What will it take before state and EPA officials realize that voluntary programs are failing to clean up the Chesapeake Bay? The recent article in the July-August Bay Journal and the follow-up by Mr. Matuszeski regarding the development of pollution limits (Total Maximum Daily Loads or TMDLs) would suggest that voluntary efforts, rather than total pollution limits, are the key to saving the Bay. Especially, they point out, because the real problem is diffuse, nonpoint source pollution.
If this were so, why would the Chesapeake Bay Foundation, Sierra Club, and other environmental organizations focus on a mandatory part of the Clean Water Act that requires states or the EPA to set total dailylimits for pollution of "impaired" rivers?
Perhaps the scientists and lawyers at these organizations believe that major strides could be made by simply enforcing existing water pollution laws. Air pollution is important, but first things first. Talking about air pollution in the context of the largely unfinished work of the Clean Water Act is craftily changing the subject.
The TMDL is required by law. It is one of many existing laws aimed at saving the Bay that is being ignored while champions of voluntary programs continue to spend our tax dollars on efforts that have proven themselves ineffective.
Take the nutrient reduction efforts. The two programs that deserve credit for achieving much of the Nutrient Reduction Strategy are the Clean Water Act and the Phosphate Ban. Neither are voluntary. On the other hand, many mandatory rules that could achieve cleaner water are being ignored.
As part of the Clean Water Act, Maryland submitted a list of impaired waters where water quality standards are not met. In some of these places, existing pollution sources are contributing toxicity to the waterway, according to the EPA. The Baltimore Harbor, Maryland's foremost impaired waterway, is a case in point.
The Chesapeake Bay Program calls the Baltimore Harbor a "toxic hot spot," one of the three most contaminated spots on the Bay. Perhaps that would qualify the harbor for a much needed enforcement of existing laws. But wait-the Chesapeake Bay Program is a voluntary program and instead will fund more studies and rely on industrial good will to clean up the Harbor. So it's up to the shareholders.
While the action plan for this "hot spot" was being drafted, the biggest sewage treatment plant on the harbor had not received a new permit in almost a decade, and thus continued to discharge unlimited amounts of toxic chemicals and tons of nutrient pollution to the Bay. Issuing a permit, which is required by law, would have made a big difference. But it was not part of the voluntary Regional Action Plan (RAP).
Another major polluter, named in the EPA report as contributing to the toxicity in the harbor, had requested what would amount to an exemption from state water quality standards for two toxic chemicals. Perhaps denying such an privilege would help the impaired waterway. But unfortunately, that was not in the cards.
The suggestion, made by a high-ranking Maryland Department of the Environment official, that TMDLs would encourage polluters to move to pristine waterways ignores the existing laws that would prevent such activities if these laws were enforced. Rather than using this weakness as an excuse not to do TMDLs, why not correct the fundamental problem? Don't rely on voluntary compliance. Enforce the laws.
Comments from state representatives in the Bay Journal article imply that the agencies are resigned to never cleaning up the Bay. The idea expressed by one Pennsylvania official, that they would write, but not implement, a TMDL demonstrates a severe lack of interest in the resource. In reality, the TMDL may be just the tool to give teeth to existing laws, not already being implemented because of a lack of political will.
For example, at the time the Baltimore RAP was being drafted, MDE's industrial stormwater program, which would govern perhaps the biggest nonpoint source contributor to the toxics problem in the harbor, remained only partially implemented; industrial stormwater was not adequately controlled. Would they add it to the Regional Action Plan? Nope.
Instead, the voluntary program has promised only further study and a program to cover-over the most toxic areas with clean sediments. So the pollution will continue to flow.
Does it take a major fish kill to finally do what Congress and the writers of the Clean Water Act intended? Even that might not be enough, judging from the same study-it-more attitude currently being taken in the Pocomoke River. How have voluntary nutrient control practices helped us there?
Perhaps it takes vigilant environmental organizations to enforce the laws that have the potential to clean up the Bay.
The TMDL requirements may not be perfect, but surely they have the potential to outdo any voluntary program to arise in the past decade or so since the nutrient and toxics reduction commitments were made. If all they did in Baltimore was to issue permits on time, deny exemptions from water quality standards, and enforce stormwater control programs, water quality in the harbor would be improved. That is much more than we got from the voluntary program, and more than we will get without a TMDL.
Clearly, the Chesapeake Bay Foundation and the other environmental groups see the TMDL program as a tool to ensure that important pollution reductions, currently being ignored, do not fall entirely through the cracks because of hopeful volunteerist thinking.
Let's face it. These days it's hard to pass a new environmental law. And polluters are not known for making investments towards someone else's return. That is why existing rules like the requirement for total pollution limits are our best bet for saving the Bay.
Jacqueline Savitz is a policy analyst with the Washington D.C.-based Environmental Working Group and a former toxicologist with the Chesapeake Bay Foundation.