[Senate Report 111-293]
[From the U.S. Government Publishing Office]
Calendar No. 569
111th Congress Report
SENATE
2d Session 111-293
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CLEAN ESTUARIES ACT OF 2010
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September 16, 2010.--Ordered to be printed
_______
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
[To accompany H.R. 4715]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred a bill (H.R. 4715) to re-authorize the National
Estuaries Program, and for other purposes, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill, as amended, do pass.
General Statement and Background
H.R. 4715, the ``Clean Estuaries Act of 2010,'' amends the
Federal Water Pollution Control Act (Clean Water Act or Act) to
reauthorize appropriations for the National Estuary Program
through fiscal year 2016, and to make programmatic changes to
this program.
Estuaries are partially enclosed bodies of water, and the
surrounding coastal habitats, where freshwater outflows from
rivers and streams meet and mix with tidal inflows from the
ocean. These transition zones between land and sea, fresh and
salt water, support a wide variety of plant, fish, and wildlife
species. Both because of the mix of saline and fresh water and
because estuaries shelter plants and animals from the full
force of ocean winds and waves, Many fish and shellfish species
depend on estuaries to spawn, and for their young to hatch and
grow. Estuaries also serve as habitat and breeding areas for
hundreds of species of birds and other wildlife, including
marine mammals and sea turtles.
Less tangible are the environmental benefits estuaries
provide in the form of critical ecosystem services. The marsh
land and plants in estuaries helps control water pollution by
filtering out the sediment and pollutants carried by rivers and
streams. The plants in estuaries help prevent shoreline
erosion. Estuaries also protect inland areas from flooding and
storm surges by absorbing the water before it can reach inland
areas. These coastal wetlands provide $23.2 billion worth of
storm protection services each year.\1\
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\1\Costanza, R. et al., ``The Value of Coastal Wetlands for
Hurricane Protection,'' AMBIO: A Journal of the Human Environment, June
2008.
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Estuaries play an important role in the U.S. economy.
Coastal and marine waters of the United States account for 28.3
million jobs.\2\ While coastal counties constitute only 13% of
the nation's land mass, these counties and their adjacent
waters account for over half of the gross domestic product.\3\
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\2\NOAA Economic Statistics 2002.
\3\U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st
Century 31 (2004).
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Estuaries contribute to the economy of the nation through
the tourism and recreation, including wildlife viewing; energy
production, navigation/port industries; and commercial and
recreational fishing. On an annual basis, beach-going and
recreational fishing generates up to $30 billion of economic
value, and coastal wildlife viewing generates up to $49
billion.\4\ Much of this activity occurs in and along the
coasts of estuaries. The Narragansett Bay tourism and outdoor
recreation industry alone is valued at two billion dollars
annually. Estuaries also shelter important ports, which are
critical to our economy--more than 78% of U.S. overseas trade
by volume comes and goes by ship.\5\ In addition, the coastal
areas surrounding estuaries are among the most populated areas
in the United States. Collectively, the nation's coastal
counties account for only 13% of the land mass of the lower 48
states. In 2003, however, 53% of Americans lived in these
coastal counties.\6\
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\4\Linwood Pendleton, ed., The Economic and Market Value of Coasts
and Estuaries: What's at Stake? (Restore America's Estuaries), 2008.
\5\Department of Transportation: Bureau of Transportation
Statistics, 2007: National Transportation Statistics, Washington, DC.
\6\Crossett, K.M. et al., National Oceanic and Atmospheric
Administration, Population Trends Along the Coastal United States:
1980-2008 (2004).
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Most economically important fish and shellfish species live
in estuaries during at least one stage of their life. According
to the National Oceanographic and Atmospheric Administration
(NOAA) and the National Research Council (NRC), estuaries
provide habitat for 75 percent of our national commercial fish
catch, and 80 to 90 percent of the recreational fish catch.\7\
In 2006, commercial and recreational fishing accounted for $185
billion in revenue and more than two million jobs.\8\
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\7\Chambers, J.R., 1992. Coastal Degradation and Fish Population
Losses, in Stroud, ed., Stemming the Tide of Coastal Fish Habitat Loss.
National Coalition for Marine Conservation, Inc., Leesburg, VA. This
source was cited in Lellis-Dibble, K.A. et al., Estuarine Fish and
Shellfish Species in U.S. Commercial and Recreational Fisheries:
Economic Value as an Incentive to Protect and Restore Estuarine
Habitat, NOAA Technical Memorandum NMFS-F/SPO-90, November 2008, which
independently determined that between 2000 and 2004, estuarine species
represented 46% by weight and 68% by value of the commercial catch.
\8\Fisheries Economics of the US 2006 (Annual Report of NOAA
Fisheries).
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The Environmental Protection Agency (EPA) has identified
several environmental concerns in the 28 estuaries involved in
the National Estuary Program (NEP), such as habitat loss and
alteration; declines in fish and wildlife populations;
excessive nutrients; toxic chemical contaminations; pathogenic
microorganisms; alteration of freshwater flows; and the
introduction of invasive species. National Estuary Program
(NEP).
In 1987, Congress amended the Clean Water Act to add
Section 320, which authorized the National Estuary Program. Led
by EPA this collaborative, voluntary program addresses water
quality problems and habitat degradation in priority estuaries
across the nation. It is comprised of approved estuary programs
that are, for the most part, administered by state or local
governments or non-governmental entities.\9\ These programs
lead comprehensive planning efforts to protect.
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\9\The estuary program for the Long Island Sound is the only
Federally-administered program; it is run by EPA.
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When Congress first authorized the program, it identified
16 estuaries as estuaries of national significance, including
the Long Island Sound in New York and Connecticut, Narragansett
Bay in Rhode Island, San Francisco Bay in California, and Puget
Sound in Washington. (Six of these estuaries launched their NEP
programs that same year.)\10\ The Governor of any state may
nominate to the EPA Administrator an estuary lying in whole or
in part within that state as an estuary of national
significance. To date, EPA has approved 28 estuaries for the
NEP.
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\10\Bearden, D.M, National Estuary Program: A Collaborative
Approach to Protecting Coastal Water Quality, Congressional Research
Service, 97-644 (2001).
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Once approved, each estuary program, led by a management
conference that represents the spectrum of stakeholders,
conducts long-term planning and management activities to
address the unique set of factors contributing to the
degradation of that estuary. Under section 320, each approved
estuary program is required to develop a Comprehensive
Conservation and Management Plan (CCMP). The CCMP is the action
plan for protecting and restoring the estuary. The priorities
and activities identified in the CCMP are arrived at through
the consensus of the management conference: a diverse group of
stakeholders consisting of local, state, and Federal government
agencies, commercial entities, members of the agricultural
community, universities, and non-governmental agencies such as
environmental organizations. Once complete, EPA must approve
the CCMP and provide financial and technical assistance for its
implementation.
Section 320 authorized $35 million annually for the NEP for
fiscal years 2001 through 2010. Congress has appropriated the
following amounts for the NEP program over the past three
years: $26.7 million in fiscal year (FY) 2008, $27.1 million in
FY 2009, and $32.6 million in FY 2010. To leverage Federal
resources, EPA requires approved estuary programs to have a
specific finance plan and to provide a non-Federal match of
between 25 percent and 50 percent. NEP estuaries have secured
funding from a variety of sources including the Clean Water
State Revolving Fund program, stormwater utility fees,
municipal bond funding, fines and settlements, tax abatements
and incentives, and sales fees. According to EPA, between 2003
and 2007, the approved estuary programs were collectively able
to leverage nearly $1.3 billion in funding from sources other
than appropriations for section 320 of the Clean Water Act. The
investment ratio of non-NEP funds to NEP funds is 15.5 to 1.
Program results
On a national scale, the NEP estuaries (collectively) score
slightly higher than non-NEP estuaries for water quality
indices. The reforms included in H.R. 4715, as amended, will
make the NEP still more effective by providing additional
resources for improved management and accountability for
program participants.
No new estuaries have been added to the program since 1995,
but EPA reports that numerous states, local governments, and
non-governmental organizations have expressed interest in
adding estuaries to the NEP. These 38 estuaries include:
Alaska: Cook Inlet; Kenai River
California: Humboldt Bay; Tomales Bay; San
Pedro Bay; Newport Bay; San Diego Bay; Tijuana River
Florida: Lower St. Johns River; Lake Worth;
Biscayne Bay; Florida Bay; Crystal River/Homosassa
Spring; Apalachicola Bay; St. Andrews Bay;
Choctawhatchee Bay; Pensacola Bay
Georgia: Savannah River
Hawaii: Hanalei Bay; Kaneohe Bay
Louisiana: Calcasieu Lake; Atchafalaya Bay;
Lake Pontchartrain
Maine: Penobscot Bay; Gulf of Maine
Massachusetts: Martha's Vineyard
Mississippi: Mississippi Sound
New York: Great South Bay
North Carolina: Cape Fear River
Oregon: Coos Bay
Puerto Rico: Mayaguez Bay
South Carolina: Charleston Harbor; Port
Royal Sound; Savannah River
Texas: Lavaca Bay-Tres Palacios Bay
Virginia: Virginia Coastal Bays
Washington: Grays Harbor; Willapa Bay
If Congress appropriates funding for the NEP at the
increased authorization amounts included in H.R. 4715, as
amended, EPA will be able to add 26 new estuaries to the
National Estuary Program.
Objectives of the Legislation
H.R. 4715, the ``Clean Estuaries Act of 2010,'' will amend
the Federal Water Pollution Control Act (Clean Water Act or
Act) to reauthorize appropriations for the National Estuary
Program through fiscal year 2016 at $75 million annually and
enhance transparency and accountability in participating
estuary programs.
Section-by-Section Analysis
Section 1. Short title
This section designates the title of the bill as the
``Clean Estuaries Act of 2010.''
Section 2. National Estuary Program amendments
This section amends section 320 of the Clean Water Act to
modify and add new requirements to estuary programs
participating in the NEP.
Subsection (a)(1) Summary
Amends section 320(b)(4) of the Act to add additional
requirements in the development and revision of an approved
estuary's CCMP. These amendments require that each estuary
program:
identify the estuary and upstream waters to
be addressed by the program;
recommend corrective actions and compliance
schedules to address point and nonpoint sources of
pollution in that estuary, and to propose protection
and conservation actions that will restore or maintain
key ecological and recreational characteristics of that
estuary;
identify components of healthy watersheds
and prioritize actions to protect and maintain that
level of health by conducting integrated assessments of
the estuary's aquatic habitat and biological integrity,
water quality, and natural hydrologic flows;
consider current and future sustainable
commercial activities in the estuary;
address the impacts of climate change on the
estuary by identifying vulnerabilities in the estuary
and developing and implementing adaptation strategies;
increase public education and awareness of
the ecological health and water quality conditions of
the estuary;
identify and assess impairments that
significantly and adversely affect the estuary but that
are located outside of the immediate area addressed by
the estuary program;
identify performance measures and goals to
track the degree to which the plan is being implemented
successfully; and
include a coordinated monitoring strategy.
Discussion
The new requirements in this section make important
improvements to the national estuary program planning process.
First, this act requires approved estuary programs to
clearly identify the areas covered by the CCMP. This
requirement will improve program management, help to focus and
prioritize resources, help educate the public and stakeholders,
and create a better sense of estuary identity. While
hydrological boundaries for the estuary must be considered,
given the scope of the NEP program the area addressed by a
given approved estuary program may not include the entire
watershed that ultimately drains into the estuary.
Second, this act requires approved estuary programs to
identify and assess healthy components of a watershed for
protection in order to ensure a complete assessment of the
health of an estuary and to enable estuary programs to
prioritize actions that protect as well as restore key habitat.
This analysis is an essential component of maintaining the
integrity of an estuary.
Third, approved estuary programs are required to consider
the role of current and future commercial operations in the
estuary and the means by which their activities can be
sustained. Commercial activities and the health of the
estuaries in which they are located are inextricably linked.
Commercial activity can impact the ecological health of
estuaries just as the ecological health of estuaries can impact
the viability of commercial activities. Given this
interrelationship, each approved estuary program must include
commercial entities in its CCMP process and work with such
entities to develop sustainable operations.
Fourth, this section requires each NEP estuary to address
the climate change impacts unique to its region. On June 19,
2008, EPA announced a new pilot program for NEP estuaries,
entitled, ``Climate Ready Estuaries.'' According to EPA, each
NEP estuary in the Climate Ready Estuaries program received
technical assistance to assess and reduce its vulnerability to
climate change. This requirement incorporates the ongoing
efforts under the Climate Ready Estuaries program into the CCMP
process for each approved estuary program.
Fifth, this section requires each approved estuary program
to improve public outreach and education in order to increase
awareness of the ecological health of the estuary, the economic
importance of estuaries, and the positive or negative impacts
of individual actions on the estuary's condition.
Sixth, each approved estuary program must identify and
assess impairments that are outside the area addressed by a
given approved estuary program management plan, which may not
include the entire watershed that drains into the estuary.
Pollution from upstream sources, as well as those from outside
of the watershed, such as atmospheric deposition, may affect
the water quality and ecological integrity of the estuary.
While these sources lie outside of the formal estuary program
area and are therefore beyond the reach of the program, each
estuary program is required to identify those sources of
impairment to enable stakeholders to better understand the
connection between the upstream elements of the watershed and
the potential downstream effects to the estuary. In addition,
the identification and assessment of these sources of
impairment allows the estuary program to better determine the
impairment reduction for which it is responsible.
Finally, each estuary program must include performance
measures in its CCMP that will be used to track the
effectiveness of program implementation as well as a
coordinated monitoring strategy. Outcomes against which program
performance can be quantitatively measured are essential
accountability tools that help ensure federal resources are
wisely spent and program goals will be met.
Subsection (a)(2) Summary
Amends section 320(b)(6) to clarify and enhance the
monitoring requirements related to an estuary CCMP. Each
approved estuary program must monitor water quality, healthy
watershed, and habitat conditions in the estuary and its
upstream waters. The estuary programs must also monitor the
effectiveness of actions taken pursuant to the CCMP. All
monitoring results must be made available to the public.
Discussion
Estuary programs must monitor water quality and habitat
conditions around the estuary in order to track progress in
estuary restoration and protection. Not only does this approach
provide more information for program managers on the
effectiveness of program activities, it also provides
information to nearby communities about the state of their
estuary.
Subsection (a)(3) Summary
Amends section 320(b) to require that each estuary program
provide information and educational activities on the
ecological health and water quality conditions of the estuary
to the public.
Discussion
This provision ensures that each approved estuary program
fulfills its obligation to educate the public about estuarine
conditions, the economic and ecological importance of the
estuary, and activities to restore the ecosystem. The programs
are well-situated to provide such information, given the
collaborative style of management and the diverse interests
they represent.
Subsection (b)(1) Summary
Makes a technical change to section 320(c)(5) and adds not-
for-profit organizations to the list of entities that can
participate in the management conference.
Subsection (b)(2) Summary
Amends section 320(d) by adding a provision entitled, ``Use
of Existing Data and Collaborative Processes.'' The new
provision attempts to eliminate redundancy in data collection
and improve involvement of and collaboration between
stakeholders when developing a new CCMP or updating an old
CCMP. Existing NEPs attribute successful restoration efforts in
part to the successful engagement and inclusion of all estuary
stakeholders. The provision requires approved estuary programs
make use of collaborative processes to ensure equitable
inclusion of affected interests; engage members of the
conference; ensure relevant information is accessible to all
members; promote accountability and transparency; identify
roles and responsibilities in the Conference; and resolve
disputes.
Subsection (c) Summary
Amends section 320(f) to require the periodic update and
approval of a CCMP. Not later than 5 years of the date of
enactment of H.R. 4715, as amended, the EPA Administrator must
evaluate the implementation of each CCMP to determine the
degree to which the goals of the CCMP have been met. Following
the initial evaluation, each estuary program is subject to a
subsequent evaluation every five years. The evaluations may be
completed by EPA or, at the request of the Administrator, by a
third party. An approved estuary program may not be involved in
evaluating its own program.
Each estuary program shall be provided the opportunity to
respond to EPA's program evaluation. EPA must issue a report on
the results of the evaluation, including the findings and
recommendations of the Administrator, as well as any comments
received from the estuary program. This report shall be made
available to the public through publication in the Federal
Register and on the Internet. If an estuary program is accepted
into the NEP after passage of this Act, that program will be
evaluated within five years after the submission of its CCMP to
the Administrator, and every five years thereafter.
Each approved estuary program is required to update its
CCMP no later than 18 months after the public release of its
evaluation. The updated plan must reflect, to the maximum
extent practicable, the results of the program evaluation.
Within 120 days after receiving an updated CCMP, the
Administrator must approve that CCMP if he or she determines
that the updated CCMP meets both the goals of the NEP and
reflects the results of the program evaluation.
Subsection (c) further allows the Administrator to consider
an estuary program to be in probationary status if the estuary
program has not received approval for an updated CCMP on or
before the last day of the three-year period beginning on the
date on which the Administrator makes an evaluation available
to the public.
Discussion
EPA currently reviews each of the NEP estuary programs
every three years, through an implementation review process.
This process is intended to assess how well each estuary
program supports the core goals of the Clean Water Act, as well
as to evaluate how well each estuary program contributes to
accomplishment of the goals of EPA's Strategic Plan. The
evaluation requirement instituted by H.R. 4715, as amended, is
intended to replace this existing review with a more rigorous
program evaluation.
Program implementation and program evaluation will be
enhanced through the use of performance measures and goals, as
required by this act. The evaluation is intended to assist
program managers, in both EPA and the approved estuary program,
in their efforts and to identify whether the goals of the CCMP
are being achieved and to provide insights as to whether the
management plan is successful, whether the management
approaches are appropriate, where to focus efforts, and to
identify impairments that may be preventing improvements.
The requirements to regularly evaluate and update each
estuary's CCMP serve a number of purposes. First, it addresses
the fact that a number of estuary programs have never updated
their CCMPs. Second, it ensures that each estuary program
acknowledges and accounts for any changes in the estuary in its
CCMP, for example new impairments, new sources of impairments
or newly recovered habitat. Third, it ensures that stakeholders
will continue to be active partners in the restoration and
protection of the estuary through involvement in CCMP updates.
Finally, the linked evaluation and CCMP approval process
enhances accountability because an updated CCMP must reflect
program evaluation results.
If the evaluation results indicate that the goals of the
CCMP have been achieved, or that the program is headed in the
right direction, the required update may be minimal. If the
evaluation results indicate that CCMP goals are not being met,
and the Administrator recommends programmatic changes, the
update may be significant. In such a case, the update might
require that additional stakeholders be incorporated into the
planning process, that a new CCMP be adopted, or that a new
management and implementation strategy be applied to ensure
that the goals of the NEP program are achieved.
This subsection allows the Administrator to place an
estuary program in probationary status, and as described in
subsection (d), the designation of probationary status requires
the Administrator to reduce grant funding to the estuary
program. This designation, in combination with subsequent
penalties, provides the estuary programs with added incentive
to incorporate evaluation recommendations for program
improvement into the CCMP update, in order to receive approval
by the Administrator.
Subsection (d) Summary
This subsection amends section 320 to establish new
requirements for Federal agencies whose actions or activities
affect estuaries in the National Estuary Program. The
legislation requires that, following approval of a CCMP, any
Federal action or activity affecting an estuary in the NEP
shall be conducted, to the maximum extent practicable, in a
manner consistent with the CCMP. Federal agencies are also
required, to the maximum extent practicable, to cooperate and
coordinate their activities related to the implementation of an
approved CCMP. The legislation requires that EPA serve as the
lead agency in these inter-agency coordination and cooperation
efforts. In making their annual budget requests, Federal
agencies must consider their CCMP responsibilities. Finally,
this subsection requires that Federal agencies collaborate in
the development of tools and methodologies for monitoring the
ecological health and water quality conditions of estuaries
included in the National Estuary Program.
Discussion
The Committee recognizes that the strength of the National
Estuary Program lies in its consensus-based, locally driven
approach. To fulfill the goals of the program, the Committee
expects that Federal agencies not only take part in the CCMP
planning process but also, as stakeholders in the respective
estuaries, take part in implementing their responsibilities
under approved estuary plans. In instances where the actions or
activities of multiple Federal agencies affect the estuary,
these agencies should coordinate their activities. Not only
will this approach result in administrative efficiencies,
coordinated planning and implementation will facilitate the
protection and restoration of the estuary.
Subsection (e) Summary
This subsection amends section 320(h), as re-designated by
subsection (d), which relates to the provision of grants to
develop and implement an estuary CCMP. In keeping with the
collaborative and cooperative nature of this program, this
subsection would disallow individuals to apply for and receive
National Estuary Program grant funding. Subsection (e) also
outlines the penalties associated with placing a management
conference on ``probationary status.'' First, the Administrator
is required to reduce grant funding, in an amount determined by
the Administrator, for estuary programs in probationary status.
If the Administrator determines that the program has been in
probationary status for two consecutive years, the
Administrator shall also terminate an estuary program from the
National Estuary Program, and cease its grant funding.
Discussion
The Committee believes that estuary programs must be held
accountable for updating, receiving approval for, and
implementing updated CCMPs. The provisions in this subsection
will help provide such accountability.
Subsection (f) Summary
This subsection amends section 320(j), as re-designated by
subsection (d), and authorizes an increase in appropriations
for the National Estuary Program. Specifically, subsection (f)
increases the funding authorization from $35 million to $75
million annually for fiscal years 2011 through 2016. This
subsection further directs the Administrator to provide grant
funding, subject to appropriations, of at least $1.25 million
for each approved estuary program. An authorization level of
$75 million will provide enough funding to add as many as 26
new estuaries under the program while still providing for
administrative costs of the program.
Subsection (g) Summary
This subsection makes a technical amendment to section
320(k)(1)(A), as re-designated by subsection (d). This
subsection directs the research program established under
section 320(k) to include research on the introduction and
establishment of invasive species in estuarine environments.
Subsection (h) Summary
This subsection amends section 320 by adding a periodic
evaluation of EPA's National Estuary Program. This subsection
requires that the Administrator, or a third party at the
request of the Administrator, evaluate the overall NEP program
(in addition to the requirements that each participating
estuary be evaluated) within five years of passage of this
legislation, and every five years thereafter. The evaluation
shall assess the effectiveness of the NEP program in improving
water quality, improving natural resources, and making
improvements in sustainable uses of the estuaries covered by
estuary programs that are part of the NEP. If improvements have
been made, the evaluation should identify the best practices
that were in place under that plan, and assess the reasons
those practices were effective. Moreover, to encourage the wise
use of limited resources, the evaluation should identify
redundant reporting requirements and recommend how to limit
these redundancies. The findings and recommendations of this
evaluation shall be issued by the Administrator in a report
published on both the Internet and in the Federal Register.
Discussion
This evaluation will assist the EPA program manager and
Congress in determining whether the goals of the National
Estuary Program are being achieved, and identifying ways to
improve the program where it falls short of the goals. The
evaluation results will help identify whether new tools,
policies, or funding is needed to better implement the
program--with the ultimate objective of restoring and
protecting estuaries.
Subsection (j) Summary
This subsection changes the definition of estuary to
include Great Lakes coastal waters and other nearby bodies of
water that are similar in form and function to estuaries.
Legislative History
On March 2, 2010, Representative Timothy Bishop introduced
H.R. 4715, the ``Clean Estuaries Act of 2010.''
On March 3, 2010, the Committee on Transportation and
Infrastructure met in open session to consider H.R. 4715. The
Committee ordered H.R. 4715 reported favorably to the House by
voice vote with a quorum present. H.R. 4715 was passed by the
House by a vote of 278-128 on April 15, 2010. The bill was
received in the Senate, read twice and referred to the
Committee on Environment and Public Works on April 19, 2010.
On June 28, 2010, Senators Sheldon Whitehouse and David
Vitter introduced a companion bill, S. 3540, the ``Clean
Estuaries Act of 2010.'' The bill was received, read twice, and
referred to the Senate Committee on Environment and Public
Works.
On June 30, 2010, the Committee on Environment and Public
Works met to consider H.R. 4715. Senators Whitehouse and Vitter
offered S. 3540 as an amendment in the nature of a substitute
to H.R. 4715. The Committee ordered H.R. 4715, as amended by
the substitute amendment, reported favorably to the Senate by
voice vote with a quorum present.
Hearings
On February 24, 2010, the Full Senate Committee on
Environment and Public Works and the Subcommittee on Water and
Wildlife held a joint legislative hearing on legislative
approaches to protection and restoring Great Water bodies. The
Committee heard testimony from the EPA Assistant Administrator
for Water, Peter Silva, and the Commissioner of the New York
State Department of Environmental Conservation, Alexander
Grannis, who expressed support for the National Estuary
Program.
Rollcall Votes
The Committee on Environment and Public Works met to
consider H.R. 4715 on June 30, 2010. The bill was ordered to be
reported favorably with an amendment in the nature of a
substitute (offered by Mr. Whitehouse and Mr. Vitter), by voice
vote.
Regulatory Impact Statement
In compliance with section 11(b) of rule XXVI of the
Standing Rules of the Senate, the committee finds that H.R.
4715, as amended, does not create any additional regulatory
burdens, nor will it cause any adverse impact on the personal
privacy of individuals.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the committee noted that the Congressional
Budget Office (CBO) has found, ``H.R. 4715 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.''
Congressional Budget Office Cost Estimate
July 8, 2010.
Hon. Barbara Boxer, Chairman,
Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4715, the Clean
Estuaries Act of 2010.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 4715--Clean Estuaries Act of 2010
Summary: H.R. 4715 would extend the authorization of
appropriations for the Environmental Protection Agency's
(EPA's) National Estuary Program through fiscal year 2016.
Under current law, $35 million is authorized to be appropriated
each year through 2010, and enacting this legislation would
increase that level to $75 million in subsequent years. Under
the National Estuary Program, EPA develops plans for attaining
or maintaining water quality in an estuary. CBO estimates that
implementing this legislation would cost $323 million over the
2011-2015 period, assuming appropriation of the authorized
amounts.
Enacting H.R. 4715 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures would not apply.
H.R. 4715 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the federal government: The estimated
budgetary impact of this legislation is shown in the following
table. The costs of this legislation fall within budget
function 300 (natural resources and environment).
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By fiscal year, in millions of dollars--
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2011 2012 2013 2014 2015 2011-2015
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level................................ 75 75 75 75 75 375
Estimated Outlays.................................. 34 64 75 75 75 323
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that H.R.
4715 will be enacted in 2010 and that the amounts authorized
will be appropriated each fiscal year beginning in 2011.
Estimated outlays are based on historical spending patterns for
the National Estuary Program.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: H.R. 4715
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Previous CBO estimate: On March 9, 2010, CBO transmitted a
cost estimate for H.R. 4715, the Clean Estuaries Act of 2010,
as ordered reported by the House Committee on Transportation
and Infrastructure on March 3, 2010. The two versions of the
legislation are similar; however, the legislation ordered
reported by the Senate Committee on Environment and Public
Works would authorize the appropriation of a greater amount
each year over the 2011-2016 period. Those differences in
authorization levels are reflected in the CBO cost estimates.
Estimate prepared by: Federal Costs: Susanne S. Mehlman;
Impact on State, Local, and Tribal Governments: Ryan Miller;
Impact on the Private Sector: Amy Petz.
Estimate approved by: Sam Papenfuss, Unit Chief for Income
Security and Education Cost Estimates Unit, Budget Analysis
Division.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
* * * * * * *
FEDERAL WATER POLLUTION CONTROL ACT
Sec. 301. (a) Except as in compliance with this section and
sections 302, 306, 307, 318, 402, and 404 of this Act, the
discharge of any pollutant by any person shall be unlawful.
(b) * * *
* * * * * * *
Sec. 320. National Estuary Program.
(a) Management Conference.--
(1) Nomination of estuaries.--* * *
* * * * * * *
[(2) Convening of conference.--
(A) In general.--In any case]
(2) Convening of conference.--In any case where the
Administrator determines, on his own initiative or upon
nomination of a State under paragraph (1), that the
attainment or maintenance of that water quality in an
estuary which assures protection of public water
supplies and the protection and propagation of a
balanced, indigenous population of shellfish, fish, and
wildlife and allows recreational activities, in and on
the water, requires the control of point and nonpoint
sources of pollution to supplement existing controls of
pollution in more than one State, the Administrator
shall select such estuary and convene a management
conference.
[(B) Priority consideration.--The
Administrator shall give priority consideration
under this section to Long Island Sound, New
York and Connecticut; Narragansett Bay, Rhode
Island; Buzzards Bay, Massachusetts;
Massachusetts Bay, Massachusetts (including
Cape Cod Bay and Boston Harbor); Puget Sound,
Washington; New York-New Jersey Harbor, New
York and New Jersey; Delaware Bay, Delaware and
New Jersey; Delaware Inland Bays, Delaware;
Albermarle Sound, North Carolina; Sarasota Bay,
Florida; San Francisco Bay, California; Santa
Monica Bay, California; Galveston Bay, Texas;
Barataria-Terrebonne Bay estuary complex,
Louisiana; Indian River Lagoon, Florida; Lake
Pontchartrain Basin, Louisiana and Mississippi;
and Peconic Bay, New York.]
(b) Purposes of Conference.--The purposes of any management
conference convened with respect to an estuary under this
subsection shall be to--
(1) assess trends in water quality, natural
resources, and uses of the estuary;
(2) collect, characterize, and assess data on toxics,
nutrients, and natural resources within the estuarine
zone to identify the causes of environmental problems;
(3) develop the relationship between the inplace
loads and point and nonpoint loadings of pollutants to
the estuarine zone and the potential uses of the zone,
water quality, and natural resources;
[(4) develop a comprehensive conservation and
management plan that recommends priority corrective
actions and compliance schedules addressing point and
nonpoint sources of pollution to restore and maintain
the chemical, physical, and biological integrity of the
estuary, including restoration and maintenance of water
quality, a balanced indigenous population of shellfish,
fish and wildlife, and recreational activities in the
estuary, and assure that the designated uses of the
estuary are protected;]
(4) develop and submit to the Administrator a
comprehensive conservation and management plan that--
(A) identifies the estuary and the associated
upstream waters of the estuary to be addressed
by the plan, with consideration given to
hydrological boundaries;
(B) recommends priority corrective actions
and compliance schedules addressing--
(i) point and nonpoint sources of
pollution; and
(ii) protection and conservation
actions--
(I) to restore and maintain
the chemical, physical, and
biological integrity of the
estuary, including--
(aa) restoration and
maintenance of water
quality, wetlands, and
natural hydrologic
flows;
(bb) a resilient and
diverse indigenous
population of
shellfish, fish, and
wildlife; and
(cc) recreational
activities in the
estuary; and
(II) to ensure that the
designated uses of the estuary
are protected;
(C) identifies healthy watershed components
for protection and conservation by carrying out
integrated assessments, where appropriate, of--
(i) aquatic habitat and biological
integrity;
(ii) water quality; and
(iii) natural hydrologic flows;
(D) considers current and future sustainable
commercial activities in the estuary;
(E) addresses the impacts of climate change
on the estuary, including--
(i) the identification and assessment
of vulnerabilities in the estuary;
(ii) the development and
implementation of adaptation
strategies; and
(iii) the impacts of changes in sea
level on estuarine water quality,
estuarine habitat, and infrastructure
located in the estuary;
(F) increases public education and awareness
with respect to--
(i) the ecological health of the
estuary;
(ii) the water quality conditions of
the estuary; and
(iii) ocean, estuarine, land, and
atmospheric connections and
interactions;
(G)(i) identifies and assesses impairments,
including significant adverse upstream
impairments coming from outside of the area
addressed by the plan, and the sources of those
impairments; and
(ii) provides the applicable State with any
information on such impairments or the sources
of such impairments;
(H) includes performance measures and goals
to track implementation of the plan; and
(I) includes a coordinated monitoring
strategy for Federal, State, and local
governments and other entities.
* * * * * * *
[(6) monitor the effectiveness of actions taken
pursuant to the plan; and]
(6) monitor (and make results available to the public
regarding)--
(A) water quality conditions in the estuary
and the associated upstream waters of the
estuary identified under paragraph (4)(A);
(B) healthy watershed and habitat conditions
that relate to the ecological health and water
quality conditions of the estuary; and
(C) the effectiveness of actions taken
pursuant to the comprehensive conservation and
management plan developed for the estuary under
this subsection;
(7) provide information and educational activities on
the ecological health and water quality conditions of
the estuary; and
[(7)](8) review all Federal financial assistance
programs and Federal development projects in accordance
with the requirements of Executive Order 12372, as in
effect on September 17, 1983, to determine whether such
assistance program or project would be consistent with
and further the purposes and objectives of the plan
prepared under this section.
For purposes of [paragraph (7)]paragraph (8), such programs and
projects shall not be limited to the assistance programs and
development projects subject to Executive Order 12372, but may
include any programs listed in the most recent Catalog of
Federal Domestic Assistance which may have an effect on the
purposes and objectives of the plan developed under this
section.
(c) Members of Conference.--The members of a management
conference convened under this section shall include, at a
minimum, the Administrator and representatives of--
(1) each State and foreign nation located in whole or
in part in the estuarine zone of the estuary for which
the conference is convened;
(2) international, interstate, or regional agencies
or entities having jurisdiction over all or a
significant part of the estuary;
(3) each interested Federal agency, as determined
appropriate by the Administrator;
(4) local governments having jurisdiction over any
land or water within the estuarine zone, as determined
appropriate by the Administrator; and
(5) affected industries, public and private
educational institutions, not for-profit organizations,
and the general public, as determined appropriate by
the Administrator.
[(d) Utilization of Existing Data.--In developing]
(d) Use of Existing Data and Collaborative Processes.--
(1) Use of existing data.--In developing a
conservation and management plan under this section,
the management conference shall survey and utilize
existing reports, data, and studies relating to the
estuary that have been developed by or made available
to Federal, interstate, State, and local agencies.
(2) Use of collaborative processes.--In updating a
plan under subsection (f)(4) or developing a new plan
under subsection (b), a management conference shall
make use of collaborative processes--
(A) to ensure equitable inclusion of affected
interests;
(B) to engage with members of the management
conference, including through--
(i) the use of consensus-based
decision rules; and
(ii) assistance from impartial
facilitators, as appropriate;
(C) to ensure relevant information, including
scientific, technical, and cultural
information, is accessible to members;
(D) to promote accountability and
transparency by ensuring members are informed
in a timely manner of--
(i) the purposes and objectives of
the management conference; and
(ii) the results of an evaluation
conducted under subsection (f)(3);
(E) to identify the roles and
responsibilities of members--
(i) in the management conference
proceedings; and
(ii) in the implementation of the
plan; and
(F) to seek resolution of conflicts or
disputes as necessary.
* * * * * * *
[(f) Approval and Implementation of Plans.--
[(1) Approval.--Not later than 120 days after the
completion of a conservation and management plan and
after providing for public review and comment, the
Administrator shall approve such plan if the plan meets
the requirements of this section and the affected
Governor or Governors concur.
[(2) Implementation.--Upon approval of a conservation
and management plan under this section, such plan shall
be implemented. Funds authorized to be appropriated
under titles II and VI and section 319 of this Act may
be used in accordance with the applicable requirements
of this Act to assist States with the implementation of
such plan.]
(f) Administration of Plans.--
(1) Approval.--Not later than 120 days after the date
on which a management conference submits to the
Administrator a comprehensive conservation and
management plan under this section, and after providing
for public review and comment, the Administrator shall
approve the plan, if--
(A) the Administrator determines that the
plan meets the requirements of this section;
and
(B) each affected Governor concurs.
(2) Implementation.--
(A) In general.--On the approval of a
comprehensive conservation and management plan
under this section, the plan shall be
implemented.
(B) Use of authorized amounts.--Amounts
authorized to be appropriated under titles II
and VI and section 319 may be used in
accordance with the applicable requirements of
this Act to assist States with the
implementation of a plan approved under
paragraph (1).
(3) Evaluation.--
(A) In general.--Not later than 5 years after
the date of enactment of this paragraph, and
every 5 years thereafter, the Administrator
shall carry out--
(i) an evaluation of the
implementation of each comprehensive
conservation and management plan
developed under this section to
determine the degree to which the goals
of the plan have been met; and
(ii) a review of the program designed
to implement the plan.
(B) Review and comment by management
conference.--In completing an evaluation under
subparagraph (A), the Administrator shall
submit the results of the evaluation to the
appropriate management conference for review
and comment.
(C) Report.--
(i) In general.--In completing an
evaluation under subparagraph (A), and
after providing an opportunity for a
management conference to submit
comments under subparagraph (B), the
Administrator shall issue a report on
the results of the evaluation,
including the findings and
recommendations of the Administrator
and any comments received from the
management conference.
(ii) Availability to public.--The
Administrator shall make a report
issued under this subparagraph
available to the public, including
through publication in the Federal
Register and on the Internet.
(D) Special rule for new plans.--
Notwithstanding subparagraph (A), if a
management conference submits a new
comprehensive conservation and management plan
to the Administrator after the date of
enactment of this paragraph, the Administrator
shall complete the evaluation of the
implementation of the plan required by
subparagraph (A) not later than 5 years after
the date of such submission and every 5 years
thereafter.
(4) Updates.--
(A) Requirement.--Not later than 18 months
after the date on which the Administrator makes
an evaluation of the implementation of a
comprehensive conservation and management plan
available to the public under paragraph (3)(C),
a management conference convened under this
section shall submit to the Administrator an
update of the plan that reflects, to the
maximum extent practicable, the results of the
program evaluation.
(B) Approval of updates.--Not later than 120
days after the date on which a management
conference submits to the Administrator an
updated comprehensive conservation and
management plan under subparagraph (A), and
after providing for public review and comment,
the Administrator shall approve the updated
plan, if the Administrator determines that the
updated plan meets the requirements of this
section.
(5) Probationary status.--The Administrator may
consider a management conference convened under this
section to be in probationary status, if the management
conference has not received approval for an updated
comprehensive conservation and management plan under
paragraph (4)(B) on or before the last day of the 3-
year period beginning on the date on which the
Administrator makes an evaluation of the plan available
to the public under paragraph (3)(C).
(g) Federal Agencies.--
(1) Activities conducted within estuaries with
approved plans.--After approval of a comprehensive
conservation and management plan by the Administrator,
any Federal action or activity affecting the estuary
shall be conducted, to the maximum extent practicable,
in a manner consistent with the plan.
(2) Coordination and cooperation.--
(A) In general.--The Secretary of the Army
(acting through the Chief of Engineers), the
Administrator of the National Oceanic and
Atmospheric Administration, the Director of the
United States Fish and Wildlife Service, the
Secretary of the Department of Agriculture, the
Director of the United States Geological
Survey, the Secretary of the Department of
Transportation, the Secretary of the Department
of Housing and Urban Development, and the heads
of other appropriate Federal agencies, as
determined by the Administrator, shall, to the
maximum extent practicable, cooperate and
coordinate activities, including monitoring
activities, related to the implementation of a
comprehensive conservation and management plan
approved by the Administrator.
(B) Lead coordinating agency.--The
Environmental Protection Agency shall serve as
the lead coordinating agency under this
paragraph.
(3) Consideration of plans in agency budget
requests.--In making an annual budget request for a
Federal agency referred to in paragraph (2), the head
of such agency shall consider the responsibilities of
the agency under this section, including under
comprehensive conservation and management plans
approved by the Administrator.
(4) Monitoring.--The heads of the Federal agencies
referred to in paragraph (2) shall collaborate on the
development of tools and methodologies for monitoring
the ecological health and water quality conditions of
estuaries covered by a management conference convened
under this section.
[(g)](h) Grants.--
(1) Recipients.--The Administrator is authorized to
make grants to State, interstate, and regional water
pollution control agencies and entities, State coastal
zone management agencies, interstate agencies, [other
public or nonprofit private agencies, institutions,
organizations, and individuals]and other public or non-
profit private agencies, institutions, and
organizations.
(2) Purposes.--Grants under this subsection shall be
made to pay for activities necessary for the
development and implementation of a comprehensive
conservation and management plan under this section.
(3) Federal share.--The Federal share of a grant to
any person (including a State, interstate, or regional
agency or entity) under this subsection for a fiscal
year--
(A) shall not exceed--
(i) 75 percent of the annual
aggregate costs of the development of a
comprehensive conservation and
management plan; and
(ii) 50 percent of the annual
aggregate costs of the implementation
of the plan; and
(B) shall be made on condition that the non-
Federal share of the costs are provided from
non-Federal sources.
(4) Effects of probationary status.--
(A) Reductions in grant amounts.--The
Administrator shall reduce, by an amount to be
determined by the Administrator, grants for the
implementation of a comprehensive conservation
and management plan developed by a management
conference convened under this section, if the
Administrator determines that the management
conference is in probationary status under
subsection (f)(5).
(B) Termination of management conferences.--
The Administrator shall terminate a management
conference convened under this section, and
cease funding for the implementation of the
comprehensive conservation and management plan
developed by the management conference, if the
Administrator determines that the management
conference has been in probationary status for
2 consecutive years.
[(h)](i) Grant Reporting.--Any person (including a State,
interstate, or regional agency or entity) that receives a grant
under [subsection (g)]subsection (h) shall report to the
Administrator not later than 18 months after receipt of such
grants and biennially there after on the progress being made
under this section.
[(i) Authorization of Appropriations.--There are authorized
to be appropriated to the Administrator not to exceed
$35,000,000 for each of fiscal years 2001 through 2010 for--
[(1) expenses related to the administration of
management conferences under this section, not to
exceed 10 percent of the amount appropriated under this
subsection;
[(2) making grants under subsection (g); and
[(3) monitoring the implementation of a conservation
and management plan by the management conference or by
the Administrator, in any case in which the conference
has been terminated.
The Administrator shall provide up to $5,000,000 per fiscal
year of the sums authorized to be appropriated under this
subsection to the Administrator of the National Oceanic and
Atmospheric Administration to carry out subsection (j).]
(j) Authorization of Appropriations.--
(1) In general.--There is authorized to be
appropriated to the Administrator $75,000,000 for each
of fiscal years 2011 through 2016 for--
(A) expenses relating to the administration
of management conferences by the Administrator
under this section, except that such expenses
shall not exceed 10 percent of the amount
appropriated under this subsection;
(B) making grants under subsection (h); and
(C) monitoring the implementation of a
conservation and management plan by the
management conference, or by the Administrator
in any case in which the conference has been
terminated.
(2) Allocations.--Of the sums authorized to be
appropriated under this subsection, the Administrator
shall provide--
(A) at least $1,250,000 per fiscal year,
subject to the availability of appropriations,
for the development, implementation, and
monitoring of each conservation and management
plan eligible for grant assistance under
subsection (h); and
(B) up to $5,000,000 per fiscal year to carry
out subsection (k).
[(j)](k) Research.--
(1) Programs.--In order to determine the need to
convene a management conference under this section or
at the request of such a management conference, the
Administrator shall coordinate and implement, through
the National Marine Pollution Program Office and the
National Marine Fisheries Service of the National
Oceanic and Atmospheric Administration, as appropriate,
for one or more estuarine zones--
(A) a long-term program of trend assessment
monitoring measuring variations in pollutant
concentrations, marine ecology, and other
physical or biological environmental
[paramenters]parameters which may affect
estuarine zones(including monitoring of both
pathways and ecosystems to track the
introduction and establishment of nonnative
species), to provide the Administrator the
capacity to determine the potential and actual
effects of alternative management strategies
and measures;
(B) a program of ecosystem assessment
assisting in the development of (i) baseline
studies which determine the state of estuarine
zones and the effects of natural and
anthropogenic changes, and (ii) predictive
models capable of translating information on
specific discharges or general pollutant
loadings within estuarine zones into a set of
probable effects on such zones;
(C) a comprehensive water quality sampling
program for the continuous monitoring of
nutrients, chlorine, acid precipitation
dissolved oxygen, and potentially toxic
pollutants (including organic chemicals and
metals) in estuarine zones, after consultation
with interested State, local, interstate, or
international agencies and review and analysis
of all environmental sampling data presently
collected from estuarine zones; and
(D) a program of research to identify the
movements of nutrients, sediments and
pollutants through estuarine zones and the
impact of nutrients, sediments, and pollutants
on water quality, the ecosystem, and designated
or potential uses of the estuarine zones.
(2) Reports.--The Administrator, in cooperation with
the Administrator of the National Oceanic and
Atmospheric Administration, shall submit to the
Congress no less often than biennially a comprehensive
report on the activities authorized under this
subsection including--
(A) a listing of priority monitoring and
research needs;
(B) an assessment of the state and health of
the Nation's estuarine zones, to the extent
evaluated under this subsection;
(C) a discussion of pollution problems and
trends in pollutant concentrations with a
direct or indirect effect on water quality, the
ecosystem, and designated or potential uses of
each estuarine zone, to the extent evaluated
under this subsection; and
(D) an evaluation of pollution abatement
activities and management measures so far
implemented to determine the degree of
improvement toward the objectives expressed in
subsection (b)(4) of this section.
(l) National Estuary Program Evaluation.--
(1) In general.--Not later than 5 years after the
date of enactment of this paragraph, and every 5 years
thereafter, the Administrator shall complete an
evaluation of the national estuary program established
under this section.
(2) Specific assessments.--In conducting an
evaluation under this subsection, the Administrator
shall--
(A) assess the effectiveness of the national
estuary program in improving water quality,
natural resources, and sustainable uses of the
estuaries covered by management conferences
convened under this section;
(B) identify best practices for improving
water quality, natural resources, and
sustainable uses of the estuaries covered by
management conferences convened under this
section, including those practices funded
through the use of technical assistance from
the Environmental Protection Agency and other
Federal agencies;
(C) assess the reasons why the best practices
described in subparagraph (B) resulted in the
achievement of program goals;
(D) identify any redundant requirements for
reporting by recipients of a grant under this
section; and
(E) develop and recommend a plan for limiting
reporting any redundancies.
(3) Report.--In completing an evaluation under this
subsection, the Administrator shall issue a report on
the results of the evaluation, including the findings
and recommendations of the Administrator.
(4) Availability.--The Administrator shall make a
report issued under this subsection available to
management conferences convened under this section and
the public, including through publication in the
Federal Register and on the Internet.
[(k) Definitions.--For purposes of this section, the terms
``estuary'' and ``estuarine zone'' have the meanings such terms
have in section 104(n)(4) of this Act, except that the term
``estuarine zone'' shall also include associated aquatic
ecosystems and those portions of tributaries]
(m) Definitions.--In this section, the terms `estuary' and
`estuarine zone' have the meanings given the terms in section
104(n)(4), except that--
(1) the term `estuary' also includes near coastal
waters and other bodies of water within the Great Lakes
that are similar in form and function to the waters
described in the definition of `estuary' in section
104(n)(4); and
(2) the term `estuarine zone' also includes--
(A) waters within the Great Lakes described
in paragraph (1) and transitional areas from
such waters that are similar in form and
function to the transitional areas described in
the definition of `estuarine zone' in section
104(n)(4);
(B) associated aquatic ecosystems; and
(C) those portions of tributaries draining
into the estuary up to the historic height of
migration of anadromous fish or the historic
head of tidal influence, whichever is higher.
* * * * * * *