EPA, States Need to Cooperate on Bay

• Author: John Pendergrass
• Position: Director of ELI's Center for State, Local, and Regional Environmental Programs
• Pages: 10-10

Page 10 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, July/August 2010

By John Pendergrass

EPA, States Need to

Cooperate on Bay

In May the Environmental Protection

Agency announced a plan to clean

up Chesapeake Bay. e Strategy for

Protecting and Restoring the Chesa-

peake Bay Watershed was heralded

by the Chesapeake Bay Foundation,

which had sued the federal government

over the decades-long failure to achieve

water quality goals for the estuary.

“For the f‌irst time in bay history,

the EPA has said in a legally enforce-

able document that ‘We are respon-

sible for bay restoration,’” said Jon A.

Mueller, a lawyer for the foundation.

e new strategy both settles the law-

suit and responds to an executive or-

der issued by President Obama a year

ago directing a group of federal agen-

cies to take responsibility for clean-

ing up the bay.

e strategy sets limits for nitrogen,

phosphorus, and sediment, the primary

pollutants responsible for dramatic de-

clines in oyster and crab populations

and reductions in sea grass beds. e

strategy sets 2025 as the date for attain-

ing major goals for water quality, habi-

tat restoration, f‌ish and wildlife popu-

lation sustainability, land conservation,

and public access. EPA will enforce

these limits by setting total maximum

daily loads for each pollutant and then

requiring states to limit their contribu-

tions. at simple statement belies the

complexity EPA faces in implementing

the strategy.

e Chesapeake Bay is an object les-

son in cooperative environmental fed-

eralism. e watershed includes parts of

six states and the District of Columbia,

but essentially lies within the boundar-

ies of just Maryland and Virginia. us

it is more dif‌f‌icult for the residents of

the remote parts of the watershed to see

the ef‌fects their activities have on the

bay and means the bay is a lower pri-

ority for the residents and governments

of New York, West Virginia, Pennsylva-

nia, Delaware, and the district. Never-

theless, leaders long ago recognized the

need for all of them to reduce their pol-

lutant discharges into the tributaries of

the bay and f‌irst signed a Chesapeake

Bay Agreement in 1983.

Further pacts followed in 1987 and

2000, but the states and district never

came close to achieving the pollution

reduction goals in those agreements.

ese failures, and EPA’s co-signing of

the accords, were the basis of the suit

f‌iled by the Chesapeake Bay Founda-

tion last year, which it acknowledged

was intended to prod the incoming

Obama administration to take action.

Many factors con-

tributed to the failure

to reduce pollutant

discharges into the

bay. Signif‌icant among

them is that the Clean

Water Act, like the

other principle federal

pollution control statutes, is designed

to function through the states. States

may implement the requirements of

the act if they demonstrate to EPA that

they have the laws, standards, and capa-

bility for meeting the minimum federal

requirements, which virtually all states

have done.

EPA’s primary roles are to set the

minimum national standards and to

oversee the states’ implementation of

their programs. Congress provided the

agency with few tools for enforcing

states’ obligations to implement the act;

it can review and object to individual

permit decisions, bring an enforcement

action against a violator if it decides a

state has not taken appropriate and

timely action, reduce the amount of

grant funding provided to a state for

implementing its program, or, in the

worst case, withdraw authorization for

the state to implement the program

and begin enforcing the act itself. Each

of these actions is an intrusion into the

state’s af‌fairs and EPA therefore seeks

to avoid them if possible. But this can

allow states to avoid making dif‌f‌icult

decisions such as requiring signif‌icant

reductions in pollutant discharges to

streams that eventually f‌low into the

bay.

is reveals another signif‌icant fac-

tor contributing to the bay’s failure to

meet water quality standards — non-

point source pollution. e focus of

the act has always been on municipal

and industrial dischargers of pollution.

e law created a permit program and

extensive standards for pollutants dis-

charged from such point sources, and

the program has been successful in re-

ducing pollution from these sources.

But runof‌f from land, particularly

farms and lawns, is a major source of

pollutants in the bay, which the statute

has much less specif‌ic methods for con-

trolling.

e states have a

larger role in control-

ling nonpoint source

pollution, but have

made relatively little

progress compared

with the point source

permit program is lack of progress is

not surprising given that the polluters

are individual homeowners and farm-

ers. Our cultural and political history

celebrates these as the backbone of the

nation and few government of‌f‌icials

are comfortable suggesting that EPA

or state environmental agencies need to

regulate the behavior of individuals and

their use of their land.

e new federal strategy for the bay

is needed, but it still relies on convincing

the states to take tough actions. How

EPA manages its relationship with the

states will thus be critical to success.

John Pendergras s is Dir ector of ELI’s

Center for State, Local, and Regional Envi-

ronmental Programs. He can be reached at

pendergr ass@eli.org.

A  S

Many factors contribute

to the failure to reduce

discharges into the

Chesapeake