A U.S. Senate panel heard testimony in November that a strong law is needed to ensure that Bay cleanup efforts move forward, but critics say proposed legislation goes too far and would give states and the federal EPA "unprecedented" regulatory authority.

At issue is a bill introduced by Sen. Ben Cardin, D-MD, which would require that all actions needed to control the nutrient and sediment pollution that foul the Bay's water be implemented by 2025, and would give states and the EPA more authority to ensure the goal is met.

"The bottom line is the Bay is in trouble today and we have to do a better job," Cardin said at the Nov. 9 hearing of the Senate Committee on Environment and Public Works Subcommittee on Water and Wildlife, which he chairs. "I think all of our partners understand that and are looking for a framework to take the Bay Program to another level."

The bill would also provide significantly more money for the cleanup efforts, including $1.5 billion in grants targeting stormwater controls. It would also require that new development control additional runoff to maintain pre-construction hydrology.

Nearly identical legislation was introduced in the House by Rep. Elijah Cummings, D-MD.

But the legislation has critics who charge that it gives sweeping authority to the EPA over local issues.

"I see this bill as another part of a hostile agenda aimed squarely at rural America and removing states and local officials as decision makers and instead placing them as merely following the dictates of Washington," Sen. James Inhofe of Oklahoma, the senior Republican on the subcommittee, said in a statement issued before the hearing.

Ann Swanson, executive director of the Chesapeake Bay Commission, which represents state legislatures, said the legislation allowed states the flexibility to craft their own nutrient and sediment control plans, as long as they work.

"That doesn't necessarily mean it would be done in regulatory ways," Swanson said. But she said it was important to have pressure on states to ensure they act. "They have never had that level of accountability. Accountability changes the way government behaves."

At the hearing, Susan Parker Bodine, who was a senior EPA official in the George W. Bush administration and is now an environmental attorney in private practice, said the bill "greatly expands the scope of federal water pollution control law."

As written, she said it gives the states the authority to issue Clean Water Act discharge permits-the kinds issued to industries and wastewater treatment plants-"for any pollution source the Chesapeake Bay state deems necessary."

Permits are historically restricted to end-of-pipe dischargers, or point sources, but Bodine said the legislation would allow states to regulate various sources of runoff, including agricultural runoff, which is excluded from EPA regulatory authority in the Clean Water Act.

Nonetheless, the bill would give the EPA power to enforce those state permits if states are failing to meet their goals. Further, it allows the EPA to develop regulations or issue permits "as the [EPA] administrator determines to be necessary to control pollution sufficient to meet the water quality goals."

"That is enormously broad," Bodine said. "That's authorizing where highways are. That's authorizing what is built. That could determine that some land uses may not be allowed anymore, [or] that land uses have to change. This is an enormous expansion of federal authority."

Cardin said he disagreed with some of Bodine's interpretations, and noted that the legislation was supported by Maryland Gov. Martin O'Malley, Virginia Gov. Tim Kaine and District of Columbia Mayor Adrian Fenty.

"The impetus for this reauthorization bill comes from our states and our partners," Cardin said. "It does not come from the federal government. And they recognize the reality that we have missed the targets substantially in recent years and there is a need to re-energize a process that will accomplish the goals."

Part of the bill's goal, Cardin said, was making sure the states had enough tools to do the job.

Sen. Mike Crapo, R-ID, questioned the proposed sanctions states could face if they fall short, including the withholding of federal funds for water projects. He said that was the "wrong move" to achieve cleaner waterways.

J. Charles "Chuck" Fox, senior adviser for the Chesapeake to EPA Administrator Lisa Jackson, acknowledged that "you never want to cut off your nose to spite your face." But, he added, "at the same time, what we've learned through 30 years of environmental statutes and management programs is that it is really important to have consequences, and removing new federal funds is an important consequence, potentially, for inaction."

He said the approach outlined in the bill-which essentially adopts the agency's proposals for ensuring that nutrient reductions take place-is similar to the approach of the Clean Air Act, in which the EPA sets overall standards and allows states to write their own plans to achieve them. But the EPA has power to withhold money and intervene in other ways if state plans fall short.

"The 26-year history of the Chesapeake cleanup program suggests that we will simply not be successful without new tools at our disposal," Fox said.

Summary of Bill

Highlights of the Chesapeake Clean Water and Ecosystem Restoration Act - Senate Bill 1816 & House Resolution 3825

  • The EPA must assign nutrient and sediment targets to each state that are adequate to restore Bay water quality. All needed actions must be in place by 2025.
  • States must submit "implementation plans" to the EPA showing how they will reach nutrient and sediment goals, and must set two-year milestones to keep progress on track. States are given broader regulatory authority to develop programs adequate to meet the goals.
  • Implementation plans must be approved by the EPA. If states do not submit plans, or miss milestones and fail to make corrections, the EPA may impose "consequences," which could include withholding some state Clean Water Act grants, or developing its own implementation plan for the state that would require a 2-to-1 offset program for any new discharges of nitrogen and phosphorus and could include new regulations to control pollution.
  • An interstate nutrient trading program would be established.
  • The EPA would be required to develop new stormwater standards to minimize or eliminate runoff from new development and redevelopment projects.
  • The bill would authorize $1.5 billion in grants to local governments to support projects that reduce stormwater runoff.
  • The bill would authorize $625 million in spending to implement other state nutrient control programs, improve monitoring and providing increased technical assistance for farmers.
  • Citizens would be authorized to file suits against states or the EPA for failure to carry out the law.
  • The bill would reauthorize the Chesapeake Bay Program and maintains its basic structure.
  • The bill would expand the nutria eradication program on the Delmarva Peninsula, make the Army Corps of Engineers' decision to ban the introduction of the Asian oyster into the Chesapeake legally binding, and require a study of the relationship between menhaden fishing and water quality.