II 

111TH CONGRESS 

1ST SESSION S. 1816 

To amend the Federal Water Pollution Control Act to improve and 

reauthorize the Chesapeake Bay Program. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 20, 2009 

Mr. CARDIN (for himself, Ms. MIKULSKI, Mr. CARPER, and Mr. KAUFMAN) 

introduced the following bill; which was read twice and referred to the 

Committee on Environment and Public Works 

A BILL 

To amend the Federal Water Pollution Control Act to 

improve and reauthorize the Chesapeake Bay Program. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Chesapeake Clean 

5 Water and Ecosystem Restoration Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 

8 (1) the Chesapeake Bay and the tributary wa9 ters of the Chesapeake Bay are natural resources of 


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1 outstanding ecological, economic, and cultural im2 portance to the United States; 

3 (2) for more than 20 years, the Federal Gov4 ernment and the States of the Chesapeake Bay Wa5 tershed, the Chesapeake Bay Commission, and var6 ious local government, scientific, and citizen advisory 

7 boards have worked through the Chesapeake Bay 

8 Program of the Environmental Protection Agency to 

9 develop an unparalleled body of scientific informa10 tion and cooperative partnerships to advance the 

11 Chesapeake Bay restoration effort; 

12 (3) despite significant efforts by Federal, State, 

13 and local governments and other interested parties, 

14 water pollution in the Chesapeake Bay prevents the 

15 attainment of existing State water quality standards 

16 and the ecological goals of the Federal Water Pollu17 tion Control Act (33 U.S.C. 1251 et seq.); 

18 (4) the Chesapeake Bay Program partnership 

19 has developed a rich body of environmental data 

20 based on an extensive network of monitors, which 

21 provide a critical measure of success in attainment 

22 of the goals of the restoration effort; 

23 (5) the Chesapeake Bay Program partnership 

24 has also developed some of the world’s foremost 


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1 water quality and ecosystem computer models, which 

2 are invaluable planning tools for resource managers; 

3 (6) the major pollutants affecting the water 

4 quality of the Chesapeake Bay and related tidal wa5 ters are nitrogen, phosphorus, and sediment; 

6 (7) the largest developed land use in the Chesa7 peake Bay watershed, and the largest single-sector 

8 source of nitrogen, phosphorus, and sediment pollu9 tion, is agriculture; 

10 (8) conservation practices have resulted in sig11 nificant reductions in pollution loads from the agri12 cultural sector; 

13 (9) to speed continued progress in the agricul14 tural sector, the Federal Government and State gov15 ernments have initiated a number of agricultural 

16 conservation programs, including the Chesapeake 

17 Bay watershed initiative under section 1240Q of the 

18 Food Security Act of 1985 (16 U.S.C. 3839bb–4); 

19 (10) atmospheric deposition of nitrogen oxides 

20 and ammonia on the Chesapeake Bay watershed 

contributes as much as 1 21 ⁄3 of the nitrogen pollution 

22 in the Chesapeake Bay; 

23 (11) for years, a steady stream of technology 

24 development and increasingly stringent permit re25 quirements have resulted in a steady decline in the 


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1 nitrogen and phosphorus pollution derived from 

2 wastewater treatment plants in the Chesapeake Bay 

3 watershed; 

4 (12) suburban and urban development is the 

5 fastest growing land use sector in the Chesapeake 

6 Bay watershed, and stormwater runoff from that 

7 sector is the only major source of pollution in the 

8 watershed that is increasing; 

9 (13) during the period beginning in 1990 and 

10 ending in 2000, impervious cover, the hardened sur11 faces through which water cannot penetrate, in12 creased by nearly 250,000 acres, about 41 percent, 

13 or the size of 5 Districts of Columbia; 

14 (14) during that period, the watershed popu15 lation of the Chesapeake Bay grew by just 8 per16 cent; 

17 (15) the population of the watershed is esti18 mated to be growing by about 157,000 people per 

19 year; 

20 (16) continuing at that rate, the population will 

21 increase to nearly 20,000,000 by 2030; 

22 (17) about 58 percent of the watershed of the 

23 Chesapeake Bay is undeveloped and mostly forested, 

24 but as many as 100 acres of forest are lost to devel25 opment each day; 


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1 (18) States, local governments, developers, and 

2 nonprofit organizations have developed numerous 

3 low-impact development techniques since the late 

4 1990s, which use natural area protection, infiltra5 tion, and pervious surfaces to reduce stormwater 

6 runoff and associated sediment and nutrient pollu7 tion; 

8 (19) many of those techniques are less expen9 sive than traditional pollution stormwater control 

10 management techniques; 

11 (20) the decline of key aquatic habitats and 

12 species has resulted in a loss of the important water 

13 quality benefits that the habitats and species tradi14 tionally provided; 

15 (21) native oysters, the numbers of which have 

16 declined precipitously in the Chesapeake Bay in sig17 nificant part because of diseases brought into the 

18 watershed by nonnative oysters, are natural filters 

19 that once effectively filtered a volume of water equiv20 alent to that of the entire Chesapeake Bay in a mat21 ter of days; 

22 (22) although less well-understood, menhaden, 

23 a species of fish found in the Chesapeake Bay, also 

24 provide important filtering capacity as well as a 

25 number of other key ecosystem functions; 


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1 (23) wetlands are a vital part of any major eco2 system; 

3 (24) studies have demonstrated that nontidal 

4 wetland near the Chesapeake Bay removed as much 

5 as 89 percent of the nitrogen and 80 percent of the 

6 phosphorus that entered the wetland through upland 

7 runoff, groundwater, and precipitation; 

8 (25) riparian forests remove as much as 90 per9 cent of nitrogen and phosphorus that would other10 wise enter the water; 

11 (26) the loss of forests and wetlands in the 

12 Chesapeake Bay has resulted in diminished water 

13 quality, among other effects; 

14 (27) in certain locations in the Chesapeake 

15 Bay, nutria, a nonnative species, has caused exten16 sive destruction of key wetlands; and 

17 (28) in spite of the achievements of the Chesa18 peake Bay Program partnership and increasing 

19 knowledge about ecosystem functions, the restora20 tion of the Chesapeake Bay will require significantly 

21 stronger tools to manage pollution levels and other 

22 impediments to water quality. 

23 SEC. 3. CHESAPEAKE BAY PROGRAM. 

24 Section 117 of the Federal Water Pollution Control 

25 Act (33 U.S.C. 1267) is amended to read as follows: 


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1 ‘‘SEC. 117. CHESAPEAKE BAY PROGRAM. 

2 ‘‘(a) DEFINITIONS.—In this section: 

3 ‘‘(1) ADMINISTRATIVE COST.—The term ‘ad4 ministrative cost’ means the cost of salaries and 

5 fringe benefits incurred in administering a grant 

6 under this section. 

7 ‘‘(2) ASIAN OYSTER.—The term ‘Asian oyster’ 

8 means the species Crassostrea ariakensis. 

9 ‘‘(3) BASELINE.—The term ‘baseline’ means 

10 the basic standard or level used for measuring (as 

11 applicable)— 

12 ‘‘(A) the nutrient control requirements 

13 credit sellers must achieve before becoming eli14 gible to generate saleable nutrient credits; or 

15 ‘‘(B) the nutrient load reductions required 

16 of individual sources to meet water quality 

17 standards or goals under a TMDL or watershed 

18 implementation plan. 

19 ‘‘(4) BASIN COMMISSIONS.—The term ‘basin 

20 commissions’ means— 

21 ‘‘(A) the Interstate Commission on the Po22 tomac River Basin established under the inter23 state compact consented to and approved by 

24 Congress under the Joint Resolution of July 

25 11, 1940 (54 Stat. 748, chapter 579) and Pub26 lic Law 91–407 (84 Stat. 856); and 


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1 ‘‘(B) the Susquehanna River Basin Com2 mission established under the interstate com3 pact consented to and approved by Congress 

4 under Public Law 91–575 (84 Stat. 1509) and 

5 Public Law 99–468 (100 Stat. 1193). 

6 ‘‘(5) CHESAPEAKE BAY AGREEMENT.—The 

7 term ‘Chesapeake Bay Agreement’ means the for8 mal, voluntary agreements executed to achieve the 

9 goal of restoring and protecting the Chesapeake Bay 

10 ecosystem and the living resources of the Chesa11 peake Bay ecosystem and signed by the Chesapeake 

12 Executive Council. 

13 ‘‘(6) CHESAPEAKE BAY ECOSYSTEM.—The term 

14 ‘Chesapeake Bay ecosystem’ means the ecosystem of 

15 the Chesapeake Bay watershed. 

16 ‘‘(7) CHESAPEAKE BAY PROGRAM.—The term 

17 ‘Chesapeake Bay Program’ means the program di18 rected by the Chesapeake Executive Council in ac19 cordance with the Chesapeake Bay Agreement. 

20 ‘‘(8) CHESAPEAKE BAY STATE.—The term 

21 ‘Chesapeake Bay State’ means any of— 

22 ‘‘(A) the States of Delaware, Maryland, 

23 New York, Pennsylvania, Virginia, and West 

24 Virginia; or 

25 ‘‘(B) the District of Columbia. 


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1 ‘‘(9) CHESAPEAKE BAY WATERSHED.—The 

2 term ‘Chesapeake Bay watershed’ means the Chesa3 peake Bay and the area consisting of 19 tributary 

4 basins within the Chesapeake Bay States through 

5 which precipitation drains into the Chesapeake Bay. 

6 ‘‘(10) CHESAPEAKE EXECUTIVE COUNCIL.—The 

7 term ‘Chesapeake Executive Council’ means the sig8 natories to the Chesapeake Bay Agreement. 

9 ‘‘(11) CLEANING AGENT.—The term ‘cleaning 

10 agent’ means a laundry detergent, dishwashing com11 pound, household cleaner, metal cleaner, degreasing 

12 compound, commercial cleaner, industrial cleaner, 

13 phosphate compound, or other substance that is in14 tended to be used for cleaning purposes. 

15 ‘‘(12) DIRECTOR.—The term ‘director’ means 

16 the Director of the Chesapeake Bay Program Office 

17 of the Environmental Protection Agency. 

18 ‘‘(13) LOCAL GOVERNMENT.—The term ‘local 

19 government’ means any county, city, or other gen20 eral purpose political subdivision of a State with ju21 risdiction over land use. 

22 ‘‘(14) MENHADEN.—The term ‘menhaden’ 

23 means members of stocks or populations of the spe24 cies Brevoortia tyrannus. 


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1 ‘‘(15) NUTRIA.—The term ‘nutria’ means the 

2 species Myocaster coypus. 

3 ‘‘(16) POINT-OF-REGULATION.—The term 

4 ‘point-of-regulation’ means any entity that— 

5 ‘‘(A) is subject to a limitation on pollution 

6 or other regulation under this Act; and 

7 ‘‘(B) has sufficient technical capacity and 

8 legal authority to meet the obligations of the 

9 entity under this Act. 

10 ‘‘(17) SIGNATORY JURISDICTION.—The term 

11 ‘signatory jurisdiction’ means a jurisdiction of a sig12 natory to the Chesapeake Bay Agreement. 

13 ‘‘(18) TMDL.— 

14 ‘‘(A) IN GENERAL.—The term ‘TMDL’ 

15 means the total maximum daily load that the 

16 Administrator establishes or approves for nitro17 gen, phosphorus, and sediment loading to the 

18 waters in the Chesapeake Bay mainstem and 

19 tidal tributaries identified on the list of a 

20 Chesapeake Bay State under section 303(d). 

21 ‘‘(B) INCLUSIONS.—The term ‘TMDL’ 

22 may include nitrogen, phosphorus, and sedi23 ment allocations in temporal units of greater 

24 than daily duration if applicable allocations— 


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1 ‘‘(i) are demonstrated to achieve 

2 water quality standards; and 

3 ‘‘(ii) do not lead to exceedances of 

4 other applicable water quality standards 

5 for local receiving waters. 

6 ‘‘(19) TRIBUTARY BASIN.—The term ‘tributary 

7 basin’ means an area of land or body of water 

8 that— 

9 ‘‘(A) drains into any of the 19 Chesapeake 

10 Bay tributaries or tributary segments; and 

11 ‘‘(B) is managed through watershed imple12 mentation plans under this Act. 

13 ‘‘(b) CONTINUATION OF CHESAPEAKE BAY PRO14 GRAM.— 

15 ‘‘(1) IN GENERAL.—In cooperation with the 

16 Chesapeake Executive Council (and as a member of 

17 the Council), the Administrator shall continue the 

18 Chesapeake Bay Program. 

19 ‘‘(2) PROGRAM OFFICE.— 

20 ‘‘(A) IN GENERAL.—The Administrator 

21 shall maintain in the Environmental Protection 

22 Agency a Chesapeake Bay Program Office. 

23 ‘‘(B) FUNCTION.—The Chesapeake Bay 

24 Program Office shall provide support to the 

25 Chesapeake Executive Council by— 


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1 ‘‘(i) implementing and coordinating 

2 science, research, modeling, support serv3 ices, monitoring, data collection, and other 

4 activities that support the Chesapeake Bay 

5 Program; 

6 ‘‘(ii) developing and making available, 

7 through publications, technical assistance, 

8 and other appropriate means, information 

9 pertaining to the environmental quality 

10 and living resources of the Chesapeake 

11 Bay ecosystem; 

12 ‘‘(iii) in cooperation with appropriate 

13 Federal, State, and local authorities, as14 sisting the signatories to the Chesapeake 

15 Bay Agreement in developing and imple16 menting specific action plans to carry out 

17 the responsibilities of the signatories to the 

18 Chesapeake Bay Agreement; 

19 ‘‘(iv) coordinating the actions of the 

20 Environmental Protection Agency with the 

21 actions of the appropriate officials of other 

22 Federal agencies and State and local au23 thorities in developing strategies to— 


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1 ‘‘(I) improve the water quality 

2 and living resources in the Chesa3 peake Bay ecosystem; and 

4 ‘‘(II) obtain the support of the 

5 appropriate officials of the agencies 

6 and authorities in achieving the objec7 tives of the Chesapeake Bay Agree8 ment; and 

9 ‘‘(v) implementing outreach programs 

10 for public information, education, and par11 ticipation to foster stewardship of the re12 sources of the Chesapeake Bay. 

13 ‘‘(c) INTERAGENCY AGREEMENTS.—The Adminis14 trator may enter into an interagency agreement with a 

15 Federal agency to carry out this section. 

16 ‘‘(d) TECHNICAL ASSISTANCE AND ASSISTANCE

17 GRANTS.— 

18 ‘‘(1) IN GENERAL.—In cooperation with the 

19 Chesapeake Executive Council, the Administrator 

20 may provide technical assistance, and assistance 

21 grants, to nonprofit organizations, State and local 

22 governments, colleges, universities, and interstate 

23 agencies to carry out this section, subject to such 

24 terms and conditions as the Administrator considers 

25 appropriate. 


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1 ‘‘(2) FEDERAL SHARE.— 

2 ‘‘(A) IN GENERAL.—Except as provided in 

3 subparagraph (B), the Federal share of an as4 sistance grant provided under paragraph (1) 

5 shall be determined by the Administrator in ac6 cordance with guidance issued by the Adminis7 trator. 

8 ‘‘(B) CHESAPEAKE BAY STEWARDSHIP

9 GRANTS PROGRAM.—The Federal share of an 

10 assistance grant provided under paragraph (1) 

11 to carry out an implementing activity under 

12 subsection (h)(2) shall not exceed 75 percent of 

13 eligible project costs, as determined by the Ad14 ministrator. 

15 ‘‘(3) NON-FEDERAL SHARE.—An assistance 

16 grant under paragraph (1) shall be provided on the 

17 condition that non-Federal sources provide the re18 mainder of eligible project costs, as determined by 

19 the Administrator. 

20 ‘‘(4) ADMINISTRATIVE COSTS.—Administrative 

21 costs shall not exceed 10 percent of the annual grant 

22 award. 

23 ‘‘(e) IMPLEMENTATION AND MONITORING

24 GRANTS.— 


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1 ‘‘(1) IN GENERAL.—On the request of the chief 

2 executive of the Chesapeake Bay State, the Adminis3 trator— 

4 ‘‘(A) shall make an implementation grant 

5 to the Chesapeake Bay State, or a designee of 

6 a Chesapeake Bay State (such as a soil con7 servation district, nonprofit organization, local 

8 government, college, university, interstate basin 

9 commission, or interstate agency), for the pur10 pose of implementing the TMDL plans of the 

11 Chesapeake Bay State and achieving the goals 

12 established under the Chesapeake Bay Agree13 ment, subject to such terms and conditions as 

14 the Administrator considers to be appropriate; 

15 and 

16 ‘‘(B) may make a monitoring grant to— 

17 ‘‘(i) a Chesapeake Bay State, or a 

18 designee of a Chesapeake Bay State (such 

19 as a soil conservation district, nonprofit or20 ganization, local government, college, uni21 versity, interstate basin commission, or 

22 interstate agency), for the purpose of mon23 itoring the ecosystem of freshwater tribu24 taries to the Chesapeake Bay; or 


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1 ‘‘(ii) the States of Delaware, Mary2 land, or Virginia, the District of Columbia, 

3 or a designee (such as a nonprofit organi4 zation, local government, college, univer5 sity, or interstate agency) for the purpose 

6 of monitoring the Chesapeake Bay, includ7 ing the tidal waters of the Chesapeake 

8 Bay. 

9 ‘‘(2) ADMINISTRATION.—In making implemen10 tation grants to each of the Chesapeake Bay States 

11 for a fiscal year under this subsection, the Adminis12 trator shall ensure that not less than— 

13 ‘‘(A) 10 percent of the funds available to 

14 make such grants are made to the States of 

15 Delaware, New York, and West Virginia; and 

16 ‘‘(B) 20 percent of the funds available to 

17 make such grants are made to States for the 

18 sole purpose of providing technical assistance to 

19 agricultural producers and foresters to access 

20 conservation programs and other resources de21 voted to improvements in water quality in the 

22 Chesapeake Bay and the tributaries of the 

23 Chesapeake Bay. 

24 ‘‘(3) PROPOSALS.— 

25 ‘‘(A) IMPLEMENTATION GRANTS.— 


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1 ‘‘(i) IN GENERAL.—A Chesapeake 

2 Bay State described in paragraph (1) may 

3 apply for a grant under this subsection for 

4 a fiscal year by submitting to the Adminis5 trator a comprehensive proposal to imple6 ment programs and achieve the goals es7 tablished under the Chesapeake Bay 

8 Agreement. 

9 ‘‘(ii) IMPLEMENTATION GRANT CON10 TENTS.—A proposal under clause (i) shall 

11 include— 

12 ‘‘(I) a description of proposed ac13 tions that the Chesapeake Bay State 

14 commits to take within a specified 

15 time period that are designed— 

16 ‘‘(aa) to achieve and main17 tain all applicable water quality 

18 standards, including standards 

19 necessary to support the aquatic 

20 living resources of the Chesa21 peake Bay and related tributaries 

22 and to protect human health; 

23 ‘‘(bb) to restore, enhance, 

24 and protect the finfish, shellfish, 

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1 sources, habitats of those species 

2 and resources, and ecological re3 lationships to sustain all fisheries 

4 and provide for a balanced eco5 system; 

6 ‘‘(cc) to preserve, protect, 

7 and restore those habitats and 

8 natural areas that are vital to the 

9 survival and diversity of the liv10 ing resources of the Chesapeake 

11 Bay and associated rivers; 

12 ‘‘(dd) to develop, promote, 

13 and achieve sound land use prac14 tices that protect and restore wa15 tershed resources and water qual16 ity, reduce or maintain reduced 

17 pollutant loadings for the Chesa18 peake Bay and related tribu19 taries, and restore and preserve 

20 aquatic living resources; 

21 ‘‘(ee) to promote individual 

22 stewardship and assist individ23 uals, community-based organiza24 tions, businesses, local govern25 ments, and schools to undertake 


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1 initiatives to achieve the goals 

2 and commitments of the Chesa3 peake Bay Agreement; or 

4 ‘‘(ff) to provide technical as5 sistance to agricultural pro6 ducers, foresters, and other eligi7 ble entities, through technical in8 frastructure, including activities, 

9 processes, tools, and agency func10 tions needed to support delivery 

11 of technical services, such as 

12 technical standards, resource in13 ventories, training, data, tech14 nology, monitoring, and effects 

15 analyses; 

16 ‘‘(II) a commitment to dedicate 

17 not less than 20 percent of the grant 

18 of the Chesapeake Bay under this 

19 subsection to support technical assist20 ance for agricultural and forestry land 

21 or nutrient management practices 

22 that protect and restore watershed re23 sources and water quality, reduce or 

24 maintain reduced pollutant loadings 

25 for the Chesapeake Bay and related 


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1 tributaries, and restore and preserve 

2 aquatic living resources; and 

3 ‘‘(III) the estimated cost of the 

4 actions proposed to be taken during 

5 the fiscal year. 

6 ‘‘(B) MONITORING GRANTS.— 

7 ‘‘(i) IN GENERAL.—A Chesapeake 

8 Bay State described in paragraph (1) may 

9 apply for a grant under this subsection for 

10 a fiscal year by submitting to the Adminis11 trator a comprehensive proposal to monitor 

12 freshwater or estuarine ecosystems, includ13 ing water quality. 

14 ‘‘(ii) MONITORING GRANT CON15 TENTS.—A proposal under this subpara16 graph shall include— 

17 ‘‘(I) a description of the proposed 

18 monitoring system; 

19 ‘‘(II) certification by the Chesa20 peake Bay Program Director that 

21 such a monitoring system includes 

22 such parameters as the Chesapeake 

23 Bay Program Director determines to 

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1 peake Clean Water and Ecosystem 

2 Restoration Act of 2009; and 

3 ‘‘(III) the estimated cost of the 

4 monitoring proposed to be conducted 

5 during the fiscal year. 

6 ‘‘(iii) CONCURRENCES.—The Adminis7 trator shall— 

8 ‘‘(I) obtain the concurrence of 

9 the Director of the United States Geo10 logical Survey regarding the design 

11 and implementation of the freshwater 

12 monitoring systems established under 

13 this subsection; and 

14 ‘‘(II) obtain the concurrence of 

15 the Director of the Chesapeake Bay 

16 Office of the National Oceanic and 

17 Atmospheric Administration regarding 

18 the design and implementation of the 

19 estuarine monitoring systems estab20 lished under this subsection. 

21 ‘‘(iv) CONSULTATION.—The Adminis22 trator shall— 

23 ‘‘(I) consult with the Interstate 

24 Commission on the Potomac River 

25 Basin, the Susquehanna River Basin 


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1 Commission, and the Chesapeake Bay 

2 States regarding the design and im3 plementation of the freshwater moni4 toring systems established under this 

5 subsection, giving particular attention 

6 to the measurement of the water qual7 ity effectiveness of agricultural con8 servation program implementation (in9 cluding geospatial agricultural con10 servation program data), including the 

11 Chesapeake Bay Watershed Initiative 

12 under section 1240Q of the Food Se13 curity Act of 1985 (16 U.S.C. 

14 3839bb–4); 

15 ‘‘(II) consult with Old Dominion 

16 University, the Virginia Institute of 

17 Marine Science, the University of 

18 Maryland Center for Environmental 

19 Science, and the Chesapeake Bay 

20 States regarding the estuarine moni21 toring systems established under this 

22 subsection; 

23 ‘‘(III) consult with the Chesa24 peake Bay Program Scientific and 

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1 ing independent review of monitoring 

2 designs giving particular attention to 

3 integrated freshwater and estuarine 

4 monitoring strategies; and 

5 ‘‘(IV) consult with Federal de6 partments and agencies regarding co7 operation in implementing monitoring 

8 programs. 

9 ‘‘(f) FEDERAL FACILITIES COORDINATION.— 

10 ‘‘(1) SUBWATERSHED PLANNING AND RESTORA11 TION.—A Federal agency that owns or operates a 

12 facility (as defined by the Administrator) within the 

13 Chesapeake Bay watershed shall participate in re14 gional and subwatershed planning and restoration 

15 programs. 

16 ‘‘(2) COMPLIANCE WITH AGREEMENTS AND

17 PLANS.—The head of each Federal agency that owns 

18 or occupies real property in the Chesapeake Bay wa19 tershed shall ensure that the property, and actions 

20 taken by the agency with respect to the property, 

21 comply with— 

22 ‘‘(A) the Chesapeake Bay Agreement; 

23 ‘‘(B) the Federal Agencies Chesapeake 

24 Ecosystem Unified Plan; 


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1 ‘‘(C) the Chesapeake Bay action plan de2 veloped in accordance with subparagraph 

3 (g)(1)(A); and 

4 ‘‘(D) any subsequent agreements and 

5 plans. 

6 ‘‘(g) FEDERAL ANNUAL ACTION PLAN AND

7 PROGRESS REPORT.—The Administrator, in accordance 

8 with Executive Order 13508 entitled ‘Chesapeake Bay 

9 Protection and Restoration’ and signed on May 12, 2009 

10 (74 Fed. Reg. 23099), shall— 

11 ‘‘(1) make available to the public, not later than 

12 March 31 of each year— 

13 ‘‘(A) a Chesapeake Bay action plan de14 scribing, in the greatest practicable degree of 

15 detail, how Federal funding proposed in the an16 nual budget of the United States submitted by 

17 the President to Congress will be used to pro18 tect and restore the Chesapeake Bay during the 

19 upcoming fiscal year; and 

20 ‘‘(B) an annual progress report that— 

21 ‘‘(i) assesses the key ecological at22 tributes that reflect the health of the 

23 Chesapeake Bay ecosystem; 

24 ‘‘(ii) reviews indicators of environ25 mental conditions in the Chesapeake Bay; 


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1 ‘‘(iii) distinguishes between the health 

2 of the Chesapeake Bay ecosystem and the 

3 results of management measures; 

4 ‘‘(iv) assesses implementation of the 

5 action plan during the preceding fiscal 

6 year; 

7 ‘‘(v) recommends steps to improve 

8 progress in restoring and protecting the 

9 Chesapeake Bay; and 

10 ‘‘(vi) describes how Federal funding 

11 and actions will be coordinated with the 

12 actions of States, basin commissions, and 

13 others; 

14 ‘‘(2) create and maintain, with the concurrence 

15 of the Secretary of Agriculture, a Chesapeake Bay16 wide database containing comprehensive data on im17 plementation of conservation management practices 

18 in the Chesapeake Bay watershed that— 

19 ‘‘(A) includes baseline conservation man20 agement practice implementation data as of the 

21 effective date of the Chesapeake Clean Water 

22 and Ecosystem Restoration Act of 2009; 

23 ‘‘(B) includes data on subsequent con24 servation management practice implementation 


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1 projects funded by or reported to the Agency or 

2 the Department; 

3 ‘‘(C) presents the required data in statis4 tical or aggregate form without identifying 

5 any— 

6 ‘‘(i) individual owner, operator, or 

7 producer; or 

8 ‘‘(ii) specific data gathering site; and 

9 ‘‘(D) is made available to the public not 

10 later than December 31, 2010. 

11 ‘‘(h) CHESAPEAKE BAY PROGRAM.— 

12 ‘‘(1) MANAGEMENT STRATEGIES.—The Admin13 istrator, in coordination with other members of the 

14 Chesapeake Executive Council, shall ensure that 

15 management plans are developed and implemented 

16 by Chesapeake Bay States to achieve and main17 tain— 

18 ‘‘(A) the nutrient goals of the Chesapeake 

19 Bay Agreement for the quantity of nitrogen and 

20 phosphorus entering the Chesapeake Bay and 

21 the watershed of the Chesapeake Bay; 

22 ‘‘(B) the water quality requirements nec23 essary to restore living resources in the Chesa24 peake Bay ecosystem; 


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1 ‘‘(C) the Chesapeake Bay Basinwide Tox2 ins Reduction and Prevention Strategy goal of 

3 reducing or eliminating the input of chemical 

4 contaminants from all controllable sources to 

5 levels that result in no toxic or bioaccumulative 

6 impact on the living resources of the Chesa7 peake Bay ecosystem or on human health; 

8 ‘‘(D) habitat restoration, protection, cre9 ation, and enhancement goals established by 

10 Chesapeake Bay Agreement signatories for wet11 land, riparian forests, and other types of habi12 tat associated with the Chesapeake Bay eco13 system; and 

14 ‘‘(E) the restoration, protection, creation, 

15 and enhancement goals established by the 

16 Chesapeake Bay Agreement signatories for liv17 ing resources associated with the Chesapeake 

18 Bay ecosystem. 

19 ‘‘(2) CHESAPEAKE BAY STEWARDSHIP GRANTS

20 PROGRAM.—The Administrator, in cooperation with 

21 the Chesapeake Executive Council, shall— 

22 ‘‘(A) establish a Chesapeake Bay Steward23 ship Grants Program; and 

24 ‘‘(B) in carrying out that program— 


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1 ‘‘(i) offer technical assistance and as2 sistance grants under subsection (d) to 

3 local governments, soil conservation dis4 tricts, academic institutions, and nonprofit 

5 organizations in the Chesapeake Bay re6 gion to implement— 

7 ‘‘(I) cooperative watershed strate8 gies that address the water quality, 

9 habitat, and living resource needs in 

10 the Chesapeake Bay ecosystem; 

11 ‘‘(II) locally based protection and 

12 restoration programs or projects with13 in a watershed that complement the 

14 State watershed implementation 

15 plans, including the creation, restora16 tion, or enhancement of habitat asso17 ciated with the Chesapeake Bay eco18 system; and 

19 ‘‘(III) innovative nitrogen, phos20 phorus, or sediment reduction efforts; 

21 and 

22 ‘‘(ii) give preference to cooperative 

23 projects that involve local governments. 

24 ‘‘(i) TOTAL MAXIMUM DAILY LOAD.— 

25 ‘‘(1) TMDL.— 


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1 ‘‘(A) ESTABLISHMENT.—Not later than 

2 December 31, 2010, the Administrator shall es3 tablish a Chesapeake Bay-wide TMDL. 

4 ‘‘(B) REQUIREMENTS.—The Administrator 

5 shall not establish or approve a TMDL de6 scribed in subparagraph (A) unless the TMDL 

7 includes— 

8 ‘‘(i) wasteload allocations for nitrogen, 

9 phosphorus, and sediment necessary to im10 plement the applicable water quality stand11 ards in the Chesapeake Bay watershed and 

12 achieve those standards in the Chesapeake 

13 Bay and the tidal tributaries of the Chesa14 peake Bay; 

15 ‘‘(ii) enforceable or otherwise binding 

16 load allocations for all nonpoint sources, 

17 including atmospheric deposition, agricul18 tural runoff, and stormwater sources for 

19 which a permit under section 402 is not 

20 required; 

21 ‘‘(iii) a margin of safety so as to en22 sure that the TMDL does not exceed any 

23 applicable water quality standard; and 

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1 ment loads above the pollution limitations 

2 necessary to meet water quality standards 

3 for the Chesapeake Bay, including no net 

4 projected increased pollutant loads from— 

5 ‘‘(I) new or increased impervious 

6 surfaces; 

7 ‘‘(II) concentrated animal feeding 

8 operations; 

9 ‘‘(III) transportation systems; 

10 and 

11 ‘‘(IV) septic systems. 

12 ‘‘(2) PERMITS.— 

13 ‘‘(A) IN GENERAL.—Effective beginning on 

14 January 1, 2011, a new or reissued permit 

15 issued by the Administrator under section 

16 402(a) or a State authorized to administer a 

17 permit program under section 402(b) shall in18 clude limits consistent with all applicable 

19 wasteload allocations in the Chesapeake Bay 

20 TMDL. 

21 ‘‘(B) PERMITS.— 

22 ‘‘(i) IN GENERAL.—Effective begin23 ning on January 1, 2011, each Chesapeake 

24 Bay State shall submit to the Adminis25 trator copies of any permit for discharges 


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1 of nitrogen, phosphorus, or sediment into 

2 the Chesapeake Bay watershed that is al3 lowed to continue beyond 5 years pursuant 

4 to a State law analogous to section 558(c) 

5 of title 5, United States Code, not later 

6 than 60 days after the expiration date of 

7 the permit. 

8 ‘‘(ii) REVIEW.—The Administrator 

9 shall have the opportunity to review and 

10 object to the continuance of the permit in 

11 accordance with the process described in 

12 section 402(d) for permits proposed to be 

13 issued by a State. 

14 ‘‘(j) ACTIONS BY STATES.— 

15 ‘‘(1) WATERSHED IMPLEMENTATION PLANS.— 

16 ‘‘(A) PLANS.— 

17 ‘‘(i) IN GENERAL.—Not later than 

18 May 12, 2011, each Chesapeake Bay State 

19 shall, after providing for reasonable notice 

20 and 1 or more public hearings, adopt and 

21 submit to the Administrator for approval a 

22 watershed implementation plan for the por23 tion of each of the 92 tidal water segments 

24 that is subject to the jurisdiction of the 


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1 Chesapeake Bay State that together com2 prise the Chesapeake Bay. 

3 ‘‘(ii) TARGETS.—The watershed im4 plementation plan shall establish reduction 

5 targets, key actions, and schedules for re6 ducing, to levels that will attain water 

7 quality standards, the loads, of nitrogen, 

8 phosphorus, and sediment, including pollu9 tion from— 

10 ‘‘(I) agricultural runoff; 

11 ‘‘(II) point sources, including 

12 point source stormwater discharges; 

13 ‘‘(III) nonpoint source 

14 stormwater runoff; and 

15 ‘‘(IV) septic systems and other 

16 onsite sewage disposal systems. 

17 ‘‘(iii) POLLUTION LIMITATIONS.— 

18 ‘‘(I) IN GENERAL.—The tribu19 tary pollution limitations shall be the 

20 nitrogen, phosphorous, and sediment 

21 cap loads identified in the tributary 

22 cap load agreement numbered EPA 

23 903–R–03–007, date December 2003, 

24 and entitled ‘Setting and Allocating 

25 the Chesapeake Bay Basin Nutrient 


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1 and Sediment Loads: The Collabo2 rative Process, Technical Tools and 

3 Innovative Approaches,’ or a Chesa4 peake Bay TMDL established by the 

5 Administrator. 

6 ‘‘(II) STRINGENCY.—A water7 shed implementation plan shall be de8 signed to attain, at a minimum, the 

9 pollution limitations described in sub10 clause (I). 

11 ‘‘(iv) PLAN REQUIREMENTS.—Each 

12 watershed implementation plan shall— 

13 ‘‘(I) include State-adopted man14 agement measures, including rules or 

15 regulations, permits, consent decrees, 

16 and other enforceable or otherwise 

17 binding measures, to require and 

18 achieve reductions from pollution 

19 sources; 

20 ‘‘(II) include programs to achieve 

21 voluntary reductions from pollution 

22 sources, including funding commit23 ments necessary to implement those 

24 programs; 


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1 ‘‘(III) include any additional re2 quirements or actions that the Chesa3 peake Bay State determines to be nec4 essary to attain the pollution limita5 tions by the deadline established in 

6 this paragraph; 

7 ‘‘(IV) provide for enforcement 

8 mechanisms, including a penalty 

9 structure for failures, such as fees or 

10 forfeiture of State funds, including 

11 Federal funds distributed or otherwise 

12 awarded by the State to the extent 

13 the State is authorized to exercise 

14 independent discretion in amounts of 

15 such distributions or awards, for use 

16 in case a permittee, local jurisdictions, 

17 or any other party fails to adhere to 

18 assigned pollutant limitations, imple19 mentation schedules, or permit terms; 

20 ‘‘(V) include a schedule for im21 plementation divided into 2-year peri22 ods, along with computer modeling to 

23 demonstrate the projected reductions 

24 in nitrogen, phosphorus, and sediment 


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1 loads associated with each 2-year pe2 riod; 

3 ‘‘(VI) include the stipulation of 

4 alternate actions as contingencies; 

5 ‘‘(VII) account for how the 

6 Chesapeake Bay State will address 

7 additional loadings from growth 

8 through offsets or other actions; and 

9 ‘‘(VIII) provide assurances 

10 that— 

11 ‘‘(aa) if compared to an esti12 mated 2008 baseline based on 

13 modeled loads, the initial plan 

14 shall be designed to achieve, not 

15 later than May 31, 2017, at least 

16 60 percent of the nutrient and 

17 sediment limitations described in 

18 clause (iii)(I); 

19 ‘‘(bb) the management 

20 measures required to achieve a 

21 50-percent reduction of nutrient 

22 and sediment limitations shall be 

23 in effect upon submission of the 

24 plan; 


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1 ‘‘(cc) the Chesapeake Bay 

2 State will have adequate per3 sonnel, funding, and authority 

4 under State (and, as appropriate, 

5 local) law to carry out the imple6 mentation plan, and is not pro7 hibited by any provision of Fed8 eral or State law from carrying 

9 out the implementation plan; and 

10 ‘‘(dd) in a case in which a 

11 Chesapeake Bay State has relied 

12 on a local government for the im13 plementation of any plan provi14 sion, the Chesapeake Bay State 

15 has the responsibility for ensur16 ing adequate implementation of 

17 the provision. 

18 ‘‘(B) IMPLEMENTATION.— 

19 ‘‘(i) IN GENERAL.—In implementing a 

20 watershed implementation plan, each 

21 Chesapeake Bay State shall follow a strat22 egy developed by the Administrator for the 

23 implementation of adaptive management 

24 principles to ensure full implementation of 


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1 all plan elements by not later than May 

2 12, 2025, including— 

3 ‘‘(I) biennial evaluations of State 

4 actions; 

5 ‘‘(II) progress made toward im6 plementation; 

7 ‘‘(III) determinations of nec8 essary modifications to future actions 

9 in order to achieve objectives; and 

10 ‘‘(IV) appropriate provisions to 

11 adapt to climate changes. 

12 ‘‘(ii) DEADLINE.—Not later than May 

13 12, 2025, each Chesapeake Bay State 

14 shall— 

15 ‘‘(I) fully implement the water16 shed implementation plan of the 

17 State; and 

18 ‘‘(II) have in place all the mecha19 nisms outlined in the plan that are 

20 necessary to attain the applicable pol21 lutant limitations for nitrogen, phos22 phorus, and sediments. 

23 ‘‘(C) PROGRESS REPORTS.—Not later than 

24 May 12, 2014, and biennially thereafter, each 

25 Chesapeake Bay State shall submit to the AdVerDate Nov 24 2008 00:08 Oct 22, 2009 Jkt 089200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\S1816.IS S1816

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1 ministrator a progress report that, with respect 

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

3 ‘‘(i) includes a listing of all manage4 ment measures that were to be imple5 mented in accordance with the approved 

6 watershed implementation plan of the 

7 Chesapeake Bay State, including a descrip8 tion of the extent to which those measures 

9 have been fully implemented; 

10 ‘‘(ii) includes a listing of all the man11 agement measures described in clause (i) 

12 that the Chesapeake Bay State has failed 

13 to fully implement in accordance with the 

14 approved watershed implementation plan 

15 of the Chesapeake Bay State; 

16 ‘‘(iii) includes monitored and collected 

17 water quality data; 

18 ‘‘(iv) includes Chesapeake Bay Pro19 gram computer modeling data that detail 

20 the nitrogen, phosphorus, and sediment 

21 load reductions projected to be achieved as 

22 a result of the implementation of the man23 agement measures and mechanisms carried 

24 out by the Chesapeake Bay State; 


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1 ‘‘(v) includes, for the subsequent 2- 

2 year period, implementation goals and 

3 Chesapeake Bay Program computer mod4 eling data detailing the projected pollution 

5 reductions to be achieved if the Chesa6 peake Bay State fully implements the sub7 sequent round of management measures; 

8 ‘‘(vi) identifies compliance informa9 tion, including violations, actions taken by 

10 the Chesapeake Bay State to address the 

11 violations, and dates, if any, on which com12 pliance was achieved; and 

13 ‘‘(vii) specifies any revisions to the 

14 watershed implementation plan submitted 

15 under this paragraph that the Chesapeake 

16 Bay State determines are necessary to at17 tain the applicable pollutant limitations for 

18 nitrogen, phosphorus, and sediments. 

19 ‘‘(2) ISSUANCE OF PERMITS.— 

20 ‘‘(A) IN GENERAL.—Notwithstanding any 

21 other provision of this Act (including any exclu22 sion or exception contained in a definition 

23 under section 502), for the purpose of achieving 

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1 tion plan, a Chesapeake Bay State may issue a 

2 permit in accordance with section 402 for any 

3 pollution source the Chesapeake Bay State de4 termines to be necessary. 

5 ‘‘(B) ENFORCEMENT.—The Administrator 

6 shall enforce any permits issued in accordance 

7 with the watershed implementation plan in the 

8 same manner as other permits issued under 

9 section 402 are enforced. 

10 ‘‘(3) STORMWATER PERMITS.— 

11 ‘‘(A) IN GENERAL.—Effective beginning 

12 January 1, 2013, the Chesapeake Bay State 

13 shall provide assurances to the Administrator 

14 that— 

15 ‘‘(i) the owner or operator of any de16 velopment or redevelopment project pos17 sessing an impervious footprint that ex18 ceeds a threshold to be determined by the 

19 Administrator through rulemaking, will use 

20 site planning, design, construction, and 

21 maintenance strategies for the property to 

22 maintain or restore, to the maximum ex23 tent technically feasible, the 

24 predevelopment hydrology of the property 


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1 with regard to the temperature, rate, vol2 ume, and duration of flow; and 

3 ‘‘(ii) as a further condition of permit4 ting such a development or redevelopment, 

5 the owner or operator of any development 

6 or redevelopment project possessing an im7 pervious footprint that exceeds a threshold 

8 to be determined by the Administrator 

9 through rulemaking will compensate for 

10 any unavoidable impacts to the 

11 predevelopment hydrology of the property 

12 with regard to the temperature, rate, vol13 ume, and duration of flow, such that— 

14 ‘‘(I) the compensation within the 

15 jurisdictional boundaries of the local 

16 government shall provide in-kind miti17 gation of function at a ratio to be de18 termined by the Administrator 

19 through rulemaking; and 

20 ‘‘(II) the compensation outside 

21 the jurisdictional boundaries of the 

22 local government shall provide in-kind 

23 mitigation, at a ratio to be determined 

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1 making, within the tributary water2 shed in which the project is located. 

3 ‘‘(B) ADMINISTRATION.—Not later than 

4 December 31, 2012, the Administrator shall 

5 promulgate regulations that— 

6 ‘‘(i) define the term ‘predevelopment 

7 hydrology’ in subparagraph (A); 

8 ‘‘(ii) establish the thresholds under 

9 subparagraph (A); and 

10 ‘‘(iii) establish the compensation ra11 tios under subparagraph (A)(ii). 

12 ‘‘(4) PHOSPHATE BAN.— 

13 ‘‘(A) PHOSPHORUS IN CLEANING

14 AGENTS.—Each Chesapeake Bay State shall 

15 provide to the Administrator, not later than 3 

16 years after the date of enactment of the Chesa17 peake Clean Water and Ecosystem Restoration 

18 Act of 2009, assurances that within the juris19 diction, except as provided in subparagraph 

20 (B), a person may not use, sell, manufacture, 

21 or distribute for use or sale any cleaning agent 

22 that contains more than 0.0 percent phosphorus 

23 by weight, expressed as elemental phosphorus, 

24 except for a quantity not exceeding 0.5 percent 


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1 phosphorus that is incidental to the manufac2 ture of the cleaning agent. 

3 ‘‘(B) PROHIBITED QUANTITIES OF PHOS4 PHORUS.—Each Chesapeake Bay State shall 

5 provide to the Administrator, not later than 3 

6 years after the date of enactment of the Chesa7 peake Clean Water and Ecosystem Restoration 

8 Act of 2009, assurances that, within the juris9 diction, a person may use, sell, manufacture, or 

10 distribute for use or sale a cleaning agent that 

11 contains greater than 0.0 percent phosphorus 

12 by weight, but does not exceed 8.7 percent 

13 phosphorus by weight, if the cleaning agent is 

14 a substance that the Administrator, by regula15 tion, excludes from the limitation under sub16 paragraph (A), based on a finding that compli17 ance with that subparagraph would— 

18 ‘‘(i) create a significant hardship on 

19 the users of the cleaning agent; or 

20 ‘‘(ii) be unreasonable because of the 

21 lack of an adequate substitute cleaning 

22 agent. 

23 ‘‘(k) ACTION BY ADMINISTRATOR.— 

24 ‘‘(1) IN GENERAL.—Not later than 60 days 

25 after the date of enactment of the Chesapeake Clean 


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1 Water and Ecosystem Restoration Act of 2009, the 

2 Administrator shall establish minimum criteria that 

3 any proposed watershed implementation plan must 

4 meet before the Administrator may approve such a 

5 plan. 

6 ‘‘(2) COMPLETENESS FINDING.— 

7 ‘‘(A) IN GENERAL.—Not later than 60 

8 days after the date on which the Administrator 

9 receives a new or revised proposed watershed 

10 implementation plan from a Chesapeake Bay 

11 State, the Administrator shall determine wheth12 er the minimum criteria for the plan established 

13 under paragraph (1) have been met. 

14 ‘‘(B) EFFECT OF FINDING OF INCOM15 PLETENESS.—If the Administrator determines 

16 under subparagraph (A) that all or any portion 

17 of a submitted watershed implementation plan 

18 does not meet the minimum criteria established 

19 under paragraph (1), the Chesapeake Bay State 

20 submitting the plan shall be treated as not hav21 ing made the submission. 

22 ‘‘(3) APPROVAL AND DISAPPROVAL.— 

23 ‘‘(A) DEADLINE.—Not later than 90 days 

24 after determining that a watershed implementa25 tion plan meets minimum criteria in accordance 


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1 with paragraph (2)(A), the Administrator shall 

2 approve or disapprove the plan. 

3 ‘‘(B) FULL AND PARTIAL APPROVAL AND

4 DISAPPROVAL.—In carrying out this paragraph, 

5 the Administrator— 

6 ‘‘(i) shall approve a watershed imple7 mentation plan if the plan meets all appli8 cable requirements under this section; and 

9 ‘‘(ii) may approve the plan in part 

10 and disapprove the plan in part if only a 

11 portion of the plan meets those require12 ments. 

13 ‘‘(C) CONDITIONAL APPROVAL.—The Ad14 ministrator— 

15 ‘‘(i) may conditionally approve a re16 vised watershed implementation plan based 

17 on a commitment of the Chesapeake Bay 

18 State submitting the plan to adopt specific 

19 enforceable management measures by not 

20 later than 1 year after the date of approval 

21 of the plan revision; but 

22 ‘‘(ii) shall treat a conditional approval 

23 as a disapproval under this paragraph if 

24 the Chesapeake Bay State fails to comply 


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1 with the commitment of the Chesapeake 

2 Bay State. 

3 ‘‘(D) FULL APPROVAL REQUIRED.—A new 

4 or revised watershed implementation plan shall 

5 not be treated as meeting the requirements of 

6 this section until the Administrator approves 

7 the entire new or revised plan. 

8 ‘‘(E) CORRECTIONS.—In any case in which 

9 the Administrator determines that the action of 

10 the Administrator approving, disapproving, con11 ditionally approving, or promulgating any new 

12 or revised watershed implementation plan was 

13 in error, the Administrator— 

14 ‘‘(i) may, in the same manner as the 

15 approval, disapproval, conditional approval, 

16 or promulgation, revise the action of the 

17 Administrator, as appropriate, without re18 quiring any further submission from the 

19 Chesapeake Bay State; and 

20 ‘‘(ii) shall make the determination of 

21 the Administrator, and the basis for that 

22 determination, available to the public. 

23 ‘‘(F) EFFECTIVE DATE.—The provisions of 

24 a State watershed implementation plan shall 


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•S 1816 IS

1 take effect upon the date of approval of the 

2 plan. 

3 ‘‘(4) CALLS FOR PLAN REVISION.—In any case 

4 in which the Administrator determines that water5 shed implementation plan for any area is inadequate 

6 to attain or maintain applicable pollution limitations, 

7 the Administrator— 

8 ‘‘(A) shall notify the Chesapeake Bay 

9 State of, and require the Chesapeake Bay State 

10 to revise the plan to correct, the inadequacies; 

11 ‘‘(B) may establish reasonable deadlines 

12 (not to exceed 180 days after the date on which 

13 the Administrator provides the notification) for 

14 the submission of a revised watershed imple15 mentation plan; 

16 ‘‘(C) make the findings of the Adminis17 trator under paragraph (3) and notice provided 

18 under subparagraph (A) public; and 

19 ‘‘(D) require the Chesapeake Bay State to 

20 comply with the requirements applicable under 

21 the initial watershed implementation plan, ex22 cept that the Administrator may adjust any 

23 dates (other than attainment dates) applicable 

24 under those requirements, as appropriate. 


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1 ‘‘(5) FEDERAL IMPLEMENTATION.—If a Chesa2 peake Bay State fails to submit a watershed imple3 mentation plan, to submit a biennial report, or to 

4 correct a previously missed 2-year commitment made 

5 in a watershed implementation plan, the Adminis6 trator shall, after issuing a notice to the State and 

7 providing a 90-day period in which the failure may 

8 be corrected— 

9 ‘‘(A) withhold all funds otherwise available 

10 to the Chesapeake Bay State under this Act; 

11 ‘‘(B) develop and administer a watershed 

12 implementation plan for that Chesapeake Bay 

13 State until such time as the Chesapeake Bay 

14 State has remedied the plan, reports, or 

15 achievements to the satisfaction of the Adminis16 trator; 

17 ‘‘(C) require that all permits issued under 

18 section 402 for new or expanding discharges of 

19 nitrogen, phosphorus, or sediments acquire off20 sets that exceed by 100 percent an amount that 

21 would otherwise be required, taking into ac22 count attenuation, equivalency, and uncertainty; 

23 and 


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1 ‘‘(D) for the purposes of developing and 

2 implementing a watershed implementation plan 

3 under subparagraph (B)— 

4 ‘‘(i) notwithstanding any other provi5 sion of this Act (including any exclusion or 

6 exception contained in a definition under 

7 section 502), promulgate such regulations 

8 or issue such permits as the Administrator 

9 determines to be necessary to control pollu10 tion sufficient to meet the water quality 

11 goals defined in the watershed implementa12 tion plan; and 

13 ‘‘(ii) enforce any permits issued in ac14 cordance with the watershed implementa15 tion plan in the same manner as other per16 mits issued under section 402 are en17 forced. 

18 ‘‘(6) NITROGEN AND PHOSPHORUS TRADING

19 PROGRAM.— 

20 ‘‘(A) ESTABLISHMENT.—Not later than 

21 May 12, 2012, the Administrator, in coopera22 tion with each Chesapeake Bay State, shall es23 tablish an interstate nitrogen and phosphorus 

24 trading program for the Chesapeake Bay for 

25 the generation, trading, and use of nitrogen and 


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1 phosphorus credits to facilitate the attainment 

2 and maintenance of the Chesapeake Bay-wide 

3 TMDL for nitrogen and phosphorus. 

4 ‘‘(B) TRADING SYSTEM.—The trading pro5 gram established under this subsection shall, at 

6 a minimum— 

7 ‘‘(i) define and standardize nitrogen 

8 and phosphorus credits and establish pro9 cedures or standards for ensuring equiva10 lent water quality benefits for all credits; 

11 ‘‘(ii) establish procedures or standards 

12 for certifying and verifying nitrogen and 

13 phosphorus credits to ensure that credit14 generating practices from both point 

15 sources and nonpoint sources are achieving 

16 actual reductions in nitrogen and phos17 phorus; 

18 ‘‘(iii) establish procedures or stand19 ards for generating, quantifying, trading, 

20 and applying credits to meet regulatory re21 quirements and allow for trading to occur 

22 between and across point source or 

23 nonpoint sources; 


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1 ‘‘(iv) establish baseline requirements 

2 that a credit seller must meet before be3 coming eligible to generate saleable credits; 

4 ‘‘(v) establish points-of-regulation at 

5 the sub-State level to facilitate trading and 

6 promote water quality goals under which— 

7 ‘‘(I) States may designate point 

8 sources as points-of-regulation; 

9 ‘‘(II) States may aggregate mul10 tiple sources to serve as points-of-reg11 ulation; and 

12 ‘‘(III) the Administrator shall es13 tablish guidelines or standards to en14 sure that points-of-regulation shall be 

15 generally consistent across States; 

16 ‘‘(vi) ensure that credits are used in 

17 accordance with permit requirements under 

18 the national pollutant discharge elimi19 nation system established under section 

20 402 and trade requirements have been ade21 quately incorporated into the permits; 

22 ‘‘(vii) ensure that private contracts 

23 between credit buyers and credit sellers 

24 contain adequate provisions to ensure en25 forceability under applicable law; 


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1 ‘‘(viii) establish procedures or stand2 ards for providing public transparency on 

3 nutrient trading activity; 

4 ‘‘(ix) ensure that, if the local receiving 

5 water is impaired for the nutrient being 

6 traded but a TMDL has not yet been im7 plemented for the impairment— 

8 ‘‘(I) trades are required to result 

9 in progress toward or the attainment 

10 of water quality standards in the local 

11 receiving water; and 

12 ‘‘(II) sources in the watershed 

13 may not rely on credits produced out14 side of the watershed; 

15 ‘‘(x) require that the application of 

16 credits to meet regulatory requirements 

17 under this section not cause or contribute 

18 to exceedances of water quality standards, 

19 total maximum daily loads, or wasteload or 

20 load allocations for affected receiving wa21 ters, including avoidance of localized im22 pacts; 

23 ‘‘(xi) except as part of a consent 

24 agreement, prohibit the purchase of credits 

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1 compliance with an enforceable permit 

2 issued under section 402; 

3 ‘‘(xii) consider and incorporate, to the 

4 maximum extent practicable, elements of 

5 State trading programs in existence as of 

6 the date of enactment of the Chesapeake 

7 Clean Water and Ecosystem Restoration 

8 Act of 2009; and 

9 ‘‘(xiii) allow for, as appropriate, the 

10 aggregation and banking of credits by 

11 third parties. 

12 ‘‘(C) FACILITATION OF TRADING.—In 

13 order to attract market participants and facili14 tate the cost-effective achievement of water15 quality goals, the Administrator shall ensure 

16 that the trading program established under this 

17 paragraph— 

18 ‘‘(i) includes measures to mitigate 

19 credit buyer risk; 

20 ‘‘(ii) makes use of the best available 

21 science in order to minimize uncertainty 

22 and related transaction costs to traders, 

23 including the Administrator, in consulta24 tion with the Secretary of Agriculture, sup25 porting research and other activities that 


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1 increase the scientific understanding of 

2 nonpoint nutrient pollutant loading and 

3 the ability of various structural and non4 structural alternatives to reduce the loads; 

5 ‘‘(iii) eliminates unnecessary or dupli6 cative administrative processes; and 

7 ‘‘(iv) incorporates a permitting ap8 proach under the national pollutant dis9 charge elimination system established 

10 under section 402 that allows trading to 

11 occur without requiring the reopening or 

12 reissuance of permits to incorporate indi13 vidual trades. 

14 ‘‘(7) AUTHORITY RELATING TO DEVELOP15 MENT.—The Administrator shall— 

16 ‘‘(A) establish, for projects resulting in im17 pervious development, guidance relating to site 

18 planning, design, construction, and maintenance 

19 strategies to ensure that the land maintains 

20 predevelopment hydrology with regard to the 

21 temperature, rate, volume, and duration of flow; 

22 ‘‘(B) establish model ordinances and guide23 lines with respect to the construction of low-im24 pact development infrastructure and non25 structural low-impact development techniques 


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1 for use by States, local governments, and pri2 vate entities; and 

3 ‘‘(C) not later than 180 days after promul4 gation of the regulations under subsection 

5 (j)(3)(B), issue such guidance, model ordi6 nances, and guidelines as are necessary to carry 

7 out this paragraph. 

8 ‘‘(8) ASSISTANCE WITH RESPECT TO

9 STORMWATER DISCHARGES.— 

10 ‘‘(A) GRANT PROGRAM.—The Adminis11 trator may provide grants to any local govern12 ment within the Chesapeake Bay watershed 

13 that adopts the guidance, ordinances, and 

14 guidelines issued under paragraph (7). 

15 ‘‘(B) USE OF FUNDS.—A grant provided 

16 under subparagraph (A) may be used by a local 

17 government to pay costs associated with— 

18 ‘‘(i) developing, implementing, and en19 forcing the guidance, ordinances, and 

20 guidelines issued under paragraph (7); and 

21 ‘‘(ii) implementing projects designed 

22 to reduce stormwater discharges. 

23 ‘‘(9) CONSUMER AND COMMERCIAL PRODUCT

24 REPORT.—Not later than 3 years after the date of 

25 enactment of the Chesapeake Clean Water and EcoVerDate Nov 24 2008 00:08 Oct 22, 2009 Jkt 089200 PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 E:\BILLS\S1816.IS S1816

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1 system Restoration Act of 2009, the Administrator, 

2 in consultation with the Chesapeake Executive Coun3 cil, shall— 

4 ‘‘(A) review consumer and commercial 

5 products, the use of which may affect the water 

6 quality of the Chesapeake Bay watershed or as7 sociated tributaries, to determine whether fur8 ther product nutrient content restrictions are 

9 necessary to restore or maintain water quality 

10 in the Chesapeake Bay watershed and those 

11 tributaries; and 

12 ‘‘(B) submit to the Committees on Appro13 priations, Environment and Public Works, and 

14 Commerce, Science, and Transportation of the 

15 Senate and the Committees on Appropriations, 

16 Natural Resources, Energy and Commerce, and 

17 Transportation and Infrastructure of the House 

18 of Representatives a product nutrient report de19 tailing the findings of the review under sub20 paragraph (A). 

21 ‘‘(l) PROHIBITION ON INTRODUCTION OF ASIAN OYS22 TERS.—Not later than 2 years after the date of enactment 

23 of the Chesapeake Clean Water and Ecosystem Restora24 tion Act of 2009, the Administrator shall promulgate reg25 ulations— 


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1 ‘‘(1) to designate the Asian oyster as a ‘biologi2 cal pollutant’ in the Chesapeake Bay and tidal wa3 ters pursuant to section 502; 

4 ‘‘(2) to prohibit the issuance of permits under 

5 sections 402 and 404 for the discharge of the Asian 

6 oyster into the Chesapeake Bay and tidal waters; 

7 and 

8 ‘‘(3) to specify conditions under which scientific 

9 research on Asian oysters may be conducted within 

10 the Chesapeake Bay and tidal waters. 

11 ‘‘(m) CHESAPEAKE NUTRIA ERADICATION PRO12 GRAM.— 

13 ‘‘(1) GRANT AUTHORITY.—Subject to the avail14 ability of appropriations, the Secretary of the Inte15 rior (referred to in this subsection as the ‘Sec16 retary’), may provide financial assistance to the 

17 States of Delaware, Maryland, and Virginia to carry 

18 out a program to implement measures— 

19 ‘‘(A) to eradicate or control nutria; and 

20 ‘‘(B) to restore marshland damaged by nu21 tria. 

22 ‘‘(2) GOALS.—The continuing goals of the pro23 gram shall be— 

24 ‘‘(A) to eradicate nutria in the Chesapeake 

25 Bay ecosystem; and 


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1 ‘‘(B) to restore marshland damaged by nu2 tria. 

3 ‘‘(3) ACTIVITIES.—In the States of Delaware, 

4 Maryland, and Virginia, the Secretary shall require 

5 that the program under this subsection consist of 

6 management, research, and public education activi7 ties carried out in accordance with the document 

8 published by the United States Fish and Wildlife 

9 Service entitled ‘Eradication Strategies for Nutria in 

10 the Chesapeake and Delaware Bay Watersheds’, 

11 dated March 2002, or any updates to the document. 

12 ‘‘(n) STUDY ON THE IMPACTS OF THE COMMERCIAL

13 HARVESTING OF MENHADEN ON THE WATER QUALITY

14 OF THE CHESAPEAKE BAY.— 

15 ‘‘(1) DEFINITIONS.—In this subsection: 

16 ‘‘(A) FISHERIES COMMISSION.—The term 

17 ‘Fisheries Commission’ means the Atlantic 

18 States Marine Fisheries Commission established 

19 under the interstate compact consented to and 

20 approved by pursuant to the Act of May 4, 

21 1942 (56 Stat. 267, chapter 283) and the Act 

22 of May 19, 1949 (63 Stat. 70, chapter 238). 

23 ‘‘(B) FISHING.—Except as otherwise pro24 vided, the term ‘fishing’— 

25 ‘‘(i) means— 


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1 ‘‘(I) the commercial catching, 

2 taking, or harvesting of menhaden, 

3 except when incidental to harvesting 

4 that occurs in the course of commer5 cial or recreational fish-catching ac6 tivities directed at a species other 

7 than menhaden; 

8 ‘‘(II) the attempted commercial 

9 catching, taking, or harvesting of 

10 menhaden; or 

11 ‘‘(III) any operation at sea in 

12 support of, or in preparation for, any 

13 activity described in subclause (I) or 

14 (II); and 

15 ‘‘(ii) does not include any scientific re16 search authorized by the Federal Govern17 ment or by any State government. 

18 ‘‘(2) STUDY.—Not later than 5 years after the 

19 date of enactment of the Chesapeake Clean Water 

20 and Ecosystem Restoration Act of 2009, building on 

21 the research underway or conducted under the over22 sight of the National Oceanic and Atmospheric Ad23 ministration, the Administrator, in cooperation and 

24 consultation with the Administrator of the National 

25 Oceanic and Atmospheric Administration and the 


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1 Fisheries Commission, shall conduct and submit to 

2 Congress a study for the purposes of determining— 

3 ‘‘(A) progress toward understanding the 

4 structure of the menhaden population of the At5 lantic Coast of the United States and of the 

6 Chesapeake Bay; 

7 ‘‘(B) the role of the population as filter 

8 feeders, including the role of the population 

9 with respect to impacting water clarity, dis10 solved oxygen levels, and other ecosystem func11 tions; 

12 ‘‘(C) the role of the population as prey spe13 cies for predatory fish in the Chesapeake Bay 

14 and in coastal ecosystems; 

15 ‘‘(D) the impact on the Atlantic coastal 

16 and Chesapeake Bay ecosystems of fishing for 

17 menhaden; 

18 ‘‘(E) the impact on attainment of the 

19 water quality goals of this Act of commercial 

20 fishing for menhaden; and 

21 ‘‘(F) the recommendations of the Adminis22 trator, if any, for future sustainable manage23 ment of such fishing and additional research 

24 needed to fully address the progress, roles, and 

25 impacts described in this paragraph. 


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1 ‘‘(o) EFFECT ON OTHER REQUIREMENTS.— 

2 ‘‘(1) IN GENERAL.—Nothing in this section re3 moves or otherwise affects any other obligation for 

4 a point source to comply with other applicable re5 quirements under this Act. 

6 ‘‘(2) VIOLATIONS BY STATES.—The failure of a 

7 State to submit a watershed implementation plan or 

8 biennial report, or to correct a previously missed 2- 

9 year commitment made in a watershed implementa10 tion plan, by the applicable deadline established 

11 under this section shall— 

12 ‘‘(A) constitute a violation of this Act; and 

13 ‘‘(B) subject the State to— 

14 ‘‘(i) enforcement action by the Admin15 istrator; and 

16 ‘‘(ii) civil actions commenced pursuant 

17 to section 505. 

18 ‘‘(3) FAILURE OF ADMINISTRATOR TO ACT.— 

19 The failure of the Administrator to act under this 

20 section shall subject the Administrator to civil ac21 tions commenced pursuant to section 505. 

22 ‘‘(p) EVALUATION BY THE INSPECTOR GENERAL.— 

23 The Inspector General of the Environmental Protection 

24 Agency shall evaluate the implementation of this section 

25 on a periodic basis of not less than once every 3 years. 


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1 ‘‘(q) AUTHORIZATION OF APPROPRIATIONS.— 

2 ‘‘(1) IMPLEMENTATION AND MONITORING

3 GRANTS.— 

4 ‘‘(A) AUTHORIZATION OF APPROPRIA5 TIONS.—In addition to amounts authorized to 

6 be appropriated or otherwise made available to 

7 carry out this section, there are authorized to 

8 be appropriated to the Administrator— 

9 ‘‘(i) to provide implementation grants 

10 under subsection (e)(3)(A), $80,000,000 

11 for each of fiscal years 2010 through 

12 2015, to remain available until expended; 

13 ‘‘(ii) to carry out a freshwater moni14 toring program under subsection (e)(3)(B), 

15 $5,000,000 for each of fiscal years 2010 

16 through 2015; and 

17 ‘‘(iii) to carry out a Chesapeake Bay 

18 and tidal water monitoring program under 

19 subsection (e)(3)(B), $5,000,000 for each 

20 of fiscal years 2010 through 2015. 

21 ‘‘(B) COST-SHARING.—The Federal share 

22 of the cost of a program carried out using 

23 funds from a grant provided— 

24 ‘‘(i) under subparagraph (A)(i) shall 

25 not exceed 50 percent; and 


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1 ‘‘(ii) under clause (ii) or (iii) of sub2 paragraph (A) shall not exceed 80 percent. 

3 ‘‘(2) CHESAPEAKE STEWARDSHIP GRANTS.— 

4 There is authorized to be appropriated to carry out 

5 subsection (h)(2) $15,000,000 for each of fiscal 

6 years 2010 through 2014. 

7 ‘‘(3) STORM WATER POLLUTION PLANNING AND

8 IMPLEMENTATION GRANTS.— 

9 ‘‘(A) AUTHORIZATION OF APPROPRIA10 TIONS.—In addition to amounts authorized or 

11 otherwise made available to carry out this sec12 tion, there are authorized to be appropriated to 

13 the Administrator— 

14 ‘‘(i) to carry out subsection 

15 (k)(8)(B)(i), $10,000,000; and 

16 ‘‘(ii) to carry out subsection 

17 (k)(8)(B)(ii), $1,500,000,000. 

18 ‘‘(B) COST-SHARING.—A grant provided 

19 for a project under— 

20 ‘‘(i) subsection (k)(8)(B)(i) may not 

21 be used to cover more than 80 percent of 

22 the cost of the project; and 

23 ‘‘(ii) subsection (k)(8)(B)(ii) may not 

24 be used to cover more than 75 percent of 

25 the cost of the project. 


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1 ‘‘(4) NUTRIA ERADICATION GRANTS.— 

2 ‘‘(A) IN GENERAL.—There is authorized to 

3 be appropriated to the Secretary of the Interior 

4 to provide financial assistance in the Chesa5 peake Bay watershed under subsection (m) 

6 $4,000,000 for each of fiscal years 2010 

7 through 2015. 

8 ‘‘(B) COST-SHARING.— 

9 ‘‘(i) FEDERAL SHARE.—The Federal 

10 share of the cost of carrying out the pro11 gram under subsection (m) may not exceed 

12 75 percent of the total costs of the pro13 gram. 

14 ‘‘(ii) IN-KIND CONTRIBUTIONS.—The 

15 non-Federal share of the cost of carrying 

16 out the program under subsection (m) may 

17 be provided in the form of in-kind con18 tributions of materials or services. 

19 ‘‘(5) LIMITATION ON ADMINISTRATIVE EX20 PENSES.—Not more than 10 percent of the annual 

21 amount of any grant provided by the Administrator 

22 or Secretary under any program described in para23 graph (1), (2), (3), or (4) may be used for adminis24 trative expenses. 


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1 ‘‘(6) AVAILABILITY.—Amounts authorized to be 

2 appropriated under this subsection shall remain 

3 available until expended.’’. 

Æ 


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