I 

111TH CONGRESS 

1ST SESSION H. R. 3852 

To amend the Federal Water Pollution Control Act to improve and 

reauthorize the Chesapeake Bay Program. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 20, 2009 

Mr. CUMMINGS (for himself, Mr. CONNOLLY of Virginia, Mr. VAN HOLLEN, 

Mr. SARBANES, Mr. MORAN of Virginia, Ms. EDWARDS of Maryland, Ms. 

NORTON, Mr. SCOTT of Virginia, Mr. HOYER, Mr. OBERSTAR, and Ms. 

EDDIE BERNICE JOHNSON of Texas) introduced the following bill; which 

was referred to the Committee on Transportation and Infrastructure 

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) successful implementation of conservation 

11 practices have resulted in significant reductions in 

12 pollutant loads from the agricultural 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 population of the 

15 Chesapeake Bay watershed grew by just 8 percent; 

16 (15) the population of the watershed is esti17 mated to be growing by about 157,000 people per 

18 year; 

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

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

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

22 Chesapeake Bay is undeveloped and mostly forested, 

23 but as many as 100 hundred acres of forest are lost 

24 to development 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, enviro5 transpiration, infiltration, and pervious surfaces to 

6 reduce stormwater runoff and associated sediment 

7 and nutrient pollution; 

8 (19) many of those techniques are less expen9 sive than traditional stormwater management tech10 niques, yet can achieve equivalent reduction in nutri11 ents and sediment or can reduce the need for con12 struction of traditional stormwater management 

13 techniques; 

14 (20) the decline of key aquatic habitats and 

15 species has resulted in a loss of the important water 

16 quality benefits that the habitats and species tradi17 tionally provided; 

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

19 declined precipitously in the Chesapeake Bay in sig20 nificant part because of diseases brought into the 

21 watershed by nonnative oysters, are natural filters 

22 that once effectively filtered a volume of water equiv23 alent to that of the entire Chesapeake Bay in a mat24 ter of days; 


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

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

3 provide important filtering capacity as well as a 

4 number of other key ecosystem functions; 

5 (23) wetlands are a vital part of any major eco6 system; 

7 (24) studies have demonstrated that nontidal 

8 wetlands near the Chesapeake Bay removed as much 

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

10 phosphorus that entered the wetlands through up11 land runoff and precipitation; 

12 (25) riparian forests remove as much as 90 per13 cent of nitrogen and phosphorus that would other14 wise enter the water; 

15 (26) the loss of riparian forests and wetlands in 

16 the Chesapeake Bay has resulted in diminished 

17 water quality, among other effects; 

18 (27) in certain locations in the Chesapeake 

19 Bay, nutria, a nonnative species, has caused exten20 sive destruction of key wetlands; and 

21 (28) in spite of the achievements of the Chesa22 peake Bay Program partnership and increasing 

23 knowledge about ecosystem functions, the restora24 tion of the Chesapeake Bay will require increased 


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1 accountability and equity in reducing pollutant levels 

2 and other impediments to water quality. 

3 SEC. 3. CHESAPEAKE BAY PROGRAM. 

4 Section 117 of the Federal Water Pollution Control 

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

6 ‘‘SEC. 117. CHESAPEAKE BAY PROGRAM. 

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

8 ‘‘(1) ADMINISTRATIVE COST.—The term ‘ad9 ministrative cost’ means the cost of salaries and 

10 fringe benefits incurred in administering a grant 

11 under this section. 

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

13 means the species Crassostrea ariakensis. 

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

15 the basic standard or level used for measuring (as 

16 applicable)— 

17 ‘‘(A) the nutrient control requirements 

18 credit sellers must achieve before becoming eli19 gible to generate saleable nutrient credits; or 

20 ‘‘(B) the nutrient load reductions required 

21 of individual dischargers to meet water quality 

22 standards or goals under a TMDL or watershed 

23 implementation plan. 

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

25 commissions’ means— 


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1 ‘‘(A) the Interstate Commission on the Po2 tomac River Basin established under the inter3 state compact consented to and approved by 

4 Congress under the Joint Resolution of July 

5 11, 1940 (54 Stat. 748, chapter 579), and Pub6 lic Law 91–407 (84 Stat. 856); and 

7 ‘‘(B) the Susquehanna River Basin Com8 mission established under the interstate com9 pact consented to and approved by Congress 

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

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

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

13 term ‘Chesapeake Bay Agreement’ means the for14 mal, voluntary agreements executed to achieve the 

15 goal of restoring and protecting the Chesapeake Bay 

16 ecosystem and the living resources of the Chesa17 peake Bay ecosystem and signed by the Chesapeake 

18 Executive Council. 

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

20 ‘Chesapeake Bay ecosystem’ means the ecosystem of 

21 the Chesapeake Bay watershed. 

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

23 ‘Chesapeake Bay Program’ means the program di24 rected by the Chesapeake Executive Council in ac25 cordance with the Chesapeake Bay Agreement. 


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

2 ‘Chesapeake Bay State’ means any of— 

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

4 New York, or West Virginia; 

5 ‘‘(B) the Commonwealths of Pennsylvania 

6 or Virginia; or 

7 ‘‘(C) the District of Columbia. 

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

9 term ‘Chesapeake Bay watershed’ means the Chesa10 peake Bay and the area consisting of 19 tributary 

11 basins within the Chesapeake Bay States through 

12 which precipitation drains into the Chesapeake Bay. 

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

14 term ‘Chesapeake Executive Council’ means the sig15 natories to the Chesapeake Bay Agreement. 

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

17 agent’ means a laundry detergent, dishwashing com18 pound, household cleaner, metal cleaner, degreasing 

19 compound, commercial cleaner, industrial cleaner, 

20 phosphate compound, or other substance that is in21 tended to be used for cleaning purposes. 

22 ‘‘(12) DIRECTOR.—The term ‘Director’ means 

23 the Director of the Chesapeake Bay Program Office 

24 of the Environmental Protection Agency. 


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

2 government’ means any county, city, or other gen3 eral purpose political subdivision of a State with ju4 risdiction over land use. 

5 ‘‘(14) 95TH PERCENTILE PRECIPITATION

6 EVENT.—The term ‘95th percentile precipitation 

7 event’ means a precipitation event whose precipita8 tion total is greater than or equal to 95 percent of 

9 all 24-hour storm events on an annual basis. 

10 ‘‘(15) POINT-OF-REGULATION.—The term 

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

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

13 or other regulation under this Act; and 

14 ‘‘(B) has sufficient technical capacity and 

15 legal authority to meet the obligations of the 

16 entity under this Act. 

17 ‘‘(16) TMDL.— 

18 ‘‘(A) IN GENERAL.—The term ‘TMDL’ 

19 means the total maximum daily load that the 

20 Administrator establishes or approves for nitro21 gen, phosphorus, and sediment loading to the 

22 waters in the Chesapeake Bay and tidal tribu23 taries identified on the list of a Chesapeake Bay 

24 State under section 303(d). 


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1 ‘‘(B) INCLUSIONS.—The term ‘TMDL’ 

2 may include nitrogen, phosphorus, and sedi3 ment allocations in temporal units of greater 

4 than daily duration if applicable allocations— 

5 ‘‘(i) are demonstrated to achieve 

6 water quality standards; and 

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

8 other applicable water quality standards 

9 for local receiving waters. 

10 ‘‘(17) TRIBUTARY BASIN.—The term ‘tributary 

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

12 that— 

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

14 Bay tributaries or tributary segments; and 

15 ‘‘(B) is managed through watershed imple16 mentation plans under this Act. 

17 ‘‘(b) CONTINUATION OF CHESAPEAKE BAY PRO18 GRAM.— 

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

20 Chesapeake Executive Council (and as a member of 

21 the Council), the Administrator shall continue the 

22 Chesapeake Bay Program. 

23 ‘‘(2) PROGRAM OFFICE.— 


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

2 shall maintain in the Environmental Protection 

3 Agency a Chesapeake Bay Program Office. 

4 ‘‘(B) FUNCTION.—The Chesapeake Bay 

5 Program Office shall provide support to the 

6 Chesapeake Executive Council by— 

7 ‘‘(i) implementing and coordinating 

8 science, research, modeling, support serv9 ices, monitoring, data collection, and other 

10 activities that support the Chesapeake Bay 

11 Program; 

12 ‘‘(ii) developing and making available, 

13 through publications, technical assistance, 

14 and other appropriate means, information 

15 pertaining to the environmental quality 

16 and living resources of the Chesapeake 

17 Bay ecosystem; 

18 ‘‘(iii) in cooperation with appropriate 

19 Federal, State, and local authorities, as20 sisting the signatories to the Chesapeake 

21 Bay Agreement in developing and imple22 menting specific action plans to carry out 

23 the responsibilities of the signatories to the 

24 Chesapeake Bay Agreement; 


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1 ‘‘(iv) coordinating the actions of the 

2 Environmental Protection Agency with the 

3 actions of the appropriate officials of other 

4 Federal agencies and State and local au5 thorities in developing strategies to— 

6 ‘‘(I) improve the water quality 

7 and living resources in the Chesa8 peake Bay ecosystem; and 

9 ‘‘(II) obtain the support of the 

10 appropriate officials of the agencies 

11 and authorities in achieving the objec12 tives of the Chesapeake Bay Agree13 ment; and 

14 ‘‘(v) implementing outreach programs 

15 for public information, education, and par16 ticipation to foster stewardship of the re17 sources of the Chesapeake Bay. 

18 ‘‘(c) INTERAGENCY AGREEMENTS.—The Adminis19 trator may enter into an interagency agreement with a 

20 Federal agency to carry out this section. 

21 ‘‘(d) TECHNICAL ASSISTANCE AND ASSISTANCE

22 GRANTS.— 

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

24 Chesapeake Executive Council, the Administrator 

25 may provide technical assistance, and assistance 


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1 grants, to nonprofit organizations, State and local 

2 governments, institutions of higher education, basin 

3 commissions, and interstate agencies to carry out 

4 this section, subject to such terms and conditions as 

5 the Administrator considers appropriate. 

6 ‘‘(2) FEDERAL SHARE.— 

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

8 subparagraph (B), the Federal share of an as9 sistance grant provided under paragraph (1) 

10 shall be determined by the Administrator in ac11 cordance with guidance issued by the Adminis12 trator. 

13 ‘‘(B) CHESAPEAKE BAY STEWARDSHIP

14 GRANTS PROGRAM.—The Federal share of an 

15 assistance grant provided under paragraph (1) 

16 to carry out an implementing activity under 

17 subsection (g)(2) shall not exceed 75 percent of 

18 eligible project costs, as determined by the Ad19 ministrator. 

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

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

22 condition that non-Federal sources provide the re23 mainder of eligible project costs, as determined by 

24 the Administrator. 


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1 ‘‘(4) ADMINISTRATIVE COSTS.—Administrative 

2 costs shall not exceed 10 percent of the annual grant 

3 award. 

4 ‘‘(e) IMPLEMENTATION AND MONITORING

5 GRANTS.— 

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

7 executive of a Chesapeake Bay State, the Adminis8 trator— 

9 ‘‘(A) shall make an implementation grant 

10 to the Chesapeake Bay State, or a designee of 

11 the Chesapeake Bay State (such as a soil con12 servation district, nonprofit organization, local 

13 government, institution of higher education, 

14 basin commission, or interstate agency) for the 

15 purpose of implementing an approved watershed 

16 implementation plan under subsection (j) and 

17 achieving the goals established under the 

18 Chesapeake Bay Agreement, subject to such 

19 terms and conditions as the Administrator con20 siders to be appropriate; and 

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

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

23 designee of a Chesapeake Bay State (such 

24 as a soil conservation district, nonprofit or25 ganization, local government, institution of 


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1 higher education, basin commission, or 

2 interstate agency), for the purpose of mon3 itoring the ecosystem of freshwater tribu4 taries to the Chesapeake Bay; or 

5 ‘‘(ii) the States of Delaware or Mary6 land, the Commonwealth of Virginia, the 

7 District of Columbia, or a designee (such 

8 as a soil conservation district, nonprofit or9 ganization, local government, institution of 

10 higher education, basin commission, or 

11 interstate agency) for the purpose of moni12 toring the Chesapeake Bay, including the 

13 tidal waters of the Chesapeake Bay. 

14 ‘‘(2) ADMINISTRATION.—In making implemen15 tation grants to each of the Chesapeake Bay States 

16 for a fiscal year under this subsection, the Adminis17 trator shall ensure that not less than— 

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

19 make such grants are made to the States of 

20 Delaware, New York, and West Virginia; and 

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

22 make such grants are made to Chesapeake Bay 

23 States for the sole purpose of providing tech24 nical assistance to agricultural producers and 

25 foresters to access conservation programs and 


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1 other resources devoted to improvements in 

2 water quality in the Chesapeake Bay and the 

3 tributaries of the Chesapeake Bay. 

4 ‘‘(3) PROPOSALS.— 

5 ‘‘(A) IMPLEMENTATION GRANTS.— 

6 ‘‘(i) IN GENERAL.—A Chesapeake 

7 Bay State may apply for a grant under 

8 this subsection for a fiscal year by submit9 ting to the Administrator a comprehensive 

10 proposal to implement programs and 

11 achieve the goals established under the 

12 Chesapeake Bay Agreement. 

13 ‘‘(ii) IMPLEMENTATION GRANT CON14 TENTS.—A proposal under clause (i) shall 

15 include— 

16 ‘‘(I) a description of proposed ac17 tions that the Chesapeake Bay State 

18 commits to take within a specified 

19 time period that are designed— 

20 ‘‘(aa) to achieve and main21 tain all applicable water quality 

22 standards, including standards 

23 necessary to support the aquatic 

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1 peake Bay and related tributaries 

2 and to protect human health; 

3 ‘‘(bb) to restore, enhance, 

4 and protect the fish, shellfish, 

5 wildlife, and other living re6 sources of the Chesapeake Bay 

7 and related tributaries, habitats 

8 of those species and resources, 

9 and ecological relationships to 

10 sustain all fisheries and provide 

11 for a balanced ecosystem; 

12 ‘‘(cc) to restore, enhance, 

13 and protect those habitats and 

14 natural areas that are vital to the 

15 survival and diversity of the liv16 ing resources of the Chesapeake 

17 Bay and related tributaries; 

18 ‘‘(dd) to develop, promote, 

19 and achieve sound land use prac20 tices that protect and restore wa21 tershed resources and water qual22 ity, reduce or maintain reduced 

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1 taries, and restore and preserve 

2 aquatic living resources; 

3 ‘‘(ee) to promote individual 

4 stewardship and assist individ5 uals, community-based organiza6 tions, businesses, local govern7 ments, and schools to undertake 

8 initiatives to achieve the goals 

9 and commitments of the Chesa10 peake Bay Agreement; or 

11 ‘‘(ff) to provide technical as12 sistance to agricultural pro13 ducers, foresters, and other eligi14 ble entities through technical in15 frastructure, including activities, 

16 processes, tools, and agency func17 tions needed to support delivery 

18 of technical services, such as 

19 technical standards, resource in20 ventories, training, data, tech21 nology, monitoring, and effects 

22 analyses; 

23 ‘‘(II) a commitment to dedicate 

24 not less than 20 percent of a grant to 

25 a Chesapeake Bay State under this 


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1 subsection to support technical assist2 ance for agricultural and forestry land 

3 or nutrient management practices 

4 that protect and restore watershed re5 sources and water quality, reduce or 

6 maintain reduced pollutant loadings 

7 for the Chesapeake Bay and related 

8 tributaries, and restore and preserve 

9 aquatic living resources; and 

10 ‘‘(III) the estimated cost of the 

11 actions proposed to be taken during 

12 the fiscal year. 

13 ‘‘(B) MONITORING GRANTS.— 

14 ‘‘(i) IN GENERAL.—A Chesapeake 

15 Bay State may apply for a grant under 

16 this subsection for a fiscal year by submit17 ting to the Administrator a comprehensive 

18 proposal to monitor freshwater or estua19 rine ecosystems, including water quality. 

20 ‘‘(ii) MONITORING GRANT CON21 TENTS.—A proposal under this subpara22 graph shall include— 

23 ‘‘(I) a description of the proposed 

24 monitoring system; 


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1 ‘‘(II) certification by the Director 

2 that such a monitoring system in3 cludes such parameters as the Direc4 tor determines necessary to assess 

5 progress toward achieving the goals of 

6 this section; and 

7 ‘‘(III) the estimated cost of the 

8 monitoring proposed to be conducted 

9 during the fiscal year. 

10 ‘‘(iii) CONCURRENCES.—The Adminis11 trator shall— 

12 ‘‘(I) obtain the concurrence of 

13 the Director of the United States Geo14 logical Survey regarding the design 

15 and implementation of the freshwater 

16 monitoring systems established under 

17 this subsection; and 

18 ‘‘(II) obtain the concurrence of 

19 the Director of the Chesapeake Bay 

20 Office of the National Oceanic and 

21 Atmospheric Administration regarding 

22 the design and implementation of the 

23 estuarine monitoring systems estab24 lished under this subsection. 


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1 ‘‘(iv) CONSULTATION.—The Adminis2 trator shall consult with— 

3 ‘‘(I) the basin commissions and 

4 the Chesapeake Bay States regarding 

5 the design and implementation of the 

6 freshwater monitoring systems estab7 lished under this subsection, giving 

8 particular attention to the measure9 ment of the water quality effectiveness 

10 of agricultural conservation program 

11 implementation (including geospatial 

12 agricultural conservation program 

13 data), including activities carried out 

14 pursuant to the Chesapeake Bay Wa15 tershed Initiative under section 1240Q 

16 of the Food Security Act of 1985 (16 

17 U.S.C. 3839bb–4); 

18 ‘‘(II) Old Dominion University, 

19 the Virginia Institute of Marine 

20 Science, the University of Maryland 

21 Center for Environmental Science, 

22 and the Chesapeake Bay States re23 garding the estuarine monitoring sys24 tems established under this sub25 section; 


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1 ‘‘(III) the Chesapeake Bay Pro2 gram Scientific and Technical Advi3 sory Committee regarding inde4 pendent review of monitoring designs 

5 giving particular attention to inte6 grated freshwater and estuarine moni7 toring strategies; and 

8 ‘‘(IV) Federal departments and 

9 agencies regarding cooperation in im10 plementing monitoring programs. 

11 ‘‘(f) FEDERAL FACILITIES AND ACTION PLAN.— 

12 ‘‘(1) SUBWATERSHED PLANNING AND RESTORA13 TION.—A Federal agency that owns or operates a 

14 facility (as defined by the Administrator) or carries 

15 our activities within the Chesapeake Bay watershed 

16 shall participate in regional and subwatershed plan17 ning and restoration programs. 

18 ‘‘(2) COMPLIANCE WITH AGREEMENT.—The 

19 head of each Federal agency that owns or occupies 

20 real property or carries out activities in the Chesa21 peake Bay watershed shall ensure that the property, 

22 actions taken by the agency with respect to the 

23 property, and the activities of the agency comply 

24 with the Chesapeake Bay Agreement, the Federal 


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1 Agencies Chesapeake Ecosystem Unified Plan, and 

2 any subsequent agreements and plans. 

3 ‘‘(3) FOREST COVER AT FEDERAL FACILI4 TIES.—Not later than January 1, 2012, the Admin5 istrator shall coordinate with the heads of each Fed6 eral agency that owns or operates a facility (as de7 fined by the Administrator) within the Chesapeake 

8 Bay watershed to develop plans to maximize forest 

9 cover at the facility through the preservation of ex10 isting forest cover and the development of reforest11 ation plans with respect to a facility that has been 

12 disturbed or developed in the past. 

13 ‘‘(4) FEDERAL ANNUAL ACTION PLAN AND

14 PROGRESS REPORT.—The Administrator, in accord15 ance with Executive Order 12508 entitled ‘Chesa16 peake Bay Protection and Restoration’ and signed 

17 on May 12, 2009 (74 Fed. Reg. 23099), shall— 

18 ‘‘(A) make available to the public, not later 

19 than March 31 of each year— 

20 ‘‘(i) a Chesapeake Bay action plan de21 scribing, in the greatest practicable degree 

22 of detail, how Federal funding proposed in 

23 the annual budget of the United States 

24 submitted by the President to Congress 

25 will be used to protect and restore the 


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1 Chesapeake Bay during the upcoming fis2 cal year; and 

3 ‘‘(ii) an annual progress report that— 

4 ‘‘(I) assesses the key ecological 

5 attributes that reflect the health of 

6 the Chesapeake Bay ecosystem; 

7 ‘‘(II) reviews indicators of envi8 ronmental conditions in the Chesa9 peake Bay; 

10 ‘‘(III) distinguishes between the 

11 health of the Chesapeake Bay eco12 system and the results of management 

13 measures; 

14 ‘‘(IV) assesses implementation of 

15 the action plan during the preceding 

16 fiscal year; 

17 ‘‘(V) recommends steps to im18 prove progress in restoring and pro19 tecting the Chesapeake Bay; and 

20 ‘‘(VI) describes how Federal 

21 funding and actions will be coordi22 nated with the actions of States, basin 

23 commissions, and others; 

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1 peake Bay-wide database containing com2 prehensive data on implementation of conserva3 tion management practices in the Chesapeake 

4 Bay watershed that— 

5 ‘‘(i) includes baseline conservation 

6 management practice implementation data 

7 as of the effective date of the Chesapeake 

8 Clean Water and Ecosystem Restoration 

9 Act of 2009; 

10 ‘‘(ii) includes data on subsequent con11 servation management practice implemen12 tation projects funded by or reported to 

13 the Administrator or the Secretary; 

14 ‘‘(iii) presents the required data in 

15 statistical or aggregate form without iden16 tifying any— 

17 ‘‘(I) individual owner, operator, 

18 or producer; or 

19 ‘‘(II) specific data gathering site; 

20 and 

21 ‘‘(iv) is made available to the public 

22 not later than December 31, 2010. 

23 ‘‘(g) CHESAPEAKE BAY PROGRAM.— 

24 ‘‘(1) MANAGEMENT STRATEGIES.—The Admin25 istrator, in coordination with other members of the 


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1 Chesapeake Executive Council, shall ensure that 

2 management plans are developed and implemented 

3 by Chesapeake Bay States to achieve and main4 tain— 

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

6 Bay Agreement for the quantity of nitrogen and 

7 phosphorus entering the Chesapeake Bay and 

8 the watershed of the Chesapeake Bay; 

9 ‘‘(B) the water quality requirements nec10 essary to restore living resources in the Chesa11 peake Bay ecosystem; 

12 ‘‘(C) the Chesapeake Bay Basinwide Tox13 ins Reduction and Prevention Strategy goal of 

14 reducing or eliminating the input of chemical 

15 contaminants from all controllable sources to 

16 levels that result in no toxic or bioaccumulative 

17 impact on the living resources of the Chesa18 peake Bay ecosystem or on human health; 

19 ‘‘(D) habitat restoration, protection, cre20 ation, and enhancement goals established by 

21 Chesapeake Bay States for wetlands, riparian 

22 forests, and other types of habitat associated 

23 with the Chesapeake Bay ecosystem; and 

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

25 and enhancement goals established by the 


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1 Chesapeake Bay States for living resources as2 sociated with the Chesapeake Bay ecosystem. 

3 ‘‘(2) CHESAPEAKE BAY STEWARDSHIP GRANTS

4 PROGRAM.—The Administrator, in cooperation with 

5 the Chesapeake Executive Council, shall— 

6 ‘‘(A) establish a Chesapeake Bay Steward7 ship Grants Program; and 

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

9 ‘‘(i) offer technical assistance and as10 sistance grants under subsection (d) to im11 plement— 

12 ‘‘(I) cooperative watershed strate13 gies that address the water quality, 

14 habitat, and living resource needs in 

15 the Chesapeake Bay ecosystem; 

16 ‘‘(II) locally based protection and 

17 restoration programs or projects with18 in a watershed that complement the 

19 State watershed implementation 

20 plans, including the creation, restora21 tion, or enhancement of habitat asso22 ciated with the Chesapeake Bay eco23 system; and 


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1 ‘‘(III) innovative nitrogen, phos2 phorus, or sediment reduction efforts; 

3 and 

4 ‘‘(ii) give preference to cooperative 

5 projects that involve local governments. 

6 ‘‘(h) TOTAL MAXIMUM DAILY LOAD.— 

7 ‘‘(1) TMDL.— 

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

9 December 31, 2010, the Administrator shall es10 tablish a Chesapeake Bay-wide TMDL. 

11 ‘‘(B) REQUIREMENTS.—The Administrator 

12 shall not establish or approve a TMDL de13 scribed in subparagraph (A) unless the TMDL 

14 is developed in accordance with the require15 ments of section 303(d)(1)(C) of this Act, and 

16 includes— 

17 ‘‘(i) wasteload allocations for nitrogen, 

18 phosphorus, and sediment necessary to im19 plement the applicable water quality stand20 ards in the Chesapeake Bay watershed and 

21 achieve those standards in the Chesapeake 

22 Bay and tidal tributaries; 

23 ‘‘(ii) enforceable or otherwise binding 

24 load allocations for all nonpoint sources, 

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1 tural runoff, and stormwater sources for 

2 which a permit under section 402 is not 

3 required; and 

4 ‘‘(iii) a requirement for no net in5 crease of nitrogen, phosphorus, and sedi6 ment loads above the pollutant limitations 

7 necessary to meet water quality standards 

8 for the Chesapeake Bay and tidal tribu9 taries, including no net projected increased 

10 pollutant levels from— 

11 ‘‘(I) new or increased impervious 

12 surfaces; 

13 ‘‘(II) concentrated animal feeding 

14 operations; 

15 ‘‘(III) transportation systems; 

16 and 

17 ‘‘(IV) septic systems. 

18 ‘‘(2) PERMITS.— 

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

20 January 1, 2011, a new or reissued permit 

21 issued by the Administrator under section 

22 402(a) or a State authorized to administer a 

23 permit program under section 402(b) shall in24 clude limits consistent with all applicable 


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1 wasteload allocations in the Chesapeake Bay 

2 TMDL. 

3 ‘‘(B) PERMITS.— 

4 ‘‘(i) IN GENERAL.—Effective begin5 ning on January 1, 2011, each Chesapeake 

6 Bay State shall submit to the Adminis7 trator copies of any permit for discharges 

8 of nitrogen, phosphorus, or sediment into 

9 the Chesapeake Bay watershed that is al10 lowed to continue beyond 5 years pursuant 

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

12 of title 5, United States Code, not later 

13 than 60 days after the expiration date of 

14 the permit. 

15 ‘‘(ii) REVIEW.—The Administrator 

16 shall have the opportunity to review and 

17 object to the continuance of the permit in 

18 accordance with the process described in 

19 section 402(d) for permits proposed to be 

20 issued by a State. 

21 ‘‘(i) ACTIONS BY STATES.— 

22 ‘‘(1) WATERSHED IMPLEMENTATION PLANS.— 

23 ‘‘(A) PLANS.— 

24 ‘‘(i) IN GENERAL.—Not later than 

25 May 12, 2011, each Chesapeake Bay State 


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1 shall, after providing for notice and 1 or 

2 more public hearings, adopt and submit to 

3 the Administrator for approval a watershed 

4 implementation plan for the portion of 

5 each of the 92 tidal water segments that is 

6 subject to the jurisdiction of the Chesa7 peake Bay State that together comprise 

8 the Chesapeake Bay. 

9 ‘‘(ii) TARGETS.—The watershed im10 plementation plan shall establish reduction 

11 targets, key actions, and schedules for re12 ducing, to levels that will attain water 

13 quality standards, the loads of nitrogen, 

14 phosphorus, and sediment, including pollu15 tion from— 

16 ‘‘(I) agricultural runoff; 

17 ‘‘(II) point sources, including 

18 point source stormwater discharges; 

19 ‘‘(III) nonpoint source stormwa20 ter runoff; and 

21 ‘‘(IV) septic systems and other 

22 onsite sewage disposal systems. 

23 ‘‘(iii) POLLUTION LIMITATIONS.— 

24 ‘‘(I) IN GENERAL.—The tribu25 tary pollution limitations shall be the 


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1 nitrogen, phosphorous, and sediment 

2 cap loads identified in the tributary 

3 cap load agreement numbered EPA 

4 903–R–03–007, dated December 

5 2003, and entitled ‘Setting and Allo6 cating the Chesapeake Bay Basin Nu7 trient and Sediment Loads: The Col8 laborative Process, Technical Tools 

9 and Innovative Approaches’, or a 

10 Chesapeake Bay TMDL established 

11 by the Administrator. 

12 ‘‘(II) STRINGENCY.—A water13 shed implementation plan shall be de14 signed to attain, at a minimum, the 

15 pollution limitations described in sub16 clause (I). 

17 ‘‘(iv) PLAN REQUIREMENTS.—Each 

18 watershed implementation plan shall— 

19 ‘‘(I) include State-adopted man20 agement measures, including rules or 

21 regulations, permits, consent decrees, 

22 and other enforceable or otherwise 

23 binding measures, to require and 

24 achieve reductions from pollution 

25 sources; 


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1 ‘‘(II) include programs to achieve 

2 voluntary reductions from pollution 

3 sources, including funding commit4 ments necessary to implement those 

5 programs; 

6 ‘‘(III) include any additional re7 quirements or actions that the Chesa8 peake Bay State determines to be nec9 essary to attain the pollution limita10 tions by the deadline established in 

11 this paragraph; 

12 ‘‘(IV) provide for enforcement 

13 mechanisms, including a penalty 

14 structure for failures, such as fees or 

15 forfeiture of State funds, including 

16 Federal funds distributed or otherwise 

17 awarded by the State to the extent 

18 the State is authorized to exercise 

19 independent discretion in amounts of 

20 such distributions or awards, for use 

21 if a permittee, local government, or 

22 any other party fails to adhere to as23 signed pollutant limitations, imple24 mentation schedules, or permit terms; 


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1 ‘‘(V) include a schedule for im2 plementation divided into 2-year peri3 ods, along with computer modeling to 

4 demonstrate the projected reductions 

5 in nitrogen, phosphorus, and sediment 

6 loads associated with each 2-year pe7 riod; 

8 ‘‘(VI) include the stipulation of 

9 alternate actions as contingencies; 

10 ‘‘(VII) account for how the 

11 Chesapeake Bay State will address 

12 additional loadings from growth 

13 through offsets or other actions; and 

14 ‘‘(VIII) provide assurances 

15 that— 

16 ‘‘(aa) if compared to an esti17 mated 2008 baseline, the initial 

18 plan shall be designed to achieve, 

19 not later than May 31, 2017, at 

20 least 60 percent of the nitrogen, 

21 phosphorous, and sediment limi22 tations described in clause 

23 (iii)(I); 

24 ‘‘(bb) the management 

25 measures required to achieve a 


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1 50-percent reduction of nitrogen, 

2 phosphorous, and sediment limi3 tations shall be in effect upon 

4 submission of the plan; 

5 ‘‘(cc) the Chesapeake Bay 

6 State will have adequate per7 sonnel, funding, and authority 

8 under State (and, as appropriate, 

9 local) law to carry out the imple10 mentation plan and is not prohib11 ited by any provision of Federal 

12 or State law from carrying out 

13 the implementation plan; and 

14 ‘‘(dd) in a case in which a 

15 Chesapeake Bay State has relied 

16 on a local government for the im17 plementation of any plan provi18 sion, the Chesapeake Bay State 

19 has the responsibility for ensur20 ing adequate implementation of 

21 the provision. 

22 ‘‘(B) IMPLEMENTATION.— 

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

24 watershed implementation plan, each 

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1 egy developed by the Administrator for the 

2 implementation of adaptive management 

3 principles to ensure full implementation of 

4 all plan elements by not later than May 

5 12, 2025, including— 

6 ‘‘(I) biennial evaluations of State 

7 actions; 

8 ‘‘(II) progress made toward im9 plementation; 

10 ‘‘(III) determinations of nec11 essary modifications to future actions 

12 in order to achieve objectives; and 

13 ‘‘(IV) appropriate provisions to 

14 adapt to climate changes. 

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

16 12, 2025, each Chesapeake Bay State 

17 shall— 

18 ‘‘(I) fully implement the water19 shed implementation plan of the 

20 State; and 

21 ‘‘(II) have in place all the mecha22 nisms outlined in the plan that are 

23 necessary to attain the applicable pol24 lutant limitations for nitrogen, phos25 phorus, and sediment. 


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

2 May 12, 2014, and biennially thereafter, each 

3 Chesapeake Bay State shall submit to the Ad4 ministrator a progress report that, with respect 

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

6 ‘‘(i) includes a listing of all manage7 ment measures that were to be imple8 mented in accordance with the approved 

9 watershed implementation plan of the 

10 Chesapeake Bay State, including a descrip11 tion of the extent to which those measures 

12 have been fully implemented; 

13 ‘‘(ii) includes a listing of all the man14 agement measures described in clause (i) 

15 that the Chesapeake Bay State has failed 

16 to fully implement in accordance with the 

17 approved watershed implementation plan 

18 of the Chesapeake Bay State; 

19 ‘‘(iii) includes monitored and collected 

20 water quality data; 

21 ‘‘(iv) includes Chesapeake Bay Pro22 gram computer modeling data that detail 

23 the nitrogen, phosphorus, and sediment 

24 load reductions projected to be achieved as 

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1 agement measures and mechanisms carried 

2 out by the Chesapeake Bay State; 

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

4 year period, implementation goals and 

5 Chesapeake Bay Program computer mod6 eling data detailing the projected pollution 

7 reductions to be achieved if the Chesa8 peake Bay State fully implements the sub9 sequent round of management measures; 

10 ‘‘(vi) identifies compliance informa11 tion, including violations, actions taken by 

12 the Chesapeake Bay State to address the 

13 violations, and dates, if any, on which com14 pliance was achieved; and 

15 ‘‘(vii) specifies any revisions to the 

16 watershed implementation plan submitted 

17 under this paragraph that the Chesapeake 

18 Bay State determines are necessary to at19 tain the applicable pollutant limitations for 

20 nitrogen, phosphorus, and sediment. 

21 ‘‘(2) ISSUANCE OF PERMITS.— 

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

23 other provision of this Act (including any exclu24 sion or exception contained in a definition 

25 under section 502), for the purpose of achieving 


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1 the nitrogen, phosphorus, and sediment reduc2 tions required under a watershed implementa3 tion plan, a Chesapeake Bay State may issue a 

4 permit in accordance with section 402 for any 

5 pollution source the Chesapeake Bay State de6 termines to be necessary. 

7 ‘‘(B) ENFORCEMENT.—The Administrator 

8 shall enforce any permits issued in accordance 

9 with the watershed implementation plan in the 

10 same manner as other permits issued under 

11 section 402 are enforced. 

12 ‘‘(3) REDUCTION OF POLLUTION FROM IMPER13 VIOUS SURFACES.— 

14 ‘‘(A) IN GENERAL.—Not later than Janu15 ary 1, 2013, each unit of local government 

16 within the Chesapeake Bay watershed that dis17 charges stormwater through a storm sewer sys18 tem, regardless of storm sewer system owner19 ship and without regard to the size of the popu20 lation, shall obtain and comply with a permit 

21 under section 402(p). 

22 ‘‘(B) REQUIREMENTS.—A permit under 

23 section 402(p) for a unit of local government 

24 within the Chesapeake Bay watershed shall in25 clude requirements to ensure that a project to 


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1 develop land within the jurisdiction of such unit 

2 of local government that affects land that is 

3 more than 1 acre in size and that is less than 

4 5 percent covered by impervious surfaces prior 

5 to the project is carried out in a manner that 

6 not less than the volume of the 95th percentile 

7 precipitation event shall infiltrate, evapotranspi8 rate from, or be harvested and used on such 

9 site after the project is completed. 

10 ‘‘(4) PHOSPHATE BAN.— 

11 ‘‘(A) PHOSPHORUS IN CLEANING

12 AGENTS.—Each Chesapeake Bay State shall 

13 provide to the Administrator, not later than 3 

14 years after the date of enactment of the Chesa15 peake Clean Water and Ecosystem Restoration 

16 Act of 2009, assurances that within the juris17 diction, except as provided in subparagraph 

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

19 or distribute for use or sale any cleaning agent 

20 that contains more than 0.0 percent phosphorus 

21 by weight, expressed as elemental phosphorus, 

22 except for a quantity not exceeding 0.5 percent 

23 phosphorus that is incidental to the manufac24 ture of the cleaning agent. 


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1 ‘‘(B) PROHIBITED QUANTITIES OF PHOS2 PHORUS.—Each Chesapeake Bay State shall 

3 provide to the Administrator, not later than 3 

4 years after the date of enactment of the Chesa5 peake Clean Water and Ecosystem Restoration 

6 Act of 2009, assurances that within the juris7 diction a person may use, sell, manufacture, or 

8 distribute for use or sale a cleaning agent that 

9 contains greater than 0.0 percent phosphorus 

10 by weight, but does not exceed 8.7 percent 

11 phosphorus by weight, if the cleaning agent is 

12 a substance that the Administrator, by regula13 tion, excludes from the limitation under sub14 paragraph (A), based on a finding that compli15 ance with that subparagraph would— 

16 ‘‘(i) create a significant hardship on 

17 the users of the cleaning agent; or 

18 ‘‘(ii) be unreasonable because of the 

19 lack of an adequate substitute cleaning 

20 agent. 

21 ‘‘(j) ACTION BY ADMINISTRATOR.— 

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

23 after the date of enactment of the Chesapeake Clean 

24 Water and Ecosystem Restoration Act of 2009, the 

25 Administrator shall establish minimum criteria that 


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1 any proposed watershed implementation plan must 

2 meet before the Administrator may approve such a 

3 plan. 

4 ‘‘(2) COMPLETENESS FINDING.— 

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

6 days after the date on which the Administrator 

7 receives a new or revised proposed watershed 

8 implementation plan from a Chesapeake Bay 

9 State, the Administrator shall determine wheth10 er the minimum criteria for the plan established 

11 under paragraph (1) have been met. 

12 ‘‘(B) EFFECT OF FINDING OF INCOM13 PLETENESS.—If the Administrator determines 

14 under subparagraph (A) that all or any portion 

15 of a submitted watershed implementation plan 

16 does not meet the minimum criteria established 

17 under paragraph (1), the Chesapeake Bay State 

18 submitting the plan shall be treated as not hav19 ing made the submission. 

20 ‘‘(3) APPROVAL AND DISAPPROVAL.— 

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

22 after determining that a watershed implementa23 tion plan meets minimum criteria in accordance 

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

25 approve or disapprove the plan. 


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1 ‘‘(B) FULL AND PARTIAL APPROVAL AND

2 DISAPPROVAL.—In carrying out this paragraph, 

3 the Administrator— 

4 ‘‘(i) shall approve a watershed imple5 mentation plan if the plan meets all appli6 cable requirements under this section; and 

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

8 and disapprove the plan in part if only a 

9 portion of the plan meets those require10 ments. 

11 ‘‘(C) CONDITIONAL APPROVAL.—The Ad12 ministrator— 

13 ‘‘(i) may conditionally approve a re14 vised watershed implementation plan based 

15 on a commitment of the Chesapeake Bay 

16 State submitting the plan to adopt specific 

17 enforceable management measures by not 

18 later than 1 year after the date of approval 

19 of the plan revision; but 

20 ‘‘(ii) shall treat a conditional approval 

21 as a disapproval under this paragraph if 

22 the Chesapeake Bay State fails to comply 

23 with the commitment of the Chesapeake 

24 Bay State. 


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

2 or revised watershed implementation plan shall 

3 not be treated as meeting the requirements of 

4 this section until the Administrator approves 

5 the entire new or revised plan. 

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

7 the Administrator determines that the action of 

8 the Administrator approving, disapproving, con9 ditionally approving, or promulgating any new 

10 or revised watershed implementation plan was 

11 in error, the Administrator— 

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

13 approval, disapproval, conditional approval, 

14 or promulgation, revise the action of the 

15 Administrator, as appropriate, without re16 quiring any further submission from the 

17 Chesapeake Bay State; and 

18 ‘‘(ii) shall make the determination of 

19 the Administrator, and the basis for that 

20 determination, available to the public. 

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

22 a State watershed implementation plan shall 

23 take effect upon the date of approval of the 

24 plan. 


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

2 in which the Administrator determines that the wa3 tershed implementation plan for any area is inad4 equate to attain or maintain applicable pollution lim5 itations, the Administrator— 

6 ‘‘(A) shall notify the Chesapeake Bay 

7 State of, and require the Chesapeake Bay State 

8 to revise the plan to correct, the inadequacies; 

9 ‘‘(B) may establish reasonable deadlines 

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

11 the Administrator provides the notification) for 

12 the submission of a revised watershed imple13 mentation plan; 

14 ‘‘(C) shall make the findings of the Admin15 istrator under paragraph (3) and notice pro16 vided under subparagraph (A) public; and 

17 ‘‘(D) shall require the Chesapeake Bay 

18 State to comply with the requirements applica19 ble under the initial watershed implementation 

20 plan, except that the Administrator may adjust 

21 any dates (other than attainment dates) appli22 cable under those requirements, as appropriate. 

23 ‘‘(5) FEDERAL IMPLEMENTATION.—If a Chesa24 peake Bay State fails to submit a watershed imple25 mentation plan, to submit a biennial report, or to 


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1 correct a previously missed 2-year commitment made 

2 in a watershed implementation plan, the Adminis3 trator shall, after issuing a notice to the State and 

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

5 be corrected— 

6 ‘‘(A) notwithstanding the requirements of 

7 sections 601(a) and 603(g) of this Act, reserve 

8 up to 75 percent of a Chesapeake Bay State’s 

9 capitalization grant for a State water pollution 

10 control revolving fund to be available for 

11 projects and activities authorized under section 

12 603(c) of this Act that are selected by the Ad13 ministrator, after a notice to the State, to be 

14 carried out within such State; 

15 ‘‘(B) withhold all funds otherwise available 

16 to the Chesapeake Bay State under this Act 

17 other than those funds authorized under title 

18 VI of this Act; 

19 ‘‘(C) develop and administer a watershed 

20 implementation plan for that Chesapeake Bay 

21 State until such time as the Chesapeake Bay 

22 State has remedied the plan, reports, or 

23 achievements to the satisfaction of the Adminis24 trator; 


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1 ‘‘(D) require that all permits issued under 

2 section 402 for new or expanding discharges of 

3 nitrogen, phosphorus, or sediment acquire off4 sets that exceed by 100 percent an amount that 

5 would otherwise be required, taking into ac6 count attenuation, equivalency, and uncertainty; 

7 and 

8 ‘‘(E) for the purposes of developing and 

9 implementing a watershed implementation plan 

10 under subparagraph (C)— 

11 ‘‘(i) notwithstanding any other provi12 sion of this Act (including any exclusion or 

13 exception contained in a definition under 

14 section 502), promulgate such regulations 

15 or issue such permits as the Administrator 

16 determines to be necessary to control pollu17 tion sufficient to meet the water quality 

18 goals defined in the watershed implementa19 tion plan; and 

20 ‘‘(ii) enforce any permits issued in ac21 cordance with the watershed implementa22 tion plan in the same manner as other per23 mits issued under section 402 are en24 forced. 


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1 ‘‘(6) NITROGEN AND PHOSPHORUS TRADING

2 PROGRAM.— 

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

4 May 12, 2012, the Administrator, in coopera5 tion with each Chesapeake Bay State, shall es6 tablish an interstate nitrogen and phosphorus 

7 trading program for the Chesapeake Bay for 

8 the generation, trading, and use of nitrogen and 

9 phosphorus credits to facilitate the attainment 

10 and maintenance of the Chesapeake Bay-wide 

11 TMDL for nitrogen and phosphorus. 

12 ‘‘(B) TRADING SYSTEM.—The trading pro13 gram established under this subsection shall, at 

14 a minimum— 

15 ‘‘(i) define and standardize nitrogen 

16 and phosphorus credits and establish pro17 cedures or standards for ensuring equiva18 lent water quality benefits for all credits; 

19 ‘‘(ii) establish procedures or standards 

20 for certifying, verifying, and enforcing ni21 trogen and phosphorus credits to ensure 

22 that credit-generating practices from both 

23 point sources and nonpoint sources are 

24 achieving actual reductions in nitrogen and 

25 phosphorus; 


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1 ‘‘(iii) establish procedures or stand2 ards for generating, quantifying, trading, 

3 and applying credits to meet regulatory re4 quirements and allow for trading to occur 

5 between and across point source or 

6 nonpoint dischargers; 

7 ‘‘(iv) establish baseline requirements 

8 that a credit seller must meet before be9 coming eligible to generate saleable credits; 

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

11 the sub-State level to facilitate trading and 

12 promote water quality goals under which— 

13 ‘‘(I) States may designate point 

14 sources as points-of-regulation, but 

15 not nonpoint dischargers; 

16 ‘‘(II) States shall aggregate mul17 tiple nonpoint dischargers to serve as 

18 points-of-regulation; and 

19 ‘‘(III) the Administrator shall es20 tablish guidelines or standards to en21 sure that points-of-regulation shall be 

22 generally consistent across States; 

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

24 accordance with permit requirements under 

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1 nation system established under section 

2 402 and trade requirements have been ade3 quately incorporated into the permits; 

4 ‘‘(vii) ensure that private contracts 

5 between credit buyers and credit sellers 

6 contain adequate provisions to ensure en7 forceability under applicable law; 

8 ‘‘(viii) establish procedures or stand9 ards for providing public transparency on 

10 nutrient trading activity; 

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

12 water is impaired for the nutrient being 

13 traded but a TMDL has not yet been im14 plemented for the impairment— 

15 ‘‘(I) trades are required to result 

16 in progress toward or the attainment 

17 of water quality standards in the local 

18 receiving water; and 

19 ‘‘(II) dischargers in the water20 shed may not rely on credits produced 

21 outside of the watershed; 

22 ‘‘(x) require that the application of 

23 credits to meet regulatory requirements 

24 under this section not cause or contribute 

25 to exceedances of water quality standards, 


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1 total maximum daily loads, or wasteload or 

2 load allocations for affected receiving wa3 ters, including avoidance of localized im4 pacts; 

5 ‘‘(xi) except as part of a consent 

6 agreement, prohibit the purchase of credits 

7 from any entity that is in significant non8 compliance with an enforceable permit 

9 issued under section 402; 

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

11 maximum extent practicable, elements of 

12 State trading programs in existence as of 

13 the date of enactment of the Chesapeake 

14 Clean Water and Ecosystem Restoration 

15 Act of 2009; and 

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

17 aggregation and banking of credits by 

18 third parties. 

19 ‘‘(C) FACILITATION OF TRADING.—In 

20 order to attract market participants and facili21 tate the cost-effective achievement of water 

22 quality goals, the Administrator shall ensure 

23 that the trading program established under this 

24 paragraph— 


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1 ‘‘(i) includes measures to mitigate 

2 credit buyer risk; 

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

4 science in order to minimize uncertainty 

5 and related transaction costs to traders, 

6 including the Administrator, in consulta7 tion with the Secretary of Agriculture, sup8 porting research and other activities that 

9 increase the scientific understanding of 

10 nonpoint nutrient pollutant loading and 

11 the ability of various structural and non12 structural alternatives to reduce the loads; 

13 ‘‘(iii) eliminates unnecessary or dupli14 cative administrative processes; and 

15 ‘‘(iv) incorporates a permitting ap16 proach under the national pollutant dis17 charge elimination system established 

18 under section 402 that creates a general 

19 approval for trading avoiding the need to 

20 reopen or reissue permits to incorporate in21 dividual trades. 

22 ‘‘(7) AUTHORITY RELATING TO DEVELOP23 MENT.—The Administrator shall— 

24 ‘‘(A) establish and issue, for any project 

25 affecting land that is more than 1 acre in size 


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1 and that is less than 5 percent covered by im2 pervious surfaces prior to such project that pro3 poses to increase the overall percentage of im4 pervious surfaces, guidance relating to site 

5 planning, design, construction, and maintenance 

6 strategies to ensure that not less than the vol7 ume of the 95th percentile precipitation event 

8 shall infiltrate, evapotranspirate from, or be 

9 harvested and used on such site after the 

10 project is completed; and 

11 ‘‘(B) establish and issue model ordinances 

12 and guidelines with respect to the construction 

13 of low-impact development infrastructure and 

14 nonstructural low-impact development tech15 niques for use by States, local governments, 

16 and private entities. 

17 ‘‘(8) ASSISTANCE WITH RESPECT TO

18 STORMWATER DISCHARGES.— 

19 ‘‘(A) GRANT PROGRAM.—The Adminis20 trator may provide grants to any local govern21 ment within the Chesapeake Bay watershed 

22 that adopts the guidance, ordinances, and 

23 guidelines issued under paragraph (7). 


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

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

3 government to pay costs associated with— 

4 ‘‘(i) developing, implementing, and en5 forcing the guidance, ordinances, and 

6 guidelines issued under paragraph (7); and 

7 ‘‘(ii) implementing a project that is 

8 designed, constructed, and maintained to 

9 meet the relative performance standard de10 scribed in subsection (i)(3)(B). 

11 ‘‘(9) CONSUMER AND COMMERCIAL PRODUCT

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

13 enactment of the Chesapeake Clean Water and Eco14 system Restoration Act of 2009, the Administrator, 

15 in consultation with the Chesapeake Executive Coun16 cil, shall— 

17 ‘‘(A) review consumer and commercial 

18 products, the use of which may affect the water 

19 quality of the Chesapeake Bay watershed or as20 sociated tributaries, to determine whether fur21 ther product nutrient content restrictions are 

22 necessary to restore or maintain water quality 

23 in the Chesapeake Bay watershed and those 

24 tributaries; and 


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1 ‘‘(B) submit to the Committees on Appro2 priations, Environment and Public Works, and 

3 Commerce, Science, and Transportation of the 

4 Senate and the Committees on Appropriations, 

5 Natural Resources, Energy and Commerce, and 

6 Transportation and Infrastructure of the House 

7 of Representatives a report detailing the find8 ings of the review under subparagraph (A). 

9 ‘‘(k) PROHIBITION ON INTRODUCTION OF ASIAN

10 OYSTERS.—Not later than 2 years after the date of enact11 ment of the Chesapeake Clean Water and Ecosystem Res12 toration Act of 2009, the Administrator shall promulgate 

13 regulations— 

14 ‘‘(1) to designate the Asian oyster as a ‘biologi15 cal pollutant’ in the Chesapeake Bay and tidal wa16 ters pursuant to section 502; 

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

18 sections 402 and 404 for the discharge of the Asian 

19 oyster into the Chesapeake Bay and tidal waters; 

20 and 

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

22 research on Asian oysters may be conducted within 

23 the Chesapeake Bay and tidal waters. 

24 ‘‘(l) EFFECT ON OTHER REQUIREMENTS.— 


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1 ‘‘(1) IN GENERAL.—Nothing in this section re2 moves or otherwise affects any other obligation for 

3 a point source to comply with other applicable re4 quirements under this Act. 

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

6 State to submit a watershed implementation plan or 

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

8 year commitment made in a watershed implementa9 tion plan, by the applicable deadline established 

10 under this section shall— 

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

12 ‘‘(B) subject the State to— 

13 ‘‘(i) enforcement action by the Admin14 istrator; and 

15 ‘‘(ii) civil actions commenced pursuant 

16 to section 505. 

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

18 The failure of the Administrator to act under this 

19 section shall subject the Administrator to civil ac20 tions commenced pursuant to section 505. 

21 ‘‘(m) EVALUATION BY THE INSPECTOR GENERAL.— 

22 The Inspector General of the Environmental Protection 

23 Agency shall evaluate the implementation of this section 

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

25 ‘‘(n) AUTHORIZATION OF APPROPRIATIONS.— 


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1 ‘‘(1) IMPLEMENTATION AND MONITORING

2 GRANTS.— 

3 ‘‘(A) AUTHORIZATION OF APPROPRIA4 TIONS.—In addition to amounts authorized to 

5 be appropriated or otherwise made available to 

6 carry out this section, there are authorized to 

7 be appropriated to the Administrator— 

8 ‘‘(i) to provide implementation grants 

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

10 for each of fiscal years 2010 through 

11 2015, to remain available until expended; 

12 ‘‘(ii) to carry out a freshwater moni13 toring program under subsection (e)(3)(B), 

14 $5,000,000 for each of fiscal years 2010 

15 through 2015; and 

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

17 and tidal water monitoring program under 

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

19 of fiscal years 2010 through 2015. 

20 ‘‘(B) COST SHARING.—The Federal share 

21 of the cost of a program carried out using 

22 funds from a grant provided— 

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

24 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 (g)(2) $15,000,000 for each of fiscal 

6 years 2010 through 2014. 

7 ‘‘(3) STORMWATER 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 (j)(8)(B)(i), $10,000,000; and 

16 ‘‘(ii) to carry out subsection 

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

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

19 for a project under— 

20 ‘‘(i) subsection (j)(8)(B)(i) may not be 

21 used to cover more than 80 percent of the 

22 cost of the project; and 

23 ‘‘(ii) subsection (j)(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) LIMITATION ON ADMINISTRATIVE EX2 PENSES.—Not more than 10 percent of the annual 

3 amount of any grant provided by the Administrator 

4 or Secretary under any program described in para5 graphs (1), (2), or (3) may be used for administra6 tive expenses. 

7 ‘‘(5) AVAILABILITY.—Amounts authorized to be 

8 appropriated under this subsection shall remain 

9 available until expended.’’. 

10 SEC. 4. NONPOINT SOURCE MANAGEMENT PROGRAMS. 

11 Section 319(j) of the Federal Water Pollution Control 

12 Act (33 U.S.C. 1329) is amended by striking ‘‘not to ex13 ceed $70,000,000’’ and all that follows through the period 

14 and inserting ‘‘$500,000,000 for each of the fiscal years 

15 2010 through 2015.’’. 

Æ 


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