The Chesapeake Bay is the largest estuary in North America, home to more than 3,600 species of plants and animals. The Chesapeake Bay watershed – the land that drains into the Bay – encompasses parts of six states and Washington, D.C. Unfortunately, this national treasure has been deteriorating since the 1930s.
One reason for this steady decline is the failure of public officials across the region to enforce pollution standards. Maryland, Virginia, Pennsylvania, the District of Columbia, West Virginia, New York, and Delaware have been working with EPA since 1983 to restore the Bay. Since then, the Bay Program partner states have made a series of commitments about their states' efforts to clean up the Bay.
Unfortunately, many of those commitments have gone unfulfilled.
EPA Steps Up; Will the States?
In May 2009, President Obama breathed new life into Bay restoration efforts when he issued an Executive Order on Chesapeake Bay Protection and Restoration. The order marked a dramatic departure, offering the promise of federal leadership. The following year, the EPA issued a Chesapeake Total Maximum Daily Load (TMDL), essentially a pollution budget for the Bay states.
In September 2013, a federal judge upheld the TMDL against a challenge by the American Farm Bureau Federation. Read CPR’s summary of the decision.
Enforcing the TMDL
The TMDL calls on states to reduce nitrogen and phosphorus loadings to the Bay 25 percent by 2025, and sediment loadings by 20 percent. These targets will go a long way toward cleaning up the Bay, but meeting them will require robust oversight and enforcement. CPR is committed to ensuring that the requirements of the TMDL are enforced and that states are held accountable. These ongoing efforts include:
Industrial animal farms, known as concentrated animal feeding operations (CAFOs), have a significant impact on the health of the Chesapeake Bay. Unlike human waste, manure from CAFOs is usually spread onto land untreated. From there, it can flow into Bay tributaries – still untreated – and then into the Bay. As a result, the operations account for an outsized share of several types of pollution in the Bay, including significant percentages of nitrogen, phosphorous, and sediment.
CAFOs are considered a point source under the Clean Water Act, thus operators must obtain a permit and are subject to government oversight. But Maryland, the state often considered to be the most advanced in its efforts to restore the Bay to health, is lagging behind in its efforts to reign in pollution from CAFOs. According to a November 2013 report by CPR President Rena Steinzor and Policy Analyst Anne Havemann, three years into the state's effort to enforce the new TMDL, the Maryland Department of the Environment (MDE) has built a considerable backlog of pollution permit applications from CAFOs. The permits is the only way to compel CAFOs to follow certain best practices to limit pollutants flowing into the Bay. MDE has not registered 26 percent of Maryland’s CAFOs and MAFOs. Specifically:
The permit writers are behind: 87 out of a total of 506 complete applications have yet to be processed, leaving operators with no clear requirements to reduce pollution and MDE with no enforceable conditions.
The CAFO program is understaffed, relying on three permit writers and the same number of inspectors. A loss of even one employee can cut the program’s productivity in half, as occurred in 2012.
Many of the applications MDE receives are incomplete: 65 of 540 CAFOs lack the required comprehensive nutrient management plans (CNMPs) that dictate how the facility is to operate to protect water quality.
MDE has so far given the industry a free ride: it has yet to collect application and annual fees for CAFO permits, which are $120 for small CAFOs, $600 for medium CAFOs, and $1,200 for large CAFOs. There are no fees for MAFO coverage. Collecting these fees would ensure that the program has sufficient resources to hire additional permit writers and inspectors.
In June 2012, CPR's Rena Steinzor and Yee Huang examined the impact of factory farming operations on the Chesapeake Bay and concluded that a series of regulatory reforms were in order. Among the reforms proposed in Manure in the Bay: A Report on Industrial Agriculture in Maryland and Pennsylvania: Speedier review of pollution permits by state environmental agencies, rigorous inspections of polluting facilities, and fines for violations that are large enough to serve as a deterrent rather than a nuisance. In addition, the report calls for the states to treat large chicken and hog processing companies that have substantial control over a CAFO in the state — such as Tyson, Perdue, and Smithfield — as subject to Clean Water Act permitting requirements.
Maryland's Criminal Enforcement of Water Pollution Laws: Letting Polluters Off Easy?
One key to cleaning up the Bay is effective enforcement of existing pollution laws.
In April 2013, Member Scholar Robert Glicksman and Policy Analyst Aimee Simpson issued No Profit in Pollution: A Comparison of Key Chesapeake Bay State Water Pollution Penalty Policies(CPR Briefing Paper 1305), which explored whether the states' penalty structures allowed polluters to profit from violating the law, even if caught and penalized. Their conclusion: The Bay states need to amend their existing laws and policies to make sure that polluters get no economic benefit from noncompliance with the law. The briefing paper also calls for greater transparency concerning existing penalty assessments. Read the day-of-release blog post by the authors.
In September 2012, CPR released a report by Member Scholar Rena Steinzor and Policy Analyst Simpson evaluating Maryland's criminal enforcement efforts. As the report notes,
Typically, environmental enforcement involves civil or administrative actions, which primarily result in monetary fines. Criminal enforcement, on the other hand, can lead to much more serious penalties, like incarceration, extensive probationary periods, license suspensions, and debarment. The prospect of going to jail and acquiring a criminal record has a higher deterrence value than monetary civil penalties, which are often factored into bottom-line business costs....
After gathering and analyzing data from a variety of sources, we conclude generally that criminal prosecution of water pollution violations at both the state and federal levels in Maryland is an underutilized enforcement tool.
In November 2013, EPA released a draft of a new strategic plan in which it advertised that it would significantly reduce the number of inspections and enforcement actions it conducted, while asserting that it would embrace a "Next Generation Compliance" program that relies on industry self-monitoring. CPR's Rena Steinzor, Rob Glicksman and Anne Havemann published an Issue Alert in January 2014 deconstructing EPA's enforcement retreat, and sent a letter to EPA Administrator Gina McCarthy calling on her to rethink the plan.
Faced with a federal mandate, the states began work on complying with the TMDL requirements. One Bay-wide approach under consideration is a Water Quality Trading regime that would allow polluters to trade pollution credits.
A May 2012 report from CPR's Chesapeake Bay experts warned, however, that such an approach has largely failed elsewhere, and that the success or failure of a Chesapeake Bay trading regime will rest on whether the system meets a number of threshold criteria, including:
Broad participation in the program, including from "nonpoint" pollution sources;
Genuine accountability, so that credit trades actual translate into pollution reductions, not simply paper savings;
Resources from the states sufficient to operate an accountable trading regime in all its complexity;
Rules that avoid pollution hot spots;
A continuation of traditional regulatory controls that would create an incentive for participation in the program;
Transparency from EPA and the Bay states, so that compliance can be monitored by all.
In August 2012, CPR's Rena Steinzor, Rob Verchick, Nick Vidargas and Yee Huang issued a report exploring the environmental justice implications of a water quality trading regime in the Chesapeake, concluding that in the absence of specific safeguards, the approach could result in pollution "hot spots" that took a disproportionate toll on the region's poor and minority residents. Read the news release.