[Senate Report 113-239] [From the U.S. Government Publishing Office] Calendar No. 525 113th Congress Report SENATE 2d Session 113-239 ====================================================================== CLEAN ESTUARIES ACT OF 2014 _______ July 31, 2014.--Ordered to be printed _______ Mrs. Boxer, from the Committee on Environment and Public Works, submitted the following R E P O R T [To accompany S. 2042] [Including cost estimate of the Congressional Budget Office] The Committee on Environment and Public Works, to which was referred the bill (S. 2042) to amend the Federal Water Pollution Control Act to reauthorize the National Estuaries Program, and for other purposes, having considered the same, reports favorably thereon, with an amendment, and recommends that the bill, as amended, do pass. General Statement and Background S. 2042, the ``Clean Estuaries Act of 2014,'' amends the Federal Water Pollution Control Act (Clean Water Act or Act) to reauthorize appropriations for the National Estuary Program through fiscal year 2019, and to make programmatic changes to this program. Estuaries are partially enclosed bodies of water, and the surrounding coastal habitats, where freshwater outflows from rivers and streams meet and mix with tidal inflows from the ocean. These transition zones between land and sea, fresh and salt water, support a wide variety of plant, fish, and wildlife species. Both because of the mix of saline and fresh water and because estuaries shelter plants and animals from the full force of ocean winds and waves, many fish and shellfish species depend on estuaries to spawn, and for their young to hatch and grow. Estuaries also serve as habitat and breeding areas for hundreds of species of birds and other wildlife, including marine mammals and sea turtles. Estuaries play an important role in the U.S. economy. While coastal counties constitute only 17.5% of the nation's land mass, these counties and their adjacent waters account for 48% of the gross domestic product, and contain 37% of the population.\1\ --------------------------------------------------------------------------- \1\National Ocean Economics Program (2014). --------------------------------------------------------------------------- Estuaries contribute to the economy of the nation through tourism and recreation, including wildlife viewing; energy production; navigation/port industries; and commercial and recreational fishing. On an annual basis, marine based tourism and recreation generate up to $89.25 billion of economic value.\2\ Much of this activity occurs in and along the coasts of estuaries. The Narragansett Bay tourism and outdoor recreation industry alone is valued at two billion dollars annually. Estuaries also shelter important ports, which are critical to our economy--more than 78% of U.S. overseas trade by volume comes and goes by ship.\3\ --------------------------------------------------------------------------- \2\National Ocean Economics Program (2014). \3\Department of Transportation: Bureau of Transportation Statistics, 2007: National Transportation Statistics, Washington, DC. --------------------------------------------------------------------------- Most economically important fish and shellfish species live in estuaries during at least one stage of their life. According to the National Oceanographic and Atmospheric Administration (NOAA) and the National Research Council (NRC), estuaries provide habitat for 75 percent of our national commercial fish catch, and 80 to 90 percent of the recreational fish catch.\4\ In 2012, the U.S. seafood industry supported about 1.3 million full- and part-time jobs and generated $141 billion in sales impacts, $39 billion in income impacts, and $59 billion in value added impacts.\5\ Also in 2012, there were approximately 11 million recreational saltwater anglers who took 72 million saltwater fishing trips. They spent $4.6 billion on fishing trips and $20 billion on durable fishing-related equipment.\6\ --------------------------------------------------------------------------- \4\Chambers, J.R., 1992. Coastal Degradation and Fish Population Losses, in Stroud, ed., Stemming the Tide of Coastal Fish Habitat Loss. National Coalition for Marine Conservation, Inc., Leesburg, VA. This source was cited in Lellis-Dibble, K.A. et al., Estuarine Fish and Shellfish Species in U.S. Commercial and Recreational Fisheries: Economic Value as an Incentive to Protect and Restore Estuarine Habitat, NOAA Technical Memorandum NMFS-F/SPO-90, November 2008, which independently determined that between 2000 and 2004, estuarine species represented 46% by weight and 68% by value of the commercial catch. \5\http://www.st.nmfs.noaa.gov/Assets/economics/documents/feus/ 2012/FEUS2012.pdf. \6\http://www.st.nmfs.noaa.gov/Assets/economics/documents/feus/ 2012/FEUS2012.pdf. --------------------------------------------------------------------------- Less tangible are the environmental benefits estuaries provide in the form of critical ecosystem services. The marsh land and plants in estuaries helps control water pollution by filtering out the sediment and pollutants carried by rivers and streams. The plants in estuaries help prevent shoreline erosion. Estuaries also protect inland areas from flooding and storm surges by absorbing the water before it can reach inland areas. These coastal wetlands provide $23.2 billion worth of storm protection services each year.\7\ --------------------------------------------------------------------------- \7\Costanza, R. et al, ``The Value of Coastal Wetlands for Hurricane Protection,'' AMBIO: A Journal of the Human Environment, June 2008. --------------------------------------------------------------------------- The Environmental Protection Agency (EPA) has identified several environmental concerns in the 28 estuaries involved in the National Estuary Program (NEP), such as habitat loss and alteration; declines in fish and wildlife populations; excessive nutrients; toxic chemical contaminations; pathogenic microorganisms; alteration of freshwater flows; and the introduction of invasive species. National Estuary Program (NEP) In 1987, Congress amended the Clean Water Act to add Section 320, which authorized the National Estuary Program. Led by EPA this collaborative, voluntary program addresses water quality problems and habitat degradation in priority estuaries across the nation. It is comprised of approved estuary programs that are, for the most part, administered by state or local governments or non-governmental entities.\8\ These programs lead comprehensive planning efforts to protect estuaries from identified threats. --------------------------------------------------------------------------- \8\The estuary program for the Long Island Sound is the only Federally-administered program; it is run by EPA. --------------------------------------------------------------------------- When Congress first authorized the program, it identified 16 estuaries as estuaries of national significance, including the Long Island Sound in New York and Connecticut, Narragansett Bay in Rhode Island, San Francisco Bay in California, and Puget Sound in Washington. (Six of these estuaries launched their NEP programs that same year.)\9\ The Governor of any state may nominate to the EPA Administrator an estuary lying in whole or in part within that state as an estuary of national significance. To date, EPA has approved 28 estuaries for the NEP. --------------------------------------------------------------------------- \9\Bearden, D.M, National Estuary Program: A Collaborative Approach to Protecting Coastal Water Quality, Congressional Research Service, 97-644 (2001). --------------------------------------------------------------------------- Once approved, each estuary program, led by a management conference that represents the spectrum of stakeholders, conducts long-term planning and management activities to address the unique set of factors contributing to the degradation of that estuary. Under section 320, each approved estuary program is required to develop a Comprehensive Conservation and Management Plan (CCMP). The CCMP is the action plan for protecting and restoring the estuary. The priorities and activities identified in the CCMP are arrived at through the consensus of the management conference: a diverse group of stakeholders consisting of local, state, and Federal government agencies, commercial entities, members of the agricultural community, universities, and non-governmental agencies such as environmental organizations. Once complete, EPA must approve the CCMP and provide financial and technical assistance for its implementation. Section 320 authorized $35 million annually for the NEP for fiscal years 2001 through 2010. To leverage Federal resources, EPA requires approved estuary programs to have a specific finance plan and to provide a non-Federal match of between 25 percent and 50 percent. NEP estuaries have secured funding from a variety of sources including the Clean Water State Revolving Fund program, stormwater utility fees, municipal bond funding, fines and settlements, tax abatements and incentives, and sales fees. Since 2003, the 28 NEPs have played the primary role in directing nearly $4 billion in additional funds toward CCMP implementation (leveraged from approximately $230 million in EPA Section 320 and other appropriated funds). The investment ratio of non-NEP funds to NEP funds is 15 to 1. Program results On a national scale, the NEP estuaries (collectively) score slightly higher than non-NEP estuaries for water quality indices. The reforms included in S. 2042, as amended, will make the NEP still more effective by providing additional resources for improved management and accountability for program participants. No new estuaries have been added to the program since 1995, but EPA reports that numerous states, local governments, and non-governmental organizations have expressed interest in adding estuaries to the NEP. These 38 estuaries include:Alaska: Cook Inlet; Kenai River California: Humboldt Bay; Tomales Bay; San Pedro Bay; Newport Bay; San Diego Bay; Tijuana River Florida: Lower St. Johns River; Lake Worth; Biscayne Bay; Florida Bay; Crystal River/Homosassa Spring; Apalachicola Bay; St. Andrews Bay; Choctawhatchee Bay; Pensacola Bay Georgia: Savannah River Hawaii: Hanalei Bay; Kaneohe Bay Louisiana: Calcasieu Lake; Atchafalaya Bay; Lake Pontchartrain Maine: Penobscot Bay; Gulf of Maine Massachusetts: Martha's Vineyard Mississippi: Mississippi Sound New York: Great South Bay North Carolina: Cape Fear River Oregon: Coos Bay Puerto Rico: Mayaguez Bay South Carolina: Charleston Harbor; Port Royal Sound; Savannah River Texas: Lavaca Bay-Tres Palacios Bay Virginia: Virginia Coastal Bays Washington: Grays Harbor; Willapa Bay Objectives of the Legislation S. 2042, the ``Clean Estuaries Act of 2014,'' will amend the Federal Water Pollution Control Act (Clean Water Act or Act) to reauthorize appropriations for the National Estuary Program through fiscal year 2019 at $35 million annually and enhance transparency and accountability in participating estuary programs. Section-by-Section Analysis Section 1. Short title This section designates the title of the bill as the ``Clean Estuaries Act of 2014.'' Section 2. National Estuary Program amendments This section amends section 320 of the Clean Water Act to modify and add new requirements to estuary programs participating in the NEP. Subsection (a)(1) Summary Amends section 320(b)(4) of the Act to add additional requirements in the development and revision of an approved estuary's CCMP. These amendments require that each CCMP: identifies the estuary and estuary resources to be considered within the plan; recommends corrective actions and compliance schedules to address point and nonpoint sources of pollution in that estuary, and to propose protection and conservation actions that will restore or maintain key ecological and recreational characteristics of that estuary; identifies components of healthy watersheds and prioritize actions to protect and maintain that level of health by conducting integrated assessments of the estuary's aquatic habitat and biological integrity, water quality, and natural hydrologic flows; considers current and future sustainable commercial activities in the estuary; considers the effects of ongoing climate, hydrologic, and geologic changes on the estuary by identifying vulnerabilities in the estuary and developing and implementing adaptation strategies; increases public education and awareness of the ecological health and water quality conditions of the estuary; includes performance measures and goals to track the degree to which the plan is being implemented successfully; and includes a coordinated monitoring strategy. Discussion The new requirements in this section make important improvements to the national estuary program planning process. First, this act requires approved estuary programs to clearly identify the areas covered by the CCMP. This requirement will improve program management, help to focus and prioritize resources, help educate the public and stakeholders, and create a better sense of estuary identity. Hydrological boundaries for the estuary must be considered when identifying the area to be considered by the CCMP, however, all waters upstream of the estuary may not be considered by the CCMP. Second, the CCMP will need to recommend priority actions to address point and nonpoint sources of pollution which can cause declines in water quality that affect commercially and recreationally valuable fish and shell fish harvests. Third, this act requires approved estuary programs to identify and assess healthy components of a watershed for protection in order to ensure a complete assessment of the health of an estuary and to enable estuary programs to prioritize actions that protect as well as restore key habitat. This analysis is an essential component of maintaining the integrity of an estuary. Fourth, approved estuary programs are required to consider the role of current and future commercial operations in the estuary and the means by which their activities can be sustained. Commercial activities and the health of the estuaries in which they are located are inextricably linked. Commercial activity can impact the ecological health of estuaries just as the ecological health of estuaries can impact the viability of commercial activities. Given this interrelationship, each approved estuary program must include commercial entities in its CCMP process and work with such entities to develop sustainable operations. Fifth, this section requires each NEP estuary to identify ongoing climatic, hydrological, and geologic changes in the estuary as well as ways to adapt to these changes. Land subsidence and changes in sea level are two potential drivers of changes in estuaries and in some areas, like Louisiana, are happening at the same time, leading to dramatic loss of wetlands. Identifying the potential for these changes and ways to protect and restore the estuary in light of them is critical to the future health of the systems and promotes efficient use of resources. Sixth, this section requires each approved estuary program to improve public outreach and education in order to increase awareness of the ecological health of the estuary, the economic importance of estuaries, and the positive or negative impacts of individual actions on the estuary's condition. Finally, each estuary program must include performance measures in its CCMP that will be used to track the effectiveness of program implementation as well as a coordinated monitoring strategy. Outcomes against which program performance can be quantitatively measured are essential accountability tools that help ensure federal resources are wisely spent and program goals will be met. Subsection (a)(2) Summary Amends section 320(b)(6) to clarify and enhance the monitoring requirements related to an estuary CCMP. Each approved estuary program must monitor water quality, healthy watershed, habitat conditions, and estuary resources in the estuary. The estuary programs must also monitor the effectiveness of actions taken pursuant to the CCMP. All monitoring results must be made available to the public. Discussion Estuary programs must monitor water quality, watershed and habitat conditions that depend on the health of the estuary in order to track progress in estuary restoration and protection. Not only does this approach provide more information for program managers on the effectiveness of program activities, it also provides information to nearby communities about the state of their estuary and how actions they take can affect its health. Subsection (a)(3) Summary Amends section 320(b) to require that each estuary program provide information and educational activities on the ecological health and water quality conditions of the estuary to the public. Discussion This provision ensures that each approved estuary program fulfills its obligation to educate the public about estuarine conditions, the economic and ecological importance of the estuary, and activities to restore the ecosystem. The programs are well-situated to provide such information, given the collaborative style of management and the diverse interests they represent. Subsection (b)(1 and 2) Summary Amends section 320(d) by adding a provision entitled, ``Use of Existing Data and Collaborative Processes.'' The new provision attempts to eliminate redundancy in data collection and improve involvement of and collaboration between stakeholders when developing a new CCMP or updating an old CCMP. Existing NEPs attribute successful restoration efforts in part to the successful engagement and inclusion of all estuary stakeholders. The provision requires approved estuary programs make use of collaborative processes to ensure equitable inclusion of affected interests; engage members of the conference; ensure relevant information is accessible to all members; promote accountability and transparency; identify roles and responsibilities in the Conference; and resolve disputes. Subsection (c) Summary Amends section 320(f) to require the periodic update and approval of a CCMP. Not later than 5 years of the date of enactment of S. 2042, as amended, the EPA Administrator must evaluate the implementation of each CCMP to determine the degree to which the goals of the CCMP have been met. The Governors of states affected by the implementation of the CCMP must concur with the Administrator for the plan to be approved. Following the initial evaluation, each estuary program is subject to a subsequent evaluation every five years. The evaluations may be completed by EPA or, at the request of the Administrator, by a third party. An approved estuary program may not be involved in evaluating its own program. Each estuary program shall be provided the opportunity to respond to EPA's program evaluation. EPA must issue a report on the results of the evaluation, including the findings and recommendations of the Administrator, as well as any comments received from the estuary program. This report shall be made available to the public through publication in the Federal Register and on the Internet. If an estuary program is accepted into the NEP after passage of this Act, that program will be evaluated within five years after the submission of its CCMP to the Administrator, and every five years thereafter. Each approved estuary program is required to update its CCMP no later than 18 months after the public release of its evaluation. The updated plan must reflect, to the maximum extent practicable, the results of the program evaluation. Within 120 days after receiving an updated CCMP, the Administrator must approve that CCMP if the he or she determines that the updated CCMP meets both the goals of the NEP and reflects the results of the program evaluation. Subsection (c) further allows the Administrator to consider an estuary program to be in probationary status if the estuary program has not received approval for an updated CCMP on or before the last day of the three-year period beginning on the date on which the Administrator makes an evaluation available to the public. Discussion EPA currently reviews each of the NEP estuary programs every three years, through an implementation review process. This process is intended to assess how well each estuary program supports the core goals of the Clean Water Act, as well as to evaluate how well each estuary program contributes to accomplishment of the goals of EPA's Strategic Plan. The evaluation requirement instituted by S. 2042, as amended, is intended to replace this existing review with a more rigorous program evaluation. Program implementation and program evaluation will be enhanced through the use of performance measures and goals, as required by this act. The evaluation is intended to assist program managers, in both EPA and the approved estuary program, in their efforts and to identify whether the goals of the CCMP are being achieved and to provide insights as to whether the management plan is successful, whether the management approaches are appropriate, where to prioritize efforts, and to identify impairments that may be preventing improvements. The requirements to regularly evaluate and update each estuary's CCMP serve a number of purposes. First, a number of estuary programs have never updated their CCMPs and thus have never formally evaluated their effectiveness. Second, it ensures that each estuary program acknowledges and accounts for any changes in the estuary in its CCMP. Third, it ensures that stakeholders will continue to be active partners in the restoration and protection of the estuary through involvement in CCMP updates. Finally, the linked evaluation and CCMP approval process enhances accountability because an updated CCMP must reflect program evaluation results. If the evaluation results indicate that the goals of the CCMP have been achieved, or that the program is headed in the right direction, the required update may be minimal. If the evaluation results indicate that CCMP goals are not being met, and the Administrator recommends programmatic changes, the update may be significant. In such a case, the update might require that additional stakeholders be incorporated into the planning process, that a new CCMP be adopted, or that a new management and implementation strategy be applied to ensure that the goals of the NEP program are achieved. To allow for this level of engagement, if necessary, and to allow program managers to focus on actions and priorities, the review period is extended from 3 to 5 years. This subsection allows the Administrator to place an estuary program in probationary status, and as described in subsection (d), the designation of probationary status requires the Administrator to reduce grant funding to the estuary program. This designation, in combination with subsequent penalties, provides the estuary programs with added incentive to incorporate evaluation recommendations for program improvement into the CCMP update, in order to receive approval by the Administrator. Subsection (d) Summary This subsection amends section 320 to establish new requirements for Federal agencies whose actions or activities relate to the implementation of an approved CCMP. Federal agencies are required, to the maximum extent practicable, to cooperate and coordinate their activities related to the implementation of an approved CCMP. The legislation requires that EPA serve as the lead agency in these inter-agency coordination and cooperation efforts. In making their annual budget requests, Federal agencies must consider their CCMP responsibilities. Finally, this subsection requires that Federal agencies collaborate in the development of tools and methodologies for monitoring the ecological health and water quality conditions of estuaries included in the National Estuary Program. Discussion The Committee recognizes that the strength of the National Estuary Program lies in its consensus-based, locally driven approach. To fulfill the goals of the program, the Committee expects that Federal agencies not only take part in the CCMP planning process but also, as stakeholders in the respective estuaries, take part in implementing their responsibilities under approved estuary plans. In instances where the actions or activities of multiple Federal agencies relate to the implementation of a CCMP, these agencies should coordinate their activities. Not only will this approach result in administrative efficiencies, coordinated planning and implementation will facilitate the protection and restoration of the estuary. Subsection (e) Summary This subsection amends section 320(h), as re-designated by subsection (d), which relates to the provision of grants to develop and implement an estuary CCMP. Subsection (e) outlines the penalties associated with placing a management conference on ``probationary'' ``status'' First, the Administrator is required to reduce grant funding, in an amount determined by the Administrator, for estuary programs in probationary status. If the Administrator determines that the program has been in probationary status for two consecutive years, the Administrator shall also terminate an estuary program from the National Estuary Program, and cease its grant funding. Discussion The Committee believes that estuary programs must be held accountable for updating, receiving approval for, and implementing updated CCMPs. The provisions in this subsection will help provide such accountability. Subsection (f) Summary This subsection amends section 320(j), as re-designated by subsection (d), and reauthorizes appropriations for the National Estuary Program through fiscal year 2019. Subsection (f) maintains the current authorization level of $35 million through 2019. This subsection further directs the Administrator to provide 80 percent of the amounts appropriated per fiscal year for grants to develop, implement and monitor comprehensive conservation and management plans. The amount to be provided in grants must also be clearly indicated in the EPA's budget request. This subsection also limits expenses related to administration of grants to 5 percent. Subsection (g) Summary This subsection makes a technical amendment to section 320(k)(1)(A), as re-designated by subsection (d). This subsection directs the research program established under section 320(k) to include research on the introduction and establishment of invasive species in estuarine environments. Subsection (h) Summary This subsection amends section 320 by adding a periodic evaluation of EPA's National Estuary Program. This subsection requires that the Administrator, evaluate the overall NEP program (in addition to the requirements that each participating estuary be evaluated) within five years of passage of this legislation, and every five years thereafter. The evaluation shall assess the effectiveness of the NEP program in improving water quality, improving natural resources, and making improvements in sustainable uses of the estuaries covered by estuary programs that are part of the NEP. If improvements have been made, the evaluation should identify the best practices that were in place under that plan, and assess the reasons those practices were effective. Moreover, to encourage the wise use of limited resources, the evaluation should identify redundant reporting requirements and recommend how to limit these redundancies. The findings and recommendations of this evaluation shall be issued by the Administrator in a report published on both the Internet and in the Federal Register. Discussion This evaluation will assist the EPA program manager and Congress in determining whether the goals of the National Estuary Program are being achieved, and identifying ways to improve the program where it falls short of the goals. The evaluation results will help identify whether new tools, policies, or funding is needed to better implement the program--with the ultimate objective of restoring and protecting estuaries. Legislative History In the 113th Congress, on February 26, 2014, Senator Whitehouse introduced S. 2042, the ``Clean Estuaries Act of 2014.'' The bill was referred to the Committee on Environment and Public Works. On April 4, 2014, the Committee met to consider S. 2042. Senators Whitehouse and Vitter offered an amendment in the nature of a substitute. The Committee ordered S. 2042, as amended by the substitute amendment, reported favorably to the Senate by voice vote. In the 112th Congress, on June 30, 2011, Senators Whitehouse, Vitter, Cardin, and Lieberman introduced S. 1313, the ``Clean Estuaries Act of 2011.'' The bill, as amended by a substitute amendment, was reported favorably to the Senate by voice vote. In the 111th Congress, similar legislation (H.R. 4715) was passed by the House by a vote of 278-128 on April 15, 2010. On June 30, 2010, the Committee ordered H.R. 4715, as amended by a substitute amendment, reported favorably to the Senate by voice vote with a quorum present. Hearings In the 111th Congress, on February 24, 2010, the Full Senate Committee on Environment and Public Works and the Subcommittee on Water and Wildlife held a joint legislative hearing on legislative approaches to protection and restoring Great Water bodies. The Committee heard testimony from the EPA Assistant Administrator for Water, Peter Silva, and the Commissioner of the New York State Department of Environmental Conservation, Alexander Grannis, who expressed support for the National Estuary Program. Rollcall Votes The Committee on Environment and Public Works met to consider S. 2042 on April 4, 2014. The bill was ordered to be reported favorably with an amendment in the nature of a substitute (offered by Senators Whitehouse and Vitter) by voice vote with Senator Inhofe requesting to be recorded as voting `yea'. Regulatory Impact Statement In compliance with section 11(b) of rule XXVI of the Standing Rules of the Senate, the committee finds that S. 2042, as amended, does not create any additional regulatory burdens, nor will it cause any adverse impact on the personal privacy of individuals. Mandates Assessment In compliance with the Unfunded Mandates Reform Act of 1995 (Public Law 104-4), the committee notes that the Congressional Budget Office (CBO) has found, ``S. 2042 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA).'' April 10, 2014. Hon. Barbara Boxer, Chairman, Committee on Environment and Public Works, U.S. Senate, Washington, DC. Dear Madam Chairman: The Congressional Budget Office has prepared the enclosed cost estimate for S. 2042, the Clean Estuaries Act of 2014. If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Susanne S. Mehlman. Sincerely, Douglas W. Elmendorf. Enclosure. S. 2042--Clean Estuaries Act of 2014 Summary: S. 2042 would authorize the appropriation of $35 million annually over the 2015-2019 period for the Environmental Protection Agency's (EPA's) National Estuary Program. This legislation also would require EPA to evaluate and report on the effectiveness of the entire National Estuary Program every five years. CBO estimates that implementing this legislation would cost $151 million over the 2015-2019 period, assuming appropriation of the authorized amounts. Enacting S. 2042 would not affect direct spending or revenues; therefore, pay-as-you-go procedures do not apply. S. 2042 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA). Estimated cost to the Federal Government: The estimated budgetary effect of this legislation is shown in the following table. The costs of this legislation fall within budget function 300 (natural resources and environment). ---------------------------------------------------------------------------------------------------------------- By fiscal year, in millions of dollars-- ------------------------------------------------------- 2015 2016 2017 2018 2019 2015-2019 ---------------------------------------------------------------------------------------------------------------- CHANGES IN SPENDING SUBJECT TO APPROPRIATION Authorization Level..................................... 35 35 35 35 35 175 Estimated Outlays....................................... 16 30 35 35 35 151 ---------------------------------------------------------------------------------------------------------------- Basis of estimate: CBO assumes that S. 2042 will be enacted near the end of 2014 and that the amounts authorized will be appropriated each fiscal year beginning in 2015. Estimated outlays are based on historical spending patterns for the National Estuary Program. The authorization for this program expired in 2010, and $25 million was appropriated for the program in 2014. Under the National Estuary Program, EPA develops plans for attaining or maintaining water quality in an estuary. Intergovernmental and private-sector impact: S. 2042 contains no intergovernmental or private-sector mandates as defined in UMRA and would impose no costs on state, local, or tribal governments. Estimate prepared by: Federal costs: Susanne S. Mehlman; Impact on state, local, and tribal governments: Melissa Merrell; Impact on the private sector: Amy Petz. Estimate approved by: Theresa Gullo, Deputy Assistant Director for Budget Analysis. Changes in Existing Law In compliance with section 12 of rule XXVI of the Standing Rules of the Senate, changes in existing law made by the bill as reported are shown as follows: Existing law proposed to be omitted is enclosed in [black brackets], new matter is printed in italic, existing law in which no change is proposed is shown in roman: * * * * * * * Sec. 101. (a) The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act-- (1)* * * * * * * * * * SEC. 320. NATIONAL ESTUARY PROGRAM. (a) Management Conference.-- (1) Nomination of estuaries.--The Governor of any State may nominate to the Administrator an estuary lying in whole or in part within the State as an estuary of national significance and request a management conference to develop a comprehensive management plan for the estuary. The nomination shall document the need for the conference, the likelihood of success, and information relating to the factors in paragraph (2). [(2) Convening of conference.-- [(A) In general.--In any case] (2) Convening of conference.--In any case; where the Administrator determines, on his own initiative or upon nomination of a State under paragraph (1), that the attainment or maintenance of that water quality in an estuary which assures protection of public water supplies and the protection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife and allows recreational activities, in and on the water, requires the control of point and nonpoint sources of pollution to supplement existing controls of pollution in more than one State, the Administrator shall select such estuary and convene a management conference. [(B) Priority consideration.--The Administrator shall give priority consideration under this section to Long Island Sound, New York and Connecticut; Narragansett Bay, Rhode Island; Buzzards Bay, Massachusetts; Massachusetts Bay, Massachusetts (including Cape Cod Bay and Boston Harbor);\14\ Puget Sound, Washington; New York-New Jersey Harbor, New York and New Jersey; Delaware Bay, Delaware and New Jersey; Delaware Inland Bays, Delaware; Albermarle Sound, North Carolina; Sarasota Bay, Florida; San Francisco Bay, California; Santa Monica Bay, California; Galveston Bay, Texas;\15\ Barataria-Terrebonne Bay estuary complex, Louisiana; Indian River Lagoon, Florida; Lake Pontchartrain Basin, Louisiana and Mississippi; and Peconic Bay, New York.] --------------------------------------------------------------------------- \14\Both P.L. 100-653 and P.L. 100-658 inserted the same Massachusetts Bay phrase after Buzzards Bay; so that the phrase appears twice. \15\P.L. 100-688, section 2001(3) inserted the Louisiana, Florida, New York bays after ``Galveston, Texas;'' which technically could not be executed. --------------------------------------------------------------------------- (3) Boundary dispute exception.--In any case in which a boundary between two States passes through an estuary and such boundary is disputed and is the subject of an action in any court, the Administrator shall not convene a management conference with respect to such estuary before a final adjudication has been made of such dispute. (b) Purposes of Conference.--The purposes of any management conference convened with respect to an estuary under this subsection shall be to-- (1) assess trends in water quality, natural resources, and uses of the estuary; (2) collect, characterize, and assess data on toxics, nutrients, and natural resources within the estuarine zone to identify the causes of environmental problems; (3) develop the relationship between the inplace loads and point and nonpoint loadings of pollutants to the estuarine zone and the potential uses of the zone, water quality, and natural resources; [(4) develop a comprehensive conservation and management plan that recommends priority corrective actions and compliance schedules addressing point and nonpoint sources of pollution to restore and maintain the chemical, physical, and biological integrity of the estuary, including restoration and maintenance of water quality, a balanced indigenous population of shellfish, fish and wildlife, and recreational activities in the estuary, and assure that the designated uses of the estuary are protected;] (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. * * * * * * * [(6) monitor the effectiveness of actions taken pursuant to the plan; and] (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; (7) provide information and educational activities on the ecological health and water quality conditions of the estuary; and [(7)] (8) review all Federal financial assistance programs and Federal development projects in accordance with the requirements of Executive Order 12372, as in effect on September 17, 1983, to determine whether such assistance program or project would be consistent with and further the purposes and objectives of the plan prepared under this section. For purposes of [paragraph (7)] paragraph (8), such programs and projects shall not be limited to the assistance programs and development projects subject to Executive Order 12372, but may include any programs listed in the most recent Catalog of Federal Domestic Assistance which may have an effect on the purposes and objectives of the plan developed under this section. * * * * * * * [(d) Utilization of Existing Data.--In developing] (1) Use of existing data.--In developing;a conservation and management plan under this section, the management conference shall survey and utilize existing reports, data, and studies relating to the estuary that have been developed by or made available to Federal, interstate, State, and local agencies. (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 scientific, technical, and economic 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. * * * * * * * [(f) Approval and Implementation of Plans.-- [(1) Approval.--Not later than 120 days after the completion of a conservation and management plan and after providing for public review and comment, the Administrator shall approve such plan if the plan meets the requirements of this section and the affected Governor or Governors concur. [(2) Implementation.--Upon approval of a conservation and management plan under this section, such plan shall be implemented. Funds authorized to be appropriated under titles II and VI and section 319 of this Act may be used in accordance with the applicable requirements of this Act to assist States with the implementation of such plan.] (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). (g) Federal Agencies.-- (1) 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. (2) Consideration of plans in agency budget requests.--In making an annual budget request for a Federal agency referred to in paragraph (1), 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. (3) Monitoring.--The heads of the Federal agencies referred to in paragraph (1) 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. [(g)] (h) Grants.-- (1) Recipients.--The Administrator is authorized to make grants to State, interstate, and regional water pollution control agencies and entities, State coastal zone management agencies, interstate agencies, other public or nonprofit private agencies, institutions, organizations, and individuals. (2) Purposes.--Grants under this subsection shall be made to pay for activities necessary for the development and implementation of a comprehensive conservation and management plan under this section. (3) Federal share.--The Federal share of a grant to any person (including a State, interstate, or regional agency or entity) under this subsection for a fiscal year-- (A) shall not exceed-- (i) 75 percent of the annual aggregate costs of the development of a comprehensive conservation and management plan; and (ii) 50 percent of the annual aggregate costs of the implementation of the plan; and (B) shall be made on condition that the non- Federal share of the costs are provided from non-Federal sources. [(h)] (i) Grant Reporting.--Any person (including a State, interstate, or regional agency or entity) that receives a grant under [subsection (g)] subsection (h) shall report to the Administrator not later than 18 months after receipt of such grants and biennially thereafter on the progress being made under this section. (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. [(i)] (j) [Authorization of Appropriations.--[There are authorized to be appropriated to the Administrator not to exceed 35,000,000 for each of fiscal years 2001 through 2010 for-- [(1) expenses related to the administration of management conferences under this section, not to exceed 10 percent of the amount appropriated under this subsection; [(2) making grants under subsection (g); and [(3) 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. The Administrator shall provide up to 5,000,000 per fiscal year of the sums authorized to be appropriated under this subsection to the Administrator of the National Oceanic and Atmospheric Administration to carry out subsection (j).] (j) Authorization of Appropriations.-- (1) In general.--There is authorized to be appropriated to the Administrator $35,000,000 for each of fiscal years 2015 through 2019 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). [(j)] (k) Research.-- (1) Programs.--In order to determine the need to convene a management conference under this section or at the request of such a management conference, the Administrator shall coordinate and implement, through the National Marine Pollution Program Office and the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration, as appropriate, for one or more estuarine zones-- (A) a long-term program of trend assessment monitoring measuring variations in pollutant concentrations, marine ecology, and other physical or biological environmental [paramenters] parameters which may affect estuarine zones (including monitoring of both pathways and ecosystems to track the introduction and establishment of nonnative species), to provide the Administrator the capacity to determine the potential and actual effects of alternative management strategies and measures; (B) a program of ecosystem assessment assisting in the development of (i) baseline studies which determine the state of estuarine zones and the effects of natural and anthropogenic changes, and (ii) predictive models capable of translating information on specific discharges or general pollutant loadings within estuarine zones into a set of probable effects on such zones; (C) a comprehensive water quality sampling program for the continuous monitoring of nutrients, chlorine, acid precipitation dissolved oxygen, and potentially toxic pollutants (including organic chemicals and metals) in estuarine zones, after consultation with interested State, local, interstate, or international agencies and review and analysis of all environmental sampling data presently collected from estuarine zones; and (D) a program of research to identify the movements of nutrients, sediments and pollutants through estuarine zones and the impact of nutrients, sediments, and pollutants on water quality, the ecosystem, and designated or potential uses of the estuarine zones. (2) Reports.--The Administrator, in cooperation with the Administrator of the National Oceanic and Atmospheric Administration, shall submit to the Congress no less often than biennially a comprehensive report on the activities authorized under this subsection including-- (A) a listing of priority monitoring and research needs; (B) an assessment of the state and health of the Nation's estuarine zones, to the extent evaluated under this subsection; (C) a discussion of pollution problems and trends in pollutant concentrations with a direct or indirect effect on water quality, the ecosystem, and designated or potential uses of each estuarine zone, to the extent evaluated under this subsection; and (D) an evaluation of pollution abatement activities and management measures so far implemented to determine the degree of improvement toward the objectives expressed in subsection (b)(4) of this section. (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. [(k)] (m) Definitions.--For purposes of this section, the terms ``estuary'' and ``estuarine zone'' have the meanings such terms have in section 104(n)(4) of this Act, except that the term ``estuarine zone'' shall also include associated aquatic ecosystems and those portions of tributaries draining into the estuary up to the historic height of migration of anadromous fish or the historic head of tidal influence, whichever is higher. * * * * * * *