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                                                       Calendar No. 323

106th Congress                                                   Report
 1st Session                                                    106-189


                              ACT OF 1999


                October 14, 1999.--Ordered to be printed


    Mr. Chafee, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [to accompany S. 835]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 835) to encourage restoration of estuary 
habitat through more efficient project financing and enhanced 
coordination of Federal and non-Federal restoration programs, 
and for other purposes, having considered the same, reports 
favorably thereon with an amendment, and recommends the bill, 
as amended, do pass.

                    General Statement and Background

    Estuaries are those bays, gulfs, sounds, and inlets where 
fresh water meets and mixes with salt water from the ocean. 
They provide some of the most economically and ecologically 
productive habitat for an extensive variety of species of 
plants, fish, wildlife, and waterfowl. According to the U.S. 
Department of Commerce, more than 75 percent of the commercial 
fish and shellfish catch and 80 to 90 percent of the 
recreational fish catch in the United States depend on 
estuaries at some stage in their lifecycles. The commercial 
fishing industry alone contributes $111 billion per year to the 
national economy.
    Estuary habitat is the complex of physical and hydrologic 
features and living organisms within estuaries and their 
associated ecosystems. The various kinds of estuary habitats--
river deltas, sea grass meadows, forested wetlands, shellfish 
beds, marshes and beaches--support a flourishing range of 
wildlife and plants. Estuaries are home to a large percentage 
of endangered and threatened species and half of the 
neotropical migratory birds in the United States. Because fish 
and birds migrate, the health of these habitats is intertwined 
with the health of other ecosystems thousands of miles away.
    Estuaries are also essential to the nation's quality of 
life. Over half the population of the United States lives near 
a coastal area. In 1993, 180 million Americans, 70 percent of 
the nation's population, visited estuaries to fish, swim, hunt, 
dive, view wildlife, bike and learn.
    Regrettably, estuaries are in danger. From colonial times 
until 1990, over 55 million acres of wetlands in the coastal 
mainland States were degraded or destroyed. This accounts for 
more than 50 percent of the total wetlands losses throughout 
the nation. Recent population growth in coastal watersheds; 
dredging; draining; bulldozing and paving; pollution; dams; 
sewage discharges and other activities have lead to extensive 
loss and continuing destruction of estuary habitat, which has 
reached more than 90 percent over the last 100 years in certain 
areas of the United States. For instance, since 1900, San 
Francisco Bay has lost 95 percent of its original wetlands, and 
Galveston Bay has lost 85 percent of its sea grass meadows.
    The latest National Water Quality Inventory Report to 
Congress by the Environmental Protection Agency shows that as 
of 1996, almost 40 percent of the nation's surveyed estuarine 
waters were too polluted for basic uses, such as fishing and 
swimming. Fish catches are at extremely low levels, many 
shellfish beds have been closed, and the economic livelihood 
and quality of life of our coastal communities is threatened.
National Estuary Program
    The National Estuary Program (NEP) was created by the Water 
Quality Amendments of 1987. Participation in the program is 
voluntary and emphasizes watershed planning and community 
involvement. The Environmental Protection Agency (EPA) 
periodically calls for nominations to the program from State 
governors. If an estuary meets the agency's criteria, EPA may 
then designate it to be included in the program. Once 
designation has been made, a management conference is formed 
from government agencies at the Federal, State, and local 
level; community residents; user groups; scientific and 
technical institutions; business and industry; and 
environmental groups. The management conference defines the 
program goals and objectives, identifies estuary problems, and 
designs action plans to control pollution and restore estuary 
habitat. The action plans are integrated into a comprehensive 
conservation and management plan (CCMP). The NEP includes 28 
estuaries in 18 States and Puerto Rico. As of 1999, 18 
estuaries have completed comprehensive conservation management 
plans, the other 10 estuaries are expected to complete their 
plans over the next 2 years.
    The NEP provides a framework for conducting a variety of 
different activities aimed at improving the health of 
estuaries. In testimony submitted to the Committee on 
Environment and Public Works, the Association of National 
Estuary Programs described some of the projects under the NEP. 
In New Jersey, more than 32,000 acres of critical habitat area 
have been preserved in Barnegat Bay by the Barnegat Bay 
National Estuary Program. Maine's Casco Bay Estuary Program 
collaborated with local lobstermen to study lobster habitat in 
Portland Harbor. When the Harbor was dredged, the Estuary 
Program and the lobstermen relocated thousands of lobsters to 
other areas. The San Francisco Estuary Project has partnered 
with local land commissions to provide 25 educational workshops 
for 1400 developers, contractors and local officials. These 
workshops have helped improve compliance with erosion and 
sediment control requirements in the San Francisco Bay area, 
increasing compliance rates from 30-40 percent in the early 
1990s to 90 percent in 1998.
Need for Legislation
    Despite the critical need for estuary habitat restoration, 
there are few programs that specifically address estuaries. The 
primary program for protecting and restoring estuaries is the 
NEP. In testimony submitted to the Committee on July 22, 
Richard Ribb, Director of the Narragansett Bay Estuary Program, 
indicated that the NEP does not have sufficient resources to 
adequately address habitat restoration in addition to 
addressing the broad range of other problems included under its 
mandate. Furthermore, the NEP can only accommodate a limited 
number of the estimated 130 estuaries in the United States. 
Estuaries that are not included in the NEP program must compete 
for funding with a variety of different waterbodies.
    S. 835 is identical to provisions relating to estuary 
habitat restoration included in S. 1222, a bill introduced by 
Senator Chafee in the 105 th Congress. S. 1222 passed the 
Senate by unanimous consent, but was not acted on by the House.

                        Objective of Legislation

    The objective of the legislation is to establish a 
voluntary program to restore 1 million acres of estuary habitat 
by 2010. The bill also expands EPA's authority to provide 
grants for the implementation of comprehensive conservation 
management plans developed under the National Estuary Program.

                      Section-by-Section Analysis

Section 1. Short Title
    This section provides that the bill may be cited as the 
"Estuary Habitat Restoration Partnership Act of 1999.
Section 2. Findings
    This section sets forth findings with respect to the 
economic and ecological value of estuaries.
Section 3. Purposes
    The bill establishes a program to restore 1 million acres 
of estuary habitat by the year 2010. The bill requires the 
coordination of existing Federal, State and local plans, 
programs, and studies. It authorizes partnerships among public 
agencies at all levels of government and between the public and 
private sectors. The bill also authorizes estuary habitat 
restoration activities, and requires project participants to 
possess adequate monitoring and research capabilities to ensure 
that restoration efforts are based on reliable science.
Section 4. Definitions
    This section defines terms used throughout the Act 

    ``Estuary'' is defined as a body of water and its 
associated physical, biological, and chemical elements, in 
which fresh water from a river or stream meets and mixes with 
salt water from the ocean. An exception to this definition is 
made for estuary-like areas in the Great Lakes biogeographic 
regions that are part of the National Estuarine Research 
Reserve system at the time of enactment of this legislation.
    ``Estuary Habitat'' is defined as the complex of physical 
and hydrologic features within estuaries and their associated 
ecosystems, including salt and fresh water coastal marshes, 
coastal forested wetlands and other coastal wetlands, tidal 
flats, natural shoreline areas, sea grass meadows, kelp beds, 
river deltas, and river and stream banks under tidal influence.
    ``Estuary Habitat Restoration Activities'' is defined as an 
activity that results in improving an estuary's habitat, 
including both physical and functional restoration, with a goal 
toward a self-sustaining ecologically-based system that is 
integrated with the surrounding landscape. Eligible activities 
include: the control of non-native and invasive species, such 
as phragmites; the reestablishment of physical features and 
biological and hydrologic functions; the cleanup of 
contamination; and the reintroduction of native species, such 
as the planting of eel grass.
Section 5. Establishment of the Collaborative Council
    This section establishes an interagency Collaborative 
Council chaired by the Secretary of the Army, with the 
participation of the Under Secretary for Oceans and Atmosphere, 
Department of Commerce; the Administrator of the Environmental 
Protection Agency; and the Secretary of the Interior, through 
the Fish and Wildlife Service. The two principal functions of 
the Council are: (1) to develop a national strategy to restore 
estuary habitat; and (2) to select habitat restoration projects 
that will receive the funds provided in the bill. The Army 
Corps of Engineers is to chair the Council and to work 
cooperatively with the other members of the Council.
Section 6. Duties of the Collaborative Council
    This section establishes a process to coordinate existing 
Federal, State and local resources and activities directed 
toward estuary habitat restoration. It also sets forth the 
process by which projects are to be selected by the Council for 
funding under this title.
    Habitat Restoration Strategy.--Subsection (a) requires the 
Council to draft a strategy that will serve as a national 
framework for restoring estuaries. The strategy should 
coordinate Federal, State, and local estuary plans programs and 
studies. In developing the strategy, the Council should consult 
with State, local and tribal governments and other non-Federal 
entities, including representatives from coastal States 
representing the Atlantic, Pacific, and the Gulf of Mexico; 
local governments from coastal communities; and nonprofit 
organizations that are actively participating in carrying out 
estuary habitat restoration projects.
    Selection of Projects.--This section also requires the 
Council to establish application criteria for restoration 
projects. The Council is required to consider a number of 
factors in developing criteria. In addition to the factors 
mentioned in the legislation, the Council is to consider both 
the quantity and quality of habitat restored in relation to the 
overall cost of a project. The consideration of these factors 
will provide the information required to evaluate performance, 
at both the project and program levels, and facilitate the 
production of biennial reports in the strategy. Subsection 
(b)(1) requires the project applicant to obtain the approval of 
State or local agencies, where such approval is appropriate. In 
States such as Oregon, where coastal beaches and estuaries are 
publicly-owned and managed, proposals for estuary habitat 
restoration projects require the approval of the State before 
being submitted to the Council.
    Priority Projects.--Among the projects that meet the 
criteria listed above, the Council shall give priority for 
funding to those projects that meet any of the factors cited in 
subsection (b)(3) of this section.
    One of the priority factors is that the project be part of 
an approved estuary management or restoration plan. It is 
envisioned that funding provided through this legislation would 
assist all local communities in meeting the goals and 
objectives of estuary restoration, with priority given to those 
areas that have approved estuary management plans. For example, 
the Sarasota Bay area in Florida is presently implementing a 
comprehensive conservation management plan (CCMP), which 
focuses on restoring lost habitat. This is being accomplished 
by: reducing nitrogen pollution to increase sea grass coverage; 
constructing salt water wetlands; and building artificial reefs 
for juvenile fish habitat. Narragansett Bay in Rhode Island 
also is in the process of implementing a CCMP. Current efforts 
to improve the Bay's water quality and restore its habitat 
address the uniqueness of the Narraganset Bay watershed.
Section 7. Cost Sharing of Estuary Habitat Restoration Projects
    This section strengthens local and private sector 
participation in estuary restoration efforts by building 
public-private restoration partnerships. This section 
establishes a Federal cost-share requirement of no more than 65 
percent of the cost of a project. The non-Federal share is 
required to be at least 35 percent of the cost of a project. 
Lands, easements, services, or other in-kind contributions may 
be used to meet non-Federal match requirement.
Section 8. Monitoring and Maintenance
    This section assures that available information will be 
used to improve the methods for assuring successful long-term 
habitat restoration. The Under Secretary for Oceans and 
Atmosphere (NOAA) shall maintain a database of restoration 
projects carried out under this Act, including information on 
project techniques, project completion, monitoring data, and 
other relevant information.
    The Council shall publish a biennial report to Congress 
that includes program activities, including the number of acres 
restored; the percent of restored habitat monitored under a 
plan; the types of restoration methods employed; the activities 
of governmental and non-governmental entities with respect to 
habitat restoration; and the effectiveness of the restoration 
Section 9. Memoranda of Understanding
    This section authorizes the Council to enter into 
cooperative agreements and execute any memoranda of 
understanding with Federal and State agencies, private 
institutions, and tribal entities, necessary to carry out the 
requirements of the bill.
Section 10. Distribution of Appropriations for Estuary Habitat 
        Restoration Activities
    This section authorizes the Secretary to disburse funds to 
the other agencies responsible for carrying out the 
requirements of the Act. The Council members are to work 
together to develop an appropriate mechanism for the 
disbursement of funds between Council members. For instance, 
section 8 of the bill requires the Under Secretary to maintain 
a data base of restoration projects carried out under this 
legislation. NOAA shall utilize funds disbursed from the 
Secretary to maintain the data base.
Section 11. Authorization of Appropriations
    A total of $315,000,000 for fiscal years 2000 through 2004 
is authorized to carry out estuary habitat restoration projects 
under this section. The $315,000,000 would be distributed as 
follows: $40,000,000 for fiscal year 2000; $50,000,000 for 
fiscal year 2001, and $75,000,000 for each of fiscal years 2002 
through 2004.
Section 12. National Estuary Program
    This section amends section 320(g)(2) of the Federal Water 
Pollution Control Act to provide explicit authority for the 
Administrator of the Environmental Protection Agency to issue 
grants for assisting activities necessary for the development 
of comprehensive conservation and management plans (CCMPs) and 
for the implementation of CCMPs. Implementation for purposes of 
this section includes managing and overseeing the 
implementation of CCMPs consistent with section 320(b)(6) of 
the Act, which provides that management conferences, among 
other things, are to ``monitor the effectiveness of actions 
taken pursuant to the CCMP.'' Examples of implementation 
activities include: enhanced monitoring activities; habitat 
mapping; habitat acquisition; best management practices to 
reduce urban and rural polluted runoff; and the organization of 
workshops for local elected officials and professional water 
quality managers about habitat and water quality issues.
    The National Estuary Program is an important partnership 
among Federal, State, and local governments to protect 
estuaries of national significance threatened by pollution. A 
major goal of the program has been to prepare CCMPs for the 28 
nationally designated estuaries. To facilitate preparation of 
the plans, the Federal Government has provided grant funds, 
while State and local governments have developed the plans. The 
partnership has been a success in that 18 of 28 nationally 
designated estuaries have completed plans.
    In order to continue and strengthen this partnership, grant 
funds should be eligible for use in the implementation of the 
completed plans as well as for their development. The bill 
authorizes $25,000,000 annually for fiscal years 2000 and 2001 
to develop and implement CCMPs. This increase reflects the 
growth in the National Estuary Program since the program was 
last authorized in 1987. In 1991 when the authorization 
expired, 17 local estuary programs existed; now there are 28 
programs. The cost of implementing the 28 estuary programs will 
require significant resources. However, State and local 
governments should take primary responsibility for implementing 
Section 13. General Provisions
    This section provides the Secretary of the Army with the 
authority to carry out responsibilities under this Act, and 
clarifies that habitat restoration is one of the Corps' 

                          Legislative History

    On April 20, 1999, Senator Chafee introduced S. 835, the 
Estuary Habitat Restoration Partnership Act of 1999. On 
Wednesday, September 29, 1999, the Committee on Environment and 
Public Works held a business meeting to consider S. 835. 
Senator Voinovich offered an amendment to include the Old 
Woman's Creek Natural Estuarine Research Reserve in the 
definition of an estuary. The amendment was adopted by voice 
vote. S. 835, as amended, was favorably reported by voice vote. 
No roll call votes were taken on the measure.


    On July 22, 1999, the Environment and Public Works 
Committee held a hearing on coastal legislation in Washington, 
D.C. The hearing focused on six bills: S. 835, the Estuary 
Habitat Restoration Partnership Act of 1999; S. 878, a bill to 
amend the National Estuary Program; S. 492, the Chesapeake Bay 
Restoration Act of 1999; S. 1119, a bill to reauthorize the 
Coastal Wetlands Planning, Protection and Restoration Act; S. 
522, the Beaches Environmental Assessment, Closure, and Health 
Act of 1999; and HR 999, the Beaches Environmental Awareness, 
Cleanup, and Health Act of 1999. Testimony was provided by the 
Honorable Robert G. Torricelli, New Jersey; the Honorable John 
B. Breaux, Louisiana; the Honorable Paul Sarbanes, Maryland; 
the Honorable J. Charles Fox, Assistant Administrator for 
Water, U.S. Environmental Protection Agency; the Honorable 
Michael L. Davis, Deputy Assistant Secretary for Civil Works, 
Department of the Army; Mr. Martin L. Pagliughi, Mayor, Avalon, 
New Jersey; Mr. Ted Danson, President, the American Oceans 
Campaign; Ms. Linda Shead, Executive Director, the Galveston 
Bay Foundation; Mr. Richard Ribb, Director, Narragansett Bay 
Estuary Program, Rhode Island Department of Environmental 
Management; Mr. Michael Hirshfield, Senior Vice President, 
Chesapeake Bay Foundation; and Dr. Len Bahr, Coastal Advisor to 
the Governor, State of Louisiana.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee makes the following 
evaluation of the regulatory impact of the reported bill. The 
reported bill will have no regulatory impact. This bill will 
not have any effect on the personal privacy of individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee makes the following 
evaluation of the Federal mandates contained in the reported 
bill. S. 835 imposes no Federal intergovernmental unfunded 
mandates on State, local or tribal governments. All of its 
governmental directives are imposed on Federal agencies. The 
bill does not impose any Federal mandates on the private 

                             Cost Estimate

    The Congressional Budget Office has prepared the enclosed 
cost estimate for S. 835, the Estuary Habitat Restoration 
Partnership Act of 1999.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Susanne S. 
Mehlman (for Federal costs), who can be reached at 226-2860, 
and Shelley Finlayson (for the State and local impact), who can 
be reached at 225-3220.
    S. 835, Estuary Habitat Restoration Partnership, as ordered 
reported by the Senate Committee on Environment and Public 
Works on September 29, 1999
    S. 835 would establish the Estuary Habitat Restoration 
Collaborative Council, consisting of representatives from 
multiple Federal agencies, that would develop a strategy for 
restoring estuary habitats and provide financial assistance to 
non-Federal entities for restoration projects. The bill also 
would authorize the appropriation of $385 million over the 
2000-2004 period. The bill would not affect direct spending or 
receipts; therefore, pay-as-you-go procedures would not apply.
    S. 835 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA). 
Any expenditures made by State and local governments to satisfy 
the matching requirements of grants authorized by this bill 
would be voluntary.
Estimated Cost to the Federal Government
    CBO estimates that implementing the bill would result in 
additional outlays of $329 million over the 2000-2004 period, 
assuming appropriation of the authorized amounts each year. The 
estimated budgetary impact of S. 835 is shown in the following 
table. The costs of this legislation fall within budget 
function 300 (natural resources and environment).

                                     By Fiscal Year, in Millions of Dollars
                                                                   1999    2000    2001    2002    2003    2004
Spending Under Current Law:
    Budget Authority a..........................................      14       0       0       0       0       0
    Estimated Outlays...........................................      13       7       3       1       0       0
Proposed Changes:
    Authorization Level.........................................       0      69      79      79      79      79
    Estimated Outlays...........................................       0      36      61      74      79      79
Spending Under S. 835:
    Authorization Level.........................................      14      69      79      79      79      79
    Estimated Outlays...........................................      13      43      64      75      79      79
a The Environmental Protection Agency's National Estuary Program has not yet received a full-year appropriation
  for 2000. It received an appropriation of $14 million for 1999.

Basis of Estimate
    The bill would authorize the appropriation of $4 million 
annually over the 2000-2004 period to the Army Corps of 
Engineers (Corps) for administering the Collaborative Council 
and an additional $40 million in 2000, $50 million in 2001, and 
$75 million annually over the 2002-2004 period for grants to 
perform restoration projects. No amounts were appropriated for 
these purposes in 1999, and no amounts have been provided to 
the Corps for this effort in its 2000 appropriation. The bill 
also would authorize $25 million in each of fiscal years 2000 
and 2001 to the Environmental Protection Agency for the 
National Estuary Program.

Pay-as-you-go Considerations: None.

Intergovernmental and Private-Sector Impact: This bill would 
impose no intergovernmental or private-sector mandates as 
defined in UMRA. Any expenditures made by State and local 
governments to satisfy the matching requirements of grants 
authorized by this bill would be voluntary.

Estimate prepared by: Federal Costs: Susanne S. Mehlman (226-
2860) Impact on State, Local, and Tribal Governments: Shelley 
Finlayson (225-3220).

Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

                  Federal Water Pollution Control Act

                        (33 U.S.C. 1251 et seq.)

          [As Amended Through P.L. 105-394, November 13, 1998]

AN ACT To provide for water pollution control activities in the Public 
Health Service of the Federal Security Agency and in the Federal Works 
Agency, and for other purposes.

           *       *       *       *       *       *       *

      (a) * * *

           *       *       *       *       *       *       *

      (g) Grants.--
            (1) Recipients.--The Administrator is authorized to 
        make grants to State, interstate, and regional water 
        pollution control agencies and entities, State coastal 
        zone management agencies, interstate agencies, other 
        public or nonprofit private agencies, institutions, 
        organizations, and individuals.
            (2) Purposes.--Grants under this subsection shall 
        be made to pay for assisting research, surveys, 
        studies, and modeling and other technical work 
        necessary for the development and implementation of a 
        conservation and management plan under this section.
            (3) Federal share.--The amount of grants to any 
        person (including a State, interstate, or regional 
        agency or entity) under this subsection for a fiscal 
        year shall not exceed 75 percent of the costs of such 
        research, survey, studies, and work and shall be made 
        on condition that the non-Federal share of such costs 
        are provided from non-Federal sources.

           *       *       *       *       *       *       *

      (i) Authorization of Appropriations.--There are 
authorized to be appropriated to the Administrator not to 
exceed $12,000,000 per fiscal year for each of fiscal years 
[1987, 1988, 1989, 1990, and 1991] 1987 through 1991, such sums 
as may be necessary for fiscal years 1992 through 1999, and 
$25,000,000 for each of fiscal years 2000 and 2001 for--
            (1) expenses related to the administration of 
        management conferences under this section, not to 
        exceed 10 percent of the amount appropriated under this 
            (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).

           *       *       *       *       *       *       *