The Chesapeake Clean Water and Ecosystem Restoration Act of 2009, introduced today by Senator Ben Cardin (D-Md), is a marked improvement from legislation in past years and demonstrates the Senator's continued leadership on restoring one of this country's greatest natural resources. The bill rightly emphasizes the implementation and enforcement of the Bay-wide Total Maximum Daily Load (TMDL), which will be issued in draft form by the EPA later this year and finalized by December 2010. It requires Bay states to submit biennial progress reports and empowers the EPA to withhold funding for failure to do so. It also mandates no net increases in nitrogen, phosphorus, and sediment loading from the urban and suburban sector.
Today's bill takes big steps toward restoring the Chesapeake Bay, but it should be improved by adding an independent evaluator to monitor the states' performance. The bill requires the Inspector General of the EPA to evaluate implementation progress “not less than once every three years,” but the IG’s role is otherwise undefined and likely to produce just another report with no action. As part of the larger accountability mechanism, an independent evaluator could actually force the states to meet their targets, and that's desperately needed.
For decades, the Program has suffered from a pervasive lack of accountability. On one hand, the scientists in the Chesapeake Bay watershed have produced world-class studies on nearly every aspect of the Bay. On the other hand, the studies have remained in paper form without making the transition to actual improvements in Bay health and restoration. This voluntary culture has not only produced the lowest-common-denominator solutions but has also created a belief in many stakeholders that the Bay Program and EPA lack the authority and independence to demand action. The Chesapeake Bay partners have made a plethora of promises, but they have systematically failed to implement them. More than any other change, the codification of a transparent, mandatory, and enforceable accountability mechanism is essential to the transformation of the Bay Program’s voluntary culture. Without enforcement, the future looks to be much of the same.
President Obama’s Executive Order, Chesapeake Bay Protection and Restoration, directs Bay partners to report progress on Bay restoration to an independent evaluator. But the order provides little detail about the scope and objectives of the independent evaluator’s work. Requiring an independent evaluator by legislation, and detailing the responsibilities, would ensure a more durable and lasting office, necessary to follow an entire restoration plan that will last beyond 2025.
Some stakeholders have proposed that the independent evaluator be a one-time research project for the National Academy of Sciences. While the NAS is a highly respected and prestigious institution, its operational structure—defined exclusively by the agency or entity it works for—is not sufficiently dynamic, nimble, or long-term to effectively change the Bay Program’s culture. The independent evaluator should be completely independent of the Bay Program rather than constrained from the outset by the Bay Program.
The independent evaluator must, as we've outlined, be the voice of accountability, responsible for investigating and identifying the institutional barriers to achieving the statutory mission of Bay restoration. Congress must charge the independent evaluator with:
The draft legislation already includes many accountability provisions, such as EPA approval of tributary implementation plans and publication of a federal annual action plan and progress report. An independent evaluator could augment these efforts and help ensure these provisions are fulfilled. Moreover, the evaluator could play a significant role in informing and involving a public that values the Bay so dearly.
Senator Cardin’s legislation builds on the momentum generated in May by President Obama’s executive order and, if passed, further strengthens protections for the Bay. Adding an independent evaluator would go a long way toward translating great rhetoric into a tangible outcome: a healthier Chesapeake Bay.
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Shana Campbell Jones | October 19, 2009
The Chesapeake Clean Water and Ecosystem Restoration Act of 2009, introduced today by Senator Ben Cardin (D-Md), is a marked improvement from legislation in past years and demonstrates the Senator’s continued leadership on restoring one of this country’s greatest natural resources. The bill rightly emphasizes the implementation and enforcement of the Bay-wide Total Maximum Daily […]
Catherine O'Neill | October 16, 2009
With some fanfare, the EPA announced last week that it has selected a cleanup strategy for the Palos Verdes Shelf (PVS) Superfund Site off the coast of southern California – an area that has been termed “ the world’s largest DDT dump.” The EPA touts its plan as “a major milestone” that puts the site […]
Ben Somberg | October 15, 2009
The EPA today released a 15-page Clean Water Act Enforcement Action Plan prepared by the agency’s Office of Enforcement and Compliance Assurance. Back in early July, Lisa Jackson had directed the enforcmeent office to develop a plan, and to “report back to me within 90 days with your recommendations.” The EPA seems to be saying […]
Robert L. Glicksman | October 15, 2009
Just about a month ago, the New York Times published a story in which it documented an alarming failure on the part of federal and state officials to enforce the principal federal law designed to protect the quality of the nation’s surface waters, including rivers, lakes, and streams. According to that story, fewer than three […]
Holly Doremus | October 14, 2009
This item cross-posted from Legal Planet. On Friday, the New York Times carried a story about Tim DeChristopher, the economics student in Utah who bid on federal oil and gas leases at an auction last December as a form of protest against global warming. DeChristopher was the winning bidder on 14 parcels, but admits that […]
Thomas McGarity | October 13, 2009
The debate over whether Congress should create a Consumer Financial Protection Agency, as recommended by President Obama, has recently taken a disturbing turn. Apparently, some congressional Democrats have been receptive to complaints from the big national banks that the current bill does not preempt state laws and regulations that are more stringent than the regulations […]
Ben Somberg | October 9, 2009
I thought that the Alan Carlin story — the ‘suppressed’ climate change skeptic at EPA — was over. After the initial debunkings, the story kept going, but then I thought the NYT really put it to rest in late September. Apparently not for everyone. Carlin, many have noted, is an economist at EPA, not a […]
Ben Somberg | October 9, 2009
Congratulations to CPR Member Scholar and board member Rob Verchick! Rob has been appointed to the position of Deputy Associate Administrator in the EPA’s Office of Policy, Economics, and Innovation (OPEI).
Yee Huang | October 8, 2009
On September 24, arguments began in Oklahoma v. Tyson, a 2005 lawsuit filed by the Oklahoma Attorney General against poultry companies operating in the Illinois River Basin. The lawsuit alleges violations of federal environmental laws, state and federal public nuisance law, and state statutes regulating pollution of waterways. Oklahoma’s legal strategy is unique: the state […]