Fishery Conservation Transition Act

Mr. President, today I am proud to introduce legislation that will help prevent millions of gallons of pollution from entering our Nation's precious water resources. The season we are in makes my legislation particularly timely. Spring is one of the wettest times of year, and with every Spring shower polluted stormwater runoff washes a myriad of chemicals pollutants, sediment, debris, oil and grease, and other contaminates from our Nation's roads and highways into our lakes, rivers, streams, bays, and coastal waters.

Stormwater is the nation's largest source of water pollution. While rain itself contains air pollution particulates that are deposited in every drop, most stormwater pollution is picked up on the surface and carried off as runoff. Stormwater washes contaminants like oil, grease, heavy metals, nutrients, asbestos, sediments, road salts and other de- icing agents, brake dust, and road debris from the millions of miles of America's roads and into storm drains that discharge into nearby waters. Almost all of this polluted stormwater is discharged without any treatment.

When rain falls on these hard, impervious surfaces it often has no where to go but down the channels created by curbs and retaining walls, into storm drains and into the nearest natural water body. According to research compiled by the National Oceanic & Atmospheric Administration's, NOAA, National Geophysical Data Center, the U.S. is covered by more than 112,600 square kilometers of impervious surfaces. That is a space larger than the State of Ohio. With 985,139 miles of federal aid highways stretching from every corner of the country, polluted highway runoff is no small problem facing our nation's waters.

The effects of polluted stormwater runoff are real. For example, the Anacostia River--Washington's ``other'' and often forgotten river--can be seen from the Capitol Dome as it flows out of Prince George's County, Maryland, and into the District and on to its confluence with the Potomac. Runoff from within the 176 square mile watershed of the Anacostia, most of which is in Maryland, but also includes the east side of DC and the entire Capitol complex, all makes its way into the Anacostia. The stormwater that enters the Anacostia is extremely polluted from the thousands of acres of road surfaces that cover the watershed, which exacerbates the incidence of combined sewer overflows and has impaired the Anacostia for many years. It is no coincidence that the U.S. Fish & Wildlife Service has found the Anacostia's bottom- feeder catfish to have the highest incidence of liver tumors than any other population of catfish in the country. The cause of the tumors are the high levels of polycyclic aromatic hydrocarbons, a by-product of fuel combustion, that come from vehicle tailpipe emissions and are deposited on the road and in the air and then washed into the river with every shower or thunderstorm.

This is not a problem unique to Maryland or the Chesapeake Bay region, nor is it a problem unique to urban environments as opposed to rural environments. Polluted runoff is a problem that affects any watershed where impervious paved road and highway surfaces have altered the natural hydrology of a watershed. Over time, Federal highway policy has come to recognize the drastic impacts highways and surface transportation can have on the environment and on water quality. Title 23 of the U.S. Code states: ``transportation should play a significant role in promoting economic growth, improving the environment, and sustaining the quality of life'' through the use of ``context sensitive solutions.'' The Intermodal Surface Transportation Efficiency Act, ISTEA, authorized using transportation enhancement funds for ``environmental mitigation to address water pollution due to highway runoff.'' It's important to note, however, that this is just one of 12 types of eligible enhancement projects and only 1.1 percent of enhancement project funds have gone toward environmental mitigation projects since 1992.

In 2008, at the request of the House Transportation & Infrastructure Committee, the Government Accountability Office issued a report examining key issues and challenges that need to be addressed in the next reauthorization of the transportation bill. That report highlighted the clear link between transportation policy and the environment. Taking a policy approach to require that the planning, design, and construction of highways are done in an environmentally responsible manner, with an eye toward mitigating the water quality impacts highways have on our Nation's water resources, will help address this issue and better meet our Nation's transportation goals. This legislation also helps advance the October 5, 2009, Executive Order affirming that Federal policy and Federal agencies shall ``conserve and protect water resources through efficiency, reuse, and stormwater management; eliminate waste, recycle, and prevent pollution; and leverage agency acquisitions to foster markets for sustainable technologies and environmentally preferable materials, products and services.''

The approach my legislation takes to mitigate polluted highway runoff is through the implementation of a minimum design standard, developed by the United States Department of Transportation, that requires the maintenance or restoration of the pre-development hydrology of a Federal-aid highway project site. This same approach was made law by the Energy Independence & Security Act of 2007 for the development of new Federal buildings and facilities.

My bill would require that all significant Federal highway projects must be planned and designed ``to maintain or restore, to the maximum extent technically feasible, the predevelopment hydrology of the project site with regard to the temperature, rate, chemical composition, volume and duration of flow'' of stormwater. This would be achieved by approaches that avoid and minimize alteration of natural features and hydrology and maximize the use of onsite pollution control measures using existing terrain and natural features.

My bill also recognizes that geography and other physical characteristics of the land may not always allow on-site treatment of polluted highway runoff. When conditions are impracticable my legislation would allow for an ``appropriate off-site runoff pollution mitigation program'' within the watershed of a Federal-aid highway project site that can protect against the water quality impacts of the project.

The Clean Water Act requires that we protect the waters of the United States. As with most pollution abatement strategies, preventing stormwater pollution is cheaper, more effective, and easier to implement than trying to clean up and remediate the problem after the contamination has occurred.

Not addressing stormwater pollution at its source just kicks the proverbial

can down the road for someone else's attention. When water resources are contaminated by polluted highway runoff, mitigating the pollution, which is a preventable discharge in the first place, should not be the responsibility of local governments, wastewater treatment facilities, or drinking water utilities.

Water pollution has many sources and our Nation's highways produce a tremendous volume of contaminated stormwater. Time and time again, experience has taught us that addressing pollution at its source is the most effective means of abating pollution. It is time we applied this principle to our Nation's Federal-aid highways. I urge my colleagues to support my legislation and help move our country closer to meeting the goals of the Clean Water Act and the goals of our national transportation policy.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise to discuss a bill I have introduced because I see a very unfair battle unfolding right in front of us. The battle I foresee is this: In one corner we have the enormous resources of the Federal Government; in the other corner, cities and States with very limited resources, especially in these economic times, but with a good-faith desire to protect their communities.

What I am speaking of today and what my legislation goes to is the Federal Government's use of litigation to insert itself into State and potentially local immigration laws.

I rise with a great deal of knowledge about this. As a former mayor and county commissioner, city council member and Governor, I know what it is like when the Federal Government swoops in and brings its power to bear on an issue. I have seen it from both sides, having also served as a member of the President's Cabinet. I know that when the resources of the Federal Government are used to weigh in with litigation, it is crushing. The administration can send in a team of lawyers and overwhelm the resources of a community or a State. Litigation brings with it a huge financial burden for cities and States. In fact, litigation can and does have a chilling effect on the local decisionmaking process, even if local leaders believe their action in good faith is appropriate and necessary.

I believe that is the exact reaction this administration is hoping to cause among communities and States across the Nation that are considering action on immigration issues.

In this case, I believe litigation is being used to send a warning to other communities, other States that might be considering taking action in this arena.

The administration's claim that the Federal Government has sole authority to enforce immigration laws because of the supremacy clause of the Constitution is, in fact, inconsistent with the President's own internal policies. Just last year, President Obama authored a memo, sent it out to all Federal departments and agencies, requiring serious and careful consideration when using Federal preemption of State laws.

In this memo, dated May 20, 2009, with the subject ``Preemption,'' the President stated:

The purpose of this memorandum is to state the general

policy of my Administration that preemption of State law by

executive departments and agencies should be taken only with

full consideration of legitimate prerogatives of the States

and with sufficient legal basis for preemption.

That seems clear. But the memo went on further to say:

Executive departments and agencies should be mindful that

in our Federal system, the citizens of the several States

have distinctive circumstances and values, and that in many

instances it is appropriate for them to apply to themselves

rules and principles that reflect those circumstances and

values.

Then, finally, the President goes on to say:

It is one of the happy incidents of the federal system that

a single courageous state may, if its citizens choose, serve

as a laboratory; and try novel social experimental

experiments without risk to the rest of the country.

Mr. President, I ask unanimous consent that a copy of this memo be printed in the Record.

So if the use of Federal power to preempt a State requires such an extremely high threshold, how can one reconcile that with the administration's decision to file a lawsuit?

My bill sends a message to the administration that it cannot use the crushing force and threat and reality of litigation to intimidate local officials or to scare them into inaction.

It would allow a State or a municipal government the ability, the right, to recover attorney's fees and other court costs associated with defending a Federal challenge of their immigration laws. In other words, this straightforward legislation just simply levels

the playing field between the huge power of the Federal Government in one corner, as I said, and the right of local communities in States to pass laws to protect their citizens.

It carries this simple message to any administration: If you file a lawsuit and lose, cities and States will not face depleted resources as a result.

My bill ensures that when the Federal Government takes on communities in court, the reasons are pure and based in law or else the impact on our communities will be neutralized.

The administration should focus time and resources on what is the crux of this issue; that is, securing our borders and doing the job and enforcing existing immigration laws and not using litigation as a tool to send a message.

I encourage my colleagues to sign on and cosponsor this commonsense measure and level the playing field for communities when they are forced to defend themselves against the enormous, nearly unlimited power of the Federal Government.

Mr. President, I would like to speak about fishing, a very important special pastime and industry for the Nation. Fishing in Florida is a way of life for many. The small bait and tackle shops, the hotels, the restaurants, the charter boat captains, and the parents who want to see their children marvel when they pull a fish out of the ocean for the first time rely on being able to access the water. In fact, just last week, a Washington Post article traced the path of fish caught in the Florida Keys and off of Florida's East Coast to a Whole Foods market here in the DC area. And sadly, the Deepwater Horizon has shown us how much healthy, high-quality seafood comes out of the Gulf of Mexico every year.

In 2007, the Congress reauthorized the Magnuson-Stevens Fishery Conservation and Management Act. The Magnuson Act has certainly done some good things to ensure the long-term viability of our Nation's fishery resources. But some of the provisions of the law have had major unintended consequences in Florida.

I have spoken before about the need for robust science on the status of our oceans and our fishery stocks. In fact, most recently, I worked with Gulf Coast Senators to get funding in the Supplemental Appropriations bill for fisheries science in the Gulf of Mexico. But despite the potential influx of dollars, fisheries data for the Southeast in particular, is still sparse. This lack of data has lead to a crisis in confidence amongst many in the fishing community. Here is why.

The 2007 Magnuson-Stevens Reauthorization contained a 2010 deadline to end overfishing. But the justification for that deadline rested on two assumptions. First, that there would be recent and accurate stock assessments. Second, that there would be improved catch data. I think the National Oceanic and Atmospheric Administration is doing the best they can with available resources to gather this data. However, for years good data from recreational anglers has been a challenge but because of the changes to Magnuson-Stevens, regulations are coming out faster than the data used to support them.

Having that hard and fast 2010 deadline created a situation where the resource managers are left without options. This has led to closures of large geographic areas to all fishing with no end on the horizon. These closures have devastated small businesses that rely on fishing and left many frustrated that they cannot access the same waters that they always could.

Being a native Floridian, I know that many people develop a love for the ocean and a desire to protect it after they truly experience it by swimming, fishing off their boat, or listening to the waves. This access is a necessary component of conservation because the public gains a sense of ownership and this leads to a sense of responsibility.

That is why I am filing the Fishery Conservation Transition Act today. The bill will enable individuals, businesses, and communities to make a smooth transition while the science catches up by creating a phase-in period for Federal fishing regulations and requiring enhanced data collection in the interim. It also allows for economic assistance for those who are negatively impacted by management measures.

Others have proposed different solutions to this problem, but I believe that my bill is a targeted solution that gives resource managers options to allow access to the water in a way that will also achieve conservation goals.

There are provisions in the bill that require fishery managers to use the transition time wisely and research creative solutions to complex management issues, like how to manage multispecies fisheries in a way that protects the vulnerable stocks but still allows for access. This bill is also about jobs. Small businesses that rely on the fishing industry can ride out these difficult economic times without sacrificing the resource their businesses rely on.

I hope that my colleagues in the Senate will support this effort to provide a smooth transition to sustainable fisheries, healthy economic prospects for small businesses, access to the oceans and natural resources, and robust science.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I would like to speak about fishing, a very important special pastime and industry for the Nation. Fishing in Florida is a way of life for many. The small bait and tackle shops, the hotels, the restaurants, the charter boat captains, and the parents who want to see their children marvel when they pull a fish out of the ocean for the first time rely on being able to access the water. In fact, just last week, a Washington Post article traced the path of fish caught in the Florida Keys and off of Florida's East Coast to a Whole Foods market here in the DC area. And sadly, the Deepwater Horizon has shown us how much healthy, high-quality seafood comes out of the Gulf of Mexico every year.

In 2007, the Congress reauthorized the Magnuson-Stevens Fishery Conservation and Management Act. The Magnuson Act has certainly done some good things to ensure the long-term viability of our Nation's fishery resources. But some of the provisions of the law have had major unintended consequences in Florida.

I have spoken before about the need for robust science on the status of our oceans and our fishery stocks. In fact, most recently, I worked with Gulf Coast Senators to get funding in the Supplemental Appropriations bill for fisheries science in the Gulf of Mexico. But despite the potential influx of dollars, fisheries data for the Southeast in particular, is still sparse. This lack of data has lead to a crisis in confidence amongst many in the fishing community. Here is why.

The 2007 Magnuson-Stevens Reauthorization contained a 2010 deadline to end overfishing. But the justification for that deadline rested on two assumptions. First, that there would be recent and accurate stock assessments. Second, that there would be improved catch data. I think the National Oceanic and Atmospheric Administration is doing the best they can with available resources to gather this data. However, for years good data from recreational anglers has been a challenge but because of the changes to Magnuson-Stevens, regulations are coming out faster than the data used to support them.

Having that hard and fast 2010 deadline created a situation where the resource managers are left without options. This has led to closures of large geographic areas to all fishing with no end on the horizon. These closures have devastated small businesses that rely on fishing and left many frustrated that they cannot access the same waters that they always could.

Being a native Floridian, I know that many people develop a love for the ocean and a desire to protect it after they truly experience it by swimming, fishing off their boat, or listening to the waves. This access is a necessary component of conservation because the public gains a sense of ownership and this leads to a sense of responsibility.

That is why I am filing the Fishery Conservation Transition Act today. The bill will enable individuals, businesses, and communities to make a smooth transition while the science catches up by creating a phase-in period for Federal fishing regulations and requiring enhanced data collection in the interim. It also allows for economic assistance for those who are negatively impacted by management measures.

Others have proposed different solutions to this problem, but I believe that my bill is a targeted solution that gives resource managers options to allow access to the water in a way that will also achieve conservation goals.

There are provisions in the bill that require fishery managers to use the transition time wisely and research creative solutions to complex management issues, like how to manage multispecies fisheries in a way that protects the vulnerable stocks but still allows for access. This bill is also about jobs. Small businesses that rely on the fishing industry can ride out these difficult economic times without sacrificing the resource their businesses rely on.

I hope that my colleagues in the Senate will support this effort to provide a smooth transition to sustainable fisheries, healthy economic prospects for small businesses, access to the oceans and natural resources, and robust science.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am proud to introduce the Culture of Safety Hospital Accountability Act. This bill will test alternatives to the current, inflexible system to ensure that hospitals are meeting the highest health and safety standards for their patients.

Under the current system, the Centers for Medicare and Medicaid, or CMS, requires hospitals participating in Medicare and Medicaid to comply with Conditions of Participation--health and safety standards established by CMS for the protection of Medicare and Medicaid beneficiaries. CMS contracts with State agencies to perform inspections of hospitals, nursing homes, and other health care facilities to ensure compliance.

However, there are significant deficiencies in the current system. A major concern among hospitals is CMS' assignment of Immediate Jeopardy, which puts hospitals on a 23-day fast-track to losing their Medicare and Medicaid funding. Right now, the only remedy that CMS has when a hospital receives a citation is termination. There is no flexibility to consider the incident on a case-by-case basis--or even to consider whether the hospital self-reported and immediately corrected the incident. Moreover, current procedures fail to consider the substantial resources and efforts that hospitals are already investing in quality improvement and patient safety.

Take, for example, a hospital in my State, which last year got a 23- day termination notice after they self-reported that one of their nurses had H1N1. The hospital immediately sent the nurse home and, as I mentioned, immediately reported the incident to CMS. Nevertheless, the hospital was required to undergo an inspection and submit the requisite plan of correction to CMS. The agency was not able to process the paperwork until day 22 of the 23-day notice, causing undue stress for the community as they wondered whether the hospital was going to be forced to close its doors.

In addition to the uncertainty for the hospital, the human resources required and costs incurred to implement this inflexible system are enormous. Once a hospital is cited as out of compliance with their Condition of Participation, the State CMS inspectors are required to survey the entire hospital and any other hospitals under the same CMS provider number. In the case of the hospital I just mentioned, it took State inspectors an entire week with 17 staff to survey their hospital system.

To address this inflexibility in the current system, I am introducing the Culture of Safety Hospital Accountability Act. This bill would do three things:

First, it would require the Secretary of Health and Human Services to study

existing quality assurance and patient safety activities within hospitals and identify best practices that should be replicated.

Second, it would create a demonstration program among hospitals, State health care agencies, and HHS to promote and implement best practices for improving patient safety and quality of care. HHS would identify up to 6 States and not more than 24 hospitals to participate in a 3-year demonstration program.

Finally, the bill would authorize the Secretary of HHS to promulgate regulations modifying termination agreements regarding health and safety requirements with hospitals and critical access hospitals to better ensure compliance, prevent recurrence of violations, and improve internal structures and processes that address patient quality and safety.

Patient safety must be first and foremost, and it is not the intent of the demonstration project to keep CMS or State inspectors out of hospitals, nor to impair the remedies CMS needs to address quality issues. Instead, the bill will help to explore how CMS, State regulatory authorities, and hospitals can work collaboratively to address quality and safety issues in ways that will ensure the best quality of care for patients.