As House Agriculture Committee Takes on the Chesapeake Bay Restoration, EPA Has the Law on Its Side

by Rena Steinzor

March 16, 2011

This morning a House Agriculture subcommittee will hold a hearing to "review the Chesapeake Bay TMDL, agricultural conservation practices, and their implications on national watersheds." Observers should be prepared for a trip to an alternate world.

The Chesapeake Bay has suffered for decades now because of nitrogen, phosphorous, and sediment pollution. Once-abundant fish, blue crab, and oyster populations plummeted, and local economies built around them have paid the price. Repeated state pledges to reduce the pollution and restore the Bay have fallen short time and again. If fixing the problem were easy, we would have done it already. It's not easy. But it's possible.

The EPA's current effort to restore the Bay is unquestionably the most serious effort to fix the problem. Decreasing the pollution that's harming the Bay will require some changes in how we all do business, so it's hardly surprising that the EPA's efforts have drawn opposition. But the rhetoric we have been hearing, and will hear today, from defenders of the status quo, is simply divorced from reality.

Big agriculture's representatives say that they've reduced their pollution, and there are plenty of examples of where that is the case. But that's little comfort: today, agriculture is the largest single source of nutrient pollution in the Chesapeake Bay, contributing an estimated 38 percent of the nitrogen and 45 percent of the phosphorous. The Bay and all of us who enjoy it suffer the consequences.

Advocates for the status quo have tried to paint a picture of EPA going beyond its bounds. Yet the reality is the opposite: EPA's Chesapeake Bay efforts have been squarely within its authority under the Clean Water Act (CWA) and an assortment of consent decrees and memoranda of understanding (MOU). These critics also suffer from a convenient case of amnesia, forgetting that the Bay states and the District of Columbia asked the EPA to set pollutant levels for the entire watershed. The EPA is acting at their behest. The agency's primary tool is a Total Maximum Daily Load (TMDL), commonly called a "pollution diet" for the Bay, which sets a cap on the total amount of nitrogen, phosphorus, and sediment that can enter the Bay.

Under the CWA, a state has the first chance to set a TMDL, but the EPA has the authority to establish a federal TMDL if it disapproves of a state’s TMDL. Courts around the country have ruled that long-time failure of a state to submit a TMDL is grounds for EPA to act, which is exactly what’s been happening in the Bay watershed and has led to the lawsuits and MOUs. Moreover, restoration of the Bay would not likely occur if each state and D.C. attempted to restore their waters in a piecemeal fashion without some overarching coordination. Having the EPA lead the effort quite simply makes the most sense.

The agency has in fact bent over backwards to collaborate with states—some more recalcitrant than others—and has largely let states decide the exact controls and strategies for reducing pollution. What is important to the EPA, and communities around the watershed, is that the pollution is reduced and the Bay is restored. The EPA has been flexible, as long as the total pollution-reduction goal is achieved.

Pretending that we can restore the Chesapeake Bay without reducing the pollution, including from agricultural sources, is not helpful. It's not as if anyone has a secret tool up their sleeve to restore the Bay without decreasing our pollution into it. The EPA's opponents won't say it, but in reality blocking pollution limits would mean guaranteeing that the Chesapeake Bay be degraded for years to come.

Tagged as: Chesapeake Bay
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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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