure of the House of Representatives a product nutrient report detailing the findings 

of the review under subparagraph (A). 

(10) AGRICULTURAL ANIMAL WASTE-TO-BIOENERGY DEPLOYMENT PROGRAM.— (A) DEFINITIONS.—In this paragraph: 

(i) AGRICULTURAL ANIMAL WASTE.—The term ‘agricultural animal waste’ means manure from livestock, 

poultry, or aquaculture. 

(ii) ELIGIBLE TECHNOLOGY.—The term ‘eligible technology’ means a technology that converts or proposes to 

convert agricultural animal waste into— 

(I) heat; 

(II) power; or 

(III) biofuels. 

(B) GRANT PROGRAM.—The Administrator, in coordination with the Secretary of Agriculture, may provide grants 

to any person or partnership of persons for the purpose of 

carrying out projects to deploy an eligible technology in agricultural animal waste-to-bioenergy treatment that has 

significant potential to reduce agricultural animal waste 

volume, recover nutrients, improve water quality, decrease 

pollution potential, and recover energy. 

(C) PROJECT SELECTION.— 


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(i) IN GENERAL.—In selecting applicants for grants 

under this paragraph, the Administrator shall select 

projects that— 

(I) reduce— 

(aa) impacts of agricultural animal waste 

on surface and groundwater quality; 

(bb) emissions to the ambient air; and 

(cc) the release of pathogens and other contaminants to the environment; and 

(II) quantify— 

(aa) the degree of waste stabilization to be 

realized by the project; and 

(bb) nutrient reduction credits that could 

contribute to the nitrogen and phosphorus 

trading program for the Chesapeake Basin 

under this subsection. 

(ii) PRIORITIZATION.—The Administrator shall 

prioritize projects based on— 

(I) the level of nutrient reduction achieved; 

(II) geographic diversity among the Chesapeake 

Basin States; and 

(III) differing types of agricultural animal waste. 

(D) FEDERAL SHARE.—The amount of a grant awarded 

under this paragraph shall not exceed 50 percent of the cost 

of the project to be carried out using funds from the grant. 

(k) PROHIBITION ON INTRODUCTION OF ASIAN OYSTERS.—Not later 

than 2 years after the date of enactment of the Chesapeake Clean 

Water and Ecosystem Restoration Act, the Administrator shall promulgate regulations— 

(1) to designate the Asian oyster as a ‘biological pollutant’ in 

the Chesapeake Bay and tidal waters pursuant to section 502; 

(2) to prohibit the issuance of permits under sections 402 and 

404 for the discharge of the Asian oyster into the Chesapeake 

Bay and Chesapeake Bay tidal segments; and 

(3) to specify conditions under which scientific research on 

Asian oysters may be conducted within the Chesapeake Bay and 

Chesapeake Bay tidal segments. 

(l) CHESAPEAKE NUTRIA ERADICATION PROGRAM.— (1) GRANT AUTHORITY.—Subject to the availability of appropriations, the Secretary of the Interior (referred to in this subsection as the ‘Secretary’), may provide financial assistance to 

the States of Delaware, Maryland, and Virginia to carry out a 

program to implement measures— 

(A) to eradicate or control nutria; and 

(B) to restore marshland damaged by nutria. 

(2) GOALS.—The continuing goals of the program shall be— 

(A) to eradicate nutria in the Chesapeake Basin ecosystem; and 

(B) to restore marshland damaged by nutria. 

(3) ACTIVITIES.—In the States of Delaware, Maryland, and 

Virginia, the Secretary shall require that the program under 

this subsection consist of management, research, and public 

education activities carried out in accordance with the document published by the United States Fish and Wildlife Service 


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entitled ‘Eradication Strategies for Nutria in the Chesapeake 

and Delaware Bay Watersheds’, dated March 2002, or any updates to the document. 

(m) REVIEW OF STUDIES ON THE IMPACTS OF MENHADEN ON THE

WATER QUALITY OF THE CHESAPEAKE BAY.— (1) RESEARCH REVIEW.—The Administrator, in cooperation 

and consultation with the Administrator of the National Oceanic and Atmospheric Administration, shall— 

(A) prepare a report that reviews and summarizes existing, peer reviewed research relating to the impacts of menhaden on water quality, including the role of menhaden as 

filter feeders and the impacts on dissolved oxygen levels, 

nutrient levels, phytoplankton, zooplankton, detritus, and 

similar issues by menhaden at various life stages; 

(B) identify important data gaps or additional menhaden 

population studies, if any, relating to the impacts of the 

menhaden population on water quality; and 

(C) provide any recommendations for additional research 

or study. 

(2) REPORT AND RECOMMENDATIONS.—Not later than 5 years 

after the date of enactment of the Chesapeake Clean Water and 

Ecosystem Restoration Act, the Administrator shall submit the 

report and recommendations required in paragraph (1) to— 

(A) the Committee on Commerce, Science, and Transportation and the Committee on Environment and Public 

Works Committee of the Senate; and 

(B) the Committee on Natural Resources and the Committee on Transportation and Infrastructure Committee of 

the House of Representatives. 

(n) EFFECT ON OTHER REQUIREMENTS.— (1) IN GENERAL.—Nothing in this section removes or otherwise affects any other obligation for a point source to comply 

with other applicable requirements under this Act. 

(2) VIOLATIONS BY STATES.— 

(A) ENFORCEMENT ACTION BY ADMINISTRATOR.—The failure of a Chesapeake Basin State that submits a watershed 

implementation plan under subsection (i) to submit a biennial report, meet or correct a previously missed 2-year commitment made in a watershed implementation plan, or implement a watershed implementation plan or permit program under this section shall— 

(i) constitute a violation of this Act; and 

(ii) subject the State to an enforcement action by the 

Administrator. 

(B) ENFORCEMENT ACTION BY CITIZENS.— 

(i) IN GENERAL.—The failure of a Chesapeake Basin 

State that submits a watershed implementation plan 

under subsection (i) to meet or correct a previously 

missed 2-year commitment made in a watershed implementation plan or implement a watershed implementation plan or permit program under this section shall 

subject the appropriate State officer to a civil action 

seeking injunctive relief commenced by a citizen on behalf of the citizen. 


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(ii) JURISDICTION, VENUE, NOTICE, AND LITIGATION

COSTS.— 

(I) IN GENERAL.—A citizen may commence a civil 

action on behalf of the citizen against a State 

under clause (i), subject to the requirements for notice, venue, and intervention described in subsections (b) and (c) of section 505 for a suit 

brought under section 505(a)(1)(A). 

(II) JURISDICTION.—Jurisdiction over a suit 

brought under subclause (I) shall be the district 

courts, as described in section 505(a). 

(III) LITIGATION COSTS.—The court may award 

litigation costs for suit brought under subclause 

(I), as described in section 505(d). 

(iii) SAVINGS CLAUSE.—Nothing in this subsection affects the ability of a citizen to bring an action for civil 

enforcement on behalf of the citizen under section 505. 

(o) EVALUATIONS.— (1) IN GENERAL.—The Inspectors General of the Environmental Protection Agency and the Department of Agriculture 

shall jointly evaluate and submit to Congress reports describing 

the implementation of this section not less frequently than once 

every 3 years. 

(2) INDEPENDENT REVIEWS.— (A) IN GENERAL.—The Administrator shall enter into a 

contract with the National Academy of Sciences or the National Academy of Public Administration under which the 

Academy shall conduct 2 reviews of the Chesapeake Basin 

restoration efforts under this section. 

(B) INCLUSIONS.—Each review under subparagraph (A) 

shall include an assessment of— 

(i) progress made toward meeting the goals of this 

section; 

(ii) efforts by Federal, State, and local governments 

and the private sector in implementing this section; 

(iii) the methodologies (including computer modeling) and data (including monitoring data) used to 

support the implementation of this section; and 

(iv) the economic impacts, including— 

(I) a comprehensive analysis of the costs of compliance; 

(II) the benefits of restoration; 

(III) the value of economic losses avoided; and 

(IV) a regional analysis of items (I) through (III), 

by Chesapeake Basin State and by sector, to the 

maximum extent practicable. 

(C) REPORTS.—The National Academy of Sciences or the 

National Academy of Public Administration shall submit to 

the Administrator a report describing the results of the reviews under this paragraph, together with recommendations regarding the reviews (including any recommendations with respect to efforts of the Environmental Protection 

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peake Basin and achieve those standards in the Chesapeake Bay and Chesapeake Bay tidal segments), if any, by 

not later than— 

(i) May 12, 2015, with respect to the first review required under this paragraph; and 

(ii) May 12, 2020, with respect to the second review 

required under this paragraph. 

(p) AUTHORIZATION OF APPROPRIATIONS.— 

(1) CHESAPEAKE BASIN PROGRAM OFFICE.—There is authorized to be appropriated to the Chesapeake Basin Program Office 

to carry out subsection (b)(2) $20,000,000 for each of fiscal 

years 2010 through 2015. 

(2) IMPLEMENTATION, MONITORING, AND CENTERS OF EXCELLENCE GRANTS.— 

(A) AUTHORIZATION OF APPROPRIATIONS.—In addition to 

amounts authorized to be appropriated or otherwise made 

available to carry out this section, there are authorized to 

be appropriated to the Administrator— 

(i) to carry out a program to establish and support 

centers of excellence for water quality and agricultural 

policies and practices under subsection (e)(1)(C), 

$10,000,000 for each of fiscal years 2010 through 2015; 

(ii) to provide implementation grants under subsection (e)(3)(A), $80,000,000 for each of fiscal years 

2010 through 2015, to remain available until expended; 

(iii) to carry out a freshwater monitoring program 

under subsection (e)(3)(B), $5,000,000 for each of fiscal 

years 2010 through 2015; 

(iv) to carry out a Chesapeake Bay and tidal water 

monitoring program under subsection (e)(3)(B), 

$5,000,000 for each of fiscal years 2010 through 2015; 

and 

(v) to carry out the Chesapeake nutrient trading 

guarantee pilot program under subsection (e)(1)(D), 

$20,000,000 for the period of fiscal years 2010 through 

2015. 

(B) COST SHARING.—The Federal share of the cost of a 

program carried out using funds from a grant provided— 

(i) under subparagraph (A)(ii) shall not exceed— 

(I) 80 percent, with respect to funds provided for 

the provision of technical assistance to agricultural 

producers and forest owners; and 

(II) with respect to all other activities under that 

subparagraph— 

(aa) for the States of Delaware, New York, 

and West Virginia, shall not exceed 75 percent; 

and 

(bb) for the States of Maryland, Pennsylvania, and Virginia and for the District of Columbia, shall not exceed 50 percent; and 

(ii) under clauses (i), (iii), or (iv) of subparagraph (A) 

shall not exceed 80 percent. 


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(3) CHESAPEAKE STEWARDSHIP GRANTS.—There is authorized 

to be appropriated to carry out subsection (h)(2) $15,000,000 for 

each of fiscal years 2010 through 2015. 

(4) STORM WATER POLLUTION PLANNING AND IMPLEMENTATION

GRANTS.— 

(A) AUTHORIZATION OF APPROPRIATIONS.—In addition to 

amounts authorized or otherwise made available to carry 

out this section, there are authorized to be appropriated to 

the Administrator— 

(i) to carry out subsection (j)(8)(B)(i), $10,000,000; 

and 

(ii) to carry out subsection (j)(8)(B)(ii), $1,500,000,000. 

(B) COST-SHARING.—A grant provided for a project 

under— 

(i) subsection (j)(8)(B)(i) may not be used to cover 

more than 80 percent of the cost of the project; and 

(ii) subsection (j)(8)(B)(ii) may not be used to cover 

more than 75 percent of the cost of the project. 

(5) NUTRIA ERADICATION GRANTS.— (A) IN GENERAL.—There is authorized to be appropriated 

to the Secretary of the Interior to provide financial assistance in the Chesapeake Basin under subsection (l) 

$4,000,000 for each of fiscal years 2010 through 2015. 

(B) COST-SHARING.— (i) FEDERAL SHARE.—The Federal share of the cost of 

carrying out the program under subsection (l) may not 

exceed 75 percent of the total costs of the program. 

(ii) IN-KIND CONTRIBUTIONS.—The non-Federal share 

of the cost of carrying out the program under subsection (l) may be provided in the form of in-kind contributions of materials or services. 

(6) AGRICULTURAL ANIMAL WASTE-TO-BIOENERGY DEPLOYMENT

GRANTS.—There is authorized to be appropriated to carry out 

the agricultural animal waste-to-bioenergy deployment program 

under subsection (j) $30,000,000 for the period of fiscal years 

2010 to 2015, to remain available until expended. 

(7) LIMITATION ON ADMINISTRATIVE COSTS.—Not more than 

10 percent of the annual amount of any grant provided by the 

Administrator or Secretary under any program described in 

this subsection may be used for administrative costs. 

(8) AVAILABILITY.—Amounts authorized to be appropriated 

under this subsection shall remain available until expended. 

(q) SEVERABILITY.—A determination that any provisions of this 

section is invalid, illegal, unenforceable, or in conflict with any 

other law shall not affect the validity, legality, or enforceability of 

the remaining provisions of this section. 

* * * * * * * 

SEC. 309. (a)(1) Whenever, on the basis of any information 

available to him, the Administrator finds that any person is in violation of any condition or limitation which implements section 301, 

302, 306, 307, 308, 318, or 405 of this Act in a permit issued by 

a State under an approved permit program under øsection 402¿ 

section 117,402, or 404 of this Act, he shall proceed under his auVerDate Mar 15 2010 23:52 Oct 04, 2010 Jkt 089006 PO 00000 Frm 00060 Fmt 6604 Sfmt 6602 E:\HR\OC\SR333.XXX SR333

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thority in paragraph (3) of this subsection or he shall notify the 

person in alleged violation and such State of such finding. If beyond the thirtieth day after the Administrator’s notification the 

State has not commenced appropriate enforcement action, the Administrator shall issue an order requiring such person to comply 

with such condition or limitation or shall bring a civil action in accordance with subsection (b) of this section. 

(2) Whenever, on the basis of information available to him, the 

Administrator finds that violations of permit conditions or limitations as set forth in paragraph (1) of this subsection are so widespread that such violations appear to result from a failure of the 

State to enforce such permit conditions or limitations effectively, he 

shall so notify the State. If the Administrator finds such failure extends beyond the thirtieth day after such notice, he shall give public notice of such finding. During the period beginning with such 

public notice and ending when such State satisfies the Administrator that it will enforce such conditions and limitations (hereafter 

referred to in this section as the period of federally assumed enforcement’’), except where an extension has been granted under 

paragraph (5)(B) of this subsection, the Administrator shall enforce 

any permit condition or limitation with respect to any person— 

(A) by issuing an order to comply with such condition or limitation, or 

(B) by bringing a civil action under subsection (b) of this section. 

(3) Whenever on the basis of any information available to him 

the Administrator finds that any person is in violation of section 

301, 302, 306, 307, 308, 318, or 405 of this Act, or is in violation 

of any permit condition or limitation implementing any of such sections in a permit issued under section 117 or section 402 of this Act 

by him or by a State or in a permit issued under section 404 of 

this Act by a State, he shall issue an order requiring such person 

to comply with such section or requirement, or he shall bring a civil 

action in accordance with subsection (b) of this section. 

* * * * * * * 

(d) Any person who violates section 301, 302, 306, 307, 308, 

311(b)(3), 318 or 405 of this Act, or any permit condition or limitation implementing any of such sections in a permit issued 

undersection 117 or section 402 of this Act by the Administrator, 

or by a State, or in a permit issued under section 404 of this Act 

by a State, or any requirement imposed in a pretreatment program 

approved under section 402(a)(3) or 402(b)(8) of this Act, and any 

person who violates any order issued by the Administrator under 

subsection (a) of this section, shall be subject to a civil penalty not 

to exceed $25,000 per day for each violation. In determining the 

amount of a civil penalty the court shall consider the seriousness 

of the violation or violations, the economic benefit (if any) resulting 

from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require. For purposes of this subsection, a single operVerDate Mar 15 2010 23:52 Oct 04, 2010 Jkt 089006 PO 00000 Frm 00061 Fmt 6604 Sfmt 6602 E:\HR\OC\SR333.XXX SR333

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ational upset which leads to simultaneous violations of more than 

one pollutant parameter shall be treated as a single violation. 

* * * * * * * 

(g) ADMINISTRATIVE PENALTIES.— 

(1) VIOLATIONS.—Whenever on the basis of any information 

available— 

(A) the Administrator finds that any person has violated 

section 301, 302, 306, 307, 308, 318, or 405 of this Act, or 

has violated any permit condition or limitation implementing any of such sections in a permit issued 

undersection 117 or section 402 of this Act by the Administrator or by a State, or in a permit issued under section 

404 by a State, or 

* * * * * * * 

(7) EFFECT OF ACTION ON COMPLIANCE.—No action by the Administrator or the Secretary under this subsection shall affect 

any person’s obligation to comply with any section of this Act 

or with the terms and conditions of any permit issued pursuant to øsection 402¿section 117, 402, or 404 of this Act. 

* * * * * * * 

SEC. 313. (a) Each department, agency, or instrumentality of 

the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) 

engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee 

thereof in the performance of his official duties, shall be subject to, 

and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or 

procedural (including any recordkeeping or reporting requirement, 

any requirement respecting permits and any other requirement, 

whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner. This subsection shall apply notwithstanding any immunity of 

such agencies, officers, agents, or employees under any law or rule 

of law. Nothing in this section shall be construed to prevent any 

department, agency, or instrumentality of the Federal Government, 

or any officer, agent, or employee thereof in the performance of his 

official duties, from removing to the appropriate Federal district 

court any proceeding to which the department, agency, or instrumentality or officer, agent, or employee thereof is subject pursuant 

to this section, and any such proceeding may be removed in accordance with 28 U.S.C. 1441 et seq. No officer, agent, or employee of 

the United States shall be personally liable for any civil penalty 

arising from the performance of his official duties, for which he is 

not otherwise liable, and the United States shall be liable only for 

those civil penalties arising under Federal law or imposed by a 

State or local court to enforce an order or the process of such court. 


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The President may exempt any effluent source of any department, 

agency, or instrumentality in the executive branch from compliance 

with any such a requirement if he determines it to be in the paramount interest of the United States to do so; except that no exemption may be granted from the requirements of section 306 or 307 

of this Act. No such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested 

such appropriation as a part of the budgetary process and the Congress shall have failed to make available such requested appropriation. Any exemption shall be for a period not in excess of one year, 

but additional exemptions may be granted for periods of not to exceed one year upon the President’s making a new determination. 

The President shall report each January to the Congress all exemptions from the requirements of this section granted during the preceding calendar year, together with his reason for granting such exemption. In addition to any such exemption of a particular effluent 

source, the President may, if he determines it to be in the paramount interest of the United States to do so, issue regulations exempting from compliance with the requirements of this section any 

weaponry, equipment, aircraft, vessels, vehicles, or other classes or 

categories of property, and access to such property, which are 

owned or operated by the Armed Forces of the United States (including the Coast Guard) or by the National Guard of any State 

and which are uniquely military in nature. The President shall reconsider the need for such regulations at three-year intervals. 

(b)(1) The Administrator shall coordinate with the head of each 

department, agency, or instrumentality of the Federal Government 

having jurisdiction over any property or facility utilizing federally 

owned wastewater facilities to develop a program of cooperation for 

utilizing wastewater control systems utilizing those innovative 

treatment processes and techniques for which guidelines have been 

promulgated under section 304(d)(3). Such program shall include 

an inventory of property and facilities which could utilize such 

processes and techniques. 

(2) Construction shall not be initiated for facilities for treatment of wastewater at any Federal property or facility after September 30, 1979, if alternative methods for wastewater treatment 

at such property or facility utilizing innovative treatment processes 

and techniques, including but not limited to methods utilizing recycle and reuse techniques and land treatment are not utilized, unless the life cycle cost of the alternative treatment works exceeds 

the life cycle cost of the most cost effective alternative by more 

than 15 per centum. The Administrator may waive the application 

of this paragraph in any case where the Administrator determines 

it to be in the public interest, or that compliance with this paragraph would interfere with the orderly compliance with the conditions of a permit issued pursuant to section 402 of this Act. 

(c) REASONABLE SERVICE CHARGES.—Reasonable service charges 

described in subsection (a) include any requirement to pay a reasonable fee, assessment, or charge imposed by any State or local agency 

to defray or recover the cost of stormwater management in the same 

manner and to the same extent as any nongovernmental entity. 

(d) NO TREATMENT AS TAX OR LEVY.—A fee, assessment, or 

charge described in this section— 


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(1) shall not be considered to be a tax or other levy subject 

to an assertion of sovereign immunity; and 

(2) may be paid using appropriated funds. 

* * * * * * * 

SEC. 320. NATIONAL ESTUARY PROGRAM. 

(a) MANAGEMENT CONFERENCE.— 

(1) NOMINATION OF ESTUARIES.—* * * 

* * * * * * * 

(b) PURPOSES OF CONFERENCE.—The purposes of any management conference convened with respect to an estuary under this 

subsection shall be to— 

(1) assess trends in water quality, natural resources, and 

uses of the estuary; 

(2) collect, characterize, and assess data on toxics, nutrients, 

and natural resources within the estuarine zone to identify the 

causes of environmental problems; 

(3) develop the relationship between the inplace loads and 

point and nonpoint loadings of pollutants to the estuarine zone 

and the potential uses of the zone, water quality, and natural 

resources; 

(4) develop a comprehensive conservation and management 

plan that recommends priority corrective actions and compliance schedules addressing point and nonpoint sources of pollution to restore and maintain the chemical, physical, and biological integrity of the estuary, including restoration and maintenance of water quality, a balanced indigenous population of 

shellfish, fish and wildlife, and recreational activities in the estuary, and assure that the designated uses of the estuary are 

protected; 

(5) develop plans for the coordinated implementation of the 

plan by the States as well as Federal and local agencies participating in the conference; 

(6) monitor the effectiveness of actions taken pursuant to the 

plan; and 

(7) review all Federal financial assistance programs and Federal development projects in accordance with the requirements 

of Executive Order 12372, as in effect on September 17, 1983, 

to determine whether such assistance program or project would 

be consistent with and further the purposes and objectives of 

the plan prepared under this section. 

For purposes of paragraph (7), such programs and projects shall 

not be limited to the assistance programs and development projects 

subject to Executive Order 12372, but may include any programs 

listed in the most recent Catalog of Federal Domestic Assistance 

which may have an effect on the purposes and objectives of the 

plan developed under this sectionor section 117. 

* * * * * * * 

CHAPTER 11 OF TITLE 31, UNITED STATES CODE

* * * * * * * 


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SEC. 1105. BUDGET CONTENTS AND SUBMISSION TO CONGRESS. 

(a) On or after the first Monday in January but not later than 

the first Monday in February of each year, the President shall submit a budget of the United States Government for the following fiscal year. Each budget shall include a budget message and summary and supporting information. The President shall include in 

each budget the following: 

(1) * * * 

* * * * * * * 

ø(33)¿(35)(A)(i) a detailed, separate analysis, by budget function, by agency, and by initiative area (as determined by the 

administration) for the prior fiscal year, the current fiscal year, 

the fiscal years for which the budget is submitted, and the ensuing fiscal year identifying the amounts of gross and net appropriations or obligational authority and outlays that contribute to homeland security, with separate displays for mandatory and discretionary amounts, including— 

(I) summaries of the total amount of such appropriations 

or new obligational authority and outlays requested for 

homeland security; 

(II) an estimate of the current service levels of homeland 

security spending; 

(III) the most recent risk assessment and summary of 

homeland security needs in each initiative area (as determined by the administration); and 

(IV) an estimate of user fees collected by the Federal 

Government on behalf of homeland security activities; 

(ii) with respect to subclauses (I) through (IV) of clause (i), 

amounts shall be provided by account for each program, project 

and activity; and 

(iii) an estimate of expenditures for homeland security activities by State and local governments and the private sector for 

the prior fiscal year and the current fiscal year. 

(B) In this paragraph, consistent with the Office of Management and Budget’s June 2002 ‘‘Annual Report to Congress on 

Combatting Terrorism’’, the term ‘‘homeland security’’ refers to 

those activities that detect, deter, protect against, and respond 

to terrorist attacks occurring within the United States and its 

territories. 

(C) In implementing this paragraph, including determining 

what Federal activities or accounts constitute homeland security for purposes of budgetary classification, the Office of Management and Budget is directed to consult periodically, but at 

least annually, with the House and Senate Budget Committees, the House and Senate Appropriations Committees, and 

the Congressional Budget Office. 

ø(35)¿(36) as supplementary materials, a separate analysis 

of the budgetary effects for all prior fiscal years, the current 

fiscal year, the fiscal year for which the budget is submitted, 

and ensuing fiscal years of the actions the Secretary of the 

Treasury has taken or plans to take using any authority provided in the Emergency Economic Stabilization Act of 2008, including— 


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(A) an estimate of the current value of all assets purchased, sold, and guaranteed under the authority provided 

in the Emergency Economic Stabilization Act of 2008 using 

methodology required by the Federal Credit Reform Act of 

1990 (2 U.S.C. 661 et seq.) and section 123 of the Emergency Economic Stabilization Act of 2008; 

(B) an estimate of the deficit, the debt held by the public, and the gross Federal debt using methodology required 

by the Federal Credit Reform Act of 1990 and section 123 

of the Emergency Economic Stabilization Act of 2008; 

(C) an estimate of the current value of all assets purchased, sold, and guaranteed under the authority provided 

in the Emergency Economic Stabilization Act of 2008 calculated on a cash basis; 

(D) a revised estimate of the deficit, the debt held by the 

public, and the gross Federal debt, substituting the cashbased estimates in subparagraph (C) for the estimates calculated under subparagraph (A) pursuant to the Federal 

Credit Reform Act of 1990 and section 123 of the Emergency Economic Stabilization Act of 2008; and 

(E) the portion of the deficit which can be attributed to 

any action taken by the Secretary using authority provided 

by the Emergency Economic Stabilization Act of 2008 and 

the extent to which the change in the deficit since the 

most recent estimate is due to a reestimate using the 

methodology required by the Federal Credit Reform Act of 

1990 and section 123 of the Emergency Economic Stabilization Act of 2008. 

ø(36)¿(37) information on estimates of appropriations for the 

fiscal year following the fiscal year for which the budget is submitted for the following medical care accounts of the Veterans 

Health Administration, Department of Veterans Affairs account: 

(A) Medical Services. 

(B) Medical Support and Compliance. 

(C) Medical Facilities. 

(38) a separate statement for the Chesapeake Nutrient Trading Guarantee Fund established under section 117(e)(1)(E) of 

the Federal Water Pollution Control Act (33 U.S.C. 

1267(e)(1)(E)) (as amended by the Chesapeake Clean Water and 

Ecosystem Restoration Act), which shall include the estimated 

amount of deposits into the Fund, obligations, and outlays from 

the Fund. 

Æ 


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