We Must Do Better This Time

• Author: Douglas F. Gansler
• Position: Priority is protecting the environment through strong enforcement of the law
• Pages: 37-37

MAY/JUNE 2011 ❧ Page 37

Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, May/June 2011

anoTher view

f‌lows, precipitation ef‌fects, and

tidal inf‌luences. EPA, the states,

and the district enlisted the best

scientists and tools available, and

held numerous public meetings as

this process moved forward. Initial

maximum loads were established in

2003, and re-evaluated in 2005 and

2007 as additional information be-

came available and the models were

ref‌ined and calibrated.

EPA and the states agreed to ac-

company the TMDL with an “ac-

countability framework” which

included the WIPs, two-year mile-

stones to mark restoration progress,

tracking programs, and a commit-

ment by EPA to take action if the

states and the District fail to make

reasonable progress. is gives the

states and local governments the

lead in designing and implementing

the measures needed to get the job

done. If they fail, EPA, as overseer,

can use its CWA authority to im-

pose stricter discharge limitations,

such as more stringent regulation

of point sources or expanded point

source coverage for stormwater run-

of‌f, municipal separate storm sewer

systems, and Concentrated Animal

Feeding Operations. Indeed it is al-

ready initiating some measures in

these areas as part of the broader

water quality restoration strategy

under the executive order.

e principal sources of nitrogen

to the bay and their approximate

contribution levels are agriculture

(42 percent), municipal and indus-

trial wastewater (20 percent), at-

mospheric deposition (20 percent),

and urban/suburban stormwater

(18 percent). For phosphorus it is

agriculture (46 percent), stormwa-

ter (32 percent), and wastewater

(22 percent). For sediment it is

agriculture (60 percent), stormwa-

ter (28 percent), and runof‌f from

natural sources, including forests

(12 percent).

Most of the discharges from ag-

land law def‌ines “discharge” more

broadly than does the Clean Water

Act to include placing pollutants

in a position likely to pollute. at

gives us a broad enforcement tool

to stop pollution not covered by

NPDES permits.

To backstop our ef‌forts, it is

critical that EPA take every step

necessary to ensure the reduction

outlined in the bay TMDL, includ-

ing exercising strict oversight of

NPDES permits if they fall short;

increasing targeted federal enforce-

ment actions; exercising residual

designation authority to extend

NPDES permitting requirements

to additional sources, especially

within the agricultural sector; and

seeking all appropri-

ate remedies available

within EPA authority

to achieve Chesapeake

Bay cleanup. We do

not intend for EPA to

have to do these things

in Maryland and we

trust other bay states to

make sure it is not nec-

essary in their states, but the threat

of EPA enforcement must be real.

Finally, we must be more imag-

inative in f‌inding ways to reduce

the sources of nutrient pollution.

at’s why I advocated for legisla-

tion in Maryland banning phos-

phorous from dishwasher detergent

and am pushing for similar legisla-

tion to remove excessive levels of

nitrogen and phosphorus from

lawn fertilizers. I am also working

to bring a power plant to Maryland

that would turn millions of pounds

of chicken litter into electricity and

keep it from polluting the bay. We

will all have to f‌ind ways to reduce

pollution if we are going to restore

the health of the Chesapeake Bay.

Maryland Attorn ey General Do ug la s F. G an -

sler’s priorit y is protec ting the env ironment

through stro ng enforcement of the law.

The Chesapeake Bay

TMDL and the Water-

shed Implementation

Plan process represent the

best opportunity in a gen-

eration to restore the Chesapeake

Bay, but it is going to require equal

parts vigilance and imagination to

make sure that happens. Previous

ef‌forts to restore the bay have failed

to meet their promise because they

lacked strong enforcement mecha-

nisms and real commitment from

stakeholders.

We must do better this time.

Each state must implement ef‌fec-

tive measures and develop strong

enforcement priorities to ensure

that EPA-mandated pollutant re-

duction goals are met.

Maryland has committed

to achieve 80 percent of

its pollutant reductions

by 2017 and 100 per-

cent by 2020, f‌ive years

earlier than other states.

at is a great goal that

demonstrates Maryland’s

commitment to restore

the bay, but without vigorous en-

forcement of pollutant reductions

that goal will not mean much.

To ensure compliance by all

sources of pollution, enforcement

needs to be a certainty. We’ll need

to enforce more stringent ef‌f‌luent

limits in National Pollutant Dis-

charge Elimination System per-

mits; carefully monitor schedules

for construction of upgrades at mu-

nicipal wastewater treatment plants

and hold municipalities that fail to

stay on schedule accountable; in-

crease enforcement to ensure com-

pliance by farmers with nutrient

management plans; strictly enforce

erosion and sediment controls dur-

ing construction to prevent sedi-

ment pollution; and enforce tighter

municipal stormwater permits to

reduce pollutants that come from

urban runof‌f. Fortunately, Mary-

Douglas F. Gansler

We Must Do Better is Time