State and federal agencies have broken their promises to meet past deadlines to cleanup the Bay, but if they don't do the job by 2025, they may be breaking the law.
Legislation introduced in Congress in October would require states to implement all actions needed to restore Bay water quality by 2025, but would also authorize significantly increased federal spending to help do the job.
Sen. Benjamin Cardin, D-MD, lead sponsor of the bill, called it a "robust plan that will put us on a realistic, but aggressive path to restoring the Bay to a healthy state that can sustain native fish, wildlife, farmland and our regional economy."
While the bill was largely unchanged from a draft circulated by Cardin's office earlier this fall, there were key differences. The earlier version contained a 2020 deadline, and would have banned menhaden fishing in the Bay, a provision dropped in favor of a study on the issue.
Similar legislation was introduced in the House by Rep. Elijah Cummings, D-MD. In the Senate, the bill was co-sponsored by Sens. Barbara Mikulski, D-MD, Tom Carper and Ted Kaufman, both Delaware Democrats. The House bill had 10 co-sponsors.
"I often say that our children are the living messages we send to a future we will never see," Cummings said. "This cleanup effort will be our message to those children. We cared enough about their future to ensure a cleaner, more pristine environment in which they could live."
The Chesapeake Clean Water and Ecosystem Recovery Act of 2009, in effect, puts the force of law behind the cleanup program being developed by the EPA. It sets up a program similar to that used in the Clean Air Act, in which the EPA sets standards, and states develop plans to meet them. States could face punitive actions if they fail, and the bill allows citizens to sue the EPA to enforce cleanup efforts.
It requires the EPA to establish a Total Maximum Daily Load for the Bay by the end of 2010. A TMDL is an enforceable pollution budget that sets the maximum amount of pollution a water body can receive and still meet water quality standards. It requires all discharge permits be consistent with levels allowed in the TMDL, and requires states to write implementation plans that include nutrient reduction targets and schedules for specific sources of pollution, including agriculture, stormwater discharges and septic systems.
The plans have to show how nutrient reduction goals will be met, whether through regulations, permits and other enforceable mechanisms, or through voluntary programs which must demonstrate adequate personnel and funding are available. The plans must also show how states would offset impacts of future growth.
States are required to establish interim goals in two-year increments and would have to achieve 60 percent of the required nutrient reductions by 2017.
If progress lags, the bill calls for the EPA to apply penalties, such as withholding federal grant funds or even taking over state programs.
As part of the cleanup effort, the bill calls for a no net increase in nutrient and sediment pollution from new impervious surfaces, large animal feedlots, septic systems and new roads.
And, as part of new stormwater permits, new development would be required to maintain "to the maximum extent feasible" the pre-development hydrology of a site. Developers would have to mitigate for any unavoidable impacts to hydrology. The bill authorizes up to $1.5 billion in grant funds to local governments to upgrade stormwater systems, although Congress would have to approve that spending separately.
The bill also bans phosphorus in dishwater detergents and most other cleaning products. In addition, it calls for the EPA to examine other consumer or commercial products that may harm Bay water quality.
It requires the EPA to establish an interstate trading program for nitrogen and phosphorus so that those who fail to meet goals can purchase credits from those who do more than required. The bill authorizes $80 million a year in "implementation grants" to the states to help develop and implement Bay-related programs. That's several times current funding levels, although Congress would have to approve the funds annually. The legislation would also require that the EPA provide a portion of those funds to the headwater states of West Virginia, New York and Delaware, where officials have complained about being required to help clean up the Bay without getting financial support.
A portion of those funds would also be used to provide farmers and foresters with technical assistance to implement conservation programs. Funding has been increased to control runoff from agricultural lands, but many have said there are too few people available to advise farmers about the programs.
The bill creates a new Chesapeake Bay Stewardship Grants Program, which would replace the existing Small Watershed Grants and several other grant programs, to fund innovative or locally supported nutrient control and restoration efforts. The grant program would get $15 million a year, an increase from the roughly $10 million those programs have gotten in recent years.
The bill would provide $10 million for monitoring, to be divided between monitoring in the Bay and its tidal waters, and the freshwater rivers and streams that feed them. That's about twice what's now spent, and the lack of money has created a debate among scientists and government officials about how that funding is best used.
The bill would prohibit the introduction of Asian oysters in the Chesapeake and would provide funds to eradicate nutria-a nonnative rodent that destroys marshlands-in Maryland, Delaware and Virginia.
The bill dropped an earlier proposal to ban menhaden fishing in the Bay. It was replaced with a requirement to study the impact of commercial menhaden harvests.
Menhaden are a small, filter-feeding fish eaten by larger species. Many sports fishermen contend that overharvesting in the Bay is limiting the food supply for striped bass and other fish, as well as harming water quality.