Jordan Wimpy

December 5, 2010

Just over a month ago Sen. Ben Cardin (D-MD) introduced sweeping new legislation to clean up the Chesapeake Bay. The bill, The Chesapeake Clean Water and Ecosystem and Restoration Act (S. 1816), is a game changer for the Chesapeake Bay Basin and, more generally, for any attempt to regulate the nation's water resources. The new bill will implement a series of amendments to the Sec. 117 of the Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA), including: (1) revising and expanding definitions of the Chesapeake Bay Program; (2) allocating new funds for development and implementation of programs; and, (3) requiring the states comprising the Chesapeake Basin (Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia) to submit watershed implementation plans.

The big change, however, arises from the recognition that "in spite of the achievements . . . the restoration of Chesapeake Bay will require significantly stronger tools to manage the pollution levels and other impediments to water quality." Therefore, Sen. Cardin's bill proposes to amend CWA Sec. 117 to create a Chesapeake Bay TMDL established or approved by the Administrator of the EPA. The TMDL is the calculation of the total maximum daily load of an identified pollutant that is necessary to meet a state's water quality standards. It is traditionally the role of the individual states to establish their own water quality standards and the appropriate TMDL to reach those standards. The current bill changes this standard by instructing the EPA Administrator to develop a basin or region wide TMDL applicable to all states in the area.

Sen. Cardin's bill is not unique in its proposals; rather, it serves to put the force of law behind similar initiatives begun by the Obama administration in 2009. The EPA, following an Executive Order to expedite efforts to clean the Chesapeake Bay, created a draft TMDL to be applied to the six state basin area. The EPA just recently closed the comment period on the draft Chesapeake TMDL.

The thought of amending the CWA to put the force of law behind the regulatory efforts has created a storm. For many groups, such as the Chesapeake Bay Foundation and American Rivers, hopes are high for a law described as the most important piece of Chesapeake Bay legislation since the CWA thirty-seven years ago, and one that could serve as blueprint for the nation's other water sources. In contrast, farmers, ranchers and business owners are fearful the bill puts to much authority in the hands of the federal government, and are concerned the law will serve as a legislative precedent with national implications. Such concerns caused a group of Virginia famers to hand-deliver over 18,000 letters protesting the new bill.

It is unlikely the matter will be decided during Congress' current lame duck session. This leaves both camps with time to accumulate resources and formulate arguments for their respective sides— scenario leaving many with high hopes but serious concerns.

Sources:

American Rivers Applauds Introduction of Chesapeake Bay Restoration Act—Comprehensive approach toward enforceable pollution limits will restore Bay's health, clean water, AmericanRivers.org (Oct. 21, 2010), http://www.americanrivers.org/newsroom/press-releases/2009/american-rivers-applauds-1009.html.

Chesapeake Clean Water and Ecosystem Restoration Act, S. 1816, 111th Cong. (2010).

Chesapeake Bay TMDL, http://www.epa.gov/chesapeakebaytmdl/ (last visited Dec. 3, 2010).

Clean Water Act Section 303(d): Preliminary Notice of Total Maximum Daily Load (TMDL) Development for the Chesapeake Bay, 74 Fed. Reg. 47792–47794 (Sept. 17, 2009).

Clean Water Act Section 303(d): Notice for the Public Review of the Draft Total Maximum Daily Load (TMDL) for the Chesapeake Bay, 75 Fed. Reg. 57776–57778 (Sept. 22, 2010).

Exec. Order No 13,508, 74 Fed. Reg. 23099 (May 15, 2009).

Farm Bureau Asks Senate to Oppose Water Control Bill, FBNews, Nov. 1, 2010, at 6.

Message Delivered: Oppose Chesapeake Bay Water Regulation Bill, FBNews, Oct. 4, 2010, at 1.

Strengthening Section 117 of the Clean Water Act, cfb.org, http://www.cbf.org/Page.aspx?pid=1455 (last visited Dec. 3, 2010).