From town halls, to the halls of Congress-and even into those of the White House-a growing chorus is calling for significantly tougher federal efforts to finish the job of cleaning up the Chesapeake Bay.
Exactly how tough a stance federal agencies will take, primarily the EPA, will emerge in coming months.
But state officials and citizens alike are calling for actions that would have been unthinkable in the past. In testimony presented to a congressional committee in August, a Maryland official suggested the EPA should block new construction in states that fail to make adequate progress toward new Bay cleanup goals.
Meanwhile, more than 300 people packed on overheated Annapolis room on a hot August night to sound off about the Bay cleanup at a town hall meeting organized by environmental groups. Most expressed frustration about what they said was a lack of federal involvement or enforcement. Summed up one speaker: "Where are you guys?"
Twenty-six years after state and federal leaders first promised to restore the Chesapeake Bay, almost no one is pleased with the state of the Bay.
This year's report card from the state-federal Bay Program partnership showed that among some of the most important water quality parameters, two-water clarity and chlorophyll a (a measure of algae)-were trending worse over the last two decades, while dissolved oxygen showed no clear trend.
Of the major fish and shellfish species targeted for restoration in various Bay commitments, only striped bass are more numerous than they were in 1983-and that is tempered by the fact that the majority of Bay rockfish are infected with mycobacteriosis, a chronic wasting disease.
Blue crabs, oysters, shad and menhaden are either less abundant, or no better off, than they were 26 years ago. Their habitats are also in dismal shape: By some estimates, more than 90 percent of the oyster habitat in the Bay has been lost.
The Bay Program was formed as a voluntary partnership in 1983 between Maryland, Pennsylvania, Virginia, the District of Columbia, the EPA and the Chesapeake Bay Commission which represents state legislatures.
Initially, the program had focused largely on voluntary efforts. But as the Bay failed to show significant improvement, support appears to be growing for the EPA to use a larger regulatory hammer to ensure the new goals-now aimed at cleaning the Bay by 2025-are met.
"Without the Bay Program, the health of the Chesapeake would undoubtedly be much worse than it is today," said U.S. Sen. Ben Cardin, D-MD, at an August hearing. "But holding our own is not nearly good enough. So merely fine-tuning the Bay Program is not good enough, either. We need significant changes if we want to significantly improve the Bay, and we want to do just that."
The main culprits in degrading Bay water quality are excess amounts of nutrients and sediment. But previous cleanup goals set in 1987, 1992 and 2000 were all missed.
That triggered the EPA to require the development of a cleanup plan known as a Total Maximum Daily Load. That plan, due at the end of next year, is essentially a pollution budget that establishes the maximum amount of pollution a water body can receive and still meet its water quality standards.
In October, the EPA and the states will issue preliminary nutrient and sediment reduction goals-the maximum loads in a TMDL-for each major tributary, and for each state. Based on updated computer models, those goals will show that far greater nutrient and sediment reductions will be needed to meet cleanup goals than were previously thought-largely because more nutrients are entering the Bay than were previously estimated. But the effectiveness of the TMDL may be determined by how broadly the EPA chooses to interpret its Clean Water Act authority.
Perhaps the strongest signal of any new course will come on Sept. 9, when the EPA will release a draft report responding to an executive order issued by President Barak Obama in May. The Executive Order called on the EPA "to define the next generation of tools and actions to restore water quality in the Chesapeake Bay and describe the changes to be made to regulations, programs, and policies to implement these actions."
In preparing that report, the EPA was directed to make "full use of its authorities under the Clean Water Act," and consider revising regulations and guidance "where appropriate."
Ultimately, the Executive Order called for assigning pollution reductions to various sources and developing and implementing an enforcement plan. One hope expressed in the order is that a successful program can be developed for the Bay that can be replicated elsewhere.
The EPA's regulatory authority stems from the Clean Water Act. That legislation, last updated 21 years ago, gives the agency authority to regulate "point source" discharges that reach waterways from a discrete point, such as the end of a pipe or a ditch, or even a development site.
But the agency has limited power to deal with runoff, or nonpoint sources, which account for the majority of pollution entering the Bay. Exactly how far the agency can go enforcing reductions from those sources has long been a matter of debate.
The wording of the executive order suggests the new administration is open to a broader interpretation that would give the EPA a greater ability to leverage pollution reductions from nonpoint sources.
Any new interpretations might be seen this fall, when it releases guidance to states in the watershed about what it expects to see in implementation plans that steer cleanup efforts, and what type of evidence the states must provide to show they will attain not only the ultimate goal, but interim, two-year objectives.
If the EPA doesn't find enough authority to do the job in the existing Clean Water Act, more power could be on the way from Congress. Both the House and the Senate this summer held hearings on legislation that reauthorizes the portion of the act that establishes the Chesapeake Bay Program.
The House Bill, introduced by Rep. Robert Wittman, R-VA, seeks to make the Bay cleanup more efficient by coordinating budget efforts among various agencies working on Bay issues, and to ensure that agencies use "adaptive management" to adjust their programs based on new information.
"If we ever want to achieve meaningful progress in the Bay cleanup, we have to improve the coordination and execution of our efforts," Wittman said.
His bill, which does not explicitly give the EPA any new authority, was approved by the House Natural Resources Committee in July.
In the Senate, a more sweeping reauthorization is being developed by Cardin, who has held a series of hearings on the Bay this summer.
Cardin has promised a bill in late summer or early fall, and suggested it may give the EPA additional authority to deal with Bay issues. At an Aug. 3 hearing before the Senate Subcommittee on Water and Wildlife, Cardin suggested that the Bay Program might need authority similar to that in the Clean Air Act.
If states fail to implement plans required under the air statue, they face an array of sanctions such as the potential withholding of federal transportation funds and tougher permits on new facilities.
Cardin suggested that the Clean Air Act "is a model that we can use for the Chesapeake Bay Program."
At the hearing, Maryland Department of Natural Resources Secretary John Griffin concurred, and said Congress should require states to write cleanup plans that would be enforced by the EPA-even if it meant slamming the door on growth.
"Perhaps the most effective sanctions for non-compliance that we would recommend the committee consider are the suspension of authority to issue new hookups to public wastewater systems and the ability of local governments to issue building permits," Griffin said.
Such ramifications aren't necessarily far-fetched. In a western mining case, a federal appeals court last year ruled that the EPA could not issue a new discharge permit into an impaired water body unless there was an enforceable plan-and schedule-to remove the waterway from the agency's list of impaired waters.
Some officials told Cardin that the Bay would benefit if the EPA updated its regulatory requirements for the entire nation. James Tierney, assistant commissioner for water sources with the New York State Department of Environmental Conservation, said the national standards in many of the EPA's permit programs, such as those for sewage treatment plants, no longer require state-of-the-art technologies, and should be updated.
Likewise, George Hawkins, director of the District of Columbia's Department of the Environment, said the EPA should upgrade its standards for stormwater controls to require the use of new runoff control technologies.
To some extent, the call for stronger federal action crosses party lines. "I am here today as a proud Republican to tell you that we need the federal government to play a stronger and more targeted role in Bay restoration," said Del. John Cosgrove of Virginia, who is also chairman of the Chesapeake Bay Commission, which represents state legislatures. "The Clean Water Act must provide new authorities and accountability measures that complement our state efforts in order to maximize pollution from all sources."
To be sure, not everyone is calling for more regulation. In his testimony before the Senate subcommittee, Gus Douglas noted that he has been the West Virginia agriculture commissioner for more than four decades. "During that time, I've seen many things that do not work," he said. "One thing that doesn't work is excessive regulation of our farm community."
Although the state has undertaken some new regulations such as those governing animal feedlots, he said West Virginia has "committed to using a voluntary approach to water quality" when it comes to farming.
In written testimony, Douglas said the Bay Program and the EPA were "putting the state under constant pressure to begin developing additional regulations without giving the current regulations a chance to take effect or make a difference.
"This threat has the potential to reduce our ability to work with the farm community and can potentially cause the participation in programs to decline."
Marty Mitchell, a home builder who has won several awards for his environmentally friendly developments, cautioned against further restrictions on the already lagging housing industry.
The costs of meeting the Bay water quality standards "are likely to put enormous strain on the struggling economies of the affected Bay states. It remains to be seen if future growth can be accommodated under the new TMDL considering there has been little success in meeting past water quality standards."
Whether a bill that significantly expands the EPA's authority in the Bay Program will pass Congress is unclear.
Sen. James Inhofe, R-OK, who is the minority chairman of Cardin's committee, issued a statement saying that "voluntary environmental programs are very successful."
"My state's experience is that heavy-handed regulations that ignore economic realities and property rights do not work," Inhofe said.
Nonetheless, Chuck Fox, the EPA senior adviser to EPA Administrator Lisa Jackson for Chesapeake Bay issues, suggested at the Annapolis Town Hall meeting that regulatory authority would need to be ratcheted up if the Bay were to be restored. He noted that only about 40 percent of the Bay's nutrient pollution is currently subject to regulation under the Clean Water Act, and suggested a stronger approach similar to that in the Clean Air Act might be needed.
Fox didn't say exactly what the agency would recommend Sept. 9, when it issues a draft report required under the executive order, although he said it would contain some "pretty bold ideas."
"Stay tuned," he added.