Senator Cardin’s Chesapeake Bay Bill Headed to Mark-Up

Today the Senate Environment and Public Works Committee will discuss Senator Cardin’s Chesapeake Clean Water and Ecosystem Restoration Act of 2009 (S. 1816), along with a suite of other bills to protect the great waterways of the United States. 

Critically, the bill codifies the Bay-wide Total Maximum Daily Load (TMDL), requiring it to be implemented and enforced.  To remedy the pervasive lack of accountability in prior Bay restoration agreements, the bill requires states to submit biennial progress reports and to commit to fulfilling biennial milestones and empowers the EPA to withhold funds, develop and administer a federal implementation plan, or require new or expanding dischargers to acquire offsets that result in a net decrease of pollution. The bill makes progress in other significant areas, including:

• Non-point sources. The Clean Water Act has dramatically reduced pollution from point sources, but nonpoint sources (runoff from farms, forestry activities, overflowing septic tanks, parking lots, golf courses, and mining operations) are left unregulated – even though water pollution from nonpoint sources dwarfs all other sources by volume. Under the Bay-wide TMDL that S. 1816 codifies, EPA must include “enforceable or otherwise binding load allocations” for all nonpoint sources, including some of the major contributors to Bay pollution: atmospheric deposition, agricultural runoff, and certain stormwater sources. Naturally these economic interests are staunchly opposed to this provision, but the Bay cannot be restored unless nonpoint source polluters do their part.
• Trading. Water quality trading remains a controversial aspect of the act, billed as a way to incentivize pollution reductions from nonpoint sources that are not subject to mandatory reductions under the CWA but viewed warily by some environmental groups as legitimizing pollution increases from certain sources. S. 1816 directs EPA to establish a watershed-wide trading program for nitrogen and phosphorous by May 2012. Establishing an effective, functional trading program that results in actual pollution reductions is possible, but it requires complex data sets, vigilant monitoring, and significant financial resources to jumpstart the system. While the trading provisions in S. 1816 are environmentally protective, EPA must maintain stringent requirements to ensure that actual reductions—rather than paper trades—result.
• Accountability. S. 1816 brings a marked change in the way states and EPA will be held accountable for Chesapeake Bay restoration efforts. In addition to states’ progress reports and milestones, EPA must also submit an annual progress report that describes the federal actions toward restoring the Bay, and overall Bay restoration progress is subject to a periodic report by the EPA’s Inspector General. For the public, S. 1816 authorizes citizen enforcement suits under the CWA for certain violations, including the failure to correct a previously missed milestone. 

Senator Cardin is also introducing an amendment (S. 3481) to the Clean Water Act to ensure that federal agencies pay stormwater management fees. These fees are assessed by municipal water utilities to defray the cost of achieving stormwater pollution reductions required by the Act. In the District of Columbia, the General Services Administration, the Department of Defense, and the Government Accountability Office recently refused to pay these stormwater fees. These federal agencies argued that the fees amounted to a tax on the federal government, which is prohibited by the constitutional principle of sovereign immunity. However, their refusal leaves DC Water in a $2 million-plus gap, which if left unpaid will be passed onto District ratepayers.

Together S. 1816 and S. 3481 will go a long way towards protecting and restoring the Chesapeake Bay and all waterbodies affected by nonpoint source pollution. The Clean Water Act was enacted in 1972. It’s been a remarkably effective law, but until nonpoint sources are addressed, an enormous accountability gap will remain, and the Bay’s health will not improve.  S. 1816’s focus on implementation and enforcement is exactly what’s needed if real progress is to be made in the Bay.