II 

111TH CONGRESS 

2D SESSION S. 3540 

To amend the Federal Water Pollution Control Act to reauthorize the 

National Estuary Program, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 28, 2010 

Mr. WHITEHOUSE (for himself and Mr. VITTER) 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 reauthorize the National Estuary Program, and for other 

purposes. 

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 ‘‘Clean Estuaries Act 

5 of 2010’’. 

6 SEC. 2. NATIONAL ESTUARY PROGRAM AMENDMENTS. 

7 (a) PURPOSES OF CONFERENCE.— 

8 (1) DEVELOPMENT OF COMPREHENSIVE CON9 SERVATION AND MANAGEMENT PLANS.—Section 


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1 320(b) of the Federal Water Pollution Control Act 

2 (33 U.S.C. 1330(b)) is amended by striking para3 graph (4) and inserting the following: 

4 ‘‘(4) develop and submit to the Administrator a 

5 comprehensive conservation and management plan 

6 that— 

7 ‘‘(A) identifies the estuary and the associ8 ated upstream waters of the estuary to be ad9 dressed by the plan, with consideration given to 

10 hydrological boundaries; 

11 ‘‘(B) recommends priority corrective ac12 tions and compliance schedules addressing— 

13 ‘‘(i) point and nonpoint sources of pol14 lution; and 

15 ‘‘(ii) protection and conservation ac16 tions— 

17 ‘‘(I) to restore and maintain the 

18 chemical, physical, and biological in19 tegrity of the estuary, including— 

20 ‘‘(aa) restoration and main21 tenance of water quality, wet22 lands, and natural hydrologic 

23 flows; 


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1 ‘‘(bb) a resilient and diverse 

2 indigenous population of shell3 fish, fish, and wildlife; and 

4 ‘‘(cc) recreational activities 

5 in the estuary; and 

6 ‘‘(II) to ensure that the des7 ignated uses of the estuary are pro8 tected; 

9 ‘‘(C) identifies healthy watershed compo10 nents for protection and conservation by car11 rying out integrated assessments, where appro12 priate, of— 

13 ‘‘(i) aquatic habitat and biological in14 tegrity; 

15 ‘‘(ii) water quality; and 

16 ‘‘(iii) natural hydrologic flows; 

17 ‘‘(D) considers current and future sustain18 able commercial activities in the estuary; 

19 ‘‘(E) addresses the impacts of climate 

20 change on the estuary, including— 

21 ‘‘(i) the identification and assessment 

22 of vulnerabilities in the estuary; 

23 ‘‘(ii) the development and implementa24 tion of adaptation strategies; and 


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1 ‘‘(iii) the impacts of changes in sea 

2 level on estuarine water quality, estuarine 

3 habitat, and infrastructure located in the 

4 estuary; 

5 ‘‘(F) increases public education and aware6 ness with respect to— 

7 ‘‘(i) the ecological health of the estu8 ary; 

9 ‘‘(ii) the water quality conditions of 

10 the estuary; and 

11 ‘‘(iii) ocean, estuarine, land, and at12 mospheric connections and interactions; 

13 ‘‘(G)(i) identifies and assesses impair14 ments, including upstream impairments, coming 

15 from outside of the area addressed by the plan, 

16 and the sources of those impairments; and 

17 ‘‘(ii) provides the applicable State with any 

18 information on such impairments or the sources 

19 of such impairments; 

20 ‘‘(H) includes performance measures and 

21 goals to track implementation of the plan; and 

22 ‘‘(I) includes a coordinated monitoring 

23 strategy for Federal, State, and local govern24 ments and other entities.’’. 


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1 (2) MONITORING AND MAKING RESULTS AVAIL2 ABLE.—Section 320(b) of the Federal Water Pollu3 tion Control Act (33 U.S.C. 1330(b)) is amended by 

4 striking paragraph (6) and inserting the following: 

5 ‘‘(6) monitor (and make results available to the 

6 public regarding)— 

7 ‘‘(A) water quality conditions in the estu8 ary and the associated upstream waters of the 

9 estuary identified under paragraph (4)(A); 

10 ‘‘(B) healthy watershed and habitat condi11 tions that relate to the ecological health and 

12 water quality conditions of the estuary; and 

13 ‘‘(C) the effectiveness of actions taken pur14 suant to the comprehensive conservation and 

15 management plan developed for the estuary 

16 under this subsection;’’. 

17 (3) INFORMATION AND EDUCATIONAL ACTIVI18 TIES.—Section 320(b) of the Federal Water Pollu19 tion Control Act (33 U.S.C. 1330(b)) is amended— 

20 (A) by redesignating paragraph (7) as 

21 paragraph (8); and 

22 (B) by inserting after paragraph (6) the 

23 following: 


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1 ‘‘(7) provide information and educational activi2 ties on the ecological health and water quality condi3 tions of the estuary; and’’. 

4 (4) CONFORMING AMENDMENT.—The sentence 

5 following section 320(b)(8) of the Federal Water 

6 Pollution Control Act (as so redesignated) (33 

7 U.S.C. 1330(b)(8)) is amended by striking ‘‘para8 graph (7)’’ and inserting ‘‘paragraph (8)’’. 

9 (b) MEMBERS OF CONFERENCE; COLLABORATIVE

10 PROCESSES.— 

11 (1) MEMBERS OF CONFERENCE.—Section 

12 320(c)(5) of the Federal Water Pollution Control 

13 Act (33 U.S.C. 1330(c)(5)) is amended by inserting 

14 ‘‘not-for-profit organizations,’’ after ‘‘institutions,’’. 

15 (2) COLLABORATIVE PROCESSES.—Section 

16 320(d) of the Federal Water Pollution Control Act 

17 (33 U.S.C. 1330(d)) is amended— 

18 (A) by striking ‘‘(d)’’ and all that follows 

19 through ‘‘In developing’’ and inserting the fol20 lowing: 

21 ‘‘(d) USE OF EXISTING DATA AND COLLABORATIVE

22 PROCESSES.— 

23 ‘‘(1) USE OF EXISTING DATA.—In developing’’; 

24 and 

25 (B) by adding at the end the following: 


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1 ‘‘(2) USE OF COLLABORATIVE PROCESSES.—In 

2 updating a plan under subsection (f)(4) or devel3 oping a new plan under subsection (b), a manage4 ment conference shall make use of collaborative 

5 processes— 

6 ‘‘(A) to ensure equitable inclusion of af7 fected interests; 

8 ‘‘(B) to engage with members of the man9 agement conference, including through— 

10 ‘‘(i) the use of consensus-based deci11 sion rules; and 

12 ‘‘(ii) assistance from impartial facili13 tators, as appropriate; 

14 ‘‘(C) to ensure relevant information, in15 cluding scientific, technical, and cultural infor16 mation, is accessible to members; 

17 ‘‘(D) to promote accountability and trans18 parency by ensuring members are informed in 

19 a timely manner of— 

20 ‘‘(i) the purposes and objectives of the 

21 management conference; and 

22 ‘‘(ii) the results of an evaluation con23 ducted under subsection (f)(3); 

24 ‘‘(E) to identify the roles and responsibil25 ities of members— 


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1 ‘‘(i) in the management conference 

2 proceedings; and 

3 ‘‘(ii) in the implementation of the 

4 plan; and 

5 ‘‘(F) to seek resolution of conflicts or dis6 putes as necessary.’’. 

7 (c) ADMINISTRATION OF PLANS.—Section 320 of the 

8 Federal Water Pollution Control Act (33 U.S.C. 1330) is 

9 amended by striking subsection (f) and inserting the fol10 lowing: 

11 ‘‘(f) ADMINISTRATION OF PLANS.— 

12 ‘‘(1) APPROVAL.—Not later than 120 days 

13 after the date on which a management conference 

14 submits to the Administrator a comprehensive con15 servation and management plan under this section, 

16 and after providing for public review and comment, 

17 the Administrator shall approve the plan, if— 

18 ‘‘(A) the Administrator determines that 

19 the plan meets the requirements of this section; 

20 and 

21 ‘‘(B) each affected Governor concurs. 

22 ‘‘(2) IMPLEMENTATION.— 

23 ‘‘(A) IN GENERAL.—On the approval of a 

24 comprehensive conservation and management 


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1 plan under this section, the plan shall be imple2 mented. 

3 ‘‘(B) USE OF AUTHORIZED AMOUNTS.— 

4 Amounts authorized to be appropriated under 

5 titles II and VI and section 319 may be used 

6 in accordance with the applicable requirements 

7 of this Act to assist States with the implemen8 tation of a plan approved under paragraph (1). 

9 ‘‘(3) EVALUATION.— 

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

11 after the date of enactment of this paragraph, 

12 and every 5 years thereafter, the Administrator 

13 shall carry out— 

14 ‘‘(i) an evaluation of the implementa15 tion of each comprehensive conservation 

16 and management plan developed under this 

17 section to determine the degree to which 

18 the goals of the plan have been met; and 

19 ‘‘(ii) a review of the program designed 

20 to implement the plan. 

21 ‘‘(B) REVIEW AND COMMENT BY MANAGE22 MENT CONFERENCE.—In completing an evalua23 tion under subparagraph (A), the Administrator 

24 shall submit the results of the evaluation to the 


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1 appropriate management conference for review 

2 and comment. 

3 ‘‘(C) REPORT.— 

4 ‘‘(i) IN GENERAL.—In completing an 

5 evaluation under subparagraph (A), and 

6 after providing an opportunity for a man7 agement conference to submit comments 

8 under subparagraph (B), the Adminis9 trator shall issue a report on the results of 

10 the evaluation, including the findings and 

11 recommendations of the Administrator and 

12 any comments received from the manage13 ment conference. 

14 ‘‘(ii) AVAILABILITY TO PUBLIC.—The 

15 Administrator shall make a report issued 

16 under this subparagraph available to the 

17 public, including through publication in the 

18 Federal Register and on the Internet. 

19 ‘‘(D) SPECIAL RULE FOR NEW PLANS.— 

20 Notwithstanding subparagraph (A), if a man21 agement conference submits a new comprehen22 sive conservation and management plan to the 

23 Administrator after the date of enactment of 

24 this paragraph, the Administrator shall com25 plete the evaluation of the implementation of 


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1 the plan required by subparagraph (A) not later 

2 than 5 years after the date of such submission 

3 and every 5 years thereafter. 

4 ‘‘(4) UPDATES.— 

5 ‘‘(A) REQUIREMENT.—Not later than 18 

6 months after the date on which the Adminis7 trator makes an evaluation of the implementa8 tion of a comprehensive conservation and man9 agement plan available to the public under 

10 paragraph (3)(C), a management conference 

11 convened under this section shall submit to the 

12 Administrator an update of the plan that re13 flects, to the maximum extent practicable, the 

14 results of the program evaluation. 

15 ‘‘(B) APPROVAL OF UPDATES.—Not later 

16 than 120 days after the date on which a man17 agement conference submits to the Adminis18 trator an updated comprehensive conservation 

19 and management plan under subparagraph (A), 

20 and after providing for public review and com21 ment, the Administrator shall approve the up22 dated plan, if the Administrator determines 

23 that the updated plan meets the requirements 

24 of this section. 


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1 ‘‘(5) PROBATIONARY STATUS.—The Adminis2 trator may consider a management conference con3 vened under this section to be in probationary sta4 tus, if the management conference has not received 

5 approval for an updated comprehensive conservation 

6 and management plan under paragraph (4)(B) on or 

7 before the last day of the 3-year period beginning on 

8 the date on which the Administrator makes an eval9 uation of the plan available to the public under para10 graph (3)(C).’’. 

11 (d) FEDERAL AGENCIES.—Section 320 of the Fed12 eral Water Pollution Control Act (33 U.S.C. 1330) is 

13 amended— 

14 (1) by redesignating subsections (g), (h), (i), 

15 (j), and (k) as subsections (h), (i), (j), (k), and (m), 

16 respectively; and 

17 (2) by inserting after subsection (f) the fol18 lowing: 

19 ‘‘(g) FEDERAL AGENCIES.— 

20 ‘‘(1) ACTIVITIES CONDUCTED WITHIN ESTU21 ARIES WITH APPROVED PLANS.—After approval of a 

22 comprehensive conservation and management plan 

23 by the Administrator, any Federal action or activity 

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1 imum extent practicable, in a manner consistent 

2 with the plan. 

3 ‘‘(2) COORDINATION AND COOPERATION.— 

4 ‘‘(A) IN GENERAL.—The Secretary of the 

5 Army (acting through the Chief of Engineers), 

6 the Administrator of the National Oceanic and 

7 Atmospheric Administration, the Director of the 

8 United States Fish and Wildlife Service, the 

9 Secretary of the Department of Agriculture, the 

10 Director of the United States Geological Sur11 vey, the Secretary of the Department of Trans12 portation, the Secretary of the Department of 

13 Housing and Urban Development, and the 

14 heads of other appropriate Federal agencies, as 

15 determined by the Administrator, shall, to the 

16 maximum extent practicable, cooperate and co17 ordinate activities, including monitoring activi18 ties, related to the implementation of a com19 prehensive conservation and management plan 

20 approved by the Administrator. 

21 ‘‘(B) LEAD COORDINATING AGENCY.—The 

22 Environmental Protection Agency shall serve as 

23 the lead coordinating agency under this para24 graph. 


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1 ‘‘(3) CONSIDERATION OF PLANS IN AGENCY

2 BUDGET REQUESTS.—In making an annual budget 

3 request for a Federal agency referred to in para4 graph (2), the head of such agency shall consider 

5 the responsibilities of the agency under this section, 

6 including under comprehensive conservation and 

7 management plans approved by the Administrator. 

8 ‘‘(4) MONITORING.—The heads of the Federal 

9 agencies referred to in paragraph (2) shall collabo10 rate on the development of tools and methodologies 

11 for monitoring the ecological health and water qual12 ity conditions of estuaries covered by a management 

13 conference convened under this section.’’. 

14 (e) GRANTS.— 

15 (1) IN GENERAL.—Subsection (h) (as redesig16 nated by subsection (d)) of section 320 of the Fed17 eral Water Pollution Control Act (33 U.S.C. 1330) 

18 is amended— 

19 (A) in paragraph (1), by striking ‘‘other 

20 public’’ and all that follows before the period at 

21 the end and inserting ‘‘and other public or non22 profit private agencies, institutions, and organi23 zations’’; and 

24 (B) by adding at the end the following: 

25 ‘‘(4) EFFECTS OF PROBATIONARY STATUS.— 


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1 ‘‘(A) REDUCTIONS IN GRANT AMOUNTS.— 

2 The Administrator shall reduce, by an amount 

3 to be determined by the Administrator, grants 

4 for the implementation of a comprehensive con5 servation and management plan developed by a 

6 management conference convened under this 

7 section, if the Administrator determines that 

8 the management conference is in probationary 

9 status under subsection (f)(5). 

10 ‘‘(B) TERMINATION OF MANAGEMENT CON11 FERENCES.—The Administrator shall terminate 

12 a management conference convened under this 

13 section, and cease funding for the implementa14 tion of the comprehensive conservation and 

15 management plan developed by the manage16 ment conference, if the Administrator deter17 mines that the management conference has 

18 been in probationary status for 2 consecutive 

19 years.’’. 

20 (2) CONFORMING AMENDMENT.—Section 320(i) 

21 the Federal Water Pollution Control Act (as redesig22 nated by subsection (d)) is amended by striking 

23 ‘‘subsection (g)’’ and inserting ‘‘subsection (h)’’. 

24 (f) AUTHORIZATION OF APPROPRIATIONS.—Section 

25 320 of the Federal Water Pollution Control Act (33 


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1 U.S.C. 1330) (as redesignated by subsection (d)) is 

2 amended by striking subsection (j) and inserting the fol3 lowing: 

4 ‘‘(j) AUTHORIZATION OF APPROPRIATIONS.— 

5 ‘‘(1) IN GENERAL.—There is authorized to be 

6 appropriated to the Administrator $75,000,000 for 

7 each of fiscal years 2011 through 2016 for— 

8 ‘‘(A) expenses relating to the administra9 tion of management conferences by the Admin10 istrator under this section, except that such ex11 penses shall not exceed 10 percent of the 

12 amount appropriated under this subsection; 

13 ‘‘(B) making grants under subsection (h); 

14 and 

15 ‘‘(C) monitoring the implementation of a 

16 conservation and management plan by the man17 agement conference, or by the Administrator in 

18 any case in which the conference has been ter19 minated. 

20 ‘‘(2) ALLOCATIONS.—Of the sums authorized to 

21 be appropriated under this subsection, the Adminis22 trator shall provide— 

23 ‘‘(A) at least $1,250,000 per fiscal year, 

24 subject to the availability of appropriations, for 

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1 toring of each conservation and management 

2 plan eligible for grant assistance under sub3 section (h); and 

4 ‘‘(B) up to $5,000,000 per fiscal year to 

5 carry out subsection (k).’’. 

6 (g) RESEARCH.—Section 320(k)(1)(A) of the Federal 

7 Water Pollution Control Act (as redesignated by sub8 section (d)) is amended— 

9 (1) by striking ‘‘paramenters’’ and inserting 

10 ‘‘parameters’’; and 

11 (2) by inserting ‘‘(including monitoring of both 

12 pathways and ecosystems to track the introduction 

13 and establishment of nonnative species)’’ before ‘‘, to 

14 provide the Administrator’’. 

15 (h) NATIONAL ESTUARY PROGRAM EVALUATION.— 

16 Section 320 of the Federal Water Pollution Control Act 

17 (33 U.S.C. 1330) is amended by inserting after subsection 

18 (k) (as redesignated by subsection (d)) the following: 

19 ‘‘(l) NATIONAL ESTUARY PROGRAM EVALUATION.— 

20 ‘‘(1) IN GENERAL.—Not later than 5 years 

21 after the date of enactment of this paragraph, and 

22 every 5 years thereafter, the Administrator shall 

23 complete an evaluation of the national estuary pro24 gram established under this section. 


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1 ‘‘(2) SPECIFIC ASSESSMENTS.—In conducting 

2 an evaluation under this subsection, the Adminis3 trator shall— 

4 ‘‘(A) assess the effectiveness of the na5 tional estuary program in improving water 

6 quality, natural resources, and sustainable uses 

7 of the estuaries covered by management con8 ferences convened under this section; 

9 ‘‘(B) identify best practices for improving 

10 water quality, natural resources, and sustain11 able uses of the estuaries covered by manage12 ment conferences convened under this section, 

13 including those practices funded through the 

14 use of technical assistance from the Environ15 mental Protection Agency and other Federal 

16 agencies; 

17 ‘‘(C) assess the reasons why the best prac18 tices described in subparagraph (B) resulted in 

19 the achievement of program goals; 

20 ‘‘(D) identify any redundant requirements 

21 for reporting by recipients of a grant under this 

22 section; and 

23 ‘‘(E) develop and recommend a plan for 

24 limiting reporting any redundancies. 


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1 ‘‘(3) REPORT.—In completing an evaluation 

2 under this subsection, the Administrator shall issue 

3 a report on the results of the evaluation, including 

4 the findings and recommendations of the Adminis5 trator. 

6 ‘‘(4) AVAILABILITY.—The Administrator shall 

7 make a report issued under this subsection available 

8 to management conferences convened under this sec9 tion and the public, including through publication in 

10 the Federal Register and on the Internet.’’. 

11 (i) CONVENING OF CONFERENCE.—Section 

12 320(a)(2) of the Federal Water Pollution Control Act (33 

13 U.S.C. 1330(a)(2)) is amended— 

14 (1) by striking ‘‘(2) CONVENING OF CON15 FERENCE.—’’ and all that follows through ‘‘In any 

16 case’’ and inserting the following: 

17 ‘‘(2) CONVENING OF CONFERENCE.—In any 

18 case’’; and 

19 (2) by striking subparagraph (B). 

20 (j) GREAT LAKES ESTUARIES.—Section 320(m) of 

21 the Federal Water Pollution Control Act (as redesignated 

22 by subsection (d)) is amended by striking the subsection 

23 designation and all that follows through ‘‘and those por24 tions of tributaries’’ and inserting the following: 


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1 ‘‘(m) DEFINITIONS.—In this section, the terms ‘estu2 ary’ and ‘estuarine zone’ have the meanings given the 

3 terms in section 104(n)(4), except that— 

4 ‘‘(1) the term ‘estuary’ also includes near coast5 al waters and other bodies of water within the Great 

6 Lakes that are similar in form and function to the 

7 waters described in the definition of ‘estuary’ in sec8 tion 104(n)(4); and 

9 ‘‘(2) the term ‘estuarine zone’ also includes— 

10 ‘‘(A) waters within the Great Lakes de11 scribed in paragraph (1) and transitional areas 

12 from such waters that are similar in form and 

13 function to the transitional areas described in 

14 the definition of ‘estuarine zone’ in section 

15 104(n)(4); 

16 ‘‘(B) associated aquatic ecosystems; and 

17 ‘‘(C) those portions of tributaries.’’. 

Æ 


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