II 113th CONGRESS 2d Session S. 2042 IN THE SENATE OF THE UNITED STATES February 26, 2014 Mr. Whitehouse 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. Short title This Act may be cited as the Clean Estuaries Act of 2014 . 2. National estuary program amendments (a) Purposes of Conference (1) Development of comprehensive conservation and management plans Section 320(b) of the Federal Water Pollution Control Act ( 33 U.S.C. 1330(b) ) is amended by striking paragraph (4) and inserting the following: (4) develop and submit to the Administrator a comprehensive conservation and management plan that— (A) identifies the estuary and the associated upstream waters of the estuary to be addressed by the plan, with consideration given to hydrological boundaries; (B) recommends priority protection, conservation, and corrective actions and compliance schedules that address point and nonpoint sources of pollution— (i) to restore and maintain the chemical, physical, and biological integrity of the estuary, including— (I) restoration and maintenance of water quality, including wetlands and natural hydrological flows; (II) a resilient and diverse indigenous population of shellfish, fish, and wildlife; and (III) recreational activities in the estuary; and (ii) to ensure that the designated uses of the estuary are protected; (C) identifies healthy and impaired watershed components by carrying out integrated assessments that include assessments of— (i) aquatic habitat and biological integrity; (ii) water quality; and (iii) natural hydrological flows; (D) considers current and future sustainable commercial activities in the estuary; (E) addresses the effects of climate variability on the estuary, including— (i) the identification and assessment of vulnerabilities in the estuary; (ii) the development and implementation of adaptation strategies; and (iii) the potential impacts of changes in sea level on estuarine water quality, estuarine habitat, and infrastructure located in the estuary; (F) increases public education and awareness with respect to— (i) the ecological health of the estuary; (ii) the water quality conditions of the estuary; and (iii) ocean, estuarine, land, and atmospheric connections and interactions; (G) includes performance measures and goals to track implementation of the plan; and (H) includes a coordinated monitoring strategy for Federal, State, and local governments and other entities. . (2) Monitoring and making results available Section 320(b) of the Federal Water Pollution Control Act ( 33 U.S.C. 1330(b) ) is amended by striking paragraph (6) and inserting the following: (6) monitor (and make results available to the public regarding)— (A) water quality conditions in the estuary and the associated upstream waters of the estuary identified under paragraph (4)(A); (B) watershed and habitat conditions that relate to the ecological health and water quality conditions of the estuary; and (C) the effectiveness of actions taken pursuant to the comprehensive conservation and management plan developed for the estuary under this subsection; . (3) Information and educational activities Section 320(b) of the Federal Water Pollution Control Act ( 33 U.S.C. 1330(b) ) is amended— (A) by redesignating paragraph (7) as paragraph (8); and (B) by inserting after paragraph (6) the following: (7) provide information and educational activities on the ecological health and water quality conditions of the estuary; and . (4) Conforming amendment The sentence following section 320(b)(8) of the Federal Water Pollution Control Act (as so redesignated) ( 33 U.S.C. 1330(b)(8) ) is amended by striking paragraph (7) and inserting paragraph (8) . (b) Members of Conference; Collaborative Processes (1) Members of conference Section 320(c)(5) of the Federal Water Pollution Control Act ( 33 U.S.C. 1330(c)(5) ) is amended by inserting not-for-profit organizations, after institutions, . (2) Collaborative processes Section 320(d) of the Federal Water Pollution Control Act ( 33 U.S.C. 1330(d) ) is amended— (A) by striking (d) and all that follows through In developing and inserting the following: (d) Use of Existing Data and Collaborative Processes (1) Use of existing data In developing ; and (B) by adding at the end the following: (2) Use of collaborative processes In updating a plan under subsection (f)(4) or developing a new plan under subsection (b), a management conference shall make use of collaborative processes— (A) to ensure equitable inclusion of affected interests; (B) to engage with members of the management conference, including through— (i) the use of consensus-based decision rules; and (ii) assistance from impartial facilitators, as appropriate; (C) to ensure relevant information, including scientific, technical, and cultural information, is accessible to members; (D) to promote accountability and transparency by ensuring members are informed in a timely manner of— (i) the purposes and objectives of the management conference; and (ii) the results of an evaluation conducted under subsection (f)(6); (E) to identify the roles and responsibilities of members— (i) in the management conference proceedings; and (ii) in the implementation of the plan; and (F) to seek resolution of conflicts or disputes as necessary. . (c) Administration of Plans Section 320 of the Federal Water Pollution Control Act (33 U.S.C. 1330) is amended by striking subsection (f) and inserting the following: (f) Administration of Plans (1) Approval Not later than 120 days after the date on which a management conference submits to the Administrator a comprehensive conservation and management plan under this section, and after providing for public review and comment, the Administrator shall approve the plan, if— (A) the Administrator determines that the plan meets the requirements of this section; and (B) each affected Governor concurs. (2) Completeness (A) In general If the Administrator determines that a plan is incomplete under paragraph (1) or (7), the Administrator shall— (i) provide the management conference with written notification of the basis of that finding; and (ii) allow the management conference to resubmit a revised plan that addresses, to the maximum extent practicable, the comments contained in the written notification of the Administrator described in clause (i). (B) Resubmission If the Administrator determines that a revised plan submitted under subparagraph (A)(ii) remains incomplete under paragraph (1) or (7), the Administrator shall allow the management conference to resubmit a revised plan in accordance with subparagraph (A). (C) Scope of review In determining whether to approve a comprehensive conservation and management plan under paragraph (1) or (7), the Administrator— (i) shall limit the scope of review to a determination of whether the plan meets the minimum requirements of this section; and (ii) may not impose, as a condition of approval, any additional requirements. (3) Failure of the Administrator to respond If, by the date that is 120 days after the date on which a plan is submitted or resubmitted under paragraph (1), (2), or (7) the Administrator fails to respond to the submission or resubmission in writing, the plan shall be considered approved. (4) Failure to submit a plan If, by the date that is 3 years after the date on which a management conference is convened, that management conference fails to submit a comprehensive conservation and management plan or to secure approval for the comprehensive conservation and management plan under this subsection, the Administrator shall terminate the management conference convened under this section. (5) Implementation (A) In general On the approval of a comprehensive conservation and management plan under this section, the plan shall be implemented. (B) Use of authorized amounts Amounts authorized to be appropriated under titles II and VI and section 319 may be used in accordance with the applicable requirements of this Act to assist States with the implementation of a plan approved under paragraph (1). (6) Evaluation (A) In general Not later than 5 years after the date of enactment of this paragraph, and every 5 years thereafter, the Administrator shall carry out an evaluation of the implementation of each comprehensive conservation and management plan developed under this section to determine the degree to which the goals of the plan have been met. (B) Review and comment by management conference In completing an evaluation under subparagraph (A), the Administrator shall submit the results of the evaluation to the appropriate management conference for review and comment. (C) Report (i) In general In completing an evaluation under subparagraph (A), and after providing an opportunity for a management conference to submit comments under subparagraph (B), the Administrator shall issue a report on the results of the evaluation, including the findings and recommendations of the Administrator and any comments received from the management conference. (ii) Availability to public The Administrator shall make a report issued under this subparagraph available to the public, including through publication in the Federal Register and on the Internet. (D) Special rule for new plans Notwithstanding subparagraph (A), if a management conference submits a new comprehensive conservation and management plan to the Administrator after the date of enactment of this paragraph, the Administrator shall complete the evaluation of the implementation of the plan required by subparagraph (A) not later than 5 years after the date of such submission and every 5 years thereafter. (7) Updates (A) Requirement Not later than 18 months after the date on which the Administrator makes an evaluation of the implementation of a comprehensive conservation and management plan available to the public under paragraph (6)(C), a management conference convened under this section shall submit to the Administrator an update of the plan that reflects, to the maximum extent practicable, the results of the program evaluation. (B) Approval of updates Not later than 120 days after the date on which a management conference submits to the Administrator an updated comprehensive conservation and management plan under subparagraph (A), and after providing for public review and comment, the Administrator shall approve the updated plan, if the Administrator determines that the updated plan meets the requirements of this section. (8) Probationary status The Administrator may consider a management conference convened under this section to be in probationary status, if the management conference has not received approval for an updated comprehensive conservation and management plan under paragraph (7)(B) on or before the last day of the 5-year period beginning on the date on which the Administrator makes an evaluation of the plan available to the public under paragraph (6)(C). . (d) Federal Agencies Section 320 of the Federal Water Pollution Control Act ( 33 U.S.C. 1330 ) is amended— (1) by redesignating subsections (g), (h), (i), (j), and (k) as subsections (h), (i), (j), (k), and (m), respectively; and (2) by inserting after subsection (f) the following: (g) Federal Agencies (1) Activities conducted within estuaries with approved plans After approval of a comprehensive conservation and management plan by the Administrator, any Federal action or activity affecting the estuary shall be conducted, to the maximum extent practicable, in a manner consistent with the plan. (2) Coordination and cooperation (A) In general The Secretary of the Army (acting through the Chief of Engineers), the Administrator of the National Oceanic and Atmospheric Administration, the Director of the United States Fish and Wildlife Service, the Secretary of the Department of Agriculture, the Director of the United States Geological Survey, the Secretary of the Department of Transportation, the Secretary of the Department of Housing and Urban Development, and the heads of other appropriate Federal agencies, as determined by the Administrator, shall, to the maximum extent practicable, cooperate and coordinate activities, including monitoring activities, related to the implementation of a comprehensive conservation and management plan approved by the Administrator. (B) Lead coordinating agency The Environmental Protection Agency shall serve as the lead coordinating agency under this paragraph. (3) Consideration of plans in agency budget requests In making an annual budget request for a Federal agency referred to in paragraph (2), the head of such agency shall consider the responsibilities of the agency under this section, including under comprehensive conservation and management plans approved by the Administrator. (4) Monitoring The heads of the Federal agencies referred to in paragraph (2) shall collaborate on the development of tools and methodologies for monitoring the ecological health and water quality conditions of estuaries covered by a management conference convened under this section. . (e) Grants (1) In general Subsection (h) (as redesignated by subsection (d)) of section 320 of the Federal Water Pollution Control Act ( 33 U.S.C. 1330 ) is amended— (A) in paragraph (1), by striking other public and all that follows before the period at the end and inserting and other public or nonprofit private agencies, institutions, and organizations ; and (B) by adding at the end the following: (4) Effects of probationary status (A) Reductions in grant amounts The Administrator shall reduce, by an amount to be determined by the Administrator, grants for the implementation of a comprehensive conservation and management plan developed by a management conference convened under this section, if the Administrator determines that the management conference is in probationary status under subsection (f)(8). (B) Termination of management conferences The Administrator shall terminate a management conference convened under this section, and cease funding for the implementation of the comprehensive conservation and management plan developed by the management conference, if the Administrator determines that the management conference has been in probationary status for 2 consecutive years. . (2) Conforming amendment Section 320(i) the Federal Water Pollution Control Act (as redesignated by subsection (d)) is amended by striking subsection (g) and inserting subsection (h) . (f) Authorization of Appropriations Section 320 of the Federal Water Pollution Control Act ( 33 U.S.C. 1330 ) (as redesignated by subsection (d)) is amended by striking subsection (j) and inserting the following: (j) Authorization of Appropriations (1) In general There is authorized to be appropriated to the Administrator $35,000,000 for each of fiscal years 2014 through 2018 for— (A) expenses relating to the administration of grants by the Administrator under this section, including the award and oversight of grants, except that such expenses shall not exceed 5 percent of the amount appropriated under this subsection; (B) making grants under subsection (h); and (C) monitoring the implementation of a conservation and management plan by the management conference, or by the Administrator in any case in which the conference has been terminated. (2) Allocations The Administrator shall provide at least 80 percent of the amounts appropriated under this subsection per fiscal year for the development, implementation, and monitoring of each conservation and management plan eligible for grant assistance under subsection (h). (3) Requirement The Administrator shall include in the annual budget request of the Environmental Protection Agency a clear description of the amounts requested by the Administrator to make grants under paragraph (1)(B). . (g) Research Section 320(k)(1)(A) of the Federal Water Pollution Control Act (as redesignated by subsection (d)) is amended— (1) by striking paramenters and inserting parameters ; and (2) by inserting (including monitoring of both pathways and ecosystems to track the introduction and establishment of nonnative species) before , to provide the Administrator . (h) National Estuary Program Evaluation Section 320 of the Federal Water Pollution Control Act ( 33 U.S.C. 1330 ) is amended by inserting after subsection (k) (as redesignated by subsection (d)) the following: (l) National Estuary Program Evaluation (1) In general Not later than 5 years after the date of enactment of this paragraph, and every 5 years thereafter, the Administrator shall complete an evaluation of the national estuary program established under this section. (2) Specific assessments In conducting an evaluation under this subsection, the Administrator shall— (A) assess the effectiveness of the national estuary program in improving water quality, natural resources, and sustainable uses of the estuaries covered by management conferences convened under this section; (B) identify best practices for improving water quality, natural resources, and sustainable uses of the estuaries covered by management conferences convened under this section, including those practices funded through the use of technical assistance from the Environmental Protection Agency and other Federal agencies; (C) assess the reasons why the best practices described in subparagraph (B) resulted in the achievement of program goals; (D) identify any redundant requirements for reporting by recipients of a grant under this section; and (E) develop and recommend a plan for eliminating any redundancies. (3) Report In completing an evaluation under this subsection, the Administrator shall issue a report on the results of the evaluation, including the findings and recommendations of the Administrator. (4) Availability The Administrator shall make a report issued under this subsection available to management conferences convened under this section and the public, including through publication in the Federal Register and on the Internet. . (i) Convening of conference Section 320(a)(2) of the Federal Water Pollution Control Act ( 33 U.S.C. 1330(a)(2) ) is amended— (1) by striking (2) Convening of conference .— and all that follows through In any case and inserting the following: (2) Convening of conference In any case ; and (2) by striking subparagraph (B). (j) Great Lakes Estuaries Section 320(m) of the Federal Water Pollution Control Act (as redesignated by subsection (d)) is amended by striking the subsection designation and all that follows through and those portions of tributaries and inserting the following: (m) Definitions In this section, the terms estuary and estuarine zone have the meanings given the terms in section 104(n)(4), except that— (1) the term estuary also includes near coastal waters and other bodies of water within the Great Lakes that are similar in form and function to the waters described in the definition of estuary in section 104(n)(4); and (2) the term estuarine zone also includes— (A) waters within the Great Lakes described in paragraph (1) and transitional areas from such waters that are similar in form and function to the transitional areas described in the definition of estuarine zone in section 104(n)(4); (B) associated aquatic ecosystems; and (C) those portions of tributaries .