[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

HEARING TO REVIEW THE IMPLEMENTATION OF PHASE II OF THE CHESAPEAKE BAY
TMDL WATERSHED IMPLEMENTATION PLANS AND THEIR IMPACTS ON RURAL
COMMUNITIES

=======================================================================

HEARING

BEFORE THE

SUBCOMMITTEE ON CONSERVATION, ENERGY,
AND FORESTRY

OF THE

COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

NOVEMBER 3, 2011

__________

Serial No. 112-26

Printed for the use of the Committee on Agriculture
agriculture.house.gov

U.S. GOVERNMENT PRINTING OFFICE
71-237 WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com.

COMMITTEE ON AGRICULTURE

FRANK D. LUCAS, Oklahoma, Chairman

BOB GOODLATTE, Virginia, COLLIN C. PETERSON, Minnesota,
Vice Chairman Ranking Minority Member
TIMOTHY V. JOHNSON, Illinois TIM HOLDEN, Pennsylvania
STEVE KING, Iowa MIKE McINTYRE, North Carolina
RANDY NEUGEBAUER, Texas LEONARD L. BOSWELL, Iowa
K. MICHAEL CONAWAY, Texas JOE BACA, California
JEFF FORTENBERRY, Nebraska DENNIS A. CARDOZA, California
JEAN SCHMIDT, Ohio DAVID SCOTT, Georgia
GLENN THOMPSON, Pennsylvania HENRY CUELLAR, Texas
THOMAS J. ROONEY, Florida JIM COSTA, California
MARLIN A. STUTZMAN, Indiana TIMOTHY J. WALZ, Minnesota
BOB GIBBS, Ohio KURT SCHRADER, Oregon
AUSTIN SCOTT, Georgia LARRY KISSELL, North Carolina
SCOTT R. TIPTON, Colorado WILLIAM L. OWENS, New York
STEVE SOUTHERLAND II, Florida CHELLIE PINGREE, Maine
ERIC A. ``RICK'' CRAWFORD, Arkansas JOE COURTNEY, Connecticut
MARTHA ROBY, Alabama PETER WELCH, Vermont
TIM HUELSKAMP, Kansas MARCIA L. FUDGE, Ohio
SCOTT DesJARLAIS, Tennessee GREGORIO KILILI CAMACHO SABLAN,
RENEE L. ELLMERS, North Carolina Northern Mariana Islands
CHRISTOPHER P. GIBSON, New York TERRI A. SEWELL, Alabama
RANDY HULTGREN, Illinois JAMES P. McGOVERN, Massachusetts
VICKY HARTZLER, Missouri
ROBERT T. SCHILLING, Illinois
REID J. RIBBLE, Wisconsin
KRISTI L. NOEM, South Dakota

______

Professional Staff

Nicole Scott, Staff Director

Kevin J. Kramp, Chief Counsel

Tamara Hinton, Communications Director

Robert L. Larew, Minority Staff Director

______

Subcommittee on Conservation, Energy, and Forestry

GLENN THOMPSON, Pennsylvania, Chairman

BOB GOODLATTE, Virginia TIM HOLDEN, Pennsylvania, Ranking
MARLIN A. STUTZMAN, Indiana Minority Member
BOB GIBBS, Ohio KURT SCHRADER, Oregon
SCOTT R. TIPTON, Colorado WILLIAM L. OWENS, New York
STEVE SOUTHERLAND II, Florida MIKE McINTYRE, North Carolina
MARTHA ROBY, Alabama JIM COSTA, California
TIM HUELSKAMP, Kansas TIMOTHY J. WALZ, Minnesota
RANDY HULTGREN, Illinois CHELLIE PINGREE, Maine
REID J. RIBBLE, Wisconsin MARCIA L. FUDGE, Ohio
KRISTI L. NOEM, South Dakota GREGORIO KILILI CAMACHO SABLAN,
Northern Mariana Islands

Brent Blevins, Subcommittee Staff Director

(ii)

C O N T E N T S

----------
Page
Holden, Hon. Tim, a Representative in Congress from Pennsylvania,
opening statement.............................................. 4
Peterson, Hon. Collin C., a Representative in Congress from
Minnesota, prepared statement.................................. 5
Thompson, Hon. Glenn, a Representative in Congress from
Pennsylvania, opening statement................................ 1
Prepared statement........................................... 3
Submitted letter............................................. 63

Witnesses

Garvin, Hon. Shawn M., Regional Administrator, Environmental
Protection Agency, Region 3, Philadelphia, PA.................. 6
Prepared statement........................................... 7
Supplementary material....................................... 83
Submitted questions.......................................... 84
Krancer, Hon. Michael L., Secretary, Pennsylvania Department of
Environmental Protection, Harrisburg, PA....................... 24
Prepared statement........................................... 26
Brubaker, Hon. Michael, Chairman, Chesapeake Bay Commission;
Senator, Commonwealth of Pennsylvania, Annapolis, MD........... 38
Prepared statement........................................... 6040
Shaffer, Carl, President, Pennsylvania Farm Bureau Federation;
Member, Board of Directors, American Farm Bureau Federation,
Camp Hill, PA.................................................. 43
Prepared statement........................................... 44
Perrow, Jr., Hon. Edgar J.T., Ward IV Representative, Lynchburg
City Council, Lynchburg, VA.................................... 51
Prepared statement........................................... 52

HEARING TO REVIEW THE IMPLEMENTATION OF PHASE II OF THE CHESAPEAKE BAY
TMDL WATERSHED IMPLEMENTATION PLANS AND THEIR IMPACTS ON RURAL
COMMUNITIES

----------

THURSDAY, NOVEMBER 3, 2011

House of Representatives,
Subcommittee on Conservation, Energy, and Forestry,
Committee on Agriculture,
Washington, D.C.
The Subcommittee met, pursuant to call, at 10:04 a.m., in
Room 1300 of the Longworth House Office Building, Hon. Glenn
Thompson [Chairman of the Subcommittee] presiding.
Members present: Representatives Goodlatte, Gibbs,
Huelskamp, Hultgren, Thompson, Holden, Owens, and McIntyre.
Staff present: Brent Blevins, Debbie Smith, Lauren
Sturgeon, Heather Vaughn, Suzanne Watson, Nona McCoy, Liz
Friedlander, Anne Simmons, John Konya, and Caleb Crosswhite.

OPENING STATEMENT OF HON. GLENN THOMPSON, A REPRESENTATIVE IN
CONGRESS FROM PENNSYLVANIA

The Chairman. Good morning, everyone. I want to welcome
everyone to this morning's hearing to review implementation of
Phase II of the Chesapeake Bay TMDL Watershed Implementation
Plans and their impacts on rural communities. This hearing is
the second hearing this Subcommittee has held to provide
oversight of the Chesapeake Bay TMDL process.
In March, we reviewed the productive conservation work that
our farmers are engaging in throughout the watershed, and at
that hearing, I stated that I believe this topic is one of the
most important matters this Subcommittee will examine, and
nothing has changed my mind on that.
Today's hearing will examine the TMDL with a different
focus. We are going to examine the impacts the TMDL will have
on states and localities within the Chesapeake Bay watershed.
More specifically, we will be considering Phase II and the
practical effects this period of the TMDL will have on states,
regulatory bodies, our farmers, and communities.
By way of review, the TMDL was published in the Federal
Register last December. The states had to submit their plans
for Phase I Watershed Implementation Plans, or WIPs, to EPA
prior to that date. These WIPs outline the targets for each
state in reducing nitrogen, phosphorous, and sediment. The
states are now required to submit their Phase II WIPs to EPA
next month. That is why the time of this hearing is so
important. Because the TMDL for the Chesapeake Bay is such a
broad effort, and because of the cost imposed on local
governments within the watershed, it is imperative for Members
of this Subcommittee to understand what is being asked of the
counties, cities, and towns that are covered by the TMDL.
For the second phase, these plans must go into greater
detail than the initial WIPs and outline each state's efforts
to engage localities and all government organizations in the
nutrient reduction process. States are being asked to formulate
these draft plans while they are in the process of implementing
the first phase of these plans approved by EPA last year.
Agriculture plays a large role in that process. Our March
hearing showcased the good work producers are doing on the
ground every day, but it is no secret that I have serious
concerns about the TMDL both in terms of process and the likely
impacts on our farms and communities. As laid out by EPA, this
plan may result in a cleaner Bay. However, it will certainly
come at an incredibly high price to the 17 million residents in
the watershed. What is most problematic is that no one can say
with certainty whether the cost is worth the effort, as we
still do not have a cost-benefit analysis. For this process, I
do understand from the Administrator's report that the one in
May may be in process, I look forward to hearing more about
that.
We addressed this in our March hearing, and I am aware that
EPA has taken steps to address these concerns. I am pleased to
hear that and I look forward to seeing the final analysis. But
the longer we wait for the final analysis, the more difficult
it will be to change directions if necessary. We are in the
midst of a process that could cost individual states like
Virginia, Maryland, and Pennsylvania more than $10 billion per
state. Even in the best of economic times, that figure would be
a crushing burden on the states. My home State of Pennsylvania
had considerable budget struggles in recent years. That is why
it is so important to be sure of the costs and the benefits
ahead of us.
Frankly, I am alarmed at the potential economic impact that
this will have on states and municipalities in the watershed. I
am worried that our rural communities will be faced with the
difficult choice of either raising taxes or slashing other
spending in order to comply with these requirements. I also
have reservations about the Bay model that the EPA is using in
making allocations. Several states, as well as outside groups,
have raised issues about the accuracy of the watershed model
used for nutrient allocation purposes. These concerns are
addressed in a letter from Virginia Secretary of Natural
Resources to Administrator Garvin that I am submitting for the
record.
[The document referred to is located on p. 63.]
The Chairman. There is too much at stake for the use of an
inaccurate model, and I hope to hear from EPA about steps it is
taking to address these questions and concerns. I think I speak
for Members of the Subcommittee when I say that we must be
certain that this entire process is carried out in an open and
transparent manner. We must also be certain that our Federal
Government is not carrying out the requirements of this plan in
a heavy-handed manner and placing an undue burden on states and
localities at a time when we need fewer regulations, not more.
I want to welcome our panel of witnesses. I thank them for
agreeing to testify today. I want to welcome Region 3
Administrator Shawn Garvin. I want to thank you for coming down
from Philadelphia for this hearing, Mr. Garvin. I look forward
to hearing your testimony on how EPA is assisting states in
complying with the TMDL. I also want to thank our second panel
of witnesses for agreeing to be here today. The Subcommittee
will benefit from hearing the regional, state, and local
perspectives that each of you offer.
[The prepared statement of Mr. Thompson follows:]

Prepared Statement of Hon. Glenn Thompson, a Representative in Congress
from Pennsylvania

Good morning. I want to welcome everyone to this morning's hearing
to review implementation of Phase II of the Chesapeake Bay TMDL
Watershed Implementation Plans and their impacts on rural communities.
This hearing is the second hearing this Subcommittee has held to
provide oversight of the Chesapeake Bay TMDL process.
In March, we reviewed the productive conservation work that our
farmers are engaging in throughout the watershed.
At that hearing, I stated that I believed that this topic is one of
the most important matters this Subcommittee will examine and nothing
has changed my mind.
Today's hearing will examine the TMDL with a different focus.
We are going to examine the impacts the TMDL will have on states
and localities within the Chesapeake Bay watershed.
More specifically, we will be considering Phase II and the
practical effects this period of the TMDL will have on the states, the
regulatory bodies, and our farmers and communities.
By way of review, the TMDL was published in the Federal Register
last December.
The states had to submit their plans for Phase I Watershed
Implementation Plans--or WIPs--to EPA prior to that date.
These WIPs outlined the targets for each state in reducing
nitrogen, phosphorous and sediment.
The states are now required to submit their Phase II WIPs to EPA
next month.
That's why the timing of this hearing is so important.
Because the TMDL for the Chesapeake Bay is such a broad effort, and
because of the costs it imposes on the local governments within the
watershed, it is imperative for Members of this Subcommittee to
understand what is being asked of the counties, cities, and towns who
are covered by the TMDL.
The second phase of these plans must go into greater detail than
the initial WIPs and outline each state's efforts to engage localities
and non-governmental organizations in the nutrient reduction process.
States are being asked to formulate these draft plans while they
are in the process of implementing the first phase of these plans
approved by EPA last year.
Agriculture plays a large role in that process.
Our March hearing showcased the good work that our producers are
doing on the ground every day.
But it is no secret I have serious concerns about the TMDL--both in
terms of process and the likely impacts on our farms and communities
As laid out by EPA, this plan may well result in a cleaner Bay.
However, it will certainly come at an incredibly high price to the
17 million residents in the watershed.
What's most problematic is that no one can say with certainty
whether the cost is worth the effort, as we still do not have a cost-
benefit analysis of this process.
We addressed this in our March hearing, and I am aware that EPA has
taken steps to address these concerns.
I'm pleased to hear that, and I look forward to seeing the final
analysis.
But the longer we wait for the final analysis, the more difficult
it will be to change directions if necessary.
We are in the midst of a process that could cost individual states
like Virginia, Maryland, and Pennsylvania more than $10 billion per
state.
Even in the best of economic times, that figure would be a crushing
burden on states.
My home state of Pennsylvania has had considerable budget struggles
in recent years.
That's why it's so important to be sure of the costs and benefits
ahead of us.
Frankly, I am alarmed at the potential economic impact this will
have on states and municipalities in the watershed.
I am worried that our rural communities will be faced with the
difficult choice of either raising taxes or slashing other spending in
order to comply with these requirements.
I also have reservations about the Bay model that EPA is using in
making allocations.
Several states--as well as outside groups--have raised issues about
the accuracy of the Watershed Model used for nutrient allocation
purposes.
These concerns are addressed in a letter from Virginia's Secretary
of Natural Resources to Administrator Garvin that I am submitting for
the record.
There is too much at stake for the use of an inaccurate model.
I hope to hear from EPA about steps it is taking to address these
questions.
I think I speak for Members of this Subcommittee when I say that we
must be certain that this entire process is carried out in an open and
transparent manner.
We must also be certain that our Federal Government is not carrying
out the requirements of this plan in a heavy-handed manner and placing
an undue burden on states and localities at a time when we need fewer
regulations, not more.
I want to welcome our panel of witnesses and thank them for
agreeing to testify today.
I want to welcome Region 3 Administrator Shawn Garvin.
I want to thank you for coming down from Philadelphia for this
hearing, Mr. Garvin.
I look forward to hearing your testimony on how EPA is assisting
states in complying with the TMDL.
I also want to thank our second panel of witnesses for agreeing to
be here today.
The Subcommittee will benefit from hearing the regional, state and
local perspectives each of you offer.
I now recognize Mr. Holden for his opening statement.

The Chairman. And I now recognize Mr. Holden for his
opening statement.

OPENING STATEMENT OF HON. TIM HOLDEN, A REPRESENTATIVE IN
CONGRESS FROM PENNSYLVANIA

Mr. Holden. Thank you, Mr. Chairman. Thank you for having
this hearing today.
The health of the Chesapeake Bay and those bodies of water
contained in the Bay watershed, including the Susquehanna River
that runs through my Congressional district, deserves our full
attention. I want to thank our witnesses and guests for coming
today to speak on a very important topic for farmers and
ranchers not only in the Chesapeake Bay watershed, but also
those across the country concerned with increased regulation.
Farming has always been an important part of the Chesapeake
Bay's landscape. Comprising almost \1/4\ of the watershed, it
is often noted that agriculture can play a significant role in
the protection of this ecosystem. Efforts to improve Bay water
quality, however, should not impede on the livelihood of our
family farmers.
This Subcommittee has worked for a long time to make sure
Chesapeake Bay farmers, who already face some of the most
stringent environmental regulations in the United States, are
put on the same level playing field as those in other regions
of the country. Yet it feels like every time we take a step
forward, we are pushed two steps backwards. EPA has singled out
producers in the Chesapeake Bay states for new regulations and
increased penalties through the Chesapeake Bay TMDL; once again
placing Bay farmers at a financial and competitive
disadvantage. Despite lack of information about the data sets
used to develop the TMDL reduction allocations and despite
glaring discrepancies between data collected by various
government agencies, EPA has pushed forward with Phase II
Watershed Implementation Plans which set nutrient and sediment
goals to more local levels.
In the 2008 Farm Bill, Congress--at the recommendation of
this Subcommittee--established a new Chesapeake Bay Watershed
Program to give farmers from the Chesapeake Bay states a
guaranteed source of funding for the tools they need to
implement land management practices that help reduce nutrients
and sediment that can flow into the Bay. The increase in
regulatory action by EPA makes targeted conservation funding
even more essential. It is important we keep the Chesapeake Bay
Watershed Program and what it does for producers in mind as we
work to reauthorize farm bill conservation programs, especially
when discussing potential program reductions and consolidation.
We must continue to do everything we can to protect our
agriculture producers and preserve the integrity of this
essential program. Agriculture practices can be some of the
most cost-effective at improving water quality in the region.
It is important that we encourage our farmers, who have always
been the best advocates for resource conservation, to continue
their efforts to further elevate their environmental
stewardship across the Chesapeake Bay watershed without
threatening harmful penalties.
I look forward to learning more about the development of
the draft WIPs produced and the impact on agriculture from our
witnesses today. Thank you, Mr. Chairman.
The Chairman. All right. I thank the Ranking Member. The
chair would request that other Members submit their opening
statements for the record so the witnesses may begin their
testimony to ensure that there is ample time for questions.
[The prepared statement of Mr. Peterson follows:]

Prepared Statement of Hon. Collin C. Peterson, a Representative in
Congress from Minnesota

Good morning. Thank you Chairman Thompson and Ranking Member Holden
for holding today's hearing. I am pleased that we are closely tracking
the TMDL process for the Chesapeake Bay watershed and monitoring EPA's
actions as the Watershed Implementation Plans move forward.
The impact the Chesapeake Bay TMDL could have on producers is of
particular concern to this Committee and something we have been closely
following. This oversight is important not only because of the effects
it could have on those near the Chesapeake Bay but the potential
ramifications it could have on producers nationwide.
I've made no secret about my concerns with some of these
regulations. Chesapeake Bay producers already face some of the most
stringent environmental regulations in the country. The additional
costs that producers will incur to meet these requirements could
potentially put these producers at a competitive and financial
disadvantage, potentially forcing some out of business.
I think we need to continue looking very closely at these issues to
ensure that EPA's policy and procedure is being developed in an open
and transparent manner by taking into account input from all interested
organizations and not basing important decisions based on some
ideological viewpoints.
Again, I thank the chair for holding today's hearing and look
forward to hearing from our witnesses.

The Chairman. And I would like to welcome our first panel
to the table. And as I mentioned before, it is the Honorable
Shawn M. Garvin, Region 3 Administrator, the Environmental
Protection Agency Region 3, Philadelphia, Pennsylvania.
Administrator Garvin, please begin when you are ready.

STATEMENT OF HON. SHAWN M. GARVIN, REGIONAL
ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, REGION 3,
PHILADELPHIA, PA

Mr. Garvin. Good morning, Chairman Thompson, Ranking Member
Holden, Members of the Subcommittee. Thank you for the
opportunity to talk with you today about efforts to clean up
local rivers and streams and the Chesapeake Bay, and
specifically to discuss the developments of the Phase II
Watershed Implementation Plans and their impacts on rural
communities.
Agriculture is a key part of the American economy and way
of life and plays an important role in watershed restoration.
We believe environmentally sound farming is truly a preferred
land use in the region. State WIPs are the roadmaps for how and
when states will reduce pollution in order to achieve the local
and regional water quality goals set by the Bay Total Maximum
Daily Load, or TMDL.
In developing their WIPs, states have the flexibility to
decide how to reduce pollution and from what sectors. The TMDL
establishes the targets and the states through their WIPs
describe how they will meet those targets. Since the final TMDL
was signed in December 2010, EPA and the states have turned our
focus to TMDL implementation and development of those WIPs.
Phase I WIPs describe the restoration action at the state
level, whereas the Phase II WIPs zoom in a little more and
explain how states will work with their localities to get on-
the-ground restoration practices in place.
In recent weeks, we have had very productive conversations
with the states resulting in a shift in our Phase II approach.
Our revised thinking is described in an October 5 letter I sent
to the states. In this letter, we clarified that local targets
do not have to be expressed in pounds of pollution but instead
can be expressed as programmatic actions or the number of
practices needed for restoration. These local targets should be
based on what makes the most sense to the states and their
local partners.
Right now, states are engaged and are working with the
localities on these Phase II plans. We recognize that the
agricultural sector has done much to reduce nutrient and
sediment loadings in the Bay watershed, and we participated in
discussions with states about certainty programs that recognize
those contributions. The bottom line is that conservation
practices work and additional opportunities exist to make
further progress.
I was able to view these practices firsthand when I visited
a dairy farm in Lancaster County this past summer with
Administrator Jackson. State officials including Senator
Brubaker and Secretary Krancer joined us on that visit. During
our time on the farm, we got to see the use of field practices
and manure handling that are benefitting the farm operations
and improving water quality. In a roundtable discussion hosted
by Senator Brubaker, we had a chance to hear directly from the
farmers about the valuable work they are doing and to hear
about their concerns. These kinds of interactions are
incredibly useful and we will continue to rely upon them as key
ways of hearing from the agricultural community.
Last, I want to point out the work EPA has done following
the March hearing where Deputy Administrator Bob Perciasepe
testified. At the hearing, there were discussions about both
costs and the benefits of implementing the Chesapeake Bay TMDL.
Following the hearing, Mr. Perciasepe directed EPA staff to
develop an estimate of the costs associated with the WIPs and
the analysis of the benefits associated with achieving water
quality standards. This work is well underway and EPA has been
consulting with USDA and the states on this analysis.
You also asked us at the hearing about what is commonly
known as the LimnoTech Report. As we stated at the hearing, we
asked that an independent panel of scientists be convened to
review the report. The panel recently published their review
and found that the CEAP study and the Chesapeake Bay watershed
partnership model are in approximate agreement on both the
nutrient and sediment loadings from agricultural lands at the
large basin scale. Again, this confirms that conservation works
and more conservation will help us restore local waters in the
Bay.
Last, at the hearing USDA and EPA pledged to work together
on conservation practices data. Since the hearing, we have
developed a joint work plan which we provided to the
Subcommittee in June that further refines our counting of
conservation practices, bolsters the scientific defensibility
of these practices, and improves data consistency between the
two agencies.
To conclude, farming is indeed a vital part of the
Chesapeake Bay watershed. Thriving agriculture is essential to
the long-term sustainability of the Chesapeake Bay and I
commend the farming community for the hard work they have done.
The work we are all undertaking now is not new. Although the
TMDL may be new, the level of efforts to meet the goals have
been nearly the same for more than a decade. Implementing the
TMDL is simply the next step.
We look forward to continuing to work with this
Subcommittee and the agricultural community to protect and
restore local waterways and the Chesapeake Bay. Thank you for
the opportunity to testify, and I am pleased to answer any
questions.
[The prepared statement of Mr. Garvin follows:]

Prepared Statement of Hon. Shawn M. Garvin, Regional Administrator,
Environmental Protection Agency, Region 3, Philadelphia, PA

Good morning, Chairman Thompson, Ranking Member Holden, and Members
of the Subcommittee. Thank you for the opportunity to talk with you
today about efforts to clean up the rivers and streams flowing to the
Chesapeake Bay and the development of Phase II of the Chesapeake Bay
Watershed Implementations Plans (WIPS) and their impacts on rural
communities.
EPA has great respect for our rural communities and farmers in
particular. Agriculture is a key part of the American economy and way
of life, and has an important role in watershed restoration efforts. We
value the critical work that farmers are doing to protect our soil,
air, and water resources and believe that environmentally sound farming
is essential to a thriving agricultural community and a sustainable
Chesapeake watershed and ecosystem. Moreover, we believe
environmentally sound farming is truly a preferred land use in the
Region.
I am pleased to be here today to talk with you about the work we
are doing--in collaboration with our state partners and other Federal
agencies--to restore local waterways and the Chesapeake Bay. I look
forward to an open discussion with you about the Phase II WIP
development and hope that I can answer any questions you may have about
our work.

Chesapeake Bay TMDL
For nearly 3 decades, the Chesapeake Bay Program (CBP) partners
have had a clear understanding of the efforts needed to restore water
quality in the Bay. In 1983, the Governors of Virginia, Pennsylvania
and Maryland, the Mayor of the District of Columbia, the Chair of the
Chesapeake Bay Commission, and the Administrator of EPA signed the
first Chesapeake Bay Program agreement to work together to restore the
Chesapeake Bay. They have since renewed that commitment through annual
meetings and periodic agreements and directives. In addition, the
states of Delaware, New York and West Virginia signed a multi-
jurisdictional Memorandum of Understanding committing to the
restoration of the Chesapeake Bay.
The idea for a Bay TMDL is not a new or recent idea; it is merely
the next step in this decades-long restoration partnership effort. In
June 2000, when the CBP Partners signed the Chesapeake 2000 (C2K)
agreement,\1\ they committed to meeting water quality standards in the
tidal waters of the Bay by 2010. Since then, the Partnership
continuously developed and refined models to allocate pollution
reduction responsibility between the states and developed tributary
strategies to implement the pollution reduction actions necessary to
restore the tidal waters of the Chesapeake Bay. The targets established
in 2000, and the level of effort to meet those targets, have changed
very little when compared to the Bay TMDL.
---------------------------------------------------------------------------
\1\ http://archive.chesapeakebay.net/info/c2k.cfm.
---------------------------------------------------------------------------
When signing the C2K agreement, the partners recognized that a TMDL
would need to be developed if the actions identified in the agreement
were not successful in achieving water quality standards in the
mainstem and tidal portions of the Bay.\2\ Despite some significant
progress in reducing pollution levels, the partners were not successful
in meeting water quality standards by 2010. Our latest 2009 Bay
Barometer report affirmed that despite the impressive restoration work
done by the array of partners, the Bay continued to have poor water
quality, degraded habitats, and low populations of some fish and
shellfish species.
---------------------------------------------------------------------------
\2\ Chesapeake 2000 agreement page 5: http://www.chesapeakebay.net/
content/publications/cbp_12081.pdf.
---------------------------------------------------------------------------
So, in October 2007, when it became apparent that water quality
standards would not be met by 2010, the Chesapeake Bay Program's
Principals' Staff Committee (PSC), a group of state secretary-level
representatives, requested that EPA begin to work with them to
establish a multi-state TMDL.\3\
---------------------------------------------------------------------------
\3\ See PSC meeting minutes for October 1, 2007: http://
archive.chesapeakebay.net/pubs/calendar/PSC--10-01-
07_Minutes_1_9029.pdf.
---------------------------------------------------------------------------
After more than 2 years in development, EPA issued the final
Chesapeake Bay Total Maximum Daily Load (TMDL), or pollution diet, on
December 29, 2010 which established the maximum amount of pollution the
estuary can receive and still meet water quality standards. The Bay
TMDL is unique because of the measures EPA and the states adopted to
ensure accountability for reducing pollution and meeting deadlines for
progress. The final TMDL is based on the states' Phase I Water
Implementation Plans (WIPs) and the input we received through our
outreach effort across the watershed. That effort included hundreds of
meetings with interested groups (including the agriculture community);
two rounds of public meetings in all states, stakeholder sessions and
media interviews; a series of monthly interactive webinars; notices
published in the Federal Register; and a close working relationship
with Chesapeake Bay Program committees representing citizens, local
governments and the scientific community.

President Obama's Chesapeake Bay Executive Order
The TMDL is a part of a broader effort by the Obama Administration
to restore the Chesapeake Bay. On May 12, 2009, President Obama issued
Executive Order 13508 on Chesapeake Bay Protection and Restoration. In
the Executive Order, President Obama declared the Chesapeake Bay a
``national treasure'' and ushered in a new era of Federal leadership,
action and accountability. The purpose of the Executive Order was ``to
protect and restore the health, heritage, natural resources, and social
and economic value of the nation's largest estuarine ecosystem and the
natural sustainability of its watershed.'' The Executive Order
established the Federal Leadership Committee (FLC) for the Chesapeake
Bay, which is chaired by the EPA Administrator and includes senior
representatives from the departments of Agriculture, Commerce, Defense,
Homeland Security, Interior and Transportation. The Executive Order
charged the FLC with developing and implementing a new Strategy for
protection and restoration of the Chesapeake region.
The new Federal Strategy for the Chesapeake region, released in May
2010, focuses on protecting and restoring the environment in
communities throughout the 64,000 square mile watershed and in its
thousands of streams, creeks, and rivers. The Strategy includes
implementing new conservation practices on 4 million acres of farms and
conserving 2 million acres of undeveloped land. To increase
accountability, Federal agencies will establish milestones every 2
years for actions to make progress toward measurable environmental
goals. These will support and complement the states' 2 year milestones.

Watershed Implementation Plans (WIPs)
State WIPs are the road maps for how and when, in partnership with
Federal and local governments, states will reduce pollution in order to
achieve and maintain pollutant allocations under the Bay TMDL. In
developing the TMDL, our plan was always to have the pollution
allocations based on state WIPs and to provide the states with
flexibility to let them lead the way in determining how to reduce
pollution and from what sectors.
TMDL implementation includes check-ins along the way to assure
progress--a series of 2 year milestones in which states, EPA, and other
Federal agencies are setting incremental commitments for specific
practices and programs to be implemented.
Since the final TMDL was published in December 29, 2010, EPA and
the states have turned our focus to TMDL implementation and developing
Phase II WIPs. Phase II WIPs explain how states will work with their
localities to get 60% of the needed restoration practices in place by
2017 and 100% of the practices in place by 2025.
Because implementation of the TMDL is designed to be as flexible as
possible, EPA encouraged states to develop Phase II WIPs to meet the
TMDL allocations in the best way for any given state. States are
expected to develop draft Phase II WIPs by December 15, 2011 with final
Phase II WIPs by March 30, 2012.
In recent weeks, we have had very productive conversations with the
states that have allowed EPA to better understand how to adapt our
collective approach toward cleaning up the region's waterways. A shift
in EPA's focus for Phase II WIPs was announced in an October 5, 2011
letter to the state secretaries. Specifically, we have clarified that
``local area targets'' may be expressed in terms other than pounds of
pollutant reductions by county. Instead, Phase II WIPs could identify
``targets'' or actions that local and Federal partners would take to
fulfill their contribution toward meeting the Chesapeake Bay TMDL
allocations such as programmatic actions, pollutant reductions to be
achieved by individual counties, or the number of BMPs that need to be
implemented. These targets or actions should be based on what makes the
most sense to the states and their key local partners. EPA agrees with
the states that we need to place greater emphasis on increasing actions
on the ground to restore the Bay.
States are now engaged in working with local governments,
conservation districts, planning commissions, watershed groups, the
public, and other key stakeholders to help refine strategies to clean
up local waters and the Bay and to provide further assurance that the
allocations will be met on schedule. In their Phase II WIPs the states
will demonstrate that local partners are aware of the WIP strategies;
understand their contribution to meeting the TMDL allocations; and have
been provided the opportunity to suggest any refinements to the states
WIP strategies.
Phase III WIPs, which states will develop by 2017, are expected to
provide additional detail on restoration actions beyond 2017 and to
ensure that the 2025 goals are met.

Engagement with the Agriculture Community
We recognize that the agricultural sector has done much to reduce
nutrient and sediment loadings in the Bay watershed. Both nitrogen and
phosphorus loadings from agriculture have declined since 1985. However,
significant additional reductions from all sectors, including
agriculture, are needed to meet water quality standards. The recent
USDA Natural Resources Conservation Service assessment of the effects
of conservation practices on cultivated cropland in the Chesapeake Bay
region shows that conservation works. However, opportunities exist to
make further progress in reducing nutrient and sediment loads from
agricultural cropland.\4\
---------------------------------------------------------------------------
\4\ http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/
stelprdb1042076.pdf.
---------------------------------------------------------------------------
I have had a number of opportunities to talk directly with people
in the agriculture community, including a visit to a Lancaster county,
PA dairy farm this past summer when I accompanied Administrator
Jackson. During our time on the farm, we got to see the use of field
practices and manure handling practices that are benefiting the farm
operation and improving impacts on water quality. In a roundtable
discussion, hosted by Senator Brubaker, we had a chance to hear
directly from farmers about the valuable work they are doing with their
conservation district and to hear about their concerns about the
process by which Bay protections are being implemented. These kinds of
interactions are incredibly useful for us and we will continue to rely
upon them as a key way of hearing from the agriculture community.

Agriculture Certainty
EPA has been involved in a number of discussions, along with USDA,
state officials, and stakeholders to explore the option of state
agricultural certainty programs. The idea of such state programs would
be to increase producer interest and willingness to adopt systems of
conservation practices based on farm-specific conservation planning,
with incentives that provide assurances for farmers and increase the
pace and extent to which resource conservation and verifiable water
quality improvements are achieved. The Commonwealth of Virginia is
leading the way with its enabling statute for a certainty program and
plans to promulgate a regulation to implement its program within the
next year or so. On October 6, EPA and USDA officials met with the
Chesapeake Bay states in Annapolis, Maryland to further discuss key
elements and principles of an agriculture certainty program. More than
40 state representatives attended the very productive 6 hour meeting.
In addition, the states will hold another meeting this month to seek
input from non-government stakeholders from both the agricultural and
environmental communities as states move forward with developing these
programs. We believe that certainty programs are best carried out by
the states and we have offered our support to states in the Bay region
and other parts of the country as they think through the development of
these programs.

Financial and Technical Assistance
EPA provides funds to states to help with conservation
implementation, technical assistance, tracking conservation, and
compliance/enforcement activities. Our Chesapeake Bay Implementation
Grants (CBIG) and Chesapeake Bay Regulatory and Accountability Program
(CBRAP) provide $20.3 million to the states for programs that improve
water quality in the watershed. EPA funding helps with WIP development
and implementation, including conservation implementation, technical
assistance, tracking conservation, and compliance activities.
EPA's Innovative Nutrient and Sediment Reduction Grants Program,
administered by the National Fish and Wildlife Foundation, provides
grants for innovative, cost-effective projects that reduce agricultural
and urban nutrient and sediment pollution in local and Bay waters.
Since 2007, EPA has provided $26.8 million to support 54 projects in
the Bay watershed. This year alone, EPA awarded $8.2 million to 19
projects in the Chesapeake Bay.
Two examples of projects we are funding through this grant program
are:

Transitioning Small Dairies to Phosphorus Balance in the
Shenandoah Valley, VA--We are providing $600,000 to Virginia
Tech to work with small dairies in the Shenandoah Valley to
help Virginia dairy farms achieve on-farm phosphorus balances
over time. VA Tech will provide technical assistance to dairy
farmers to help them develop a plan to achieve phosphorus
balance over time, and financial incentives to install
practices and technologies to address these imbalances. With
matching funds, the total funding level for this project is
$1.4 million.

Testing Manure Injection Technologies to Reduce Nutrient
Losses--We are providing $786,000 to evaluate manure injection
technologies on no-till systems to reduce ammonia emissions and
nutrient runoff from dry poultry and dairy manure, while
improving nutrient up-take by crops in south central PA, the
Shenandoah Valley VA, the Delmarva Peninsula, and NY.

We are pleased to see many states making a commitment to learn from
these projects and advance technologies for finding alternative uses
for excess manure nutrients. These innovations will keep farmers in
business over the long-haul by moving them to a more sustainable way of
managing manure. We are working with our state partners to credit the
nutrient reduction benefits of these technologies.
EPA also recognizes that it is important for partners to have
access to the tools and data we are using for the TMDL. In response to
this need, EPA has provided workshops for each state on how the
decision support tools work and how to submit data on nutrient and
sediment controls to assess impacts of various management actions on
Bay water quality. EPA also helped to create and provide training for
tools that allow states to quickly and easily assess various pollution
reduction strategies for their Bay cleanup plans.

Follow up from the March 16, 2011 Hearing
Data Coordination
At the March 2011 Subcommittee hearing, USDA and EPA pledged to
continue their joint efforts to refine and increase the level of data
available for understanding the implementation of conservation
practices by farmers in the Chesapeake Bay region. Since the hearing,
we have developed a joint workplan that outlines the actions we will be
taking with USDA to continue our data collaboration. We provided this
workplan to Chairman Thompson in June. Implementation of this workplan
will further refine our accounting of agricultural conservation
practices throughout the Bay watershed, bolster the scientific
defensibility of the benefits of agricultural conservation practices,
and improve consistency of data used in our agencies' respective
decision support tools.

Agricultural Nutrient Policy Council (ANPC) Report Review
There was also discussion at the March 2011 hearing about the
Agricultural Nutrient Policy Council (ANPC) report that claimed
discrepancies between the CBP Watershed Model and USDA's Conservation
Effects Assessment Project (CEAP) study. Earlier this year, the
Chesapeake Bay Program's Scientific & Technical Advisory Committee
(STAC), brought together a group of independent scientists to review
the findings of the ANCP report. Reviewers included representatives
from the U.S. Geological Survey, Virginia Tech University, Penn State
University, University of Maryland and the Maryland Agricultural
Experiment Station.
The STAC found that the CEAP study and the Watershed Model
developed by the Chesapeake Bay Partnership are in approximate
agreement on both the nutrient and sediment loadings from agricultural
lands in the Chesapeake Bay watershed at the large-basin scale and that
there is more work to do in reducing nutrient and sediment loads on
cropland. This affirms that conservation works and more conservation
will help improve the health of local waters and the Bay.

Economic Analysis
Last, when EPA Deputy Administrator Bob Perciasepe testified before
this Committee in March 2011, there was discussion about both the costs
and the benefits of implementing the Chesapeake Bay TMDL. Following the
hearing, Mr. Perciasepe directed EPA's Chesapeake Bay Program Office to
develop an estimate of the costs associated with the WIPs. In addition,
he directed EPA's National Center for Environmental Economics to
develop an analysis of the benefits associated with achieving water
quality standards in the Chesapeake Bay. We are currently working
closely with both Federal and state partners to develop these analyses.
For example, the costs of individual practices to be implemented in the
watershed have been provided to all Bay watershed states for review.
EPA also sponsored a 2 day workshop on October 31 and November 1, 2011
to discuss approaches to the estimation of TMDL benefits with national
and regional experts on these topics. EPA's Chesapeake Bay Program
Office and National Center for Environmental Economics are scheduled to
complete their initial analyses of costs and benefits by mid-late 2012,
following completion of the Phase II WIPs. At that time, the costs
analysis is expected to be complete, as will significant components of
the benefit analysis. Some parts of the benefits analysis, however,
require more laborious methodological approaches. Those parts of the
analysis will be completed by the summer of 2013. Both studies will
incorporate the final Phase II WIPs, due in March 2012.

Conclusion
Rural communities and farming are indeed a vital part of the
Chesapeake Bay watershed's culture, economy and way of life.
Maintaining a thriving agricultural community is essential to the long
term sustainability of the Chesapeake Bay watershed and its ecosystems.
I commend the farming community for the hard and innovative work that
they have done in the past years.
The work we are undertaking is not new. Although the process and
framework of the Chesapeake Bay TMDL may be new, the level of effort to
meet the goals has been nearly the same for more than a decade.
Implementing the Bay TMDL is simply the next step in this long term
effort.
We look forward to continuing to work with this Subcommittee and
the agricultural community to protect and restore local waterways that
feed into the Chesapeake Bay.
Thank you for the opportunity to testify today, I am pleased to
answer any questions.

The Chairman. Well, thank you, Administrator Garvin, for
your testimony.
The chair would like to remind Members that they will be
recognized for questioning in order of seniority for Members
who were here at the start of the hearing. After that, Members
will be recognized in order of arrival. I appreciate Members'
understanding.
And with that, I will recognize myself for the first 5
minutes.
Mr. Garvin, you mentioned in your testimony that the EPA's
Chesapeake Bay Program Office is developing a cost associated
with the WIPs, cost-benefit analysis. I read that within your
testimony. This is more logistics. When can we expect to see
the results of that analysis and are you working with the
states to come up with those figures?
Mr. Garvin. I will answer in reverse order. We are working
with the states. A number of states have already put together
some information on cost and benefits as they were going
through Phase I, so we are certainly looking to utilize that
information, but we are consulting with them and with USDA on
that information. The timing of it is probably we are looking
at the middle part of next year on the cost.
One of the things that we are taking into account is as the
Phase I strategies were put together by the states and as they
are more refined in Phase II, we want to make sure that we have
a good understanding of what those balances are to help inform
the costs. One of the things that we recognize is the fact that
there are different mechanisms, different approaches, different
cost effectiveness that you can get at when looking at all the
sectors in the TMDL and subsequently looking at what decisions
were made in those areas that will help inform that discussion.
The Chairman. Obviously, the model has been a significant
point of controversy, and I appreciate the response in June
where it appears that it is a work in progress. I am concerned,
though, that the mandates as a result of the model results are
not as flexible. I think everyone knows that there is
considerable controversy over the modeling on which the TMDLs
are based versus the model USDA has put forward. And even
taking USDA out of the picture, the differences between
communities that sit in proximity to each other, some that are
in surplus on sediments and some that have to remove sediments.
And so at the last hearing on TMDL, this issue was
discussed at great length. What has EPA done to reexamine the
basic Chesapeake model this TMDL utilizes? And how much
confidence do we have in the outcomes of this, the data that
really is driving a very expensive response by farmers and
communities and all those who live within the watershed?
Mr. Garvin. Congressman, we have a great deal of confidence
in the tool that is the model, and the model is really--it
summarizes a model but there are several different models that
go into that model and the number of things that make up the
suite of tools that we use to help inform decisions. The model
is a tool that we use. We have worked closely with USDA. We
have looked at consistency of information. Many of the issues
that we are dealing with now are not related to the mechanism.
It is related more to the input to the mechanism.
We recognize that there is information we do not have.
Clearly, we can't input information into the mechanism that
doesn't exist, and so we are working very closely, particularly
if you are talking about agricultural processes on the ground.
And so we are looking at working and we have been working very
closely with USDA and the states and other areas to make sure
that information is both being tracked, being verified, and
then being provided to us so that we can account for that.
The Chairman. My concern obviously is kind of a cart-
before-the-horse type thing. You know, we need good data so
that we know that the taxpayers, whether it is a local level or
out of their pockets, the agriculture community or the Federal
taxpayers make investments, that they are going in for the
right reasons in targeted areas.
When Administrator Jackson testified before the full
Committee earlier this year, she stated that this process was
largely driven by a settlement agreement between the Chesapeake
Bay Foundation and the EPA. Would you agree that that is kind
of what pulled the most recent----
Mr. Garvin. I don't know exactly what the Administrator was
referring to that you are citing. The actual TMDL is actually
required and has been required for the last 15 years or so. And
actually, back in 2000 when the partners agreed to the
Chesapeake 2000 agreement that said we would work and put on
track by 2010--meaning water quality standards for the
Chesapeake Bay--there was a recognition back then that if we
did not make that goal that we would start beginning the
process of creating a TMDL.
And subsequently, this has been a long-standing requirement
that has been hanging out there. It has been actually a result
of a number of court settlements from back in the early 1990s
across the country in which--not to get into too much detail--
the waters that are on the impaired list, the 303(d) list,
needed to have TMDLs established. So this has been something
all the partners have been aware of was coming if the efforts
that we were undertaking were not going to get us to meeting
water quality standards or at least on a significant path to
meeting water quality standards.
The Chairman. Well, I just want to revisit: Administrator
Jackson went on record to the Committee stating that this
process was largely driven by a settlement agreement between
the Chesapeake Bay Foundation and the EPA. In terms of
accountability and transparency, do you think it is a conflict
of interest that there are two EPA employees, Jeff Corbin and
Chuck Fox, who both have been effective and instrumental in the
development of the Bay TMDL, were both formerly employed by the
Chesapeake Bay Foundation?
Mr. Garvin. No, I don't believe there is a conflict of
interest.
The Chairman. Okay. I now recognize the Ranking Member for
5 minutes.
Mr. Holden. Well, thank you, Mr. Chairman.
Administrator Garvin, getting back to the model, you say
you believe it has credibility but I am looking at an article
from Agri-Pulse citing that a county in Virginia would have to
reduce nitrogen by eight percent, phosphorous by 11 percent,
and sediment by 20 percent but another run from the EPA model
for the same county would have to make no reductions in
nitrogen and has a 20 percent surplus in phosphorous and room
for 350 percent more sediment. Now, how can we have faith that
you are moving forward with credibility when two variations in
the models by EPA directly contradict each other?
Mr. Garvin. I don't know what the two different models you
are referring to. I think what you are referring to is the same
model at two different scales, and one of the reasons for the
October 5 letter to the states suggesting that they do not have
to, though it is still up to them to make the decision--have to
articulate those more local Phase II plans in pounds at the
local level as opposed to a narrative on practices that would
be calculated at the larger river basin level.
There is a recognition amongst all of us that the model is
much more effective at the larger basin level, that there are
some irregularities at the finer scale. I liken it to my wife
the other day asking me to hang a picture and it was between a
doorjamb and the fireplace and there was a sconce in the way
and I only had a yardstick. So I wasn't able to get the
yardstick all the way up to the point where I had to measure,
so what I did was I had to use a little bit of common sense and
eye up a little bit on where the point is that I was going to
put the drill and hang the picture. What the model does at the
larger basin scale is give you the big picture, allows the
jurisdiction to figure out what are those practices to get up
to that point, how do they work when you start giving them up
at the local level, and then make the calculations. Though some
states may want to use it and then kind of use some discretion
on how----
Mr. Holden. All right. Thank you, sir. And is EPA doing
onsite farm visits?
Mr. Garvin. Yes. We are doing compliance visits and a
couple----
Mr. Holden. Under what authority is EPA doing onsite farm
visits?
Mr. Garvin. It would fall under section 308 of the Clean
Water Act is the authority but the goal of it is we look at
them more as educational visits that we are working with the
conservation districts and others to help educate us and inform
both us, the states, as well as the farmers on expectations. It
also helps us to have a better sense as we look at review
assurance on planning.
Mr. Holden. Do you intend to visit every farm in the Bay
region, the watershed?
Mr. Garvin. We do not. We have been focusing on generally
areas that are high concentration and have a heavy impact on
the Bay in helping to work with those communities. You know,
one of the areas we went in was southeast Pennsylvania where
there was a high level of Plain Sect farmers who were not
necessarily engaged in the discussion and it was an opportunity
working with the conservation districts to meet with them and
talk to them about what the expectations are and for us to be
educated and informed on what they actually have going on, on
the ground.
Mr. Holden. Are farmers given notice that you are going to
make the visit?
Mr. Garvin. Yes.
Mr. Holden. Okay. And Administrator, from your testimony I
hear that you testify that you are working with the states, but
I have to tell you Secretary Krancer who is in the next panel--
in his written testimony he describes EPA as telling DEP to get
over it or get on with it, and a similar statement was made by
an official from Virginia. So that doesn't seem to reflect the
good working relationship. So I wonder if you can elaborate on
the comments that are in the Secretary's testimony.
Mr. Garvin. Yes, absolutely. I can't refer to the specific
comments. Obviously he will be testifying to those. I can
comment on kind of the notion of what we have been working with
all the Bay partners, with all the states in looking to address
the issue of restoring the Chesapeake Bay. We can't just keep
standing at the starting line and saying, this 10K is an awful
long run to take. We need to start making progress towards
implementing the TMDL.
The wisdom of the partnership back in 2008 led by the
governors and the Administrator and the mayor of D.C. was
breaking this up into 2 year increments, breaking these up into
small pieces so that we can continue to adapt, we can continue
to learn, we can continue to make changes over the course of
the 15 years to address issues learned from what we are doing
on the ground, share effectiveness with other jurisdictions on
those type of things. And if we continue just to sit back and
say this is a daunting effort and not move forward, we are
never going to get there.
And so what we recognize and what we are committed to is a
process of adaptive management, a process of continuing the
dialogues. I have assigned senior managers at EPA to work with
senior managers in all the states on a consistent basis to
continue to hear concerns and figure out how we can evolve and
adapt based on what those issues are.
Mr. Holden. Well, thank you. Just keep in mind it is a
partnership.
Mr. Garvin. Absolutely.
The Chairman. I thank the gentleman and recognize Mr.
Goodlatte from Virginia for 5 minutes.
Mr. Goodlatte. Thank you, Mr. Chairman, and thank you for
holding this hearing.
Administrator Garvin, welcome.
Mr. Garvin. Thank you.
Mr. Goodlatte. Standing at the starting line? Are you
serious? I mean for 25 years farmers, localities, and others
across the Chesapeake Bay region have substantially reduced the
amount of nitrogen, phosphorous, and sediment going into the
streams that go into the Chesapeake Bay and now you are
claiming that we are standing at the starting line? There has
been tremendous cooperation between local governments, state
governments, and private entities, homebuilders, farmers, and
others to achieve substantial reduction in these nutrients
going into the Chesapeake Bay, and yet you claim that we are
standing at the starting line.
Now, you mention in your testimony that after I and many
others have complained bitterly for years that all of this is
being done without having done a cost-benefit analysis that now
finally you are doing a cost-benefit analysis. Good for you. I
am glad. But how can you make effective decisions about what
should go into a TMDL and how can you expect the states to
comply when you haven't even given them the evidence of what
needs to be done and how it will benefit the Chesapeake Bay? We
don't even know the extent to which the billions and billions
of dollars that are going to be spent here will benefit the
Bay, do we? Because you haven't done a cost-benefit analysis
yet and yet you are expecting us to be ``moving ahead instead
of'' as you say ``standing at the starting line.''
Mr. Garvin. Congressman, my reference to standing at the
starting line was the implementation of the TMDL. I absolutely
agree with you and concur with you there has been a lot of
great things that have occurred on the ground in the ag sector,
urban and suburban storm water, and with wastewater treatment
plants. My reference is the fact that if we wait for
implementation of the TMDL until we have what is considered to
be all the information, all the data----
Mr. Goodlatte. Like an effective model and a cost-benefit
analysis? Don't you think we should have a model that is
effective that would indicate what kind of things will work and
what won't work and a cost-benefit analysis to tell us whether
this is even worth doing the way the EPA says to do it instead
of the way the states had been doing it until you leaned on all
of them?
Mr. Garvin. We believe we have an effective model. With
regard to the cost-effective analysis, there have been a number
of cost-benefit analyses done by a number of folks over the
course of the years, so it is not like the information doesn't
exist. What we are looking to do is do it based on the Phase I
TMDLs, based on what comes out of the Phase II TMDLs when we
actually have those strategies and plans laid out on what the
potential cost and benefits are for those activities. There
have been blue ribbon panels in 2004, NOAA, University of
Virginia, University of Delaware, many other academia----
Mr. Goodlatte. But not a cost-benefit analysis. They looked
at and offered their opinions about various things but they did
not compare the costs with the benefits to be derived by the
Bay and weighed those two together.
Now, let me ask you this. On August 30, President Obama
sent a letter to Speaker Boehner outlining regulations that
will cost $1 billion or more. Virginia estimates that the Bay
TMDL will cost the Commonwealth $7 billion alone. You have a
witness on the next panel sitting behind you who is a member of
the city council of a small city in my district, Lynchburg,
Virginia, that has already spent hundreds of millions of
dollars in compliance and estimates that these new requirements
will cost them well over $100 million or more to comply.
I believe that other states have similar estimates and this
does not account for the cost incurred by localities,
businesses, farms, and families. However, the Chesapeake Bay
TMDL and the WIPs are not included in the list of costly
regulations that the President outlined. Can you explain this
omission? I am talking about $20 billion or more, not $1
billion.
Mr. Garvin. The simple answer, Congressman, is the TMDL is
not a regulation.
Mr. Goodlatte. It is not a regulation?
Mr. Garvin. No.
Mr. Goodlatte. So what is it?
Mr. Garvin. TMDL is a strategy, a plan to meet the 303(d)
requirements of the Clean Water Act.
Mr. Goodlatte. And what will that result in localities and
farmers and state governments and homebuilders and others
having to do?
Mr. Garvin. Put on-the-ground activities to improve water
quality.
Mr. Goodlatte. And will they be able to do those
voluntarily or are they going to have to be required to do
those?
Mr. Garvin. Both.
Mr. Goodlatte. But that is not a regulation?
Mr. Garvin. The TMDL is not a regulation.
Mr. Goodlatte. Well, that is a pretty amazing claim. You
think people should feel good about the fact that the President
left off a list something that is being pushed down from the
Federal Government onto the states and then onto farmers and
others and told, well, it is not on the list of things we
should be concerned about, the impacts on jobs and economic
growth because it is not a regulation? I find that
unbelievable.
Mr. Garvin, you participated in a meeting with the
Chesapeake Bay jurisdictions on September 16 in which most of
the jurisdictions expressed concerns about how the model
assessed the use of nutrient management plans. In that meeting,
the jurisdictions produced a chart that showed that in many
counties, the use of nutrient management plans actually
increased nutrient application rates in the upgraded 5.3.2
model. Do you agree that nutrient management land plans as
identified in the model result in higher rates of nutrient
application?
Mr. Garvin. No. What I agree with is the fact that that is
an indicator that there is too much manure in that area in
which that data came from. Ultimately, the way the model works
and the way the law in Virginia works is the fact that you
can't apply manure to lands unless you have a nutrient
management plan. Subsequently, the amount of manure that exists
is credited to nutrient management plan lands, which is an
indicator that what needs to happen is more nutrient needs to
be dealt with so it is not being land applied.
Mr. Goodlatte. Is it true that one of the items you
committed to fix in the previous model was related to how it
evaluated nutrient management plans?
Mr. Garvin. Yes, the two areas in which we had agreed to
make modification were urban/suburban land cover, as well as
nutrient management plans.
Mr. Goodlatte. Can you give me a timeline for these fixes?
Mr. Garvin. That was done back in June.
Mr. Goodlatte. I might ask one more question, Mr. Chairman,
with your leave?
The Chairman. Yes.
Mr. Goodlatte. One of the major complaints about the model
is that it does not account for non-cost-shared nutrient
management plans. Has this been fully corrected in the model?
Additionally, is the model giving credit for other things
farmers are doing? For example, some farmers may not agree to
fence off streams on their land by 35 feet. Picture this: if
you have a stream meandering through your farm for a mile and
you fence it off on both sides, in addition to the cost of
doing that, you are fencing off 70 feet times 5,000. That is
350,000 square feet of usable pasture land, more than 8 acres.
But instead they do it to 5 feet, which keeps the cattle out of
the streams and has a substantial benefit. Does the model
account for those practices?
Mr. Garvin. With regard to non-cost-share conservation
practices being credited in the mechanism, it is not a model
correction; it is an input issue. I absolutely agree with you.
There are things going on, on the ground, that we need to know
and we are working closely with those folks who track and
monitor that to provide that information to us so that it can
be credited. We also recognize that there are additional areas
where nobody has the information and we are working to figure
out what is the best way to get that information. For example,
as I referred to earlier, the Plain Sect community and their
way of life, government interaction is done in a different way,
and so our ability to work and find out what are those
practices going on, on the ground, so that they can be credited
in those areas is an important activity and we are working very
closely with USDA and states on making sure that information is
inputted.
Mr. Goodlatte. Thank you, Mr. Chairman.
The Chairman. I thank the gentleman and recognize Mr.
Owens, from New York.
Mr. Owens. Thank you.
Mr. Garvin, thank you for testifying today. I want to ask
you a couple of questions about the TMDL model that is
specifically focused on New York State. We have heard from our
constituents that there is a difference between the model
estimates and the actual recording that takes place on the
ground, the actual test results. How is that factored in or is
it factored in?
Mr. Garvin. One of the bases of the model is the input of
the data on actual water quality that we know. We recognize
that there are some special issues in New York based on their
location, based on the fact that they have been actually
reducing and not growing and we have been working very closely
with the State of New York to address those issues. And I
believe that in the very near future, next month or so, we will
have a path forward that addresses those concerns.
Mr. Owens. So we will be able, then, to actually have the
real testing data included as opposed to model data.
Mr. Garvin. The real testing data is already included. What
it is going to do is reflect some special circumstances in New
York that address some of the concerns they have about growth
and location and contributions to the Bay.
Mr. Owens. Another question that has been raised by my
constituents is the need or the difference between the
delivered load and the edge-of-stream load, and, fundamentally,
the question is that you do have some dilution that occurs as
the water moves downstream, and therefore, the load is in fact
different than the measurement that is currently being
proposed. How do you deal with that?
Mr. Garvin. That is actually one of the things that we are
addressing in New York as well as in West Virginia, and we have
folks who are working with them to account for their concerns
in that area.
Mr. Owens. And finally, when you do your cost-benefit
analysis, are you taking into account the increase in cost to
the consumer for production of food in the ag community that
arises out of increased regulation?
Mr. Garvin. I will have to get back to you on that,
Congressman. I am not sure all the factors that are going into
the analysis, but we can make that available to you and to the
chair and the Subcommittee.
Mr. Owens. If it is not included, would the EPA consider
including that as a factor?
Mr. Garvin. Well, I will go back and have a conversation
and figure out what is being included and what is not and we
will get back to you.
[The information referred to is located on p. 83.]
Mr. Owens. Thank you very much.
I yield back.
The Chairman. The gentleman yields back. I now recognize
Mr. Gibbs, from Ohio.
Mr. Gibbs. Thank you, Mr. Chairman.
Obviously, I am the only one on the Committee right here
that is not in the Chesapeake watershed, so I don't know all
the specific data that you guys have, but I do have a couple of
questions.
I am just curious because my experience in my area talking
about the modeling and stuff, on stream monitoring programs,
who is doing that? Is that in partnership with the local
county's soil and water districts, state EPA? I am curious how
rigorous your monitoring process is.
Mr. Garvin. I appreciate that and that is kind of the
lifeblood of what we are doing. We have somewhere upwards of
250 monitoring points throughout the Chesapeake Bay watershed.
We are actually undertaking an effort to increase that so that
we have the most amount of data and information that we can to
help inform on the discussions. We are also working with states
and local communities to get information and data on what they
have on the impacts.
You know, clearly, when we are moving forward in this
approach and we are looking to restore the Bay--and quite
honestly to restore any water body--the more information we
have, the better information we have to inform our decisions
and be able to measure. One thing that we tend not to touch on
is the fact that we deal with the Chesapeake Bay watershed in
its entirety. It is 64,000 square feet and it is 17 million
people, but there are going to be different parts of the Bay
watershed that are going to respond faster than other parts of
the watershed. We want to make sure that we understand where
those are and what the impacts are.
Mr. Gibbs. I guess I would be an advocate that you have to
break this down in subsets----
Mr. Garvin. Yes.
Mr. Gibbs.--and determine what is happening, especially
point source areas and non-point source areas----
Mr. Garvin. Yes.
Mr. Gibbs.--especially making a determination of non-point
is a lot more challenging as you know. And my experience in the
past, you have in different streams different flow rates,
weather conditions, rainfall that can impact it. And I know in
my area in the past years we had an issue with the EPA at one
time. They were doing what I call drive-by evaluations,
windshield drive-bys and weren't getting the right data. And so
I guess being an outsider of the Chesapeake, that is when I
would question and make sure that the monitoring process to
develop the model makes sense.
And the second part of that, in my one watershed we had
been involved for about 10 years of a nutrient trading
program----
Mr. Garvin. Yes.
Mr. Gibbs.--and how that has been so successful, they have
lowered the load into that watershed working with a cheese
manufacturer and working with those local farmers around there,
and it has been real successful and kept the jobs and the
economic growth. Are there any type programs like that going on
in this watershed?
Mr. Garvin. Yes, Congressman. The TMDL actually had a
section, an appendix that dealt with a placeholder for trading.
A number of the states came in with their state strategies that
relied--in varying degrees on trading. What we have been doing
with the states currently is we have been meeting with them,
discussing what trading programs they do or they don't have,
getting a better sense of what they are. One of the issues is
making sure that when we are doing trading we are not double
counting, when we are doing trading that there is a common
exchange rate so that we are talking apples and apples when we
are looking at numbers. And so we have been working close with
the states on that, and I am hoping in the next couple of
weeks--and we will share this with the Subcommittee--that we
will be providing some feedback to the states on that review.
[The information referred to is located on p. 84.]
Mr. Gibbs. Of course, to me that would go back to having a
very rigorous monitoring program.
Mr. Garvin. Yes.
Mr. Gibbs. And are there soil and water county districts
near that area?
Mr. Garvin. Yes.
Mr. Gibbs. So you have a close working relationship with
the NRCS and the soil and conservation services in each county?
Mr. Garvin. Absolutely.
Mr. Gibbs. Okay. Because, I just can't emphasize enough--
the monitoring--to develop a model that is accurate has to be
based on sound data from the monitoring.
So thank you, Mr. Chairman. I yield back.
The Chairman. Thanks, Mr. Gibbs.
We are going to have a few additional questions. I now
recognize Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Garvin, in February of 2008, the Chesapeake Bay
Program's Scientific and Technical Advisory Committee, or STAC,
told the EPA that its Chesapeake Bay models, ``are not
appropriate for development and implementation of TMDLs at the
local watershed scale.'' In your letter to Bay Jurisdictions on
October 5, you admit that there are areas in the watershed,
``where there are limitations to the application of the
Chesapeake Bay Program watershed model at a finer scale, finer
scale than the major basin.'' However, the final TMDL based off
the model contains thousands of allocations. Do you understand
the concerns that this raises about the accuracy of the model
and the TMDL which has developed by this model?
And throughout this process, the EPA has asked the states
to provide reasonable assurance of plan implementation, but
what reasonable assurance has the EPA provided that the model
that is driving this whole process is accurate or that the
loading reduction numbers the EPA has distributed to the states
are accurate?
Mr. Garvin. The TMDL was developed and the tool or the
model that was used was at the larger major basin scale, not at
the finer scale, which is actually the subject of the October 5
letter, which is a recognition that there are some limitations
at the finer scale, not that it can't be used as a planning
tool that the states can use. But when we are actually doing
calculations on effectiveness, we are going to do it at the
larger scale.
Mr. Goodlatte. But the TMDL itself includes thousands of
allocations based upon a tool that you admit is not ready for
those finer allocations.
Mr. Garvin. We believe that at the scales that were done
for the TMDL the model is effective.
Mr. Goodlatte. What is driving the timeline to have the
Phase II WIP completed by March 2012? Is there a legal
requirement or a statutory requirement to meet this deadline?
Mr. Garvin. What ultimately is driving it is the schedule
that was laid out with the end point being 100 percent of the
practices on the ground by 2025, 60 percent of the practices on
the ground by 2017.
Mr. Goodlatte. There is no legal requirement that you take
a model that is flawed, that isn't ready for primetime or for
as you say ``finer scale,'' but you have nonetheless imposed
thousands of allocations at that finer scale. There is no
statutory requirement, no legal requirement to meet that
deadline, is there?
Mr. Garvin. There is a settlement--well, let me back up. We
set the schedule which was actually 5 months earlier than what
the schedule is that we are on now. We expanded that schedule
at the request of the states for some additional time. We also
again in the October 5 letter changed our approach to the Phase
II allowing the states the option of going to a narrative----
Mr. Goodlatte. Is it more important to develop
implementation plans with the correct science or to meet an
artificial deadline?
Mr. Garvin. I believe that we have the correct science and
I believe that we need to keep on a schedule----
Mr. Goodlatte. But you have admitted that you don't have
the correct science. You said it is not ready. You said you
don't have a model that works at the finer scale, and yet you
are asking individuals in communities and property owners of
various kinds and so on to begin implementing something that is
not ready. And Mr. Garvin, you have not committed to updating
the Bay model until the Phase III WIPs are implemented in 2017.
Why the delay when there are multiple 2 year milestones in the
interim?
Mr. Garvin. What we have committed to is a reevaluation of
the process in 2017. We will----
Mr. Goodlatte. What are we supposed to do in the meantime?
Mr. Garvin.--continue to evolve the model, evolve the
inputs that go into the model between now and 2017. What we are
looking to do in 2017 is a wholesale evaluation based on what
we learned from 2 year milestones, based on what we learned
from the activities on the ground to make determinations,
working very closely with the states and other Federal
partners, in figuring out what is the best process to get us
from 2018 to 2025. It is basically a mid-course check on where
we are, our effectiveness on what we are doing and how we get
to the end goal of 2025.
Mr. Goodlatte. Even though, as you say, standing at the
starting line of the TMDL, you guys weren't ready to go. You
don't have a model that works. You have a model that you
acknowledge does not work at the ``finer scale,'' and yet you
expect everybody to live by it, but maybe by 2017, 6 years from
now, you will get around to telling us whether or not it was
right.
Mr. Garvin. I believe we are ready to go and that is the
process that all of the partners are undertaking at this time.
Mr. Goodlatte. Because you have threatened them if they
don't undertake it with actions that most of us here on this
panel who are in the United States Congress and involved in
writing laws don't think the laws of the land allow you to do.
Thank you, Mr. Chairman.
The Chairman. I thank the gentleman.
Mr. Garvin, just a couple final questions from me. You
know, this is mainly farmers and communities, specifically in
Lycoming County and then outside the district points east, as
you are aware, we experienced some pretty tremendous flooding--
it has been about a month ago--and I saw things going down the
streams that were just--well, let us put it this way, there are
a few cabins that are now in the Chesapeake Bay that originally
were in Pennsylvania. Or maybe they haven't made it there yet
but they are coming. I don't know how long it takes for that
water to flow, a very long time.
And we all saw on the news a significant amount of runoff,
sediment, a lot more than just sediment that went directly into
the Susquehanna River. And I read through the testimony today
and it talks a lot about--I didn't see the word turbidity but I
saw, in terms of some of the measurements in the Bay
cloudiness, dead zones, those types of things. And I have to
wonder, when we are having these 100 year floods a whole lot
more than 100 years it seems like and there is not much we can
do to control those, certainly can't prevent them. They are
going to occur. But my question is with these hundreds of
millions of dollars of some of these communities and the costs
of which we are spending on an annual basis, is there
consideration of what went directly into the Chesapeake River
and ultimately into the Chesapeake Bay? Is that factored into
the modeling or is that impacted in--I have to wonder how much
sediment as a result of 48 hours of flooding compared to 20
years of agriculture wind up in the Bay?
Mr. Garvin. That is a very good question, Congressman, and
clearly that was one of the issues when initially everybody was
concerned about Irene and it was actually tropical storm Lee
that really hit your portion of the district and had a larger
impact on the Susquehanna. You know, we recognize in all these
conversations that we have is that there are going to be ebbs
and flows as it relates to the impacts of Mother Nature, be it
droughts in some times and excessive rain and potential
flooding at other times. So we try to factor that in both in
our ability to measure success of the practices that are going
on the ground, as well as being able to take a snapshot of
where we are and where we need to get to.
With regards to the storm a couple months ago or I guess a
month and a half ago or so, USGS, Army Corps, others had
already had folks out there looking at, as I said, the concerns
with Irene that did not necessarily develop, and so they were
actually in place already doing additional monitoring before
and after tropical storm Lee to help characterize what the
potential impacts might be.
The Chairman. And so will you be able to provide this
Subcommittee measurements in terms of--you have given us some
testimony and through the testimony of the other witnesses we
know approximately how many pounds of sediments are targeted
for each state and we have estimates of the tremendous
reductions since about 1985, if I recall correctly, from the
testimony. It would be really interesting to see the estimates
of the amount of sediments that go into the Bay that are going
to be largely unpreventable and are going to occur on a
reoccurring basis. I would love to see that number compared to
the TMDL plan that is out there as well.
Mr. Garvin. We will get you whatever information we have or
that we have collected from other Federal agencies and states.
The State of Maryland and the Commonwealth of Virginia were
also out doing some monitoring after Irene.
The one thing I do want to note and this was at least
initial feedback was that the timing of the storm--let me put
it this way--the impacts could have been greater if it had
happened earlier in the summer. So that may turn out to be
something that diminishes at least the overall impact.
The Chairman. My last question is actually kind of a
clarification. In your testimony and what you have testified
on, you seem to infer that the TMDL model is effective but the
effectiveness at this point is limited at--I don't recall the--
it was a large Bay scale or there was a particular term you
used.
Mr. Garvin. The major river basin scale.
The Chairman. Major----
Mr. Garvin. And it is effective at lower levels than that
but we recognize that it becomes less effective the finer the
scale becomes. It doesn't limit it from being a valuable tool
to be used to help inform decision and I can't stress enough
that the policy decisions are made by the policy-makers. The
model helps to inform it, as well as data that we get from all
corners of the watershed. The same thing with states in
understanding what is happening, the dynamics that are
happening on the ground, where they feel that what sectors they
can make decisions based on. And so the model is one tool, a
big tool that is used to help inform those decisions.
The Chairman. All right. Well, I know Mr. Goodlatte would
agree with me. We are concerned with the TMDL model in that it
is being driven to make decisions on a local level and it has
not only been proven to be inaccurate, it has been shown to be
inconsistent with just some of the testimony that we have
heard, that has been reported, the discrepancies in terms of
numbers that have been set.
And that really concerns me because in your testimony you
describe on the bottom of page 4, Phase II WIPs explain how
states will work with their localities--now, it is taking it
down to the local level--to get 60 percent of the needed
restoration practice in place by 2017, 100 percent of the
practices in place by 2025. Bottom line is we need a TMDL model
if we are going to use one that we are confident that doesn't
have the discrepancies that are showing up in this one. And so
I have grave concerns about moving forward when the science
isn't settled.
And that is not to say it is not possible to do that and it
is not possible to come up with a model that actually is
accurate for the full river basin, for states as a whole, and
for localities, especially localities, because that is where a
lot of these remedies are placed and that is where the
financial burden is placed, on localities. I think the
responsible thing is to make sure we tighten up that model. I
appreciate the target improvements that were identified by the
EPA in the letter that was sent in June. I just think that
there is more work to do.
So I want to thank you for taking the time to come down
from the Keystone State and being here and testifying today.
Mr. Garvin. Thank you, Congressman.
The Chairman. Thank you.
Now, the folks that are on the second panel, I want to
welcome our second panel witnesses to the table as we get set
up.
Well, now I would like to welcome our second panel of
witnesses to the table. We have the Honorable Michael Krancer,
Secretary, Pennsylvania Department of Environmental Protection
down from Harrisburg, Pennsylvania; we have the Honorable
Michael Brubaker, Chairman of the Chesapeake Bay Commission--
the Commission is based out of Annapolis, Maryland; Mr. Carl
Shaffer, President of the Pennsylvania Farm Bureau Federation,
Camp Hill, Pennsylvania; Hon. Turner Perrow, Lynchburg City
Council, Lynchburg, Virginia.
Secretary Krancer, please begin when you are ready.

STATEMENT OF HON. MICHAEL L. KRANCER, SECRETARY,
PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION, HARRISBURG, PA

Mr. Krancer. Sure. I appreciate it. First, it is an honor
for me to be here in front of a couple of my home Congressmen.
If you don't mind, I am going to adopt Representative Goodlatte
as my honorary home Congressman because I went to UVA and then
I went to Washington and Lee. Judge Sweeney taught me trial
practice and my classmate, Morgan Griffith, is now a colleague
of one of yours. So we were really proud to send him to the
United States Congress.
Mr. Goodlatte. We have a lot of ties that bind.
Mr. Krancer. Yes, we do. Anyway, again, thanks for having
me. And I want to just hit on a couple of notes. You have seen
my written testimony and I certainly can talk about that and I
appreciate the opportunity for you to ask me questions.
Congressman Goodlatte hit the nail on the head about the
deadlines and about what is really driving this. And I know the
regional Administrator had a little trouble grasping the
concept. Apparently, his boss did not when she was in front of
the whole Committee. This is a settlement agreement that is
driving these immediate deadlines. These are self-imposed
deadlines with friendly litigation partners. I think that was
also pointed out by the Congressman. And I have pointed that
out before and I talked about it in an article that appeared in
the Altoona Mirror that I think you all have seen. But that is
clearly the case. So let us make no bones about that. That is
exactly what is happening. That is what is causing the rush to
judgment; that is what is causing the cart before the horse
that the Congressman has noted already.
There was some discussion about farm inspections in
Pennsylvania specifically. It is in my backyard so I am
interested in that. And heavy-handedness, well, I think the
heavy-handedness can go together, and I will give you a little
snippet of what I am talking about. July 19 we had a press
release from the EPA touting one of the farm inspections, and
they said we have done these farm inspections, particularly
dairy farms, and we found that there was widespread
noncompliance with state regulations and extensive nutrient
pathogenic contaminations of drinking water sources. Well, I
considered that inflammatory. I considered that an attack on
Pennsylvania farmers in a broad brush, and I also considered it
insensitive and certainly overstated--certainly a lot of
rhetoric there. But in any event I thought it was
inappropriate.
Congressman Goodlatte hit the nail on the head again with
the regulation. Not a regulation? My foot it is not a
regulation. It sure is a regulation and it should be on that
list of regs that are costing billions of dollars. But the
bottom line is if the states don't dance to the tune, the
nonscientific tune that is being set, there are backstops that
will be imposed, penalties imposed from the Federal Government.
So again the Congressman was exactly correct about that.
I have talked about this in my written testimony and I was
at the all-secretaries meeting; I was at the summit, whatever
you want to call it, about the modeling; and until very
recently, the October 5 letter in particular, we were not being
responded to in any meaningful sense. We were given some--I
would say lip service--about the model but we were not being
paid attention to and what I would call a bunker mentality was
adopted by the EPA on this. The Virginia Pilot reported that
where one of the highest EPA officials basically said get over
it. Get on with it. Well, that was when we kept bringing these
issues to the attention of the EPA, the scientific model issues
which these are not political issues by the way. These span
different Administrations. I inherited these technical
questions and disputes with the EPA. So this is not a political
issue in any way, shape, or form. It is a down and simple
scientific issue.
So I was encouraged by the October 5 letter for sure, but
like I said in my testimony, we are going to have to wait and
see. In my written testimony, we are going to have to wait and
see whether that is additional placating or whether that is
really serious effort at EPA to start paying attention. We are
just going to have to see.
At the end of the day, Congressmen, you all hit it on the
head as well about the cost. I said in my written testimony we
have to make sure that this is worth the price. We all want to
clean up the Bay and we want to get it better. There is no
question about that. My farmers, Virginia's farmers, New
York's, everybody is committed to doing that, but we need to
make sure that the bang we are getting for the buck is worth it
and that we are not paying too much buck for too little bang as
I say in the testimony.
So with that, I am going to close and allow either
questions or I don't know what the agenda is to move on to the
other witnesses first, whatever it is.
[The prepared statement of Mr. Krancer follows:]

Prepared Statement of Hon. Michael L. Krancer, Secretary, Pennsylvania
Department of Environmental Protection, Harrisburg, PA

Introduction
Chairpersons Thompson and Holden and Members of the Subcommittee,
thank you for the opportunity to appear before you to discuss
Pennsylvania's efforts to comply with the U.S. Environmental Protection
Agency's (EPA's) expectations for the Chesapeake Bay Total Maximum
Daily Load (TMDL), the Pennsylvania Phase II Chesapeake Watershed
Implementation Plan (WIP) and their impacts on rural communities.
Pennsylvania is committed to protecting and enhancing our streams
and watersheds. The efforts here at home will in turn help in further
restoring the Chesapeake Bay by 2025. Over the years significant
progress has been made to reduce nitrogen and phosphorous pollution of
local waters in Pennsylvania's watersheds. According to EPA's current
watershed model, when compared to 1985, Pennsylvania has achieved 27%
of the nitrogen reductions, 31% of the phosphorous reductions, and 50%
of the sediment reductions needed to reach the 2025 restoration
targets. This is real progress but more needs to be done. When compared
to current 2010 progress reported by the watershed model, Pennsylvania
needs to achieve an additional 33.23 million pound reduction in
nitrogen, 1.26 million pound reduction in phosphorous, and 524.4
million pound reduction in sediment by 2025. It should be noted that
EPA's watershed model can be a useful tool to help guide management
actions and project their results. It is not, however, sufficiently
precise to measure actual progress or lack thereof. It should not be
used in a regulatory context to determine whether an enforcement action
or other penalty is appropriate.

Basic Statutory Background
The Federal Clean Water Act requires states to assess their
waterbodies to identify those not meeting water quality standards. If a
waterbody is not meeting standards, it is listed as impaired and
reported to the EPA. Chesapeake Bay tidal waters in Virginia, Maryland
and the District of Columbia were listed as impaired by the states and
EPA in 1998. The Act then requires development of a Total Maximum Daily
Load (TMDL) for the pollutants that caused the water quality
violations. A TMDL calculates the maximum amount of a specific
pollutant that a waterbody can receive and still meet water quality
standards. It also establishes a pollutant budget or ``diet,'' which
allocates portions of the overall pollution load to the pollutant's
various sources. The Chesapeake Bay TMDL published by EPA on December
29, 2010 establishes load allocations for nitrogen, phosphorus and
total suspended solids based in part on Pennsylvania's Chesapeake WIP.
In the TMDL, EPA also established a TMDL accountability system,
including the development of a Phase II Chesapeake WIP and 2 year
milestones. Pennsylvania completed its Phase I WIP in December 2010 at
the major river basin scale (e.g., Susquehanna). The draft Phase II WIP
is due to EPA on December 15, 2011, and the final is due March 1, 2011.
Pennsylvania Success Stories
Pennsylvania has a long history of success since it became active
in Chesapeake Bay restoration activities in 1983. Much of this success
is due to the support of Pennsylvania's General Assembly and
partnerships with the agricultural sector. This leadership derives from
the Commonwealth's set of agricultural stewardship firsts, including:

The first Bay state to require mandatory farm nutrient
management plans;

The first Bay state to regulate nitrogen and phosphorus in
its nutrient management program;

The first EPA-approved regulatory program for concentrated
animal feeding operations;

The first Bay state to permanently preserve 20 percent (more
than 3 million acres) of land in the watershed.

The first Bay state to meet its goal to plant 3,736 miles of
forest buffers by the year 2010. The state has planted a total
of 3,894 miles of forest buffers along waterways since 2002;
and

Pennsylvania is home to the largest Conservation Resource
Enhancement Program (CREP) in the entire nation. The CREP
program delivers more than $50 million in state and Federal
assistance and targets key edge-of-stream BMPs to maximize
water quality.

Recent History With Respect To the Phase II Water Implementation Plan
Process
You are probably most interested in the most recent events
regarding the Phase II WIP process as that is what has been the topic
of most of the discussion and some very recent media attention in both
Pennsylvania and Virginia. So, let me address that first.
In EPA's original March 2011 Phase II WIP guide, EPA expected each
state to sub-divide its load allocations to a more local level in Phase
II (e.g., county). As Pennsylvania and the Chesapeake watershed
jurisdictions began to review Chesapeake Bay watershed model outputs at
county levels, they determined that the model had serious technical
deficiencies that do not provide full nutrient reduction credit for
several nonpoint source Best Management Practices (BMPs). Moreover, EPA
was intent on using the model in the Phase II WIP process as a metric
to drive huge expenditures and determine compliance where the only
proper role of any model would be as a prediction tool.
Pennsylvania aired these technical concerns early on. We directed a
letter dated May 26, 2011 to Administrator Jackson on this topic. (A
copy of that letter is attached hereto as Exhibit A). EPA was
dismissive of the technical concerns outlined. Pennsylvania and other
states continued to air these technical concerns to EPA at a September
16, 2011 meeting of State Secretaries and Deputy Secretaries with the
EPA Region III Regional Administrator. Again, EPA was dismissive saying
basically to us ``get over it'' or ``get beyond it''. EPA's public
statements were similar. Indeed the Senior EPA Policy Advisor on the
Chesapeake Bay dismissed without dealing with the technical points the
states had been making by quipping in a Virginia newspaper article,
``let's get on with it.'' (A copy of that article is attached hereto as
Exhibit B). The issue proved hard for EPA to escape as public media
attention rose as is evidenced by the Virginia newspaper article just
mentioned and a front page article of the October 2, 2011 Altoona
Mirror under the headline: ``Krancer: EPA Is Rushing Bay Cleanup
Regulations; Pennsylvania Experts Disagree With Agency's''. (A copy of
the Altoona Mirror Article is attached as Exhibit C).
I can report, though, that perhaps the persistence and the public
media attention may have proven worthwhile. Right after the Altoona
Mirror story ran, we received a letter from the Regional Administrator
in which EPA, for the first time, recognizes that there are limitations
to the application of the watershed model at a finer scale, and
clarified its Phase II WIP guide to allow jurisdictions to submit
watershed model input decks at the major basin (e.g., Susquehanna)
scale. The letter also says that the model is one of several points by
which EPA will measure the state's performance. Also, EPA has modified
to some degree the nature of what has to be in the Phase II WIP--EPA
says that the Phase II WIPs don't have to be so specific--we can
identify ``local area targets'' or actions that local areas can take to
fulfill their contributions toward meeting Chesapeake goals. Further,
EPA also said that ``common sense'' will be used to assess progress by
jurisdictions in developing their Phase II WIPs and achieving milestone
commitments, and consider other tools and data besides the model.
Time will tell whether EPA is serious or just placating, especially
regarding the comment about using ``common sense''. We certainly still
have disagreement with EPA on the nature of the model and what it
should or can be used for. However, it does appear that, at least for
the Phase II WIP process, we may now be able to proceed with that in an
``agree to disagree'' mode
Ultimately, the jurisdictions and EPA have the same goal--to remove
the Chesapeake Bay from the CWA list of impaired waters and to improve
local water quality. As long as EPA uses a common sense approach,
Pennsylvania will be continue to be a strong partner at the table.
Having gotten you up to date, let me now go back a bit in history
and explain how we got to where we are now which will give an
opportunity for me to provide more details about the actual process.

Phase I WIP Background
In Pennsylvania, our Chesapeake watershed stakeholders were
actively involved in the development of our Phase I WIP and were a
major reason that we were able to draft the plan successfully. The
Department of Environmental Protection (DEP) convened a Chesapeake WIP
Management Team to guide the development of the WIP. Over 125
individuals participated in the Management Team and its three
workgroups focusing on agriculture, development and wastewater issues.
Pennsylvania submitted its draft Phase I WIP to EPA on schedule--
September 1, 2010. DEP continued to work with EPA to refine the WIP
through the end of December. While EPA praised Pennsylvania in a
December 29, 2010 letter, ultimately, when EPA issued the Chesapeake
Bay TMDL, they imposed enhanced oversight and potential actions for
agriculture and wastewater, and a regulatory ``backstop'' for urban/
suburban stormwater.
Pennsylvania's Phase I WIP included both nonpoint source and point
source reduction strategies. The nonpoint source strategy included a
long list of Best Management Practices (BMPs) submitted to EPA's
Chesapeake Bay watershed model. The point source component included the
Point Source Compliance Strategy for wastewater treatment plants
previously adopted in 2006. Because the point source strategy did not
change, our Phase I WIP focus was to identify and develop the programs
that support the implementation of non-point source BMPs to meet
Pennsylvania's TMDL allocation.
Pennsylvania's WIP is based on three themes. The first is Milestone
Implementation & Tracking. EPA uses the Chesapeake Bay watershed model
to measure state progress--but the watershed model only knows what is
reported to it. We determined that there are many BMPs being installed
voluntarily with no government funding that do not get reported to the
model. DEP supported several pilot projects to get a handle on the
unreported BMPs. For example, in Bradford County, it was determined
that 85% of the no-till activities are not cost-shared or reported to
the watershed model. The WIP includes several new initiatives to
improve BMP reporting.
Another key initiative is to promote the ``Million Pound'' project.
The goal is to achieve a million pounds of nutrient reductions annually
through grants and other funding sources. Pennsylvania Infrastructure
Investment Authority (PENNVEST) funds are newly targeted to green
initiatives and non-point source projects. Pennsylvania's Growing
Greener grants give special consideration for Chesapeake Bay nutrient
reductions.
The second theme of Pennsylvania's WIP is Advanced Technology and
Nutrient Trading. Pennsylvania has learned that harnessing market
forces can be an effective way to achieve environmental regulatory
goals at less expense than traditional command and control regulations.
For example, in 2008, Fairview Township decided to use credits to meet
its nutrient reduction obligation with a cost savings of approximately
75%. The Commonwealth has been leading the way nationally in developing
its nutrient trading program. The program is one of the first programs
in the country to have both nonpoint sources and point sources
participating in a nutrient credit trading program. Pennsylvania's
program is also designed to be protective of the Chesapeake Bay by
capping the amount of credits that can be annually traded.
Pennsylvania has completed over ten nonpoint source to point source
trades--where farmers go above and beyond their compliance requirements
to sell credits to wastewater treatment plants. DEP has certified 97
projects for credit generation. And PENNVEST now has a track record of
successful auctions to buy and sell credits. PENNVEST completed two
auctions in 2010 and has two auctions planned for 2011. Auctions will
continue next year and the years beyond. In addition to the day to day
operation of the nutrient trading program, DEP is working with EPA
Region 3 as they complete programmatic reviews of offset and credit
trading programs across the Chesapeake Bay watershed. DEP worked
closely with EPA when developing Pennsylvania's nutrient trading
program, which EPA supported at the time. DEP can understand EPA's
desire to examine the Bay jurisdictions' programs from a regional
perspective. But Pennsylvania feels strongly that the Federal agency
should respect the Bay jurisdictions' programs that are working
successfully toward the restoration and maintenance of the water
quality of the Chesapeake Bay.
Pennsylvania has promoted advanced technology projects by providing
financing loans from PENNVEST. DEP has been working with the Department
of Agriculture and a number of companies looking to install various
technologies such as co-generation on dairy, poultry and hog
operations. Many of these technologies can produce electricity and
marketable soil amendments; reduce methane emissions; and generate
renewable energy, nutrient reduction and carbon credits which can then
be sold. Projects of this nature can support three priorities in the
Chesapeake Bay region: maintaining a vibrant farming economy; restoring
and protecting the water quality of Pennsylvania streams and the
Chesapeake Bay; and providing crucial economic development benefits to
rural businesses and communities. Manure-to-energy projects are just
the first of many promising technologies the Commonwealth supports that
advance broad based environmental benefits.
The third theme of Pennsylvania's WIP is enhancing compliance
efforts for wastewater treatment plants, agriculture and stormwater.
Pennsylvania's Point Source Strategy developed in December 2006 remains
in place--and the Nutrient Trading Program provides an option for
compliance. New funding from EPA will support compliance and inspection
activities for our CAFO, stormwater and agriculture regulatory
programs. For agriculture, for instance, each Pennsylvania conservation
district will be required to undertake 100 farm visits in the first
year. Over 4,000 farm operations will be notified of Pennsylvania's
existing environmental requirements.

Phase II WIP
On August 1, 2011, EPA issued revised TMDL planning targets for the
Phase II WIPs based on a revised Chesapeake Bay watershed model. While
the numbers look different from Pennsylvania's 2010 TMDL allocations,
they require the same level of effort as for the 2010 TMDL allocations.
To facilitate local implementation of necessary reduction actions to
meet the allocations, EPA directed the Chesapeake watershed states to
sub-divide the reductions by local areas in the Phase II WIP.
Pennsylvania chose to sub-divide loads at the county-level, as the EPA
Chesapeake Bay watershed model is based in part on county level data.
As discussed earlier in this testimony, that guide has since been
clarified to allow jurisdictions to submit watershed model input decks
at the major basin (e.g., Susquehanna) scale instead of more local
areas.
For the Phase II WIP, we need to build on local partnerships--those
efforts going on in county conservation districts and municipalities
that work to improve local stream water quality. Lancaster County's
Clean Water Consortium, Lycoming County's Nutrient Trading Program,
York County's Integrated Water Resources Plan, and the Conewago Creek
Watershed Initiative are examples of local people taking local action
to restore local streams.
On August 3, DEP convened a Phase II Chesapeake WIP Summit, our
first major outreach to communicate to local stakeholders on what EPA
expects for the Phase II WIP. On August 10, EPA held a Chesapeake Bay
Model Workshop at the Rachel Carson State Office Building, to inform
stakeholders on the models that are used to build our WIPs and measure
our progress.
DEP worked with its WIP Management Team and workgroups to develop
draft goals at the county level throughout the Chesapeake watershed. We
took the Draft WIP County Planning Target sheets to eight Regional
County Workshops, starting October 13 through November 2, to ground
truth them and receive feedback. Invitees to the workshops included
county conservation district managers, county planning commission
directors, and municipalities representing the PA League of Cities and
Municipalities, PA State Association of Township Commissioners, PA
State Association of Boroughs, and the PA State Association of Township
Supervisors. However, anyone was welcome to attend and listen to the
discussions.
The county planning targets addressed only those loads that can be
reduced by Best Management Practices (BMPs). This included both
regulatory and non-regulatory loads for agriculture, stormwater and
forest. Wastewater treatment plant point source reductions were not
included because they were previously addressed by the 2006 Chesapeake
Bay Compliance Strategy. The county planning targets were for planning
purposes only, and do not become regulatory allocations at the county
level. The identified Pollution Reduction Actions represented one
scenario from the Chesapeake Bay watershed model that meets the
reduction targets. There are other equally valid combinations of
actions that could also meet the reduction target. With input from
counties and municipalities, DEP will then prepare its Draft Phase II
WIP watershed model input deck at the major basin scale for submission
to EPA by December 15.
Similar to the Phase I WIP, EPA will evaluate each state's Phase II
WIP. Should we meet EPA's expectations, there is opportunity to have
EPA remove the TMDL ``backstop'' imposed on the urban stormwater
sector. That backstop provided notice that EPA would consider expanding
the Municipal Separate Storm Sewer Systems (MS4s) coverage in
Pennsylvania's Chesapeake watershed should we not make sufficient
progress in reducing urban stormwater loads. If we do not meet EPA's
expectations, they could impose additional consequences. We are looking
for EPA to bring its new ``common sense'' approach to evaluating the
Phase II WIPs.

Conclusion
In your letter of invitation, you also asked for information on how
Pennsylvania's Chesapeake WIP will impact its rural communities.
Attached to this testimony is a detailed summary of Pennsylvania's
progress to implement agricultural activities identified in the Phase I
WIP. These activities include funding for County Conservation District
technical staff and BMP implementation from several of sources:
Pennsylvania General Fund, PENNVEST, EPA's Chesapeake Bay Program, and
USDA Natural Resources and Conservation Service. In addition, the WIP
also includes a basin-wide component to achieve agricultural regulatory
compliance. The Federal EPA has certainly focused on the Chesapeake Bay
as a priority item for attention. In some cases this has resulted in
unfunded mandates to the states.
We all share the core desire to keep up the progress on making the
Bay even cleaner than it is now. While doing so, we do need to be
mindful of how we are going to pay for this progress and what it is we
are paying for. We need to be mindful of using available funds in an
efficient and cost-effective manner so that we get the most ``bang for
the buck'' that we can and avoid spending a lot of ``bucks'' for very
little ``bang''. We also believe that it is important that the Federal
Government ``put its money where its mouth is'' and if it is going to
prioritize the Chesapeake Bay program, to appropriately also prioritize
it among the competing voices for the pool of Federal funding that is
available to bring to the effort.

Attachment

PA Chesapeake Bay Watershed Implementation Plan
Agricultural Section_Strategy to Fill Gaps
Update September 2011
Non-Regulatory Efforts
Chesapeake Bay Implementation Grant Special Projects Funding:

DEP targeted priority practices (stream bank restoration/
riparian buffers, fencing, manure storages/barnyard practices,
cover crops/no-till, nutrient management/E&S plans) and
priority watersheds. DEP awarded 46 projects to conservation
districts for a total of $800,492.95. Of the 46 projects, 41
were awarded for priority activities including 17 projects for
nutrient management/conservation plans, six for fencing and
four for cover crops/no-till planting. Of the other five--less
than 10% of the funds were awarded--two supported on-going
staffing commitments and three were for additional outreach
activities. In addition, all but two of these 46 projects were
in the targeted watersheds. These two supported (1) a county-
wide outreach effort in Bradford and (2) on-going staffing
commitment in Susquehanna County

Chesapeake Bay Implementation Grant Technician/Engineer Funding:

DEP revised the technician contracts for 2011-2012 to
include specific tasks to expand the compliance assistance
outreach for agriculture. The scope of work in these technician
contracts required staff to spend a portion of their time
contacting farms in their county to ensure all farm operators
are aware of their responsibilities under PA erosion and
sedimentation control regulations and the Manure Management
Manual.

Agricultural Conservation Technician Funding:

PA Department of Agriculture, through the State Conservation
Commission, provided ongoing cost-share funding $527,000 in FY
2011-12 for Agricultural Conservation Technicians (ACT) in the
CB watershed to provide technical assistance to farmers.

REAP Conservation Tax Credits:

The State Conservation Commission in FY 2011-12 allocated
more than $6 million (out of $10 million available) in REAP
state tax credits to farmers for conservation BMPs, no-till
planters, no-till drills and low disturbance manure
incorporation equipment.

PENNVEST Non-Point Source Funding:

On July 20, 2011, PENNVEST approved over $1.9 million for
six projects to address agricultural non-point source
pollution. All six are in Lancaster County and will reduce
nutrient runoff into local streams and the Chesapeake Bay
watershed. The specific projects were:

A $163,213 grant to construct a manure storage
facility at a poultry operation in Paradise Township.

A $573,188 grant to construct a manure storage
facility at a farm in Ephrata Township.

A $176,210 grant to construct a manure storage
facility at a farm in Mount Joy Township.

A $157,534 grant to construct manure litter storage
shed at a poultry operation in Strasburg Township.

A $657,050 grant to construct manure composting
facility as well as an infiltration basin at a farm in
Drumore Township.

A $212,056 grant to construct a manure storage
facility and make other improvements at a second farm in
Strasburg Township.

On April 20, 2011, PENNVEST approved five projects to
address agricultural non-point source pollution. Three of the
projects ($1.069 million) were in the Chesapeake Bay watershed
in Lancaster and Montour Counties. The specific projects were:

$425,397 grant to construct various manure-control
facilities at a dairy and poultry operation in West
Lampeter Township that will reduce nutrient runoff into
Pequea Creek in Lancaster County.

$148,802 grant to construct manure-control facilities
at a poultry farm in Strasburg Township, where nutrient
runoff during wet weather is contaminating Big Beaver Creek
in Lancaster County.

Montour County Conservation District received a
$495,000 grant to install manure and animal control
facilities at two livestock farms where there is
significant nutrient runoff into Mahoning Creek, Beaver Run
and ultimately the Chesapeake Bay.

On April 1, the PA Association of Conservation Districts
hired Paul Herzer as the Non-Point Source Application Developer
(AKA ``NPS Circuit Rider'') to assist county conservation
districts, watershed groups, environmental groups,
municipalities and DEP Regional Offices with the PENNVEST
application process. Funding for this position was awarded by
DEP to PACD from the EPA Section 319 grant funds.

PENNVEST announced the second round of nutrient credit
trading auctions. These auctions will be held on November 2 and
November 9, 2011. The Pennsylvania Infrastructure Investment
Authority (PENNVEST), working in conjunction with the
Department of Environmental Protection (DEP), will be hosting
auctions for the sale and purchase of nutrient credits in the
Susquehanna and Potomac watersheds to be conducted this fall.
There will be two ``spot'' auctions of verified credits,
applicable to the 2011 compliance year (i.e., October 1, 2010-
September 30, 2011). Both auctions will afford wastewater
treatment plants in these two watersheds to purchase credits as
a means of meeting their nitrogen and phosphorous discharge
limits for the compliance year.

NRCS Financial Assistance--In Federal FY 2010, the NRCS provided
more than $37 million in technical and financial assistance to
Pennsylvania farmers in the CB watershed for the installation of best
management practices through their CB Watershed Initiative (CBWI) and
the Environmental Quality Incentive Program (EQIP).
NRCS Training for Field Staff:

NRCS, working with Penn State, developed the AG 101:
Understanding PA Farm Operations online sessions that explore
the many facets of farm types, operations management,
economics, social aspects, and environmental considerations.
The ``winter burst'' and ``summer burst'' of the series were
held in 2011 and looked at what Pennsylvania agricultural
producers manage as they grow food, fiber, and fuel. AG 101 was
developed to enhance the work of conservation practitioners who
are on the front lines supporting producers in choosing,
planning, and implementing the best management practices that
preserve soil, water, and air quality. AG 101 was jointly
developed and sponsored by Penn State Cooperative Extension,
SCC and the Pennsylvania Natural Resources Conservation Service
in collaboration with PennAg Industries and the Pennsylvania
Farm Bureau.

NRCS, in cooperation with various partners, continues to
provide annual training (1 week, intensive classroom and field
experience) to approximately 50 entry level agricultural
conservation technicians and conservation planners that work
with farmers to plan and implement BMPs.

Legacy Sediment BMP:

DEP is cooperating with Robert Walter and Dorothy Merritts
of Franklin and Marshall College in the development of a new
BMP often referred to as Legacy Sediment. The Chesapeake Bay
watershed model focuses largely on modern land use,
particularly agriculture and construction, as the dominant
sources of high suspended sediment and nutrient loads. Research
by Walter and Merritts documents, however, that historic
sediment and associated nutrients eroded from the stream
corridor upstream of breached millponds are also an important
component of the total load in modern streams. Results show
that stream corridor and streambank erosion is a major
contributor to the suspended sediment and particulate--
phosphorus loads carried by many streams, and that minor, but
substantial, nitrogen loads are released as well. DEP's Legacy
Sediment Workgroup developed the new Natural Floodplain,
Stream, and Riparian Wetland Restoration BMP that addresses
aquatic resources impaired by legacy sediment in 2008. Current
activity is focused on establishing nutrient and sediment
reduction efficiencies for the BMP so it can be included in the
Chesapeake Bay watershed model. A demonstration project is
underway in the Big Spring Run Basin in Lancaster County. The
project involves approximately 5 acres of natural floodplain
and riparian wetland restoration and 3,200 feet of natural
stream restoration. The BMP implementation is supported by a
funding partnership of DEP, Chesapeake Bay Commission, private
landowner owner, Suburban Lancaster Sewer Authority, Foundation
for Pennsylvania Watersheds, and Pennsylvania Environmental
Council.

Regulatory Efforts
Continue Existing Regulatory Programs:

DEP, in cooperation with a number of agricultural agencies
and organizations expanded outreach to ag community to increase
compliance with Chapter 102 and manure management requirements.
Chapter 102 regulations which in part regulate all agricultural
operations that plow and till, were updated late in 2010. A
revised PA Manure Management Manual was updated and recently
released for use.

Prepared ``Am I in Compliance'' brochure with distribution
of 20,000 copies since January 2011. Prepared ``Ag E&S Barn
sheet'' for use in conservation district 100 site visits.

Three training sessions held in conjunction with NRCS, State
Conservation Commission (SCC) and PACD on February 24, March 2
and March 10 for about 200 people. The training was aimed at
staff from USDA Natural Resources Conservation Service (NRCS),
PA Department of Environmental Protection (DEP), and
Conservation Districts who are involved in agricultural erosion
and sediment control plans and conservation planning. Speakers
from NRCS, SCC and DEP answered the question: what is an
Agricultural Erosion & Sedimentation Plan? A detailed review of
the Chapter 102.4(a) requirements will be explained. Examples
of the requirements for Ag E&S plans are: maps, treatment of
animal heavy use areas, near stream cover requirements, and
tolerable soil loss conditions for crop fields.

PA SCC continued its oversight of the PA NM Program
(Act 38) that requires that CAFOs and CAOs to development
and implement an approved PA NM Plan for their operations.
The SCC provided approximately $1.7 million to fund NM
technicians in county conservation districts within the CB
watershed in FY 2011-12.

PA Department of Agriculture, in cooperation with the
SCC, continued certification programs for Certified NM
Specialist (approximately 350 persons), Certified Manure
Haulers and Brokers (approximately 925 persons) and
Certified Odor Management Specialists (approximately 23
persons), providing more than 200 days of classroom and
field based training annually to certified specialist in
Pennsylvania.

Evaluate and Modify Regulatory Tools--Chapter 102 Regulations:

In July 2011, NRCS developed the ``Conservation Planning and
Regulatory Compliance Handbook'' for NRCS staff. This guidance
referenced Pennsylvania's Chapter 102 regulations and provided
tools and guidance for NRCS staff involved in conservation
planning that addresses the requirements for Ag E&S. Guidance
does not implement Pennsylvania's regulatory program, but
provides guidance as to what requirements are found in
Pennsylvania and how this interfaces with NRCS conservation
planning activities.

Evaluate and Modify Regulatory Tools--Manure Management Manual:

In 2011, DEP, in cooperation with SCC, PDA, NRCS and Penn
State Cooperative Extension developed revisions to the Manure
Management Manual. Final revisions were presented to DEP's
Agricultural Advisory Board in June. Manual was released for
use in late October as a PA DEP Technical Guidance Document.

Basin-wide Component to Achieve Agricultural Regulatory Compliance:

In 2011, DEP continued revise delegation agreements with
county conservation districts.

In 2011, DEP continued development of ``Model Agricultural
Compliance Policy.'' A preliminary draft has been developed and
given a cursory review by DEP's Bay Ag Water Quality Initiative
Workgroup. Revisions are on-going with additional review by
county conservation districts and others, in anticipation of
presentation at ``All Bay Meeting'' in January 2012. On-target
to meet roll-out in July 2012.

In 2011, DEP revised the conservation district Bay
technician contracts for 2011-2012 to include specific tasks to
expand outreach for agriculture. The scope of work in these
technician contracts required these 42 staff to undertake 100
site visits per staff person--or equivalent staff person--and
DEP expects over 4,000 site visits by June 2012. Over 200 were
conducted by September 2011. In addition, each Bay conservation
district was requested to submit a plan that identifies how
each district will engage all farms in this regulatory
outreach. These plans are required to be submitted in October
2011. Significant training of staff via webinar and supplies of
outreach material were provided. DEP press release was made and
significant positive press coverage was received.

In 2011, DEP received $2.466 million from EPA via the
Chesapeake Bay Regulatory and Accountability Program (CBRAP)
grant. DEP used these funds to, among other things, support
five new DEP staff positions. In March 2011, four of these
staff were hired. (The 5th position is not yet hired, due to
DEP difficulty in hiring this one staff position.) One staff
position was in Harrisburg and has been engaged in development
of the Manure Management Manual and the CAFO General Permit.
Two staff positions were hired for the Southcentral Regional
Office and have been engaged in compliance inspections. One
position was hired in the Northcentral Regional Office and has
been engaged in compliance inspections and regulatory outreach
activities.

WIP indicates ``Conservation District Chesapeake Bay staff
can address 18,000 farm operations--about half of the farms in
the watershed--and inform them about compliance with their
regulatory requirements.'' In 2011, DEP expects over 4,000 site
visits will be made by these staff. Outreach plans for these
conservation districts are expected to be available by December
2011 indicating how all 40,000 farm operations will be
addressed by 2015.

Exhibit A

May 26, 2011

Hon. Lisa Jackson,
Administrator,
U.S. Environmental Protection Agency
Washington, D.C.

Dear Lisa Jackson:

Thank you for your letter to Governor Corbett of April 7, 2011,
stating recognition and support for Pennsylvania's Chesapeake Bay Total
Maximum Daily Load (TMDL) Watershed Implementation Plan. Pennsylvania
shares the goal of restoring and protecting the Chesapeake Bay and has
long recognized our role in the restoration and protection of this
national asset. The Pennsylvania Department of Environmental Protection
(PADEP) and I appreciate the acknowledgment from EPA.
I would like to take this opportunity to reach out to you directly
to request your assistance in needed additional work between our
agencies related to urban stormwater management. While we share the
same Chesapeake Bay clean up goals, Pennsylvania is concerned with
aspects of the TMDL issued by EPA in December 2010, and the application
of the Chesapeake Bay Watershed TMDL model to the municipal stormwater
sector in particular. We do not think EPA's approach to this sector
will achieve the goals even if the municipalities could implement and
afford it, which they cannot. The urban stormwater sector is identified
as contributing only approximately 6% of the problematic load. EPA
contractors have estimated that it will cost municipalities $5.3
billion to address the problem. This extraordinary cost is simply not
reasonable, not cost effective and not likely to result in significant
needed environmental gains and comes at a time when local governments
are in significant economic distress.
You should be aware that Pennsylvania has serious concerns
regarding the Chesapeake Bay Watershed TMDL model EPA is using. Put
simply, we do not think the application of the model to Pennsylvania
MS4 permits is scientifically or technically appropriate. The model
projects loads based upon very gross inputs. The model does not reflect
conditions at the local level for purposes of predicting specific local
load reductions to be included in individual permits, and was not
developed for such a use. Additionally, there are specific problems
related to the urban stormwater sector based upon what we know to be
inaccurate inputs and information related to stormwater management in
Pennsylvania. For example, mining impacts are currently included in the
urban stormwater sector of the model. Likewise, according to the U.S.
Geological Survey (USGS), there can be up to 15% error in the accuracy
of the monitoring data used to calibrate the model itself. This
variability at the gross level is magnified as you try to apply it at
finer and finer levels.
Pennsylvania has articulated these reservations to EPA for quite
some time, and has been frustrated with the lack of collaborative
dialogue on these issues. Our professional staff are the experts on
Pennsylvania waters, Pennsylvania land uses and regulatory programs.
PADEP is in the process of collecting the information we believe to be
critical to making the model results more reflective of on-the-ground
construction, post construction and MS4 BMP implementation in
Pennsylvania, and is also working with the National Association of
Conservation Districts, other states and NRCS to determine how to
better capture the full spectrum of agriculture BMPs for credit in the
model. PADEP would welcome the opportunity to work more closely with
EPA as a partner and resource in improving the accuracy of the model
results for these sectors.
Pennsylvania has also been very concerned about EPA Region III's
request to include specific numeric reductions extrapolated from the
boundary TMDL in the 218 Pennsylvania Chesapeake Bay MS4 permits. This
is technically unsupportable and unsustainable. Apart from the concerns
about the reliability of the model, inclusion of percent reductions
extrapolated from the boundary TMDL is scientifically problematic
because the scale of the Chesapeake Bay Watershed TMDL model is basin-
based at a county and larger level and is not readily transferable or
defensible as applied at the smaller scale, such as townships or
boroughs which are the vast majority of Pennsylvania small regulated
MS4s.
Further, while Pennsylvania appreciates the flexibility and
collaboration you reference in your April 7, 2011, letter with regard
to the approach to agriculture, PADEP and our municipality stakeholders
have been frustrated with EPA's continued failure to acknowledge the
challenge of Pennsylvania's unique municipal structure--which results
in Pennsylvania having more regulated Municipal Separate Storm Sewer
Systems (MS4s) than any other state and \1/6\ of the nation's total
with nearly 1,000 as of the 2000 Census. PADEP has also been further
disheartened and frustrated by the lack of support and acknowledgement
by EPA of Pennsylvania's strong stormwater management program.
Unfortunately, with regard to the urban stormwater sector,
Pennsylvania does not agree the TMDL development effort has been
collaborative. But we do remain hopeful that such collaboration is
possible. An important consideration we believe EPA needs to recognize
is Pennsylvania's recently finalized stormwater regulations which
require post construction stormwater best management practices be
implemented and maintained when a land development project disturbs one
or more acres of land--regardless of whether the project is located in
a regulated MS4 area. Implementation of these regulations on average
results in significantly less pollutants being discharged to
Pennsylvania waters and ultimately the Bay than is contemplated in the
Chesapeake Bay model. We are confident that significant pollutant
reductions to the Bay will continue to be realized through the ongoing
implementation of our stormwater management programs.
Toward that end PADEP would like to engage EPA in a fundamental way
regarding the Federal MS4 program, as well as the implementation of the
Chesapeake Bay TMDL in the urban stormwater sector in Pennsylvania.
Pennsylvania's program is effective in part because it is not
constrained to the artificial--and unworkable--``point source''
regulatory framework. The legal authority for Pennsylvania's strong
stormwater program is based upon our state anti-degradation program and
state stormwater management laws and regulations. Pennsylvania's
program works because it recognizes changes from land development, to
the volume, rate and quality of overland stormwater flow, are by
definition different from traditional continuous flow end of pipe point
source discharges. The variable nature of wet weather driven stormwater
discharges and the regulation of change in those stormwater flows
requires a distinct regulatory program that is based upon and supports
a best management practice approach. The limitations of the traditional
``point source'' framework that is well suited to end-of-pipe controls
does not translate effectively to the regulation of pollution
associated with changes in stormwater associated with land development
activities.
We will continue to lead, as we have, not only to restore and
reclaim the Chesapeake Bay, but to protect and maintain Pennsylvania's
water resources which are among the most significant assets of the
Commonwealth.
I appreciate your letter and would like the opportunity to have
PADEP staff sit down with Mr. Corbin and provide our perspective on
what works in Pennsylvania, and how Pennsylvania's program can serve as
a model for improvements to the national program.
If you have any questions, please contact Margaret Murphy,
Assistant Counsel, by e-mail at [Redacted] or by telephone at
[Redacted].
Sincerely,

Hon. Michael L. Krancer,
Secretary.

CC:

U.S. Senator Robert P. Casey, Jr.;
U.S. Senator Patrick J. Toomey, Sr.;
U.S. Representative Robert A. Brady;
U.S. Representative Chaka Fattah;
U.S. Representative George Joseph Kelly, Jr.;
U.S. Representative Jason Altmire;
U.S. Representative Glenn Thompson;
U.S. Representative James Gerlach;
U.S. Representative Patrick Leo Meehan;
U.S. Representative Michael G. Fitzpatrick;
U.S. Representative William Shuster;
U.S. Representative Thomas Anthony Marino;
U.S. Representative Louis J. Barletta;
U.S. Representative Mark S. Critz;
U.S. Representative Allyson Young Schwartz;
U.S. Representative Michael F. Doyle;
U.S. Representative Charles Dent;
U.S. Representative Joseph R. Pitts;
U.S. Representative Thomas Timothy Holden;
U.S. Representative Timothy F. Murphy;
U.S. Representative Todd Russell Platts.

Exhibit B

Published on HamptonRoads.com PilotOnline.com (http://
hamptonroads.com)
Scott Harper, (757) 446-2340, scott.harper@pilotonline.com
New model for Bay cleanup muddies goals, cities say
For 2 decades now, the Chesapeake Bay cleanup has been guided
largely by a computer model. Housed in Maryland, it spits out targets
and forecasts and helps officials set goals for what should be done to
restore North America's largest estuary.
The states involved in the celebrated cleanup, including Virginia,
have a say in how the model works and help set its guidelines, but its
operation falls mainly to the U.S. Environmental Protection Agency.
How the modeling is done, and what data are fed into the computer,
have been bones of contention for years. Today, they are central to
pending lawsuits from farmers and developers who argue that an
aggressive push from the Obama Administration is based partially on
flawed, incomplete science and should be stopped.
Now another wrinkle has surfaced.
Virginia and several other states--including Maryland, Pennsylvania
and Delaware--are complaining that a newly tweaked version of the
model, known as 5.3.2, is leading to some weird and incomprehensible
results for what local governments are expected to accomplish in the
coming years to dramatically improve water quality by 2025.
In James City County, for example, data stemming from the previous
model urged the county near Williamsburg to reduce nitrogen from farms,
streets, storm drains and development sites by 8 percent, phosphorus by
11 percent and sediment by 20 percent. The guidance worried local
officials, unsure how they would pay for environmental improvements and
controls to hit those targets.
However, computer runs performed by the state using the new model
prescribe something completely different: no reductions needed for
nitrogen, and a 20 percent surplus of phosphorus and a 350 percent
cushion for sediment.
In short, on paper the county went from a polluter to one that
doesn't have to do anything.
While the James City County discrepancies are extreme--new data
show that most Virginia localities have to do more, not less, to help
save the Bay--state and local officials face a quandary: How exactly to
proceed in the face of changing targets?
``What do we say to our localities? `Well, we think that these
practices we are asking you to implement might help you reach your
goal, but we really don't know what that goal is and we aren't sure the
money you spend to implement these practices will make any difference?'
'' said Doug Domenech, Virginia's secretary of natural resources, Gov.
Bob McDonnell's top environmental official.
The EPA, environmentalists and some scientists concede that the
modeling is imperfect and will continue to be updated and improved. But
they also say the states are not required to be so precise in their
calculations, and that no one asked them to break down data county by
county, pound by pound of pollutants, for what they need to do to help
the effort.
The model, they add, is not designed to be so specific and its main
strength is defining what states must do river by river.
``They're getting down into the weeds, and we're telling them they
don't need to go there,'' said Jeff Corbin, the EPA's senior adviser on
the Chesapeake Bay. ``Use common sense. Let's get on with it.''
Carl Hershner, a scientist at the Virginia Institute of Marine
Science, said model critics are missing the point of the new push to
get serious about restoring the Bay.
``None of this stuff should impede the planning for what everyone
knows is needed to be done,'' Hershner said. ``We need to better
control nutrients entering the Bay, and every state, county and city
has to help do that.''
The two main nutrients, nitrogen and phosphorus, are good for the
Bay in proper amounts. But in excess, as today, they spark algae blooms
that rob oxygen from water, making life difficult for aquatic life.
Sediment that washes off the land clouds water quality, shallows creeks
and rivers, and smothers key underwater grasses.
In settling a lawsuit years ago, the EPA pledged to clean up the
Bay enough to remove it from a national list of dirty waters. In
December, the EPA and its partner states agreed to a pollution diet, or
TMDL, short for Total Maximum Daily Load, to achieve this goal.
The diet, which the computer model helped to define, called on Bay
states to reduce nutrients and sediments through various means and to
implement those improvements by 2025, with 60 percent of them complete
by 2017. Virginia estimates its part of the deal could cost as much as
$8 billion.
Amid economic woes and lean budgets, officials in the McDonnell
Administration say they have to be precise in how they spend such
money, and that the computer model or any other tool should help guide
where to get the biggest bang for the buck.
If the model is not precise enough to tell localities what they
need to do without fear of penalty from the EPA, it should be refined
to do so before moving forward, state environmental officials say.
``Dealing with numbers like this is just ridiculous when you're
trying to put together a plan that the EPA will hold you accountable
for,'' said Anthony Moore, an assistant secretary of natural resources
overseeing Bay issues.
Moore and other senior officials from concerned states met with EPA
leaders at a ``modeling summit'' last month. Chiefly, the states
complained that many computer problems stem from calculating the impact
of farm pollution.
One of the primary strategies for curbing fertilizer runoff from
agriculture is implementing nutrient management plans on farms. But in
many cases, the new model shows that such plans increase nitrogen and
phosphorus pollution, not reduce it, Moore said.
In response, the EPA's regional director, Shawn Garvin, sent a
letter to Virginia and other states that attended the summit. Garvin
wrote that the EPA will correct its model but that the states should
continue writing their plans reflecting how local governments will
contribute to the effort. The plans are due Dec. 15.
Garvin also stressed that state calculations based on the new model
do not have to be so specific.
``EPA does not expect the jurisdictions to express the `local area
targets' in
terms . . . such as pounds of pollutant reductions by county,'' he
wrote.
Instead, Garvin added, the next round of state plans ``could
identify `targets' or actions that local and Federal partners would
take to fulfill their contribution toward meeting the Chesapeake Bay
TMDL allocations.''
Virginia officials, while disappointed, said they will press on,
though they worry local governments may balk at committing to pollution
cuts amid shifting targets.
John Carlock, an environmental specialist with the Hampton Roads
Planning District Commission, which represents local governments across
the region, described the changing models as ``extremely frustrating
for everyone.''
The commission had serious problems with the previous model and
threatened to challenge its recommendations in court.
``The states and the EPA are coming to the conclusion that the
model works pretty well at the state level, OK at the river basin
level, but not so good at the local level,'' Carlock said. ``We
absolutely need more consistency.''
Source URL (retrieved on 10/28/2011--14:24): http://
hamptonroads.com/2011/10/new-model-bay-cleanup-muddies-goals-cities-
say.

Exhibit C

The Altoona Mirror
Krancer: EPA is rushing bay cleanup regulations
Pennsylvania experts disagree with agency's
October 2, 2011
By William Kibler (bkibler@altoonamirror.com)

State Department of Environmental Protection Secretary Michael
Krancer is in a rush to develop Marcellus Shale gas in Pennsylvania,
despite environmental concerns, according to local environmentalist
Stan Kotala.
But Krancer wants to slow what he thinks is a Federal rush to put
regulations in place to clean up Chesapeake Bay.
``We do not see eye-to-eye about the scientific validity of the
models used to drive all these costly decisions,'' Krancer said of his
department and the Federal Environmental Protection Agency.
The model has ``serious flaws,'' he said, and Pennsylvania's
technical experts disagree with EPA's.
The EPA has ``turned a deaf ear'' to those misgivings, and the
regulatory process is ``moving quickly,'' despite the misgivings, he
said.
``We want to get the Bay clean,'' he said. ``But we don't want to
rush to judgment''--given the big investments, he said.
He doesn't have as much of a problem with Bay regulations already
in place, but he doesn't have much confidence in regulations that may
be in the works.
It would be a ``very embarrassing situation'' if the state and
communities within it spend a collective billion dollars only to learn
a few years later that the regulations had missed their target, he
said.
``We should be driven by sound science, not litigation deadlines,''
he said.
The EPA disputes Krancer's interpretation. In a statement released
by the EPA Mid-Atlantic Region office, an official said, ``EPA's focus,
and our role, is to hold states accountable for the commitments they
have made. Despite the comments made by Secretary Krancer, we are sure
they plan to live up to those commitments.''
States, including Pennsylvania, have developed implementation plans
with a series of individual steps that will protect the Bay.
The EPA determines how much of various pollutants the Bay can
handle from the rivers that drain the states in the watershed, then
allocates total maximum daily loads for those pollutants for each
state.
The agency believes things will work out if the state just follows
the program.
Kotala said he generally thinks the EPA's plan to protect the
Chesapeake has been appropriate.
Pennsylvania itself also has taken ``some fantastic steps,'' he
said.
Most notably is state Rep. Jerry Stern's Resource Enhancement and
Protection Program, which helps farmers implement best-management
practices to avoid stream pollution, Kotala said.
Unfortunately, the program has endured significant cuts, he said.

The Chairman. All right. Thanks, Mr. Secretary.
We will have testimony from all the witnesses and then we
will open up for some questioning.
Chairman Brubaker, good to see you again. Thanks for coming
down to testify and the floor is all yours.

STATEMENT OF HON. MICHAEL BRUBAKER, CHAIRMAN, CHESAPEAKE BAY
COMMISSION; SENATOR,
COMMONWEALTH OF PENNSYLVANIA, ANNAPOLIS, MD

Mr. Brubaker. Well, thank you, Mr. Chairman.
Good morning, Chairman Thompson, Ranking Member Holden, and
Chairman Goodlatte. And I want to say it is very nice to see
you.
My name is Mike Brubaker. I am an agronomist--that is a
plant and soil scientist--and I have practiced for 25 years and
have written many nutrient management plans. But after serving
as CEO of multiple private sector agricultural consulting firms
that operated frankly in each of your states, I now serve as a
Pennsylvania State Senator representing the 36th Senatorial
Districts, which covers parts of Lancaster and Chester
Counties. I am also honored to serve this year as Chairman of
the Chesapeake Bay Commission, which is a tri-state legislative
commission representing the General Assemblies of Pennsylvania,
Maryland, and Virginia on matters of Bay-wide concerns. The
Commission is now in its 31st year and predates the Bay
program, of which we are a member.
Over the years, the Commission has witnessed the evolution
of Bay restoration efforts from the first gathering of a few
Congressmen and state legislators to the current effort which
is dominated by the TMDL. The TMDL, while ambitious, is
ultimately about clean water. So if clean water is important,
and I believe that it is, then the question is not whether we
should move forward or not but how can we best move forward to
support implementation in a time of challenging budgets and a
struggling economy and how can we implement it fairly? And I
have three responses to that statement.
One is numeric goals, two is partnerships, and three is
innovation. On numeric goals, we have the numbers on the TMDL
but then our states, our municipalities, and our farmers should
be given a certain amount of flexibility in how we reach those
numbers. The WIP process can allow for that flexibility both in
our initial decision-making and our ability to adapt as new
information becomes available.
Second, we need to strengthen our partnerships across all
of government. In fact, I would argue it is even more important
now to do it than ever before. Under the Phase II WIPs, the
important role of local partners is being acknowledged and
enhanced. After all, at the local level is where implementation
ultimately occurs. And Congressman Goodlatte has been focusing
on that.
However, this should not mean that the buck merely is being
passed down the chain. Each level and branch of government has
an important role to play in support of the common goal. Both
states and the Federal Governments can support local efforts
through financial incentives and technical assistance that
allow for flexibility. At the Federal level in particular, USDA
conservation programs including technical assistance remain the
single biggest source of support for implementation of nonpoint
source best management practices. Programs offered nationwide
such as EQIP and the Regional Chesapeake Bay Watershed
Initiative Program have been a critical source of support for
our farmers.
Congressman Holden and Congressman Goodlatte and other
Members of this House Agriculture Subcommittee were
instrumental in the establishment of the CBWI, which has
allowed agricultural communities to make some of the most
significant progress of any sector in the watershed. That kind
of progress can only continue with your support.
It is a combination of cost-sharing and technical
assistance that will lead us to lasting success. Federal cost-
share dollars are leveraged through word-of-mouth and changing
acceptance of what constitutes normal practices within the
agricultural community itself, the kind of system change that
comes through active participation of the local technical
assistance providers.
Third, innovation--as a state legislator, I understand the
current budget situation that our states and the Federal
Government are facing. I know that I cannot limit my remarks to
a mere request for funding dollars. Instead, I want to
acknowledge the important role of innovation--both innovative
technologies and innovative funding programs--in making our
limited dollars work more effectively. Innovation has provided
some of the greatest strides in nutrient and sediment
reductions to date. Example: phosphate-free detergents;
phytase, a feed additive for poultry; and no-till are all
examples of gains that have been made inside this watershed
through innovation.
Now, emerging technologies promise future gains. Precision
agriculture, GPS technologies, and manure-to-energy
technologies are just a few examples. These practices produce
benefits for the environment and for the farmers' bottom line,
benefits that could help redefine sustainable agriculture. But
we currently lack the technical assistance and the verification
mechanisms needed to get on-the-ground practices tracked
accurately. Without them, we have a lost opportunity.
When it comes to funding, we can be innovative by moving
away from a single-focused program and instead give priorities
to projects that achieve multiple goals such as manure-to-
energy.
I see my time has expired, so I look forward to your
question and answers later on.
[The prepared statement of Mr. Brubaker follows:]

Prepared Statement of Hon. Michael Brubaker, Chairman, Chesapeake Bay
Commission; Senator, Commonwealth of Pennsylvania, Annapolis, MD

Good morning, Chairman Thompson, Ranking Member Holden, and Members
of the Subcommittee. Thank you for the opportunity to present my
testimony before you today.
My name is Mike Brubaker. I am an agronomist by training, and after
serving as CEO of private agricultural consulting firms, I now serve as
a Pennsylvania State Senator, representing the 36th Senatorial District
covering parts of Chester and Lancaster counties. I am also honored to
serve this year as Chairman of the Chesapeake Bay Commission, a tri-
state legislative commission representing the General Assemblies of
Pennsylvania, Maryland and Virginia, on matters of Bay-wide concern.
Individually, the members of the Commission represent distinct areas of
the watershed and bring an intimate knowledge of the local residents
and their social, economic and environmental challenges. Collectively,
the 21 members share the perspective of the full watershed and provide
the least parochial and most comprehensive outlook among the leaders of
the Bay Program.
The Commission is now in its 31st year; it is important to note
that its establishment pre-dates that of the Chesapeake Bay Program, of
which we are a member. This history demonstrates the commitment that
state government and state legislators, in particular, have to the
restoration of this National Treasure.
Our members are not term-limited, and we have a mix of new members
as well as members who have served for more than 2 decades.
Consequently, the Commission has witnessed first-hand the evolution of
the Bay restoration effort, from the first gathering of a few concerned
state legislators, to the current effort which is heavily influenced by
an ambitious Total Maximum Daily Load (TMDL).
I have been asked by this Subcommittee to review the implementation
of Phase II of the Chesapeake Bay TMDL Watershed Implementation Plans
and its impact on rural communities. That impact will be felt by all
sectors, and we need to achieve reductions from all sectors, if our
water quality goals are to be met. However, because the jurisdiction of
this Subcommittee relates to agriculture, I have chosen to focus my
remarks primarily on agricultural implementation.
To begin with, while ambitious, our water quality goals, and the
level of activity needed to meet them, are necessary if we are to
achieve clean water in the Chesapeake Bay and the rivers and streams
that feed it. Clean rivers and streams as well as a clean Chesapeake
Bay are not only important environmental goals, but also important
economic goals. Whether it be fly fishing in the cool streams of
Pennsylvania or cruising down the Bay on a summer evening, clean rivers
and a clean Chesapeake supports critical economic, recreational,
environmental, and aesthetic elements of our lives.
The question is: how can we best support and promote clean water in
a time of challenging budgets and a struggling economy? In answer, I
offer four recommendations:

1. Innovation

Innovation is needed not only in the technology and practices used
to achieve nutrient and sediment reductions, but also in the
ways that we fund the implementation of those practices.

To date, innovation has provided some of the greatest strides in
nutrient and sediment reduction to date. The phosphate
detergent bans that replaced the phosphorus in home laundry and
dishwashing detergents with a less-polluting surfactant; and
``phytase,'' a feed additive for poultry which reduced both the
phosphorus in the manure and the cost of feed to the farmers
are both examples of gains made through innovation.

Emerging technologies continue to offer new promise. Farmers are
increasingly implementing precision agriculture techniques,
which improve the nutrient efficiency of both livestock growth
and cropping systems. These practices produce benefits for both
the environment and the farmer's bottom line--benefits that
could help to redefine the sustainability of agriculture. For
example, by combining farmer judgment with GPS technology,
operators can now avoid double or even triple seeding when the
tractors are turning around. The same is true for fertilizer
and pesticide application with the result being a 5-32% savings
in the fields. But we currently lack the technical assistance
needed to show individual farmers how these and other
technologies can be applied on their own farm and thus achieve
widespread adoption. Furthermore, we lack a clearly verifiable
and transparent mechanism to accurately track implementation of
these practices that will allow our farmers to get credit for
their improved environmental performance.

On the horizon are advanced manure-to-energy systems that will
allow for more efficient recycling of nutrients, thus
mitigating the nutrient imbalances that currently exist in the
Chesapeake watershed. These systems have the additional benefit
of providing a reliable, domestic source of renewable energy.
Future technologies can be supported through policies that
generally support entrepreneurship, as well as a review process
that can quantify credit for nutrient and sediment reductions
based on sound science and verification.

In times of thin budgets, we should also look for innovative
methods of funding. Instead of programs that focus on one goal,
funding priority should be given to projects that aim to
achieve multiple goals, such as manure to energy projects which
can provide energy independence and water quality benefits
while strengthening agricultural sustainability.

Nutrient trading is another example of an innovative funding
strategy. Instead of focusing on specific practices or
technologies, trading allows the market to reward the most
cost-effective strategies. However, as mentioned above, an
effective market can only be achieved when the credits can be
quantified through a review process based on sound science and
verified implementation.

2. Clear, predictable goals based on performance, not prescription

The existing Watershed Implementation Plan (WIP) process
established under the Chesapeake Bay TMDL allows states to
develop clear actions for attaining necessary pollution
reduction goals. It also allows the state to prioritize these
specific actions. This is a sound approach, and one that should
also extend to implementation at the municipal and farm level.
While there should be certain basic standards to be met for
compliance, the actual practices required to meet those
standards will vary from town to town and farm to farm. Local
choice is the key.

Similarly, farmers who voluntarily step forward and ``do the right
thing,'' and then verify the implementation of those practices
to achieve necessary WIP pollution reductions, should receive a
level of certainty or predictability, for a time certain, that
they will not be subject to new or more rigorous standards if
the Federal Government changes its mind about what is the
expectation for compliance under the WIP. While our knowledge
and understanding of the Bay will change over time, resulting
pollution reduction demands should be deliberative and
predictable to those already acting in a responsible manner.

A process is currently underway among our state governments to
define what a certainty program might look like for the region.
While there may be a place for Federal action on this matter,
we ask that both Congress and EPA consider the outcome of this
state-led effort before finalizing any action.

3. Technical Assistance

The key to the success of all implementation is the presence of
knowledgeable people--boots on the ground--who make it happen.
Local USDA and conservation district staff, and other technical
service providers, deliver locally-relevant and science-based
information to farmers and other landowners. Regardless of
cost-share assistance, the presence of trusted local partners
is imperative to success.

While technical assistance funding associated with cost-share
through programs such as EQIP and CBWI is important,
traditional planning support through the Conservation Technical
Assistance budget, and targeted supplemental support such as
that provided through the SWAT (strategic watershed action
teams) is also critical. Historically, technical assistance
funding has not significantly increased, despite an increasing
need (see Figure 1).

Additionally, efforts should be made to assure that technical
assistance is available throughout the life of a cost-share
contract. Although practice contracts can last 3-5 years,
technical assistance is funded year-to-year, leaving a project
vulnerable to a lack of planning or engineering to see it
through.

4. A strong partnership across all levels of government

The current WIP process, which provides a clear Federal standard
and allows for state flexibility in implementation, is now
moving to a new phase where the important role of local
partners is being acknowledged and enhanced. However, this
process should not result in the responsibility merely being
passed down the chain. Each level and branch of government has
an important role to play in support of the common goal.

At the local level, planning, coordination and implementation will
result in the lasting change we desire, but people are key to
making it happen. Both state and Federal Governments can
support local efforts through financial incentives, technical
assistance and providing flexibility. This support can take the
form of direct funding or program assistance, or eligibility
for enhanced support that could be dependent on the
implementation of ordinances or other actions.

At the state level, we have the responsibility to directly engage
local governments and other partners to be clear about what
must be accomplished. As we explore and evaluate the many ways
we can support local efforts, we must consider flexibility that
enables cost-efficiency. This approach should be applied
broadly to include actions such as the authorization of
stormwater authorities, the eligibility criteria for state
funding, the establishment of clear statewide standards for
pollution reduction, and the development of robust trading
programs. The state's role is critical for coordinating our
funding programs to leverage their value and achieve multiple
benefits.

At the Federal level, USDA conservation programs, including
technical assistance, remain the single biggest source of
support for implementation of non-point source best management
practices (BMPs). Nationwide programs such as EQIP
(Environmental Quality Incentives Program) and the regional
Chesapeake Bay Watershed Initiative (CBWI) have been a critical
source of support for our farmers.

Created in the last farm bill, through the bipartisan leadership of
the Congress, including key Members of this Subcommittee, CBWI has
uniquely demonstrated the success of targeted conservation. Not only
does CBWI target Federal money to a region with a significant need for
additional conservation, CBWI allows that money to be further targeted
to the sub-watersheds and specific BMPs that will achieve the most
cost-effective reductions. It is the combination of Technical
Assistance with cost-share dollars that provides the magic.
Let me take a minute to illustrate just how important this targeted
approach has been to the agricultural progress made thus far. The
agricultural community has contributed handsomely to achievement of our
water quality goals, with the sector more than half way to the goal
line, thanks in large part to the funding provided via EQIP and CBWI.
In the USDA Conservation Effects Assessment Project (CEAP) report
for Chesapeake Bay, the agency concludes that 810,000 acres of farmland
have a high level of need for conservation practices, while a moderate
level of need exists on approximately 2.6 million acres. All totaled,
to make our water quality goal, NRCS he s committed to applying 4
million acres of new conservation by 2025. Translated, this will mean
that NRCS must apply conservation practices on a minimum of 270,000
acres each year from 2010-2025. Since 2009, CBWI funds have been used
to develop contracts for treating approximately 510,000 acres of
working lands and account for 74% of NRCS's annual ``acre goal'' for
2010 and 2011. EQIP and other conservation support programs round out
the difference and provide the foundation for meeting state
implementation goals.
If CBWI funding were to be continued in the 2012 Farm Bill at an
annual rate of $50 million baseline, and carried forward from 2013-
2025, NRCS could fund approximately 16,250 more contracts to treat
about 2.34 million additional acres in priority watersheds. Other
financial assistance funds provided via the formula allocations of such
programs as EQIP are also spent in priority watersheds. However, CBWI
forms the core of the agency's financial assistance in these areas.
These dollars are further leveraged through word of mouth and
changing definitions of normal practices within the agricultural
community itself. Only a decade ago, farmers practicing no-till were
the exception. Today, after targeted outreach efforts about this
practice coupled with cost-share assistance, a majority of our crop
acres are no-tilled. And, most of these acres have been converted to
no-till without direct cost-share.
You cannot harvest a crop without first planting the seed. Cost-
share dollars provide the seed, technical assistance and outreach
provides a robust soil in which that seed can grow. With the right
combination, we can reap the benefits of improved water quality.
As stated earlier, promoting innovation, coordination of energy and
conservation programs, as well as acknowledgement of state-specific
programs of regulatory certainty, are other ways that the Federal
Government, and this Subcommittee in particular, can be of assistance
to our farmers and local partners in their conservation efforts.
Thank you again for the opportunity to testify before you today. I
am happy to answer any questions you may have.

Figure 1
USDA Conservation Funding 1983-2010

Source: ERS analysis of USDA budget summary data.
Produced by Penn State University College of Agricultural
Sciences.

The Chairman. Thank you, Chairman.
It is a pleasure to introduce Mr. Shaffer.

STATEMENT OF CARL SHAFFER, PRESIDENT, PENNSYLVANIA FARM BUREAU
FEDERATION; MEMBER, BOARD OF
DIRECTORS, AMERICAN FARM BUREAU FEDERATION, CAMP HILL, PA

Mr. Shaffer. Thank you, Chairman Thompson, Ranking Member
Holden. I really appreciate the opportunity to testify on
behalf of the Pennsylvania Farm Bureau and the American Farm
Bureau Federation.
Pennsylvania's Department of Environmental Protection is
working with more than 150 partners in developing the Watershed
Implementation Plan. This is the process the Congress intended
under the Clean Water Act. Unfortunately, in our view, EPA is
micromanaging states and usurping their authority. An example
of this can be seen in EPA's disapproval of Pennsylvania's
first Water Implementation Plan. Not only did EPA reject our
first plan but they were less than helpful when responding to
questions about their expectations of states. Moreover, the
timeline for which the states were given to develop the plan
was inadequate, and states were expected to draft plans without
knowing the required reductions.
The process of developing Phase II of the WIP is taking a
similar track. Pennsylvania's Department of Environmental
Protection is working to reach out to county and local
governments in the 43 counties within the Bay watershed to
obtain the necessary data and insight. This activity takes time
to get it right. Like the development of the TMDL, the
submission of the Phase I WIP, the EPA is hurrying the process
while offering little guidance of any value.
What is most disturbing is the EPA is still telling state
and now local governments to develop a plan based on poor and
inadequate data. In September, Pennsylvania pointed out that
EPA's model continues to assume inaccurate manure application
rates. Specifically, the Commonwealth wrote, ``within EPA's
model about 50 percent of the cropland and 90 percent of all
row crops receive manure.'' Well, in USDA's National
Agricultural Statistics Service reports, only 24 percent of the
total harvested cropland receives manure.
Despite this knowledge of real and valid data, EPA
continues to threaten retaliatory action against states if they
do not meet the unsupported and ever-changing goals. As
taxpayers, Farm Bureau members are concerned that millions of
dollars may be spent to chase paper compliance with a model
that uses faulty assumptions rather than valid and readily
available data. EPA's modeling has not given taxpayers in the
Bay watershed assurance that the model will get us close to the
required reductions.
If millions and millions of dollars are spent, the
practices are implemented, and reality proves the modeling
projections are wrong, what then? Will farmers and other
businesses and communities be expected to spend even more?
State agencies also share these concerns. Pennsylvania's
previous Administration wrote, ``in general, Pennsylvania's
concern that EPA's approach to the Draft Chesapeake Bay TMDL is
neither practical, equitable, nor cost-effective and could
reverse progress in meeting our water quality goals.'' Last
month, Virginia wrote to EPA saying, ``the current watershed
model is undermining the credibility of our collective
efforts.''
As I stated just 7 months ago, farmers are seriously
concerned about their ability to continue to operate their
farms in the Chesapeake Bay watershed. One reason is that EPA's
TMDL establishes a binding allocation and timelines regardless
of cost. Several Bay states estimate that implementation will
cost billions of dollars. We believe the TMDL threatens the
economic health of businesses, individuals, and communities
throughout the Bay watershed.
Finally, I would be remiss if I did not mention the
positive outcomes realized and real water quality improvements
that have occurred due to farm bill conservation programs. Many
farm bill conservation programs have helped agricultural
producers implement conservation measures to comply with
regulatory mandates by EPA.
I would really like to thank the Committee for convening
this hearing and I would be pleased to respond to any
questions. Thank you.
[The prepared statement of Mr. Shaffer follows:]

Prepared Statement of Carl Shaffer, President, Pennsylvania Farm Bureau
Federation; Member, Board of Directors, American Farm Bureau
Federation, Camp Hill, PA

Thank you, Chairman Thompson and Ranking Member Holden. I
appreciate the opportunity to appear before you today and to provide
comments on behalf of the farm and rural family members of Farm Bureau.
My name is Carl Shaffer, and I have the privilege of serving on the
Board of Directors of the American Farm Bureau Federation and as
President of the Pennsylvania Farm Bureau. Farm Bureau represents farms
of all sizes, spanning virtually all commodities grown and sold in our
great nation. I am pleased to offer this testimony, on behalf of the
Pennsylvania Farm Bureau, the American Farm Bureau Federation and its
more than 6.2 million member families.
I own and operate a farm in Columbia County, where I raise green
beans for processing, corn and wheat. All the land I farm is in the
Chesapeake Bay Watershed, and most of the land is within sight of the
Susquehanna River. As we speak, at least two agencies of Pennsylvania's
state government--the Department of Environmental Protection (DEP) and
Department of Agriculture--are working to develop Phase II of the
Watershed Implementation Plan (WIP) for the Chesapeake Bay Watershed.
Pennsylvania Farm Bureau has been involved in the WIP process since it
first began almost 2 years ago, and we sit on the WIP Management Team,
a group of industry, governmental and environmental groups working with
DEP officials provide advice and insight on objectives and actions the
Commonwealth should pursue to reduce pollution in the Chesapeake Bay
Watershed in a manner that is environmentally effective and
economically feasible.
The planning process being implemented by our state DEP--working
with more than 150 partners and state law--is one that, we believe,
Congress intended to be implemented under the 1972 Clean Water Act in
effectively managing pollution of waterways and responding to more
serious water pollution problems. Unfortunately, in our view, recent
regulatory actions by the Environmental Protection Agency (EPA) to
micromanage and dictate environmental performance in the Chesapeake Bay
Watershed have needlessly and unlawfully usurped the responsibilities
that the Act intended to be reserved and addressed by the states. An
example of this can be seen in EPA's review and disapproval of
Pennsylvania's first WIP. Not only did EPA reject Pennsylvania's first
plan, but throughout that process, state agencies and the affected
industries would repeatedly ask EPA officials if a certain approach
would be sufficient in meeting the goals and objectives of the Federal
agency. Those questions were most often met with responses seriously
lacking helpful guidance. Moreover, the timeline for which
Pennsylvania, and other states for that matter, was given for
development of the plan was woefully inadequate, and states were
expected to draft plans without knowing what their required nutrient
and sediment reductions would be.
The process of developing Phase II of the WIP is taking a similar
track. Pennsylvania's DEP is working diligently to reach out to county
and local governments in the 43 counties of Pennsylvania within the Bay
Watershed to obtain the necessary data and insight on workable
solutions to reduce nutrient and sediment runoff at the local level--an
objective that EPA is demanding in the Phase II segment of Watershed
Plans. Despite the deadlines and expectations of EPA, this action is
taking a significant amount of time in order to get it right. Like the
development of the TMDL and the submission of the Phase I WIPs, EPA is
driving a hurried process on the part of the states while offering
little guidance of value. What's most disturbing is that EPA is still
asking state, and now local, governments to develop a plan based on
poor and inadequate data.
The timeline that Pennsylvania is expected to meet, along with the
other Bay states, is quite unreasonably ambitious. The Draft Phase II
WIP must be submitted to EPA by Dec. 15, 2011 and the final plan is
then due by March 30, 2012.
The demands that EPA is putting on Bay states in Phase II is
further crippling states' ability to devise a program that will
encourage meaningful and effective long-term benefits, already hampered
by the demands that EPA has already placed so far through EPA's
excessive TMDL regulation. Let me spend a moment to highlight some of
the problems with EPAs' total maximum daily load (TMDL). Under EPA's
Chesapeake Bay TMDL, all the pollutant loadings to the Bay and the
reductions in those loadings take place in ``model world.'' The model
world appears to have no basis in reality and has very little to do
with the real conservation efforts of farmers. Please note the attached
timeline * because it enumerates the concerns with EPA's models raised
by scientists, states and other stakeholders. In the short time that I
have, I want to focus on the lack of scientific realities specific to
Pennsylvania agriculture.
---------------------------------------------------------------------------
* The document referred to and other submitted documents are
retained in Committee file.
---------------------------------------------------------------------------
Nutrient management provides a good example. EPA's TMDL says that
regulated agricultural operations in the Pennsylvania part of the
watershed for the Susquehanna River can deliver no more than 761,488.58
pounds of nitrogen, 18,589.44 pounds of phosphorus, and 2,688,715.58
pounds of sediment to the Bay. These numbers apply to farms in
Pennsylvania, even though the Susquehanna River itself is meeting
Pennsylvania water quality standards for nutrients.
One way EPA seeks to force reductions in nutrient and sediment
loads is by increasing the rate of adoption of best management
practices (BMPs). For agriculture, EPA assumes that 47.2 percent of
farms have already adopted nutrient management practices. In its TMDL,
EPA requires 85 percent of farms to adopt ``enhanced nutrient
management practices.''
EPA's requirement makes no sense because all Pennsylvania
agriculture operations that generate manure are already subject to
nutrient management requirements. However, EPA's Chesapeake Bay models
do not credit non-cost-shared nutrient management practices, so they
misrepresent the on-the-ground reality of nutrient management on
Pennsylvania farms. This flaw was pointed out by numerous stakeholders.
For example, in its draft Watershed Implementation Plan, Pennsylvania
stated:

A significant number of agricultural and other best management
practices that have been implemented in Pennsylvania have not
been `tracked' and entered into the Chesapeake Bay Model. A
significant level of interest in this deficiency was expressed
by Pennsylvania's Agricultural Watershed Implementation Plan
workgroup. Pennsylvania pilot project efforts in Lancaster and
Bradford counties, as well as preliminary evaluation of data
from NASS indicates that as much as 84 percent of some
implemented BMPs have not been entered into the Bay model,
resulting in potentially significant nutrient and sediment
reductions not being accounted for in the reductions
attributable to Pennsylvania.

In another example, EPA's model assumes that only 57,659 tons of
manure are transported from Pennsylvania to locations outside of the
Chesapeake Bay Watershed. However, Pennsylvania told EPA in September
2010 that all Chesapeake drainage county conservation districts in
Pennsylvania report the export of manure from the county, and 227,527
tons left the Chesapeake Bay Watershed.
EPA's model also assumes that at least 15 percent of all manure at
an animal feeding operation production area is simply ``lost'' and ends
up in the waterways. Even though EPA was told that this assumption was
ludicrous, it made no changes.
EPA did not correct these discrepancies between its model and
reality and finalized the Chesapeake Bay TMDL in December 2010, knowing
full well that it had not properly accounted for agricultural BMPs and
was misrepresenting manure management in Pennsylvania and other
jurisdictions. EPA cited an out-of-court settlement agreement as its
excuse for rushing to complete the TMDL, even though it had received
requests to extend the deadline, including requests from Reps.
Goodlatte and Holden of this Subcommittee.
Instead, EPA promised to make some changes to land use and nutrient
management assumptions in the Chesapeake Bay Model in 2011, in time for
the revised model to be used for the Phase II Watershed Implementation
Plans. However, in the new models (Phase 5.3.2) EPA only changed the
number of acres of impervious surface and some nutrient management
assumptions. It did not address the lack of credit for non-cost-shared
BMPs. It did not address the fact that a single piece of land can
utilize multiple BMPs. It did not correctly apply the recommendations
of the Agricultural Work Group regarding nutrient management. And, it
did not address the 15 percent manure loss assumption that is built
into the model.
As a result, EPA made its model worse, not better. EPA again rushed
to meet the arbitrary deadline it established for state submission of
Phase II Watershed Implementation Plans and has again developed a model
that does not reflect reality.
When the Chesapeake Bay Watershed states began using EPA's revised
model to try to develop their Phase II Watershed Implementation Plans,
they began to get inconsistent results. For example, when Virginia
tried to use EPA's model to determine how much Charles City County
needed to reduce sediment, it found that, while the old model told them
that Charles City County needed to reduce sediment by 48 percent, the
new model says that Charles City County could increase sediment by 406
percent. Obviously, states and every community or business in the
Watershed that has been assigned an allocation and a responsibility
under EPA's TMDL is concerned. EPA's refusal to take the time to
improve its models, or to reduce its reliance on models, is undermining
the public's confidence. Worse, EPA's Federal TMDL could cause people
to spend scarce resources on conservation measures that are directed to
the wrong sources or the wrong areas.
A news article reporting the previously referenced inconsistencies
in Virginia quoted an EPA official dismissing the concerns of local and
state governments on modeling data saying, ``Use common sense. Let's
get on with it.'' Another EPA official is quoted as saying, ``None of
this stuff should impede the planning for what everyone knows is needed
to be done.'' Unfortunately, common sense tells us as farmers that
ever-shrinking public dollars, and hard earned private capital, must be
applied in a manner to achieve actual and proven water quality
improvements, not compliance with a model based on assumptions that
puts out inconsistent prescriptions for water health.
As taxpayers, Farm Bureau members across the nation are concerned
that millions of dollars can be potentially spent to chase paper
compliance with a model that uses faulty assumptions rather than valid
and readily available data, and a computer model that shows
inconsistencies, as displayed in the Charles City County instance.
EPA's questionable modeling has not given taxpayers in the Chesapeake
Bay Watershed reasonable assurance that the practices the model is
directing the states to implement and the millions of dollars the
states will need to spend to implement these practices will get it even
close to the reduction goals EPA is demanding states to meet. If the
millions are spent, the practices are implemented, and reality proves
the modeling projections are wrong, then what? Will farmers, other
businesses and communities be expected to spend even more monies and
resources to pursue other practices and programs directed through a
modified model?
As farmers, business-owners and economic engines of the nation's
economy, Farm Bureau members are worried that the private investments
they are making to improve water quality, based on the flawed model,
will be for naught and will not be credited to them as individuals, or
to the agricultural industry, in the same model.
On Nov. 8, 2010, Pennsylvania's DEP and Department of Agriculture,
under the previous Administration of then-Governor Ed Rendell, wrote to
EPA stating:

In general, Pennsylvania is concerned that EPA's approach to
the Draft Chesapeake Bay TMDL is neither practical, equitable,
nor cost-effective and could reverse progress in meeting our
water quality goals.

In a meeting with EPA on Sept. 16, 2011, the Watershed
jurisdictions rebelled against using EPA's model. As noted by the
Commonwealth of Virginia in a Sept. 28, 2011 letter to EPA summarizing
that meeting: ``the current Watershed Model is undermining the
credibility of our collective efforts.''
In the Sept. 16, 2011 meeting, concerns were raised by
Pennsylvania, Maryland and Virginia. For example, Pennsylvania pointed
out that EPA's model continues to assume inaccurate manure application
rates. According to Pennsylvania:

Within EPA's model about 50 percent of crop land and 90 percent
of all row crops receive manure. USDA's National Agricultural
Statistics reports that 24 percent of total harvested cropland
receives manure.

EPA's response to the states' concerns has not been entirely
satisfactory. In a letter dated Oct. 5, 2011, EPA finally admitted that
its models could not support allocations below the scale of a major
river basin. However, EPA is still demanding Phase II Implementation
Plans from states that include a narrative of how the states are to
meet those river basin-wide allocations. Also, EPA's letter says
nothing about the validity of the thousands of allocations that are
already in the Final TMDL. Finally, in a question-and-answer document
issued on Oct. 17, 2011, EPA repeated its threats to take retaliatory
action against states if they do not meet EPA's ever-changing
expectations.
On Oct. 17, 2011, EPA also released a plan for responding to the
modeling concerns raised by the states. Unfortunately, each concern
that involved a change to the model was pushed back to 2017. The only
fix EPA is willing to make before 2017 is the recognition of additional
BMPs. In response to concerns about wildly varying loadings resulting
from the new model, EPA suggests that states focus their communication
on implementation goals rather than pounds per acre reductions. That
advice is difficult to follow when the TMDL specifies specific pounds
of reductions for over 488 individual sources and communities with
large storm sewer systems as well as aggregate (by river basin) pounds
of reduction to be met by all the animal feeding operations, all the
row crop agriculture, all septic systems and smaller municipal storm
sewer systems in each river basin.
Even though the TMDL currently has aggregate pollutant loadings for
agriculture on a river basin basis, EPA plans to develop a ``certainty
framework'' that would track a farm's progress towards meeting the
modeled reductions needed to meet a modeled result on a farm-by-farm
basis. As noted above, EPA's models are not accurate at the county
scale, much less the farm scale, and the Federal TMDL should not impose
specific reductions on specific farms or areas of land.
Pennsylvania's Secretary for Environmental Protection, Michael
Krancer, who is also providing testimony today, has the unforgiving
task of trying to weave the effective environmental programs and
regulatory measures already being done in Pennsylvania into EPA's
unrealistic and deeply flawed requirements. Pennsylvania Farm Bureau
appreciates the opportunities we have been given to participate in
state processes for planning and development of programs that have
proven, not theoretically, benefits to local watersheds
Pennsylvania's farm families strongly agree with the approach set
forth by the Clean Water Act that gives state agencies the lead in
working with non-point sources. To that end, let me provide some
examples on how Pennsylvania's agricultural community and our state's
environmental regulatory agency, have taken significant steps in
working cooperatively to improve our water quality. This positive
effort has provided measurable benefits to the citizens of the
Commonwealth who live near or use waterways downstream.
In Pennsylvania, water quality improvements have been made as a
result of the following state regulations and initiatives (as well as
others, not specifically mentioned below):

Pennsylvania Erosion and Sediment Control Regulations

All farms must implement BMPs to control erosion and sedimentation
for all disturbed lands, including plowing and tilling
activities. Written erosion and sedimentation (E&S) control
plans must be kept on site for all plowing and tilling
activities that disturb 5,000 square feet or more. Plans must
contain plan maps, soils maps, waters of the Commonwealth,
drainage patterns, BMPs, descriptions of tillage systems used
and schedules.

Mandated State Standards for Storage and Land Application of
Manure

Every animal farmer, regardless of the farm's size or animal
concentration, must operate his or her farm and manage animal
manure in a manner that is consistent with the practices and
standards identified in DEP's ``Manure Management Manual for
Environmental Protection.'' Any practice that substantially
deviates from the manual's practices must obtain specific
approval or permit from DEP. Every farmer who generates manure
or receives manure for land application is required by state
law to develop and implement written manure management plans
that demonstrate the use of management practices that control
nutrient runoff from farms.

Pennsylvania Clean Streams Law

This statute prohibits discharges of animal waste into streams. The
degree of penalties to be assessed are based on the willfulness
of the violation, the damage or injury that occurs to the
waters or natural resources of the Commonwealth, the costs for
correcting or mitigating the damages, and other relevant
factors. Substantial penalties are often assessed on violations
that result in fish kills or other serious injury to aquatic
life.

Pennsylvania's Nutrient and Odor Management Act

This law prohibits Concentrated Animal Feeding Operations (CAFOs),
Concentrated Animal Operations (CAOs) and any operation
receiving animal manure from a CAFO or CAO from mechanically
land applying the manure within 100-feet of a perennial or
intermittent stream with a defined bed or bank, a lake, or a
pond. Exceptions exist where a qualified 35-foot vegetated
buffer is established along the water bodies. Recent statutory
and regulatory changes to the Act also require the development
and implementation of nutrient plans approved by regulatory
agencies to minimize runoff of nitrogen and phosphorus into
waters of the Commonwealth, and require owners of land
receiving manure generated from a CAFO or CAO farm to
demonstrate through nutrient balance calculations that
nutrients from the manure will not exceed the nutrient needs of
plants and vegetation to be grown on the land.

Pennsylvania Concentrated Animal Feeding Operation (CAFO)
Program

The program requires either National Pollutant Discharge
Elimination System (NPDES) general or individual permits for
animal operations with over 1,000 Animal Equivalent Units
(AEUs) and CAOs with over 300 AEUs. Pennsylvania's CAFO
permitting program has been expanded to include: poultry
operations that use dry manure handling systems and are CAOs
with more than 300 AEUs or that have 1,000 or more AEUs; horse
operations that are CAOs with more than 300 AEUs or that have
1,000 or more AEUs; or any animal operation defined as a large
CAFO under the Federal CAFO Regulations. The scope of farms
required under state law to obtain NPDES permits is broader
than the scope of farms required to obtain NPDES permits under
Federal law.

Best Management Practices Manual for Pennsylvania Livestock
and Poultry Operations

This manual was developed to outline BMPs which can assist
livestock and poultry operations in their effort to protect
local and regional natural resources, and to allow them to
successfully integrate into the neighboring community. Some of
the BMPs described are mandatory due to current regulations;
other voluntary efforts are suggested to assist producers in
addressing specific concerns.

Pennsylvania Fish and Boat Code

State law prohibits the placement or allowance of any substance
harmful to fish into streams. In addition to imposition of
fines, a person who places or allows a substance into a stream
is required to pay damages for fish that are killed or injured
as a result of the substance being introduced into the stream.
Penalties and damages are in addition to any penalties that may
be assessed under the Clean Streams Law.

Pennsylvania Stream Protection Program

This program allows streams to upgrade to High Quality (HQ) or
Exceptional Value (EV) protection status. The program regulates
activities and discharges adjacent to upgraded streams.

Pennsylvania Dam Safety and Encroachment Act

Permits are required for activities located in, along or across
streams or wetlands. Pennsylvania's wetland protection
regulations exceed Federal requirements.

Pennsylvania Flood Plain Management Act

The construction of manure storage facilities in a flood plain must
meet upgraded construction standards.

Stream health and aquatic rebirth in the Keystone State are
improving each year. An example of this occurred at a recent
Pennsylvania Fish and Boat Commission meeting on April 11-12, 2011
where nearly 100 streams--in 32 different counties--were presented to
the commission for adoption as ``Wild Trout Streams.'' The Pennsylvania
Fish Commission defines such a stream as ``a remote, natural and
unspoiled environment where man's disruptive activities are
minimized.'' Wild trout are an excellent indicator of water quality and
stream health. These upgrades in stream classifications were made
possible by the ongoing and collaborative efforts of farmers,
landowners and state and local regulators applying local and
individualized solutions to water quality concerns.
Pennsylvania also has an effective nutrient management program in
place. Pennsylvania's Nutrient and Odor Management Act provides the
opportunity for animal farms whose animal numbers and concentrations
are below those of a regulated CAO or CAFO to voluntarily act in
developing and implementing reviewed and approved nutrient management
plans in the same manner as regulated CAOs or CAFOs. Those who do so
are given modest protections from enforcement penalties. Each year, the
Commonwealth sees an increase in volunteer nutrient management
planning--in the early 1990s fewer than 2,000 acres were enrolled in
Pennsylvania's nutrient management program; today this program covers
1.3 million acres. Several years ago, Pennsylvania's DEP estimated that
approximately half of the total manure being generated by the
Commonwealth is now being managed under approved nutrient management
plans of regulated and volunteer farms. This demonstrates farmers'
desires to be good stewards of the land and to protect our natural
resources for future generations. Furthermore, Pennsylvania was the
first state in the Union to implement mandatory requirements for
nutrient management plans for CAOs and CAFOs, a practice that was in
place long before the current scrutiny on the Chesapeake Bay TMDL.
Additionally, Pennsylvania's State Conservation Commission
implements the Dirt and Gravel Road Program. This program is an
innovative effort to fund environmentally sound maintenance of unpaved
roads that have been identified as sources of erosion and sediment
pollution. The program is based on the principle that informed and
empowered local effort is the most effective way to stop pollution. The
Dirt and Gravel Road program has inspected 16,500 miles of public
unpaved road, and has set up 16,600 ``worksites'' where road runoff
negatively impacts a stream are mapped and assessed. This program has
stabilized more than one quarter of a million square feet of streams
near 640 miles of rural roads since 1997. These state and local efforts
are significantly reducing sediment discharge. Expansion of Federal
jurisdiction over these small streams would only complicate an already
successful program.
Although Farm Bureau and state officials try to work cooperatively
in developing effective and feasible regulatory initiatives to improve
water quality, we can and do have material disagreements over
regulatory measures the Commonwealth ultimately decided to impose. A
very recent example is the aforementioned revision of the ``Manure
Management Manual,'' which will likely be finalized by DEP very soon.
DEP rejected a number of concerns and recommendations offered by
Pennsylvania Farm Bureau that we believed would place significant and
unworkable requirements on smaller animal farm operations without
providing any meaningful enhancement of water quality. While
disappointing, DEP's response illustrates the larger picture--that
Pennsylvania's regulatory agencies are not unduly influenced by
industry and in fact, do make their own independent judgments. In
discussions with other state Farm Bureaus, we believe that other states
apply the same independence in judgment as applied by DEP in regulatory
management of water quality.
We believe any contention that state agencies are incapable of
effectively regulating and improving water quality are quickly
dismissed when a Federal regulator applies common sense to the
assessment of Pennsylvania's accomplishments. Surely other states in
the Bay Watershed, and nationally, have similar improvements in water
quality that have little to do with Federal edicts. EPA has made it
quite clear that their current focus on the in the Chesapeake Bay
Watershed is a model for other watersheds across the nation. While we
believe their actions go beyond their authority under the law and have
filed a complaint in Federal court, farmers will continue the work of
stewarding our natural resources, improving water quality and feeding
America.
As I stated just 7 months ago, farmers are seriously concerned
about their ability to continue to operate their farms in the
Chesapeake Bay Watershed. This is because of the continuous onslaught
of regulations, guidance and other requirements being issued by the
EPA. EPA's focus on agriculture and its over-reaching restrictions are
particularly troublesome because agriculture has worked successfully
with the U.S. Department of Agriculture (USDA) to reduce its
environmental impact on the Bay.
EPA's TMDL wrongly establishes binding allocations and timelines
regardless of cost. Clean Water Act and EPA regulations specifically
allow states to consider economic consequences and to modify water
quality goals when necessary to avoid substantial economic and social
disruption. EPA asserts that the TMDL will restore jobs and help the
Bay economy, but it has not provided any data to support these claims.
The Bay states, however, estimate that implementation will cost
billions of dollars (e.g., $7 billion for Virginia, $3 billion to $6
billion for New York). Farm Bureau believes the TMDL threatens the
economic health of businesses, individuals and communities throughout
the Chesapeake Bay Watershed.
Finally, I would be remiss if I did not mention the positive
outcomes realized, and real water quality improvements that have
occurred due to farm bill conservation programs, including the
Environmental Quality Incentive Program (EQIP), the Conservation
Reserve Program (CRP)--or its state counterpart, the Conservation
Reserve Enhancement Program (CREP), the Emergency Conservation Program
(ECP), the Farm and Ranchland Protection Program (FRPP), the Chesapeake
Bay Watershed Initiative (CBWI) and others. Many of the farm bill
conservation ``working lands'' programs, including those referenced,
help agricultural producers implement conservation measures to comply
with regulatory mandates by EPA.
I would like to thank the Committee for convening this hearing and
for all your hard work on behalf of agriculture across the country. I
will be pleased to respond to questions.

The Chairman. Thank you, Mr. Shaffer. And I now yield to
Mr. Goodlatte for purposes of the introduction of our final
witness on this panel.
Mr. Goodlatte. Well, Mr. Chairman, thank you for that
honor.
I am very pleased that we have with us Turner Perrow, a
member of Lynchburg City Council who comes to us not only with
experience of the impact of this issue on local government, but
also with a civil engineering degree from Virginia Military
Institute. And having worked as a consultant engineer designing
overflow and other infrastructure projects while working
closely with the City of Lynchburg, he has a professional
engineering designation, so I think he can speak to this issue
from a couple of vantage points. In 2008, he was elected to
represent the city's 4th Ward and I am delighted that he has
come up here to be with us today.
Turner, welcome.

STATEMENT OF HON. EDGAR J.T. PERROW, Jr., WARD IV
REPRESENTATIVE, LYNCHBURG CITY COUNCIL,
LYNCHBURG, VA

Mr. Perrow. Thank you, Congressman. Good morning, Mr.
Chairman, Members of the Committee. I am very concerned about
what our locality and others are being compelled to do. It is
estimated that the cost to Virginia communities alone is over
$7 billion. The schedule for the implementation of these new
Chesapeake Bay Total Maximum Daily Load final report
regulations is arbitrary; no other TMDLs that we are aware of
have a fixed schedule or are required to have a fixed schedule
by the Clean Water Act. Instead of establishing a realistic
schedule based on the ability to implement, the schedule is
being driven purely by the EPA's voluntary settlement of a
lawsuit with the Chesapeake Bay Foundation and others.
As a member of Virginia's Phase II Watershed Implementation
Plan Stakeholders' Advisory Group, I was told that the model--
the theoretical mathematical program used to predict pollutant
loading--is seriously flawed. On a macro scale, it is thought
to be fairly accurate in its ability to establish the overall
loading reductions needed for the Bay to meet Water Quality
Standards. However, on a smaller scale there are significant
and validated concerns.
In the recent 5.3.2 model release, Lynchburg's load
reduction goals have significantly increased compared to the
prior model version, while another community just downstream in
the same river basin is shown to be able to increase its
sediment loadings by 350 percent. This obviously does not make
sense, which calls into question the overall validity of the
model and creates significant challenges for local governments
to be able to plan and defend investments needed to clean up
the Bay.
In October, the EPA basically acknowledged in
correspondence with the Bay states that the model does not work
at a local scale. We are also pleased that the EPA has recently
issued a memorandum offering flexibility for localities
nationwide to prioritize various Clean Water Act actions,
although it is difficult to see how this flexibility would
apply in the Chesapeake Bay watershed states given the
magnitude and schedule of EPA Chesapeake Bay's TMDL
requirements.
In the City of Lynchburg, the additional cost to be
incurred due to the Bay TMDL Report potentially includes a $70
million wastewater treatment plant upgrade and an estimated
$110 million capital investment in stormwater infrastructure.
Annually reoccurring costs of $12 million are to be expected.
This is a four percent increase of our city's expenses,
approximately $140 annually per household. We are approximately
a 72,000-person city.
Since Fiscal Year 2010, we have cut our budget by 11
percent and expect another two percent cut this year. Our
revenues have held steady, but our mandated fixed costs
continue to rise. As a result of this great recession, our
local government has trimmed all the fat we can find in our
budget, but this year, we are going to cut deeper. The added
cost of the Bay TMDL Program cannot be sustained in our budget.
The end result is that Lynchburg and other localities are
being forced to impose upon our citizens and our businesses a
stormwater fee to meet these demands. Should the $70 million
wastewater treatment plant upgrade be necessary, we will have
to increase our sewer rates which are already among the highest
in the state. This will hit our water dependent manufacturers
hard, as will the proposed stormwater fees which correlate to
manufacturer's significant impervious area. This will encourage
sprawl in areas where a fee has not been imposed and where
sewer rates are lower. Business will be incented to move
further into counties, and tax bases will be lost in population
centers. This will have an overall negative impact to water
quality.
If this program is the model for the EPA's future
regulations of TMDLs across the county, we will witness the
hardships I described spread to the entire country. What
happens when the Mississippi River or the San Francisco Bay are
subjected to these standards? In effect, the settlement between
the Chesapeake Bay Foundation and the EPA is dictating the
future TMDL regulations across our country.
Regulatory agencies need to consider the funding
implications of their regulations on municipalities and not
continue to just assume that the cities or states can get their
funds for whatever they deem to regulate. A citizen of
Lynchburg recently sent me an e-mail that said, ``I did not ask
for the changes, nor did I get to vote on acceptance of the
stormwater changes placed on the City of Lynchburg. I
understand that there could be penalties for noncompliance with
the new stormwater regulations; nonetheless, I do not want to
increase my payments from my fixed income to my city to comply
with regulations that I didn't have the opportunity to vote
on.''
As our elected representatives, I respectfully urge you to
consider the imposed hardships that these regulations place on
our constituents and debate the policy based on its costs and
benefits.
In summary, I am a strong supporter of a healthy Bay. The
Chesapeake Bay and the James River on which I grew up are part
my heritage as a Virginian. The Bay is both a natural and
strategic asset of our country. Cleaning up the Bay is the
correct action to take; however, the science must be proven,
the timeframe realistic, and it cannot be such a sudden
financial impact to our citizens and our businesses.
Thank you, Mr. Chairman. I will await any questions you may
have.
[The prepared statement of Mr. Perrow follows:]

Prepared Statement Hon. Edgar J.T. Perrow, Jr., Ward IV Representative,
Lynchburg City Council, Lynchburg, VA

Good morning Mr. Chairman and Members of the Committee,

My name is Turner Perrow, and I am a member of Lynchburg City
Council. In addition to being on council, I am a licensed professional
engineer in the Commonwealth of Virginia. Therefore, I understand both
the engineering and the fiscal impacts of the Chesapeake Bay Total
Maximum Daily Load (TMDL) Final Report developed by the EPA.
I am very concerned about what our locality, and others, are being
compelled to do. It is estimated that the cost to Virginia communities
alone is over $10 billion. The schedule for the implementation of these
new TMDL regulations is arbitrary; no other TMDLs that we are aware of
have a fixed schedule, or are required to have a fixed schedule by the
Clean Water Act. Instead of establishing a realistic schedule based on
the ability to implement, the schedule is being driven purely by the
EPA's voluntary settlement of a lawsuit with the Chesapeake Bay
Foundation and others.
As a member of Virginia's Phase II Watershed Implementation Plan
Stakeholder's Advisory Group, we were told that the model, the
theoretical mathematical program used to predict pollutant loading, is
seriously flawed. On a macro scale, it is thought to be fairly accurate
in its ability to establish the overall loading reductions needed for
the Bay to meet Water Quality Standards. However, on a smaller scale
there are significant and validated concerns. In the recent 5.3.2 model
release, Lynchburg's load reduction goals have significantly increased
compared to the prior model version, while another community downstream
in the same river basin is shown to be able to increase its sediment
loadings by 350%. This obviously does not make sense, which calls into
question the overall validity of the model and creates significant
challenges for local governments to be able to plan and defend
investments needed to clean up the Bay. In October, the EPA basically
acknowledged in correspondence with the Bay states that the model does
not work at local scale. We are also pleased that EPA has recently
issued a memorandum offering flexibility for localities nationwide to
prioritize various Clean Water Act actions, although it is difficult to
see how this flexibility would apply in the Chesapeake Bay watershed
states given the magnitude and schedule of EPA's Chesapeake Bay TMDL
requirements.
The additional cost to be incurred due to the Bay TMDL Report
potentially includes a $70M wastewater treatment plant upgrade and an
estimated $110M capital investment in stormwater infrastructure.
Annually reoccurring costs of $12M are to be expected--a 4% increase of
our City's expenses, approximately $140 annually per household. Since
FY 2010, we have cut our budget by 11% and expect another 2% cut this
year. Our revenues have held steady, but our mandated fixed cost
continue to rise. As a result of this great recession our local
government has trimmed all the fat we can find in our budget, but this
year, we'll cut deeper. The added cost of the Bay TMDL Program cannot
be sustained in our budget.
The end result is that Lynchburg and other localities are being
forced to impose upon our citizens and our businesses a stormwater fee
to meet these demands. Should the $70M WWTP upgrade be necessary we
will have to increase our sewer rates which are already among the
highest in the state. This will hit our water dependent manufacturers
hard, as will the proposed storm water fees which correlate to
manufacturer's significant impervious area. This will encourage sprawl
to areas where a fee has not been imposed and where sewer rates are
lower. Business will be incented to move farther into counties, and tax
basis will be lost in population centers. This will have an overall
negative impact to water quality.
If this program is the model for the EPA's future regulations of
TMDLs across the county, we will witness the hardships I described
spread to the entire country. What happens when the Mississippi River
or the San Francisco Bay are subjected to these standards? In effect,
the settlement between the Chesapeake Bay Foundation and EPA is
dictating the future TMDL regulations across our country. Regulatory
agencies need to consider the funding implications of their regulations
on municipalities and not just assume that the cities or states can get
the funds for whatever they deem to regulate. A citizen of Lynchburg
recently sent me an e-mail that said, ``I didn't ask for the changes
nor did I get to vote on acceptance of the storm water changes placed
on the City of Lynchburg. I understand that there could be penalties
for non-compliance with the new storm water regulations; nonetheless, I
don't want to increase my payments from my fixed income to the City to
comply with regulations that I didn't have the opportunity to vote
on.'' As our elected representatives, I respectfully urge you to
consider the imposed hardships that these regulations place on our
constituents and debate the policy based on its costs and benefits.
In summary, I am a strong supporter of a healthy Bay. The
Chesapeake Bay and the James River, on which I grew up, are part my
heritage as a Virginian. The Bay is both a natural and strategic asset
of our country. Cleaning up the Bay is the correct action to take,
however, the science must be proven, the timeframe realistic, and it
cannot be such a sudden financial impact to our citizens and our
businesses.
Thank you.

The Chairman. Thank you, Councilman. I appreciate all the
testimony of all the witnesses on the second panel.
I want to start out my first questions for Secretary
Krancer. Secretary Krancer, are you aware of what the potential
cost of implementing the TMDL will be on Pennsylvania?
Mr. Krancer. I can't give you an exact number--billions. I
think I heard Virginia was $7 billion. Regretfully, as pointed
out earlier, there has been no cost-benefit analysis and even
if there is one from EPA, which is supposed to come out when? I
think I heard next year after the WIPs are submitted, which is
again cart before the horse. We would like to look at the cost-
benefit analysis that EPA does produce. I have seen substantial
debate about similar cost-benefit analyses that EPA has
produced with respect to its air regulations.
The Chairman. And I am assuming in a good year, billions of
dollars would be fairly crushing on the state budget. And
living in the Keystone State, I think Pennsylvania is like most
states today, difficult economic times.
Mr. Krancer. No question about it. Our governor, Governor
Corbett, just closed a $4.2 billion budget deficit that was
left for him in his first year. So correct, the economy is not
where we would like it to be, although in Pennsylvania with the
help of our newly discovered gas industry, we are going to be
doing better, but we need to do much better obviously.
The Chairman. Thank you.
Chairman Brubaker, first of all, in your testimony you had
identified I thought some--I had them marked here but I am not
finding it right now--four different aspects, innovation and
the other three, which I thought really were spot on in terms
of looking at addressing this. I wanted to address one of
those. And you had mentioned in your testimony as well about
the importance of numerical goals and my question is: given
some of the testimony we have heard and the discrepancy of some
specific communities in terms of variance with the current TMDL
model impacting those local communities, are you confident
given these reported discrepancies that the numerical goals,
the TMDLs that the EPA is putting out there at this point in
time are 100 percent accurate?
Mr. Brubaker. I can't speak to the level of accuracy. I
certainly, as the last witness concluded his testimony, am a
believer as I believe that we all want a clean Bay. The
question is, how do we best get there? And those points that
you referred to, first was promoting innovation, second was
coordinating energy and conservation programs, third was
supporting both cost-share and technical assistance, and fourth
is acknowledging states' specific programs and regulatory
issues.
So I do have concerns about how we are going to find the
dollars necessary. I believe some of the achievements that we
can make in the future are very much focused on innovation, so
we need to signal to the research and development communities
of this nation and the world that we are serious about bringing
new innovation into the Chesapeake Bay to help us reduce the
nitrogen and phosphorous and sediment.
The Chairman. And I do think all those things are
important, but I mean I can't help--I came out of healthcare
for 28 years. You don't jump to surgery before you have an
accurate diagnosis, and the TMDL model has some real accuracy
issues on a local level. I think that is just step one--or it
is not step one because we have been doing this for 30 years.
It is the next step. Let us make sure that model is accurate.
Mr. Shaffer, the EPA is facing some serious credibility
issues with inconsistencies in their modeling and decisions
continue using assumptions when readily available data exist.
What are your thoughts on ways that we could rebuild their
credibility in this process? Because in the end we do want a
clean Bay. There is no one in here that doesn't want a cleaner
Bay.
Mr. Shaffer. I think all of agriculture, especially across
Pennsylvania where I can speak for it, has proven that time and
time again that they want clean water going down to the Bay.
They want clean water for their families. And they have proven
that by all that we have accomplished voluntarily. And I want
to repeat that--voluntarily without any EPA mandates. What we
have accomplished so far and what we will continue to do,
farmers are great stewards of their land and they really have a
great pride in the job they are doing with conservation
practices. I think what is very important, how we are able to
accomplish this and one of the things the Senator just said, as
technology develops, we adopt it, we utilize it, we are able to
put it on the farm, put it on the ground to improve. And that
is the way we have this curve going in the right direction and
we will continue to do so.
The Chairman. Thank you. And my final question this round,
Mr. Perrow, you touched on the fact that EPA suggested that
this model and regulations of TMDLs would hopefully be used
across the country. I think that is an accurate portrayal. I
think this is why it should be important to every Member of
Congress. This is coming to a watershed near you in the future
and really the Chesapeake Bay is being used as a pilot. Do you
think that these standards are even attainable at this point?
Mr. Perrow. Thank you, Mr. Chairman.
The standards are attainable over time but the schedule
that is set, we can't meet the schedule. Earlier, as the
Administrator discussed, the EPA was trying to fine tune the
model. However, they are going to wait another year for that
and it won't be until 2017 until they revise it. Meanwhile, at
the local level, we have to implement these changes right away.
So we are making decisions, City Council, to set up a
stormwater utility and to implement these programs and fees
right now. So we can't wait for this.
Yes, it is attainable with time and with practical, proven
results, but not on the schedule that has been set.
The Chairman. So I mean my perception--and I want to see if
you agree with this--TMDLs where they serve as a vision and a
roadmap seem like they are pretty positive. They take us in the
right direction. But I don't think that is what my impression
what the EPA is doing with this. It is more being used as
punitive regulations at this point.
Despite the fact that I know the Administrator didn't call
them a regulation, I know one when I see one. Maybe it is not
termed that but----
Mr. Perrow. Yes, sir, I agree with your assessment.
Initially, the schedule is developed by what were the goals to
meet the Chesapeake Bay cleanup, just the goals to what
localities and the watershed was supposed to do. However, in
the settlement, it is my understanding that those goals became
the hard deadline. And whereas we are striving to meet those
goals, we are worried about actions being taken by the EPA such
as not renewing our wastewater treatment plant discharge permit
or MS4 permit, which come up for renewal here shortly. So that
is the mechanism by which they can enforce implementing these
arbitrary goals immediately, and that is what we are very
concerned about.
The Chairman. Thank you.
And I now recognize the Ranking Member for questioning.
Mr. Holden. Thank you, Mr. Chairman.
I apologize to you and to our witnesses. Ranking Member
Peterson called a meeting of the Minority Members so I had to
attend that and that is why I am by myself on this side.
But getting back to the onsite farm inspections. Secretary
Krancer and Mr. Shaffer, do you believe that the EPA has
authority under the Clean Water Act, Section 308?
Mr. Krancer. Well, Representative, I promised I would stop
practicing law after I got to this position in which now I have
lawyers, although it is a promise I break virtually daily if
not repeatedly during the day. They seem to think they have
that authority. Quite honestly, they seem to think recently
since I have been in office that they have a lot of authority
to do a lot of things. We are not sure in Pennsylvania where
that stops yet but we are working on it.
Mr. Holden. Mr. Shaffer, do you care to comment?
Mr. Shaffer. It is our read on the Clean Water Act they
absolutely do not have the authority to come on farms for
enforcement actions, and we have several high-level comments on
that that we feel we are absolutely right on that.
One of the most concerning things is in talking to the
Pennsylvania Department of Agriculture, EPA has requested for
GPS coordinates for every dairy farm in the Chesapeake Bay
watershed. Now, I am sure they don't want to add those people
to their Christmas card list, and so they have a plan of
enforcement, and they are just going to keep pulling forward
until they are stopped.
Mr. Holden. Secretary Krancer, you and the Administrator
had different observations of the relationship between the
Commonwealth and EPA as we move forward in this process, and
you referenced an October letter and he said we will have to
wait and see. Can you elaborate on the October letter, what was
expressed?
Mr. Krancer. Right, the October 5 letter--and that was a
topic of some of Administrator Garvin's testimony--talked about
how the EPA now, somewhat suddenly, views the model--at least
what they are saying they view the model. They are not viewing
it anymore as local as they had before. And quite honestly, it
had been months--I think I mentioned this--that we had been
trying to pound on EPA, get the message to EPA. We went to the
public, to the press both here and--or I should say in
Pennsylvania and in Virginia, and virtually within a week after
the media attention--because I guess you can't hide forever--
and I would also add the Congressional oversight. I think the
Congressional oversight, the questions you all have been asking
for months, the questions we have been asking for months, as I
said in my testimony, that persistence, that public attention
might be worthwhile, but I am cautiously optimistic on that.
As I say in my testimony, I am going to wait and see. We
are all going to have to wait and see whether EPA is merely
placating or whether they are serious or whether they are just
trying to do what we used to call in the ACC basketball area
some four corners.
Mr. Holden. Thank you, Mr. Secretary.
Mr. Shaffer, I know you have to be careful how much you can
say about the litigation, but could you tell us as much as you
possibly can? You know, what drove you to go that far? That is
a pretty extreme step that is going to cost your organization a
lot of money. Can you tell us as much as you can?
Mr. Shaffer. Let me first just say, Congressman, one reason
why we did do it that is not valid. We didn't do it to shirk
any responsibility of being good stewards of the land. So let
me make that very clear. We are going to continue working to
clean up the waters of Pennsylvania.
The reason we felt we had no other choice is because we
feel EPA is just basically violating the Clean Water Act, that
they don't have the authority to do what they are doing, and
unfortunately, this is the only way of dealing with it. And we
feel very strongly about it and where we are at right now, we
are on a timeline. We have entered a motion to complete the
record, and in doing so, we feel we don't have all the
information and documents we need from EPA to move forward. So
there is a delay in the summary judgment briefing right now
until that decision is made on our motion to complete the
record.
But that is where we are at right now, but like I said, I
want to once again reiterate it has nothing to do with our
responsibility as good stewards of the land. We are going to
continue to do that; we are going to continue to make the
strides we have made and move forward in the future. But we
feel that the violation of the Clean Water Act has major
ramifications for all of us down the road.
Mr. Holden. Thank you, Mr. Chairman.
The Chairman. I thank the gentleman. Now, I recognize Mr.
Goodlatte for questioning.
Mr. Goodlatte. Well, thank you.
And Mr. Shaffer, let me just add to what you just said in
response to Congressman Holden. We agree with your position. In
fact, the House of Representatives has voted to cut off the
funding not for programs that help farmers comply with existing
regulations, that keep cattle out of streams and so on, but
simply to cut off the funding for the implementation of this--
as Secretary Krancer has called it--cart-before-the-horse
effort on the part of the EPA. Unfortunately, so far the Senate
hasn't gone along with our efforts, but we will continue to try
to support your efforts in that regard.
Councilman Perrow, again, welcome. I am very familiar with
the situation in the City of Lynchburg and have, when possible,
attempted to help the city comply with the combined sewer
overflow problem that you have had. And for the past 17 years,
the city has been making significant upgrades to its storm and
wastewater system. In total, this investment will probably
reach a half a billion dollars for a city of 75,000 people. In
addition to this, you now have to make another $150 million,
possibly more, upgrade mandated by the TMDL. Can you explain to
the Committee what this means at a local level? As a
councilmember, what kind of priorities are you having to
balance for these costs? Unlike the Congress where we don't
have a balanced budget amendment to the United States
Constitution--which by the way both these gentlemen support--
the City of Lynchburg, like virtually every other city in the
country, has to balance its budget. So what are you looking at
when you are faced with $150 million add-on to what you are
already spending here?
Mr. Perrow. Thank you, Congressman. Our annual budget is
$306 million and so just as an example, we are looking at a $12
million reoccurring cost for stormwater alone. Our public bus
service costs $7 million. That is nearly double what our public
bus service costs.
As I pointed out earlier, we already have some of the
highest sewer rates in the state. The CSO program is driven out
of sewer fees under a consent order. We have to balance the
household median income with the sewer rates and set our sewer
rates that way and drive the program to completion. What has
startled me in working on this program initially, this CSO
program was initially budgeted to be a $200 million program,
and now we are 75 percent finished with it and it is still a
$200 million program and the total cost, as the Congressman
said, are expected to be half a billion. I see the exact same
problem potentially arising out of these stormwater
infrastructure that would have to go in place as part of the
TMDL report.
Now, another item in--excuse me if I am getting too
technical--it makes me scratch my head because maybe we,
instead of separating the sewers like we were directed to do
several years ago, we should have all left and combined and
treated the whole thing. It is very frustrating to me from a
local standpoint that it almost seems like we are going back
and having to rework a system that we thought we had fixed due
to the changing regulations. This is a significant impact to
our business and to our taxpayers in the City of Lynchburg. We
are getting a significant amount of pushback from our
constituents who just don't understand exactly why they need to
pay these increased fees and what good the fees are doing. So
it is very troubling for our city, sir.
Mr. Goodlatte. Thank you. In fact, because of those fees
that you are already mandated to gather and because of the
prospect of what you are facing here, you say that this has
particularly hurt some businesses. Is the city concerned about
the ability to attract new businesses to the city when some of
the localities near Lynchburg may not be in the Bay watershed
and don't have to live under the mandates of the TMDL?
Mr. Perrow. Yes, Congressman. As you are aware, Lynchburg
is an independent city, which makes us in the Commonwealth of
Virginia a little bit different. But we have to impose these
regulations based on the density of the City of Lynchburg, yet
a potential business could move a foot over the property line
and not be subjected to the same regulations that we are. We
are concerned about this because our primary driver in our
budget is on real estate taxes. And if more businesses or more
residents attempt to escape the fees and move outside the
city's limits, we are going to lose tax base. And if we lose
tax base, we lose the ability to offer the services that we
normally provide to our constituents and we become a failing
city. And that is something we cannot allow to happen. So yes,
sir, we are very concerned about the impact to our businesses
and the ability to attract and recruit new businesses to the
area.
Mr. Goodlatte. Thank you.
Thank you, Mr. Chairman.
The Chairman. I thank the gentleman.
Just to follow up with a few more questions.
Secretarty Krancer, I have heard in testimony, both written
and verbal, identifying the need for more technical assistance.
In fact, a term I use frequently and I read it somewhere within
the testimony--I don't know who to give a credit to; I will
have to go back and look--but I was pleased to see that term in
your boots on the ground. And I wanted to see in your testimony
you address what DEP has done to provide training to many
different target audiences, to have qualified technical
assistance out there to help folks to deal with these issues.
Can you expand on that a little bit of what DEP is doing?
Mr. Krancer. Well, sure. We work in partnership with our
Department of Agriculture and, quite honestly, our stakeholder
community, our ag community, municipality community, all the
other communities that are involved in this. And you have
really given me a good opportunity here to tell you and tell
the entire Congress what a great job our agricultural community
in Pennsylvania has done already over the past 10, 20 years,
the great job our municipality community has done, our
developer community has done.
We have done in Pennsylvania a ton of heavy lifting with
respect to the Bay over the past 5, 6, 10 years, and we are
going to continue to do all that. And we work very hard at
stakeholder outreach, at technical assistance outreach with
whatever resources we can garner. Obviously, now those
resources are somewhat not as available as they had been in the
past, but I don't want it to be ever said about Pennsylvania
that Pennsylvania is not already doing a tremendous job. And
that is part of the bone I had to pick with EPA is that we have
done all these things over the past few years and gotten little
credit for it just because of the mathematical construct they
are using. So in some cases we are having to start all over
again even though we have done a ton already. So I hope that
answers your question.
The Chairman. Thank you.
Chairman Brubaker, thank you for your service to Chesapeake
Bay, but obviously I also want to thank you for your service to
the Commonwealth of Pennsylvania and the Pennsylvania Senate.
It is great to have you there with the work that you do.
I think this really gives you a unique perspective process.
You know, assuming that the estimates that have been put forth
that pegged the cleanup for some of the states at more than $10
billion, given your leadership within the state legislature, if
you get a bill for $10 billion, what are your thoughts? What
does that mean to the Commonwealth of Pennsylvania?
Mr. Brubaker. Well, thank you, Mr. Chairman. You referred
to the boots on the ground comment. That was in the Chesapeake
Bay Commission's testimony that you received because we as a
commission do believe in technical assistance.
The Chairman. Right.
Mr. Brubaker. And I share Secretary Krancer and President
Shaffer's comments about what Pennsylvania farmers have done
over the last 20, 30, 40 years. I share pride with each of
these gentlemen in what Pennsylvania farmers have indeed
accomplished. Specifically on technical assistance also, the
Chesapeake Bay Commission believes a significant part of
technical assistance can go to the existing, unquestioned
regulatory compliance. As has been testified by a number of
people here prior, our farmers, our businesses in the
Commonwealth of Pennsylvania and the entire Chesapeake Bay
watershed want to comply. And our entire business community and
farm community is not in total compliance with every piece of
existing unquestioned regulatory state and/or Federal
regulatory issue. So at the Commission, we are attempting to
not get down in the weeds on TMDL versus tributary strategy,
but we certainly support aggressive technical assistance
working in partnership.
And another thing we have in Pennsylvania that makes a
significant difference as a very, very cost-effective partner
is the Conservation Districts. So we don't have the money
inside of our state budget. We do not have a reserve to pay
that bill, so therefore, we believe in partnerships, technical
assistance, and innovation.
The Chairman. And you are talking about cost-effective
approaches, but if the Commonwealth of Pennsylvania is faced
with a $10 billion bill and that mandate materializes, that is
what occurs, what would have to happen in Pennsylvania to be
able to pay that bill, to fund those mandated initiatives?
Mr. Brubaker. The General Assembly a few years ago put on a
referendum, a ballot, an H2O Initiative, ask our taxpayers if
they wanted us to do some bonding to secure some additional
dollars to put into our local communities like the local
community that has been testifying here. So when a local
community gets a mandate the sewer water plant needs to be
upgraded, many times the only way that they have to pay for
that is to distribute that among their users. They are not able
to do that. So we put it on a referendum and it passed
overwhelmingly that our taxpayers at that time, a few years
ago, wanted to have a few hundred million dollars to send to
our local communities to help them with some of these
regulatory mandates that they were facing.
The Chairman. And I always appreciate that kind of giving
the citizens that voice and that choice. Unfortunately, EPA
TMDLs are not giving anyone a choice. I don't think that would
be an option because if a mandate comes, it is going to have to
be paid.
Mr. Shaffer, there are a lot of--and I don't want to get
too deep into the lawsuit--but a lot of press releases from
other associations and environmental groups saying that the
Farm Bureau filed a suit against EPA to stop water quality
improvements, and it was all about giving farmers a free pass.
Just wanted to get your response to that accusation.
Mr. Shaffer. That definitely raises the hair on the back of
my neck when I hear that because it is the furthest thing from
the truth. I think once again the farmers in Pennsylvania,
probably throughout the watershed, have proved this isn't the
case by all the things they voluntarily already have done,
spent millions of dollars on new technology, adapted it, put it
on the farms without EPA's foot on their head to make them do
it. They have done it voluntarily.
I think what you have heard today goes back to what the
lawsuit is really about. When I say they violated the Clean
Water Act, the Clean Water Act provides that the states should
take care of the waters in their state, and they are the best
ones to do that. When there is a goal of conservation, an
environmental problem to fix, we work with our state agencies
to devise the best way to go about fixing that because every
state, the type of agriculture is different, the topography is
different. So one-size-fits-all solution is definitely not the
answer. I can say that is one of the reasons for the lawsuit is
to make sure that we continue doing the work we have done
within the state and devise a solution to any problem that
arises.
The Chairman. Well, I want to thank the panel for coming,
for testifying, for bringing your experience from many varied
perspectives on these very important issues.
Before we adjourn, I want to invite the Ranking Member to
make any closing remarks he has.
Mr. Holden. I want to thank our witnesses for being here
today, and thank you for having the hearing, Mr. Chairman.
The Chairman. All right. I thank the Ranking Member. I
thank all Members for participating.
You know, we know there is a problem. You know, this is a
long-standing problem. The quality of the water in the
Chesapeake Bay, this is an initiative that is not new. It has
been going on for 30 years, and we have made great progress and
from all aspects. But I certainly have questions. I still have
questions even coming out of this second hearing. I have
questions about a model that is flawed at the local level. You
know, I take the EPA's opinion that certainly at a river basin
level it works, but frankly, we institute these costly mandates
on local communities, on local farmers, you have to get a good
diagnosis before you decide which part of the body to operate
on. And they haven't done that yet. I think that they are
showing some will to look at it, but they are still moving
ahead with these timelines. That is my other concern. They are
rushing a timeline and a fixed schedule here.
And finally, it is a matter of jurisdiction. Whether it is
regulation or not regulation, I happen to think they are
regulations. It looks like, smells like, tastes like
regulations, I think it is--from the EPA versus a state
responsibility. I mean we have in the short time I have been in
Congress--this is just about the end of my third year--I see a
lot of blurring of the lines of who is responsible for what.
And this is maybe one of the most glaring missteps. The states
took it upon themselves to come together and work together, to
pool their resources with this commission.
And so those are just some of the questions I certainly
have. But I want to thank everybody for coming today. I know we
are going to continue to provide oversight on this, and I
suspect we will have a future hearing or two as well,
especially after the EPA provides us those--it looks like next
spring they promised a cost-benefit analysis, and it would be a
good opportunity to be able to walk through that within a week
or so after that is published and we receive it.
And so under the rules of the Committee, the record for
today's hearing will remain open for 10 calendar days to
receive additional material and supplementary written responses
from witnesses to any questions posed by a Member.
This hearing of the Subcommittee on Conservation, Energy,
and Forestry is adjourned.
[Whereupon, at 11:54 a.m., the Subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]

Letter Submitted by Hon. Glenn Thompson, a Representative in Congress
from Pennsylvania
September 28, 2011

Hon. Shawn M. Garvin,
Regional Administrator,
U.S. Environmental Protection Agency,
Philadelphia, PA

Dear Mr. Garvin:

The purpose of this letter is to follow-up on our discussions
concerning the reduced accuracy of the Phase 5.3.2 Watershed Model.
Virginia's concerns echo those you received last July from the
Commonwealth of Pennsylvania.
Virginia remains committed to do our share of the watershed wide
effort to restore the Chesapeake Bay. We will continue to implement
practices that reduce nutrient and sediment pollution as outlined in
the Virginia Watershed Implementation Plan and will dedicated millions
of dollars to the effort this year. Unfortunately, as explained below,
we have discovered that the model contains inexplicable inaccuracies
that must be corrected. The current watershed model is undermining the
credibility of our collective efforts. Virginia proposes several
adjustments to the current process so the clean-up efforts can stay on
track and continue moving forward.
Virginia has significant concerns with several aspects of the Phase
5.3.2 Watershed Model. As explained in our presentation to you on
September 16th (see attached), the most notable problem exists with the
lack of adequate nutrient reduction credit applied to nutrient
management plans. This is a problem not only in Virginia but covers
numerous counties across the entire Bay watershed as illustrated on
slide 4 in the presentation. This serious shortcoming alone renders one
of our most effective and commonly used BMPs useless in meeting
nutrient reduction goals.
We have found that the model, as currently constructed, is not
appropriate for use in assigning loads in permits, developing local
load targets, or measuring reduction progress. It is especially not
appropriate for imposing any consequences. Attempting to use the model
in these ways negatively impacts our planning for the Phase II WIP,
along with the credibility of the EPA, and of most concern, exposes
Virginia to potential litigation. We ask for your help to resolve these
matters through what we believe are reasonable steps.
We are aware that modeling of a watershed as large and complex as
the Chesapeake Bay is a monumental task. The current model may be an
adequate tool for predicting overall pollution loadings on a watershed
basis. However, as we demonstrated in our discussion and presentation
on September 16th, and the Maryland presentation sent by Jim Edwards on
September 12, when used on a local government level outrageous
anomalies occur in the model that are inconsistent with current
scientific knowledge.
As a consequence of these discussions, we have developed the
attached ``Path Forward'' document that outlines needed changes and
adjusts the schedule. A commitment from EPA to correct these concerns
is needed as a precursor to continued Phase II WIP planning efforts.
It is clear that the model, as currently constructed, is not
capable of producing meaningful, realistic loading targets for use at
the local level and that our time is better spent working with local
governments on implementation of the suite of practices described in
our Phase I WIP or equivalent measures. Our modified approach to meet
our commitments for Phase II and the 2012-2013 Milestones is also
described in the attached ``Path Forward'' document.
Virginia is ready to move forward with the Phase II planning
process and development of milestones. However, recognition from EPA of
the current problems and limitations of the model, along with a
commitment to work together to address them will be key to our success.
I look forward to further discussions on our proposed path forward.
Sincerely,

Doug Domenech.

CC:

Jeff Corbin, Senior Advisor to the Administrator for Chesapeake Bay and
Anacostia River;
Jim Edwards, Deputy Director, Chesapeake Bay Program.

ATTACHMENT 1

Path Forward
Proposed Approach for Phase II WIP Development
9/21/11
Three-Track Approach to Implement Phase I WIPs and develop Phase II
WIPs

Overview:

The Chesapeake Bay jurisdictions have expressed serious
concerns about using 5.3.2 watershed model output for
localities nutrient and sediment reduction targets under the
framework ofthe Chesapeake Bay TMDL and the approved Phase I
Watershed Implementation Plans (WIP).

While useful as a planning and evaluation tool at the
watershed scale, the model was not constructed for use at the
local scale and its output raises serious questions and
concerns among state agencies and our local partners.

Anomalies present in the output are difficult to explain and
in many ways do not represent the ``real world'' of local
watershed management and water quality planning and
implementation.

In order to ensure that these identified issues do not
divert attention from the more important task of implementation
of the Phase I WIPs and meeting associated TMDL targets, the
following approach is proposed that would result in model
revisions and ongoing implementation using Phase I WIP
practices as the basis for the Phase II WIPs.

The following tracks are proposed to take place simultaneously:

Track 1

EPA continues to work on correcting identified model issues so that
it can be used with greater confidence in setting local (sub-segment
shed) target loads for N, P and S. The following steps are recommended:

Holistic review of the following issues:

How to model Agricultural Nutrient Management
(efficiency or Land Use Change)

Calculation of nutrient rates on acres not under
nutrient management

Load reductions associated with application of
nutrient management plans

Changes in manure routing preferences through time

Amount and nutrient content of poultry manure

Biosolids application (include all states or exclude
all states)

Regional factors due to Phase 5.3.2. Watershed Model
calibration

Submitted versus credited BMPs

BMP stacking (Urban and Continuous No-till)

Modify Scenario Builder code

Test Model to determine if modifications produce expected
results

Re-calibrate watershed model

Run scenarios

Review outputs to evaluate other concerns and check for
unintended consequences

Upon agreement by EPA and the jurisdictions, use refined
model to establish loading targets at the local level.

Track 2

States develop Phase II WIPs based upon the existing practices
identified in the Phase I WIP/TMDL input deck and submit these interim
plans to EPA by June 1, 2012. These plans will focus on achieving the
2017 goals.

Continue current local engagement efforts to collect
improved land use, BMP implementation and local implementation
strategies as the Phase II WIP is developed. Local engagement
efforts will shift focus from meeting local target loads to
maintaining implementation levels consistent with the Phase I
WIPs.

The Phase II WIP would provide a mix of BMPs at the segment-
shed level.

States refine the interim BMP targets once the model is
deemed sufficient to assign target loads and corresponding
levels of BMP implementation needed at the local level as part
of the next milestone cycle or the Phase Ill WIP development.

Track 3

States develop 2012-2013 Milestone implementation actions and
strategies and submit these plans to EPA in accordance with the current
schedule.
attachment 2

______

Supplementary Material Submitted by EPA

During the November 3 hearing entitled, Hearing To Review the
Chesapeake Bay TMDL, Agricultural Conservation Practices, and Their
Implications on National WatershedsHearing To Review the Implementation
of Phase II of the Chesapeake Bay TMDL Watershed Implementation Plans
and Their Impacts on Rural Communities, requests for information were
made to EPA. The following are their information submissions for the
record.
Insert 1
Mr. Owens. And finally, when you do your cost-benefit
analysis, are you taking into account the increase in cost to
the consumer for production of food in the ag community that
arises out of increased regulation?
Mr. Garvin. I will have to get back to you on that,
Congressman. I am not sure all the factors that are going into
the analysis, but we can make that available to you and to the
chair and the Subcommittee.
Mr. Owens. If it is not included, would the EPA consider
including that as a factor?
Mr. Garvin. Well, I will go back and have a conversation and
figure out what is being included and what is not and we will
get back to you.

EPA's TMDL cost study, is intended to assess the costs of pollution
controls and associated administrative actions identified in the
Chesapeake Bay jurisdictions' Watershed Implementation Plans (WIPs),
with many of these actions being the same conservation practices that
Bay region farmers have implemented over the years, often with
financial assistance from state and Federal programs. Moreover, the
TMDL includes provisions for innovative approaches, including nutrient
credit offsets and trading, that provide economic opportunities for
agricultural interests that adopt practices to reduce nutrient
discharges to the Chesapeake Bay and its tributaries.
There are a number of challenging complications to assessing any
changes in the cost to the consumer that could be directly attributed
to specific actions in the Bay including the interstate distribution of
food, the percentage of food prices that can be attributed to changes
in production practices, the broader impacts of the major influences on
supply, demand, and price for food products in domestic and
international markets among a wide range of additional factors.
Separate from EPA's cost analysis; we understand there are other
organizations examining the impacts of the Chesapeake Bay TMDL on food
prices to consumers. EPA will stay abreast of their findings.
Insert 2
Mr. Gibbs.--especially making a determination of non-point is
a lot more challenging as you know. And my experience in the
past, you have in different streams different flow rates,
weather conditions, rainfall that can impact it. And I know in
my area in the past years we had an issue with the EPA at one
time. They were doing what I call drive-by evaluations,
windshield drive-bys and weren't getting the right data. And so
I guess being an outsider of the Chesapeake, that is when I
would question and make sure that the monitoring process to
develop the model makes sense.
And the second part of that, in my one watershed we had been
involved for about 10 years of a nutrient trading program----
Mr. Garvin. Yes.
Mr. Gibbs.--and how that has been so successful, they have
lowered the load into that watershed working with a cheese
manufacturer and working with those local farmers around there,
and it has been real successful and kept the jobs and the
economic growth. Are there any type programs like that going on
in this watershed?
Mr. Garvin. Yes, Congressman. The TMDL actually had a
section, an appendix that dealt with a placeholder for trading.
A number of the states came in with their state strategies that
relied--in varying degrees on trading. What we have been doing
with the states currently is we have been meeting with them,
discussing what trading programs they do or they don't have,
getting a better sense of what they are. One of the issues is
making sure that when we are doing trading we are not double
counting, when we are doing trading that there is a common
exchange rate so that we are talking apples and apples when we
are looking at numbers. And so we have been working close with
the states on that, and I am hoping in the next couple of
weeks--and we will share this with the Subcommittee--that we
will be providing some feedback to the states on that review.

EPA is working with each of the Bay jurisdictions on the
development and implementation of effective trading and offset programs
that meet the basic requirements described in Section 10 and Appendix S
of the Bay TMDL. As a first step, EPA has undertaken a review of
existing offset and trading programs. Program reviews included
assessments of basic principles such as: trading ``baselines'' (i.e.,
what pollutant reductions are eligible to generate credits for offsets
and trading); ``quantification'' methods (i.e., how much credit is
generated by implementation of specific best management practices); and
``certification/verification'' requirements (i.e., how the
implementation and proper maintenance of best management practices are
monitored to ensure that reductions being sold as offsets or credits
are actually being achieved).
As part of the review process, EPA and the jurisdictions have had a
series of constructive meetings and calls at the end of 2011 and at the
start of 2012. EPA intends to finalize trading program assessment
reports for each jurisdiction by the end of March 2012. The
observations in the assessment reports will inform the ongoing
development of each jurisdiction's offset and trading program, a key
component of the Phase II Watershed Implementation Plans.
______

Submitted Questions

Letter and Response from U.S. Environmental Protection Agency
October 28, 2011

Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry,
House Committee on Agriculture,
Washington, D.C.

Dear Chairman Thompson:

Enclosed are responses to questions for the record following the
November 3, 2011 Subcommittee hearing to review the Implementation of
Phase II of the Chesapeake Bay Total Maximum Daily Load (TMDL)
Watershed Implementation Plans and their impacts on rural communities.
If you have any further questions, please contact me, or your staff
may contact Greg Spraul in my office at [Redacted].
Sincerely,

Laura Vaught,
Deputy Associate Administrator for Congressional Affairs.
Questions Submitted By Hon. Glenn Thompson, a Representative in
Congress from Pennsylvania
Question 1. When will the Cost-Benefit Analysis for the Chesapeake
Bay TMDL be completed? Will EPA make any changes to the TMDL based on
the results of the analysis?
Answer. The EPA's Chesapeake Bay Program Office and National Center
for Environmental Economics are scheduled to complete their initial
analyses of costs and benefits by the end of 2012. More complete and
final analysis is expected to be completed by the summer of 2013. The
analysis will incorporate the final Phase II Watershed Implementation
Plans (WIPs). The Chesapeake Bay TMDL establishes the amount of
nutrients and sediment the Chesapeake Bay can receive and still meet
state-established water quality standards. The cost-benefit analysis
being conducted by the EPA will not change the TMDL's science-based
assessment of the Bay's pollution capacity. However, when complete, the
analysis will provide insights as to the costs and benefits of
implementing practices to achieve the TMDL pollution allocations and
will help inform continued implementation of the Bay TMDL by the EPA,
states, and other partners.

Question 2. Can you explain why EPA does not consider the
Chesapeake Bay TMDL a regulation? What criteria do you use to evaluate
what the agency considers a regulation?
Answer. The Chesapeake Bay TMDL is not a regulation. TMDLs,
including the Bay TMDLs, are not self-implementing or enforceable and
do not by themselves require or prohibit any actions. A TMDL sets a
pollutant reduction target or goal to be implemented through various
other regulatory and non-regulatory programs as appropriate, including
the National Pollutant Discharge Elimination System (NPDES) permit
program.\1\
---------------------------------------------------------------------------
\1\ Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th Cir. 2002).
---------------------------------------------------------------------------
Section 303(d) of the Clean Water Act (CWA) requires states and the
District of Columbia to ``establish'' lists of impaired waters that
fail to meet state-established water quality standards and to
``establish'' TMDLs for those listed water bodies ``at a level
necessary to implement the applicable water quality standards.'' In
Section 303(d), Congress did not call TMDLs ``rules'' or
``regulations'' or say that the states or the EPA must ``promulgate''
TMDLs through rulemaking (as Congress explicitly did for water quality
standards in Section 303(c)(4) of the CWA).
The EPA has adopted implementing regulations for Section 303(d) of
the CWA that further describe the characteristics of, and the process
to, establish a TMDL. See generally 40 CFR Part 130; 40 CFR 130.2
(definition of a TMDL); 40 CFR 130.7 (process to establish TMDLs).
Those implementing regulations also do not specify that TMDLs are to be
established by either states or the EPA through rulemaking. Even though
the Bay TMDL is not a ``rule,'' the EPA did provide opportunity for
public input into its establishment.
Questions Submitted By Hon. Tim Holden, a Representative in Congress
from Pennsylvania
Question 1. EPA keeps saying that the Chesapeake Bay TMDL has been
a collaborative process, but the states are telling us that EPA has
been very heavy-handed and top-down. These cartoons (Mr. Whiskers and
Ball & Chain) were part of a presentations on the Chesapeake Bay TMDL
that were given by Jeff Corbin in 2010, when he was your Chesapeake Bay
advisor. Do you think that reflects an accurate representation of your
relationship with the states?
Answer. No, the cartoons do not represent the EPA's relationship
with the states and they were not used to reflect that relationship.
The EPA believes the states will produce effective Phase II WIPs to
meet their TMDL targets to improve local waters and the Chesapeake Bay.

Question 2. It is my understanding that West Virginia was the only
Bay state to be considered deficient for the Phase I WIPs. What
backstop measures did EPA implement in this state given this deficiency
status?
Answer. West Virginia was not the only state to have backstop
measures in the final TMDL.
The EPA established backstop allocations that assumed further
limitations in pollution from significant wastewater treatment plants
in New York because New York's Phase I WIP did not demonstrate
sufficient pollutant reductions. The EPA established backstop
adjustments to stormwater loads in Pennsylvania and agricultural loads
in West Virginia because the Phase I WIPs did not demonstrate
sufficient reasonable assurance that load reductions in these states
and sectors would be achieved and maintained.
Finally, the EPA identified the following states and sectors as
requiring enhanced oversight:

Pennsylvania agriculture and wastewater;

Virginia stormwater; and

West Virginia stormwater and wastewater.

For West Virginia, the EPA applied a backstop adjustment to
agriculture allocations because the Final Phase I WIP lacked:

Detailed strategies for how the state was going to ramp up
voluntary, incentive-based conservation to levels necessary to
meet TMDL allocations.

Strong contingency plans such as new policies, programs, or
mandates in the event that voluntary approaches are not
sufficient to meet reduction goals.

The EPA is in the process of reviewing West Virginia's
demonstration of near-term progress implementing the agricultural
section of its WIP, including Concentrated Animal Feeding Operation
(CAFO) Program authorization and permit applications and issuance.
Based on review of West Virginia's Phase II WIP submittal, the EPA will
assess whether this backstop adjustment for agriculture can be removed
or reduced.

Question 3. What specifically have you been doing to increase your
dialogue and better communicate with the agriculture community?
Answer. The EPA conducted an extensive outreach campaign throughout
the development of the TMDL, including outreach to the agriculture
community (see Attachment 1). The EPA consulted with the agricultural
community through three primary forums: (1) stakeholder meetings on
TMDL development during the fall of 2009 through fall of 2010; (2)
formal and informal discussions with each jurisdiction's department of
agriculture during WIP development; and (3) discussions with
agricultural groups on the TMDL and modeling efforts through industry-
specific meetings and Chesapeake Bay Program Agriculture Workgroup
discussions.
For Phase II WIP development, we have participated in all meetings
where states have requested our presence. For example, Pennsylvania
recently completed eight county workshops. The EPA, and/or University
of Maryland staff employed at the Chesapeake Bay Program, were present
at every workshop at the state's request. Also at the request of the
states and the Chesapeake Bay Commission, the EPA held five Scenario
Builder workshops and nine trainings for the Chesapeake Assessment and
Scenario Tool (CAST) between August and October 2011 in order to help
the states and stakeholders better understand and use the Chesapeake
Bay Program modeling tools. As noted in the next question, the EPA also
has been involved in a number of discussions, along with USDA, state
officials, and agriculture stakeholders to explore the option of state
agricultural certainty programs.
Last summer, EPA Administrator Lisa Jackson, other senior EPA
staff, and I spent a day in Lancaster County, Pennsylvania where we
toured a dairy farm and participated in a roundtable discussion with
members of the agriculture community. We met with local farmers and saw
the innovative practices being implemented by the agriculture community
benefiting both farm operations and local water quality. These kinds of
interactions are very useful and we will continue to rely upon them as
a key way of hearing from the agriculture community.
In addition, as discussed below in response to Question 6, the EPA
and USDA have been collaborating for well over a decade on agriculture
issues and are continuing to collaborate on our respective modeling
efforts.

Question 4. In your testimony you mention the development of
agricultural certainty programs and this is a concept that we have been
exploring as an option for producers as well. How do you envision an
agriculture certainty program working? What do you see as the Federal
role in the development of this type of program?
Answer. The EPA has been involved in a number of discussions, along
with USDA, state officials, and agriculture stakeholders to explore the
option of state agricultural certainty programs. In December 2010, the
EPA and USDA sent a joint letter to the state agriculture secretaries
and environment secretaries to confirm interest and communicate agency
support for developing state certainty programs (see Attachment 2).
Most recently on October 6, EPA senior officials joined more than 40
representatives from USDA and the Chesapeake Bay watershed states to
discuss key elements and principles of an agriculture certainty program
in the Chesapeake Bay region. A follow up meeting with agriculture and
environmental groups was held November 7.
We believe that such certainty programs are best carried out by the
states and we have offered our support to states in the Bay region and
other parts of the country as they think through the development of
these programs. Although Virginia already has enabling legislation and
is promulgating regulations related to such programs, other states are
still in the very early stages of possible program development.

Question 5. The 2011 milestones under the Bay TMDL identified
funding resources anticipated for the total Bay watershed ($2.4B) and
each jurisdiction (for example, $1.2B for Virginia, $774 million for
Maryland, $67 million for PA) to achieve initial nitrogen and
phosphorus load reductions. Has actual funding matched what was
projected? If not, what shortfalls have occurred? How are any funding
shortfalls affecting implementation and development of the Phase II
WIPs?
Answer. In their 2009-2011 milestones,\2\ the Chesapeake Bay
watershed jurisdictions projected that they would spend a total of
$2.36 billion between 2009 and 2011 to reduce nitrogen and phosphorus.
In 2009, the jurisdictions reported that they had committed a total of
$669.6 million.\3\ In 2010, the jurisdictions reported that they had
committed a total of $761.9 million, a 14 percent increase over 2009.
The funding for these 2 years totaled $1.43 billion, or 61 percent of
the total identified in the milestones. The jurisdictions would need to
provide an additional $930 million, representing a 22 percent increase
over 2010, to meet the commitments identified in their 2009-2011
milestones. In June 2010, the jurisdictions reported to the Chesapeake
Bay Executive Council that they were generally on track to implement
pollution control practices necessary to achieve load reduction
commitments and thereby meet the commitments identified in the 2009-
2011 milestones. In instances in which the jurisdictions were behind,
the jurisdictions were implementing contingency actions.
---------------------------------------------------------------------------
\2\ http://archive.chesapeakebay.net/pressrelease/
EC_2009_allmilestones.pdf.
\3\ See ChesapeakeStat at: http://stat.chesapeakebay.net/?q=node/
130&quicktabs_10=0.

Question 6. Following the release of USDA's CEAP report in March
2011, EPA announced that it would be working with USDA to evaluate the
CEAP model results for possible collaboration and incorporation into
the Chesapeake Bay Program Model. What information from the CEAP report
was incorporated and what was not? Are the two agencies still
coordinating on data? If so, how?
Answer. Yes, the EPA and USDA are coordinating on model input data.
We are committed to strong partnerships and collaboration with states
not only to support the data collaboration effort but to continue to
coordinate financial resources to support conservation practices in the
Bay watershed. We see opportunities for continued collaboration, as
detailed in the June USDA/EPA joint Chesapeake Conservation Data
Collaboration workplan (see Attachment 3). The EPA and USDA believe
that maintaining agriculture's viability is essential to sustaining
ecosystems in the Chesapeake Bay basin.
Despite being built for two different efforts, the Chesapeake Bay
Program (CBP) Watershed Model and the CEAP cropland model provide
consistent results regarding the relative nutrient loads from
agricultural lands at the large basin scale and the additional
management actions that are needed. Although the CEAP cropland model is
not a TMDL model, it provides valuable information that will help
enrich the CBP Watershed Model.
NRCS data (and USDA Farm Service Agency data) from 2004-2011 are
being incorporated into the CBP Watershed Model via the data-sharing
agreement that USDA forged with the U.S. Geological Survey (USGS). USGS
is currently aggregating the data to a scale that complies with farm
bill confidentiality provisions and working with USDA and the states to
ensure protocols are in place for removing any duplicate records. By
the end of February 2012, USGS will deliver to the EPA a list of
reportable NRCS/FSA practices at the county level.
The CEAP cropland report contained a wealth of valuable information
related to conservation practice implementation and effectiveness on
cropland; however it is not the type of information that can be
directly incorporated into the CBP Watershed Model. Rather, the data
used to develop the CEAP cropland model and the findings on
conservation practice effectiveness across different landscapes can be
integrated with existing data. To this end, USDA and the EPA plan to
refine and increase the level of data available for understanding
conservation practices implemented by farmers in the Chesapeake Bay
region--both those with state or Federal cost-share assistance and
those funded solely by farmers.
We have agreed to work toward standardizing data sets used in the
modeling. We have also agreed to ensure that nutrient and sediment
reductions from agricultural conservation practices are accurately
credited--both those currently in use and future, new and innovative
practices. The joint workplan (see Attachment 3) represents a
commitment by the EPA and USDA to ensure that the latest science is
used to inform these modeling efforts. This workplan was sent to
Chairman Thompson in June 2011.

Question 7. In December 2010, the Chesapeake Bay Program's
Scientific and Technical Advisory Committee (STAC) told EPA that it
``not been responsive to important issues raised in previous reviews''
of the model by STAC and that ``this is an unacceptable pattern and
inconsistent with the U.S. EPA Peer Review Handbook.'' EPA ignored
State partners, their own advisory group, and other stakeholders when
they all sent warning signs that the models were based on incomplete
and inaccurate information. Why did you ignore the advice of your own
peers and others?
Answer. The EPA disagrees that the Chesapeake Bay Program ``ignored
the advice'' of STAC and others in the scientific community. The
Chesapeake Bay Program has a long history of seeking and following the
assessments and recommendations of specific and general criticisms from
the scientific community. The EPA and the Chesapeake Bay Program
partners considered STAC's findings and addressed them in the final Bay
TMDL and the development of the jurisdictions' Watershed Implementation
Plans.
Furthermore, the quotes referenced in this question are out of
context. They are from a 2010 STAC report on a Partnership-requested
independent review of just one component of the Partnership's
Chesapeake Bay Land Change Model (one of the suite of six models and
tools used by the Partnership in its shared decision making). The STAC
sponsored review was ``an urgent, short turn-around peer review of
certain critical land use and land cover inputs to the Phase 5 Bay-wide
watershed model.'' The quote, ``this is an unacceptable pattern and
inconsistent with the U.S. EPA Peer Review Handbook'' was specifically
in reference to the short review period; it was not directed at the
full suite of models nor at the 2 decade history of peer reviews. The
quote simply reflects the STAC review panel's frustration at the
limited amount of time for their review and a lack of documentation on
responses to a previously completed STAC review of the overall Land
Change Model. STAC's overall assessment was actually very positive:

``Overall, the reviewers were impressed by the technical
quality of the work. They recognized that the Chesapeake Bay
Program has confronted challenging conceptual and technical
issues and appropriately applied state of the art approaches.''

Question 8. In your October 5, 2011 letter to the Bay jurisdictions
you said that states no longer need to develop local area allocations
in their Phase II WIPs. But in an EPA question and answer document
dated October 17, 2011 continues to threaten Federal actions against
states:

EPA has full discretion to determine whether Federal actions
are appropriate based on the degree to which reduction goals
are missed, the reasons why, and additional actions that
jurisdictions are taking to ensure that load reductions will
remain on track to meet the Partnership's goal of all practices
in place by 2025 to meet applicable water quality standards.
EPA has already demonstrated this discretionary authority when
deciding whether to establish backstop allocations and
adjustments in the Chesapeake Bay TMDL.

Why do you keep changing your expectations of the states given the
flaws in your model? Even the NAS, in a review of plans to implement
the TMDL, has said: ``Based on the information provided, the overall
accounting of BMPs in the Bay watershed cannot be viewed as accurate.''
Answer. The EPA's expectations for the states have not changed. The
EPA never intended (for EPA or the jurisdictions) to establish local
level TMDL allocations. The purpose of local area pollution reduction
targets--which are not smaller scale TMDL allocations--has always been
to help conservation districts, local governments, planning
commissions, utilities, and others clearly understand their
contribution toward meeting the Chesapeake Bay TMDL larger basin scale
allocations. The EPA still expects Bay jurisdictions to work with their
local partners to develop local area pollution reduction targets in the
Phase II WIPs in accordance with the guidance explained below.
The October 5, 2011, letter put the modeling tools in the
appropriate context. The letter was in response to the Bay
jurisdictions' stated concerns with assigning local area targets in
terms of pounds of pollutant reductions by county, given the questions
they had about model results at the county scale. Specifically, the
letter provides flexibility for how states choose to explain local
contributions to meeting the Bay TMDL allocations and implementing the
states' WIPs. The EPA is not requiring that local efforts be expressed
as pounds reduced. They may now be explained in terms of implementation
levels or planning actions. The EPA has offered to help the states
develop and refine their methods.
This letter also does not mean or imply that the model is
``flawed.'' The model is just one tool for assessing and evaluating
WIPs and milestones. The EPA remains confident in the model and its
ability to inform our decisions to implement the strategies developed
by the states, through the TMDL process, to meet water quality
standards in the Bay.

Question 8a. Do you think moving the goal posts is an accurate or
good way to proceed? Given these facts, what is the basis for your
threats?
Answer. We do not agree that the EPA is moving the ``goal posts''
for Chesapeake Bay restoration. In fact, the goal posts have generally
been in the same place for the last fifteen years. The water quality
restoration goals for Chesapeake Bay--now embodied in Delaware, the
District of Columbia, Maryland, and Virginia's state water quality
standards--are still the levels of dissolved oxygen, depth of water
clarity, acres of underwater Bay grasses, and amount of algae our
scientists established more than a decade ago as needed to support a
healthy Bay ecosystem. The major river basin by jurisdiction load
reduction targets established in 1997 and refined in 2003, and the
level of effort to meet those targets as defined in the states'
tributary strategies, have changed very little when compared to the
2010 Bay TMDL and the on-the-ground actions necessary to meet the Phase
II WIP planning targets.
Every 2 years, we will assess milestone commitments and annual
implementation progress to assess whether states are on pace to have
60% of practices in place by 2017 and 100% of practices in place by
2025. However, the EPA has quarterly calls with the states to track
success and work through issues before they fall behind. Using a common
sense approach, a determination of Federal actions, if necessary, to
close any potential gap, will consider many factors, including the
degree to which reduction goals are missed, the reasons why, and any
additional actions the jurisdiction is taking to ensure they are on
track to meet the 2017 and 2025 deadlines.

Question 9. The Final TMDL requires farmers in Pennsylvania to
increase the use of nutrient management from 47% of farms to 85% of
farms. In Virginia, nutrient management is supposed to increase from
35% to 86%. In New York, nutrient management is supposed to go from 18%
to 62% of farms. But, your baseline numbers in your TMDL are wrong and
farmers in Pennsylvania, Virginia, and New York are already achieving
high levels of nutrient management.
Similarly, the Final TMDL requires farmers in Pennsylvania to
increase the use of conservation tillage from 46% to 95%, from 58% to
90% in Virginia, and from 7% to 40% in New York. Again, your baseline
numbers in the TMDL are wrong and according to USDA about 88% of
cropland in the watershed is already subject to conservation tillage.
Answer. The Bay TMDL is not self-implementing and does not by
itself require or prohibit any actions. A TMDL sets a pollutant
reduction target or goal to be implemented through various other
regulatory and non-regulatory programs. The TMDL does not create any
Federal authority over activities that are not otherwise regulated.
The numbers included in this question come from Appendix V of the
Bay TMDL and are based completely on numbers reported by Pennsylvania,
Virginia, and New York. Those implementation percentages represent
actions that jurisdictions reported through 2009. Actions to meet the
TMDL allocations for agriculture are based on the jurisdictions' final
Phase I Watershed Implementation Plans (WIPs). The states, not EPA,
determine the sector allocations and strategies. While the USDA CEAP
cropland report estimates a higher rate of conservation tillage than
has been reported by the states, the report also estimates that nearly
80% of cropped acres, including cropland with conservation tillage,
have a high or moderate treatment need, especially for controlling
nutrients.
The EPA fully supports a more complete accounting of verified
conservation practices (including practices funded in full by farmers
which are not in state or Federal cost-share tracking databases). In
the Executive Order strategy, the EPA and USDA have committed to work
with the National Association of Conservation Districts (NACD) and
state partners to develop non-cost-share data tracking and verification
mechanisms by July 2012. The EPA needs complete, accurate and current
data to improve the characterization of agricultural conservation in
the watershed. CEAP findings will help inform this effort.
It's important to note that states have already factored in the
data gaps in their tracking of non-cost-shared practices when they
divided up load allocations among source sectors. States are counting
on a certain percentage of the necessary reductions they assigned to
agriculture from simply better tracking and reporting of verified non-
cost-shared practices between now and 2025.

Question 9a. So, when your models are updated in 2017 do you allow
them to take credit for these practices you can then declare successful
implementation of the TMDL. Does this cause a problem because nothing
in the watershed will have changed? Farmers were implementing nutrient
management and conservation tillage before the Final TMDL and will
continue to implement these practices afterwards. The only change will
be in ``model land.'' How does this help clean up the Bay? How did you
select 2017 as the timeline? Was this date or the entire TMDL schedule
outlined in the EPA settlement agreement?
Answer. The Chesapeake Bay Program Partnership models help the
partnership decide how much more needs to be done to achieve water
quality goals. Monitoring data alone will tell us when those water
quality goals are met. Revised historical implementation figures will
help the Partnership determine the appropriate balance of management
actions between sectors, basins, and jurisdictions to most effectively
achieve the goals.
The 2017 evaluation is intended to make revisions to reflect the
effectiveness of the practices. The EPA will continue to work with the
states, USDA, and conservation districts to incorporate the most
accurate and up-to-date information on what conservation practices are
on the ground in the next round of Chesapeake Bay Program model
updates, which will be complete in advance of the Phase III WIPs in
2017. When the CBP models are updated, they will be calibrated to water
quality monitoring data throughout the watershed. Where monitoring data
tell us that more needs to be done to clean up our waters, the EPA will
work with partners to put more conservation actions on the ground. The
Chesapeake Bay Program watershed model is currently calibrated to
nearly 300 sites for flow and between 100 and 200 sites for water
quality to ensure that the estimated necessary implementation actions
will result in the needed pollution reductions to clean up our rivers
and streams.
The commitment to the 2017 midpoint model updates and Phase III
WIPs was part of the larger Chesapeake Bay Accountability Framework
first outlined by the EPA and agreed upon by the Principals' Staff
Committee whose membership includes the state secretaries in 2008. This
framework was further refined in 2009 and 2010 by the EPA and the Bay
partners. The Accountability Framework, including the schedule for
Phase I-III WIPs and a midpoint evaluation for the Chesapeake Bay
Program modeling tools, is discussed in more detail in the Executive
Summary and Sections 7.2 of the Chesapeake Bay TMDL and in the Federal
Strategy for Protecting and Restoring the Chesapeake Bay Watershed.

Question 10. It has come to our attention that the EPA has not
handed over vital documents pertaining to on going court cases related
to the TMDL. Why has EPA not cooperated? Does EPA intend to comply?
Answer. The EPA disagrees with the assertion that it has not been
cooperative in the ongoing litigation regarding the Chesapeake Bay TMDL
\4\ or has failed to ``hand over'' vital documents.
---------------------------------------------------------------------------
\4\ American Farm Bureau Federation et al. v. EPA et al., Civil
Action No. 11-0067-SHR (M.D.PA).
---------------------------------------------------------------------------
A number of parties (identified below) are now involved in
litigation challenging the Chesapeake Bay TMDL. In accordance with the
Court's scheduling order as proposed by the parties, the EPA timely
filed its administrative record in the case on August 26, 2011. This
record consisted of more than 38,000 pages and approximately 100,000
electronic model and data files. As is customary in cases like this,
counsel for the EPA then conferred with counsel for the Plaintiffs over
the scope of the administrative record. The EPA voluntarily agreed to
add over 2,000 additional documents in October 2011, including many
that Plaintiffs requested for inclusion. Plaintiffs then filed a motion
seeking to add six additional documents to the administrative record
and to seek limited discovery regarding the scope of the administrative
record. The EPA opposed that motion. On December 28, 2011, the Court
issued a decision granting in part and denying in part the Plaintiffs'
motion to add several documents to the record, and denied the
Plaintiffs' request for further discovery. Pursuant to the Order of the
Court on January 11, 2012, the parties are currently engaged in filing
their respective motions for summary judgment. The parties (identified
below) are awaiting the decision of the Court to that motion.

Plaintiffs--American Farm Bureau Federation (``AFBF''),
Pennsylvania Farm Bureau, the Fertilizer Institute, National
Pork Producers Council, National Corn Growers Association,
National Chicken Council, U.S. Poultry & Egg Association,
National Turkey Federation and National Association of Home
Builders (``NAHB'').

Defendant--EPA.

Defendant Intervenors--Chesapeake Bay Foundation, Inc. (``CBF''),
Citizens for Pennsylvania's Future, Defenders of Wildlife,
Jefferson County (West Virginia) Public Service District,
Midshore Riverkeeper Conservancy, the National Wildlife
Federation; National Association of Clean Water Agencies
(``NACWA''), the Maryland Association of Municipal Wastewater
Agencies, Inc. (``MAMWA''), the Virginia Association of
Municipal Wastewater Agencies, Inc. (``VAMWA'') and
Pennsylvania Municipal Authority Association (``PMAA'').

ATTACHMENT 1

EPA Engagement with the Agriculture Community
EPA, USDA, the state agricultural agencies and the agricultural
community have a long history of collaborating on Chesapeake Bay
restoration to ensure a healthy Bay and viable agriculture in the
Chesapeake Bay watershed. USDA, the state agricultural agencies, and
agricultural industry groups have been active participants in the
Chesapeake Bay Program: from helping to inform modeling efforts to
working together to identify and credit agricultural practices, to
working with the states on their agricultural commitments in the
Watershed Implementation Plans and Bay TMDL.
Continued collaboration with the agriculture community will be
critical in the coming years to refine modeling tools, improve
agricultural conservation tracking and verification, and accelerate
agricultural nutrient and sediment reductions necessary to restore the
Bay and local waters. This document summarizes EPA's collaboration with
USDA and the agriculture community on Chesapeake Bay watershed
restoration efforts.
EPA Outreach During TMDL and WIP Development
EPA conducted an extensive, 2 year outreach program to exchange
information with key stakeholders and the broader public during the
development of the Chesapeake Bay TMDL. Outreach to the agriculture
community was particularly focused and occurred throughout the region.
EPA consulted with the agricultural community through three primary
forums: stakeholder meetings, meetings with jurisdictions on Watershed
Implementation Plan development, and meetings with agricultural
community on Chesapeake Bay Program Watershed Model.
Stakeholder meetings: The outreach program in 2009 and 2010
featured hundreds of meetings with interested groups; two extensive
rounds of public meetings, stakeholder sessions; a series of monthly
interactive webinars accessed online by more than 2,500 people; three
notices published in the Federal Register; and a close working
relationship with Chesapeake Bay Program committees. Many agricultural
groups and stakeholders participated in these meetings including the
Farm Bureau, agribusiness organizations, individual farmers, as well as
state agricultural agencies and conservation districts. In addition, to
the general TMDL outreach meetings, EPA worked with the states to host
sector-specific meetings with key stakeholders from the agricultural
community, the homebuilder community, and conservation groups. EPA
reached out to key agricultural leaders within each state to co-host
these meetings in order to give the farming community a chance to ask
questions, voice concerns, and discuss what the TMDL means for
agriculture.
In addition to the public outreach and sector-specific meetings,
many farming groups and regional and national agriculture associations
invited EPA to brief them on the Bay TMDL. An example of one of the
earliest outreach efforts is an August 2009 informal ``coffee
conversation'' with EPA officials, organized by NRCS and the American
Farmland Trust (see Attachment B * for a participants list, a copy of
the invitation, and prep questions). Other agricultural organizations
that EPA met with over the past 2 years to discuss the Bay TMDL
include:
---------------------------------------------------------------------------
* Editor's note: The attachments B-C referred to in the document
entitled, EPA Engagement with the Agriculture Community, have not been
reprinted here, they can be seen in the House Committee on Agriculture
hearing Serial No. 112-6, entitled, Hearing To Review the Chesapeake
Bay TMDL, Agricultural Conservation Practices, and Their Implications
on National Watersheds, dated March 10, 2011, pp. 167-174.

---------------------------------------------------------------------------
National Pork Producers.

National Turkey Federation.

U.S. Poultry & Egg Association representatives.

American Farmland Trust and NRCS organized a meeting between
Bay watershed farmers and EPA senior leaders to discuss TMDL
and how it relates to farmers. Virginia's Waste Solution Forum
in the Shenandoah Valley.

Conservation Technology Innovation Center annual tour 2010--
audience: over 100 VA farmers, conservation district,
university and NRCS representatives.

Pennsylvania All Bay Day--audience: PA conservation
districts and agency representatives.

Mid-Atlantic Certified Crop Advisors Board--crop advisors in
VA, MD, DE, and WV.

Governor Harry Hughes Agro-Ecology Center Board.

Maryland Association of Conservation Districts Board.

National Webcast on ``Changing Management of Nutrients in
the Chesapeake Bay Watershed'' hosted by the Extension
Livestock and Poultry Environmental Learning Center with over
150 representatives from agricultural organizations, agencies,
and land-grant universities.

WIP development discussions with jurisdictions--In 2010, EPA
had extensive formal and informal discussions with the state
Watershed Implementation Plan stakeholder teams as the TMDL and
Watershed Implementation Plans were being drafted and
finalized. Many agricultural groups and stakeholders
participated in these teams and were present at these meetings
including the Farm Bureau, agribusiness organizations, as well
as state agricultural agencies and conservation districts (See
Attachment C for lists of WIP teams).

EPA senior leadership also held frequent discussions with state
agricultural secretaries on topics such as Ag Certainty and WIP
development and participated in key policy discussions with the
Chesapeake Bay Program's Principal Staff Committee to the
Chesapeake Bay Executive Council throughout the development of
the Bay TMDL.

Looking back over the past decades, the agriculture community has
been engaged since the development of the Chesapeake Bay
Tributary Strategy (started in 1995) that served as a starting
point for most WIPs.
Agriculture Participation in CBP Watershed Model
The suite of models used for the TMDL have been developed and
utilized over 20 years through extensive collaboration with Federal,
state, academic and private partners. This includes extensive input
from USDA, state agricultural agencies, and agricultural organizations
on the CBP Agriculture Workgroup. Use and development of the models is
fully transparent and open with all decisions and refinements to the
model made at public meetings of the Chesapeake Bay Program. The
Agriculture Workgroup holds regular public meetings to provide
extensive input into all decisions regarding conservation practice
effectiveness, tracking and verification, and model refinements. The
Agriculture Workgroup is co-chaired by USDA NRCS and the University of
Maryland and is comprised of the following organizations:

Leadership:

--Chair, UMD and Vice Chair, USDA NRCS

Agricultural Organizations:

--Delaware Maryland Agribusiness Association

--Virginia Poultry Association

--Mid-Atlantic Farm Credit

--U.S. Poultry & Egg Association

--MD Farm Bureau

--Virginia Agribusiness Council

--VA Grain Producers Association

--West Virginia Department of Agriculture

--Delmarva Poultry Industry, Inc.

--VA Farm Bureau

--Delaware Pork Producers Association

--American Farmland Trust

Federal and State Agricultural Agencies:

--USDA Natural Resources Conservation Service

--Maryland Department of Agriculture

--West Virginia Department of Agriculture--Regulatory and
Environmental Affairs Division

--Delaware Department of Agriculture

--Pennsylvania State Conservation Commission

--Maryland Department of Agriculture

Land-Grant Universities and Extension:

--West Virginia University

--Pennsylvania State University

--University of Maryland--College Park

--University of Delaware

--Cornell University

--University of Maryland Cooperative Extension

Conservation Districts and Commissions/Coalitions:

--Lancaster County Conservation District

--Cortland County Soil and Water Conservation District

--Madison Co. SWCD

--Chesapeake Bay Commission

--Upper Susquehanna Coalition

--PA No-Till Alliance

--Center for Conservation Incentives at Environmental Defense

EPA and State Environmental Agencies:

--U.S. Environmental Protection Agency

--Virginia Department of Environmental Quality

--Maryland Department of Natural Resources

--New York State Department of Environmental Conservation

--Virginia Department of Conservation and Recreation

--Pennsylvania Department of Environmental Protection

--West Virginia Department of Environmental Protection

In addition to extensive agriculture stakeholder involvement in the
Agriculture Workgroup, EPA has also responded to requests from the
agricultural community for more comprehensive briefings on the Bay TMDL
and the CBP Watershed Model. On March 22, 2010, EPA worked with USDA to
host a webinar on March 22, 2010 to answer the agricultural community's
questions about the model and to identify opportunities for model
refinements in the future. Following the webinar, EPA held a session
with the poultry industry to provide a forum for the poultry industry
to discuss specific poultry modeling and data issues.
USDA's Natural Resources Conservation Service (NRCS) has played a
critical role in reviewing and providing data to the CBP Watershed
Model, including coordinating the CBP's Nutrient Subcommittee over
almost a decade, serving on the Agriculture Workgroup (currently vice
chair) which makes all decisions related to agricultural modeling,
participating on technical panels to develop conservation effectiveness
estimates, and collaborating with EPA on USDA Conservation Effects
Assessment Project and CBP Watershed Model efforts.
EPA-USDA Coordination
EPA and USDA play an active role in the Chesapeake Bay Program to
work towards maintaining well-managed farms and restoring the Bay. Both
agencies agree that maintaining the viability of agriculture is an
essential component to sustaining ecosystems in the Bay. Both
acknowledge the enormous contribution that farmers are making to
improve Bay water quality. And, both are committed to strong
partnerships and collaboration with states and local governments,
urban, suburban and rural communities, and the private sector to
achieve environmental objectives for the Bay. Throughout the TMDL
process, EPA and USDA had on-going discussions and extensive briefings
on the TMDL, models, state Watershed Implementation Plans, etc. Recent
examples of that collaboration include:

Developing and implementing the Strategy for Protecting and
Restoring the Chesapeake Bay Watershed pursuant to Executive
Order 13508.

Developing a framework to provide certainty to farmers who
implement practices that protect water quality in the
Chesapeake Bay.

Working with the National Association of Conservation
Districts, state agricultural agencies, and agricultural
community to ensure that non-cost-shared data can be tracked,
verified, and credited in the CBP Watershed Model as committed
to in the E.O. Strategy.

Supporting the states in implementing the commitments
outlined in their TMDL Watershed Implementation Plans.

Aligning innovation grants programs to support key
priorities for addressing water quality challenges facing
agriculture (EPA's Innovative Nutrient and Sediment Reduction
program and NRCS's Conservation Innovation Grants program).

Working together to coordinate respective modeling efforts.

ATTACHMENT 2

December 22, 2010

Hon. Thomas J. Quigley,
Secretary,
Department of Conservation and Natural Resources,
Harrisburg, PA.

Dear Secretary Quigley:

We want to thank you and your staff for your willingness to discuss
a framework to provide certainty to farmers who implement practices
that protect water quality in the Chesapeake Bay. It is our hope that
we have developed a constructive framework that states can use in
providing to producers incentives and recognition that accelerate the
adoption of conservation practices and advance the objectives of your
state watershed implementation plans.
As we at the U.S. Department of Agriculture and the U.S.
Environmental Protection Agency have discussed with you and your staff,
certainty is viewed as a tool that states can use with agricultural
producers to help achieve multiple goals for agriculture and water
quality, including:

Increasing producer interest and willingness in adopting
Best Management Practices based on farm-specific conservation
planning, which, in turn, would increase the pace and extent to
which resource conservation and verifiable water-quality
improvements are achieved.

Providing to producers clear and consistent communications
on conservation actions consistent with the objectives of the
state watershed implementation plans.

Providing assurance to agricultural business operations that
investments in conservation practices will provide benefits for
farms and water quality consistent with state watershed
implementation plans.

While this is an effort best done at the state level, USDA and the
EPA are willing to support you as you develop a state certainty
program. As discussed earlier this month, by January 15, 2011, the six
Chesapeake Bay basin state agriculture secretaries will follow up with
their USDA Natural Resources Conservation Service (NRCS) State
Conservationists to confirm interest in pursuing a certainty program.
In turning this framework into a practical tool, you are encouraged to
call on USDA and EPA staff for assistance. The NRCS stands ready to
help you develop farm-specific plans to support such a program.
USDA and the EPA believe that maintaining agriculture's viability
is an essential component to sustaining ecosystems in the Chesapeake
Bay basin. We are committed to strong partnerships and collaboration
with states, and we very much appreciate your contributions to
improving the Bay. We look forward to working with you on this and
other issues to ensure a healthy basin ecosystem, strong rural
communities and a vital agricultural sector.
Sincerely,

Kathleen A. Merrigan, Bob Perciasepe,
Deputy Secretary, Deputy Administrator,
U.S. Department of Agriculture; U.S. Environmental Protection
Agency.

______

December 22, 2010

Hon. John Hangar,
Secretary,
Pennsylvania Department of Environmental Protection,
Harrisburg, PA.

Dear Secretary Hangar:

Increasing producer interest and willingness in adopting
Best Management Practices based on farm-specific conservation
farming, which, in turn, would increase the pace and extent to
which resource conservation and verifiable water-quality
improvements are achieved.

Providing to producers clear and consistent communications
on conservation actions consistent with the objectives of the
state watershed implementation plans.

While this is an effort best done at the state level, USDA and the
EPA are willing to support to you as you develop a state certainty
program. As discussed earlier this month, by January 15, 2011, the six
Chesapeake Bay basin state agriculture secretaries will follow up with
their USDA Natural Resources Conservation Service (NRCS) State
Conservationists to confirm interest in pursuing a certainty program.
In turning this framework into a practical tool, you are encouraged to
call on USDA and EPA staff for assistance. The NRCS stands ready to
help you develop farm-specific plans to support such a program.
USDA and the EPA believe that maintaining agriculture's viability
is an essential component to sustaining ecosystems in the Chesapeake
Bay basin. We are committed to strong partnerships and collaboration
with states, and we very much appreciate your contributions to
improving the Bay. We look forward to working with you on this and
other issues to ensure a healthy basin ecosystem, strong rural
communities and a vital agricultural sector.
Sincerely,

Kathleen A. Merrigan, Bob Perciasepe,
Deputy Secretary, Deputy Administrator,
U.S. Department of Agriculture; U.S. Environmental Protection
Agency.

ATTACHMENT 3

June 28, 2011

Hon. Glenn Thompson,
Chairman,
Subcommittee on Conservation, Energy, and Forestry,
House Committee on Agriculture,
Washington, D.C.

Dear Chairman Thompson:

At the Subcommittee on Conservation, Energy and Forestry hearing
about the Chesapeake Bay in March, the USDA and the EPA stated their
intention to continue efforts to refine and increase the level of data
available for understanding the implementation of conservation
practices by farmers in the Chesapeake Bay Region. To ensure that the
work continues to progress, the EPA and the USDA scientists have
developed a plan of work for the key activities that are expected to be
accomplished. A copy of the plan of work for that effort is enclosed.
The additional data and refinements will serve a set of key
purposes that will:

Account for agricultural conservation practices implemented
throughout the Chesapeake Bay watershed, including those
practices funded solely by the farmer (not funded by Federal or
state cost-share funding).

Develop, as appropriate and feasible, a consistent estimate
of pasture and hay land acres for use by the EPA and the USDA.

Develop, as appropriate and feasible, a consistent approach
for estimating fertilizer and manure applications for use by
the EPA and the USDA.

In addition, there is ongoing work to (1) update and refine current
conservation practice effectiveness estimates; and (2) credit new
conservation practices as they are applied in the field. These efforts
are intended to reflect our long term commitment to ensuring the best
possible data is available. As a result of this work, we hope to
increase our understanding of the impact of conservation practices and
of the contribution farmers are making to restoration of the Bay.
We appreciate your interest in this important issue and will be
glad to provide additional information that you may request.
Sincerely,

Arvin R. Ganesan,
Associate Administrator.
enclosure
U.S. Department of Agriculture (USDA) and U.S. Environmental Protection
Agency (EPA) Chesapeake Bay Conservation Data Collaboration
In December 2010, the EPA released the final Total Maximum Daily
Load (TMDL) for the Chesapeake Bay. TMDL nutrient and sediment load
allocations for the Bay Watershed States were developed using water
quality monitoring data and a suite of models, including the Chesapeake
Bay Program Watershed Model.
In March 2011, the USDA released its Assessment of the Effects of
Conservation Practices on Cultivated Cropland in the Chesapeake Bay
Region, a document known familiarly as the Chesapeake Bay Conservation
Effects Assessment Project, or CEAP report. The USDA's CEAP effort is
based on a combination of farmer surveys and modeling used to estimate
the impact of conservation practices on the landscape.
There is a lot of interest from Chesapeake Bay stakeholders and
within the USDA and the EPA to ensure consistency between the two
modeling efforts and that they are informed by the best data available
describing implementation of conservation by farmers in the Chesapeake
Bay region. Below are commitments by the two agencies to that end.

Improve tracking and reporting of conservation practices in the
Chesapeake Bay Program (CBP) Watershed Model

As called for in the May 12, 2009 Executive Order 13508--Strategy
for Protecting and Restoring the Chesapeake Bay Watershed, the USDA and
the EPA are working with state agricultural agencies, conservation
districts, and other key agricultural groups to ensure that non-cost-
shared practices are tracked, verified, and reported for credit in the
CBP Watershed Model.
Additionally, the USDA is surveying approximately 1,400 producers
through the National Resources Inventory (NRI) in 2011 to estimate the
level of conservation practice implementation and to refine the spatial
scale of available data. Combined with the similar work conducted from
2003-2006 (presented in the 2011 CEAP report), the results of this
survey will provide an estimate of additional on-the-ground
implementation of conservation practices between the two survey time
periods.

Commitments:

The USDA and the EPA will work with state agricultural agencies,
conservation districts, and other key agricultural groups to develop a
mechanism for tracking, verifying and reporting non-cost-shared
conservation practices on agricultural lands for use in the CBP
Watershed Model.

Timeframe: Complete by July 2012.

Using CEAP results from 2003-2006 and the pending 2011-12 analysis,
the USDA and the CBP Partnership will explore inclusion of the
additional practices identified in these surveys into the CBP Watershed
Model.

Timeframe: Begin in 2012.

Develop consistent estimates of pasture and hay land use in both
models

The CBP Watershed Model and CEAP Model use different approaches for
estimating pasture and hay land in the Chesapeake Bay watershed. The
U.S. Geological Survey developed a methodology for estimating land use
for the CBP modeling effort in which the pasture and hay land use is
based on the USDA Census of Agriculture data rather than satellite
imagery.

Commitment:

The Natural Resources Conservation Service (NRCS) and the CBP will
work together to investigate the appropriateness of using a common
approach for estimating pasture and hay land in both models.

Timeframe: Begin in 2011.

Coordinate fertilizer and manure nutrient input assumptions in both
models

The NRCS and the CBP independently developed databases to estimate
nutrient applications to cropland and arrived at similar figures for
total application. However, differences likely exist in application
timing and amounts applied by region, crop, and management system. A
consistent approach for fertilizer and manure nutrient inputs that is
informed by the significant work by the USDA and the CBP partnership
would likely improve both models.

Commitment:

The NRCS and the CBP will work together to investigate the
development of a single database to estimate nutrient applications to
cropland that would drive both modeling efforts, building on the
experiences of both. Alternatively, given the different temporal and
spatial scales of the modeling, the NRCS and the CBP can work together
to standardize assumptions across databases.

Timeframe: Begin 2012 and continue thereafter. Results may be used
in CEAP on an ongoing basis and may be used for the CBP management
decisions in 2017.

Develop comparable scales for reporting nutrient/sediment loads in
CEAP & CBP Models

Commitment:

Currently the two models track and report loads on different
geographic scales. Development of common reporting scales will allow a
more effective comparison of model findings and increase watershed
model data and technique sharing capabilities. As the technologies of
the two models advance, opportunities to collaborate should be
explored.

Timeframe: Begin 2012 and continue thereafter.

There are two further tasks that are already in progress to ensure
that the CBP Watershed Model is informed by the latest scientific data:

Updating current conservation practice effectiveness estimates
based on the latest science. The NRCS and the CBP will work with the
Agriculture Workgroup to determine the most appropriate way to inform
updates to conservation practice effectiveness estimates in the CBP
Watershed Model, with a particular focus on characterizing spacial
variability in practice effectiveness.

Timeframe: Ongoing

Crediting new conservation practices. The EPA will provide
resources to help coordinate the effort to credit new conservation
practices in the CBP Watershed Model, in accordance with the
established protocols. The USDA will provide relevant data on
effectiveness estimates of the new conservation practices to inform
assessment by expert panels that evaluate practice effectiveness.

Timeframe: Ongoing