July 06, 2010

Out of the Scrum, a Bad Deal for the Chesapeake Bay

Desperate to move a funding bill for Chesapeake Bay restoration out of the Senate Environment and Public Works Committee, progressive Senator Benjamin Cardin (D-MD) went into the scrum with one of the body’s most conservative members, James Inhofe (R-OK). After a struggle of uncertain intensity and duration, the two emerged, with Inhofe, who openly ridicules the idea of global climate change, firmly in control of the ball. 

Cardin agreed to put his name on a dispiriting proposal that misses a crucial opportunity to enforce a central requirement of the Clean Water Act. The Act began cleaning up the nation’s waters by requiring those who discharge pollution into rivers, lakes, and streams to install the “best available control technology” – for example, equipment that removes the pathogens in raw sewage. This primary approach worked well for years, but as the population and industrial development grew exponentially, and U.S. waters became unacceptably dirty, other provisions kicked into action. 

The second approach was the application of “water quality standards” that set the maximum level of pollution that could exist in “receiving waters” where the plants emptied their pipes. So, for example, if I run a big sewage treatment plant that discharges into the Potomac River from three pipes, and levels of fecal coliform (that's bacteria from human waste) rise above water quality standards set by the state of Maryland in that section of the river, officials should revise my permit to curtail how much I can discharge in the future until the waters get back to a healthy level.

The problem with this second phase was that because the states were the leading actors in setting the new standards, and because the Environmental Protection Agency (EPA) had lost its courage somewhere between the presidencies of Ronald Reagan and George W. Bush, many states, including most of those responsible for preventing pollution from choking the Chesapeake Bay, did not cover many pollutants under their water quality standards and wrote the standards in “narrative”—as opposed to numerical—terms. In essence, narrative standards tell the state inspector to determine whether the water looks bad, making it very hard to check on the validity of such subjective judgments. My plant would therefore have a great chance of escaping any further controls. Compounding these problems, states are increasingly unable to field enough inspectors to make sure the job of improving water quality is in fact getting done.

Enter phase three of the Act: if technology is not sufficiently protective, and water quality standards are not sufficiently stringent to curb pollution at individual facilities, Congress instructed the states to develop “total maximum daily loads” (TMDL) for “impaired” water segments. A segment is a discreet portion of the river—for example, a five-mile stretch of the Potomac near my sewage treatment plant, which is also “fed” by discharges from other sources, such as chemical plants, a lumber yard, small businesses, or run-off from highways and agricultural lands. To determine if it is impaired, regulators test it, this time to see whether the numerical levels of pollution it contains are unsafe for its “designated use(s),” which could be as drinking water, for recreational boating, or for fishing.  If the levels are too high for those purposes, the state is then required to look at the whole picture, including all these sources, in order to figure out a way to get them all to reduce their cumulative discharges so that water quality improves.  The new TMDL would then drive states to implement pollution control actions in a significantly more ambitious manner than water quality standards would. Rather than simply going out and eyeballing the water, state officials would immediately rewrite permits for all sources covered by the Act (the sewage plant, the chemical plant, the small businesses, the highways, and some of the agricultural land). They would get money from their own treasuries and from the federal government to encourage sources that are now exempt from the law to clean up.

Before he entered the scrum with Senator Inhofe, Senator Cardin had written a tough, clear bill setting deadlines for the states to implement the TMDL that EPA is in the process of writing for the entire Chesapeake Bay watershed (really, a collection of 92 smaller TMDLs that cover every river and stream-mile). When he emerged, Senator Inhofe, who represents an area thousands of miles and billions of dollars away from the Bay but who undoubtedly got the backing of every agricultural conglomerate and manufacturer within shouting distance of the Chesapeake’s once beautiful shores, had reduced the legislation to an inexplicable throwback. Now, the only requirement is that states go back to fooling around with those inadequate water quality criteria, guaranteeing that an approach we already know is a failure becomes memorialized for years to come.

Actually, I should say that this trip back in time is what will happen if Cardin’s deal with Inhofe somehow materializes into a final law—an outcome I think is extremely unlikely, unless Cardin has worked out some extraordinary deal to get the bill across the floor of the Senate and the companion bill through the relevant House committees lickety-split. His trump card is the federal money the bill would provide to keep the huge number of Chesapeake Bay restoration activities going. But given that we have already spent $3 billion, and the water quality in the Bay has not improved markedly over a 20-year period, this trade-off simply is not worth it.

I appreciate the internal struggle Senator Cardin must have endured as he weighed the Hobson’s choice of getting a deeply flawed proposal moving versus taking no action. But in this case, he stepped over to the wrong side of the line.


Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.

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