Senate negotiators reached a compromise over landmark Chesapeake Bay legislation in June to win enough Republican support in the Environment and Public Works Committee to allow the bill to be sent to the Senate floor.
Sen. Benjamin Cardin, the Maryland Democrat who wrote the bill, S.1816, Chesapeake Clean Water and Ecosystem Restoration Act of 2009, joined Republican Sen. James Inhofe of Oklahoma in introducing an amendment changing several parts of the bill to clarify, and in some cases reduce, the EPA's authority in implementing a new Bay cleanup plan known as a Total Maximum Daily Load.
The bill faced widespread opposition from agriculture groups and western state senators who were concerned about the long arm of the EPA on farms, particularly where the regulation of runoff was concerned.
In a significant change, the bill no longer codifies the TMDL to make it part of the federal Clean Water Act. Some believe that could weaken the EPA's hand if the TMDL, and the authority EPA asserts in the plan, is challenged in court as expected.
Under the bill, the EPA can take over state regulatory programs if the states are not making adequate progress, but the amendment clarifies that if the EPA does so, it cannot regulate agricultural runoff, which it is prohibited from doing by the Clean Water Act. States can regulate that runoff.
The bill requires a cap-and-trade program for nutrients, but the amendment clarifies that such a program must assure there is no degradation of local waters as a result of a trade.
Cardin spokeswoman Sue Walitsky told reporters that the bill's core aspects remain intact, including requirements that states develop enforceable Watershed Implementation Plans, and that the plans be approved by the EPA and fully implemented by 2025. States still stand to lose all federal water funding if the EPA has to take over WIP implementation.
The bill also keeps provisions that new development maintain pre-development hydrology to the maximum extent feasible.
Chesapeake Bay Foundation Federal Affairs Director Doug Siglin agreed with Walitsky's assessment.
"Sen. Cardin made some changes that succeeded in getting bipartisan support for the bill, which is really important," Siglin said "But it is still a strong bill and still advances Bay cleanup."
With the clock running out on the current session of Congress, supporters believe the compromise gives the bill a better chance of winning final passage.
A similar version of the bill, introduced by Rep. Elijah Cummings, D-MD, is awaiting action in the house.
Cardin's legislation is not the only Bay pollution bill working its way through Congress. In June, Congressmen Tim Holden, D-PA, and Bob Goodlatte, R-VA, introduced the Chesapeake Bay Reauthorization and Improvement act, which builds on the 2008 Farm Bill funding to help farmers reduce pollution, but is short on cleanup mandates and reduces the EPA's role in controlling agricultural pollution.
That bill has been backed by agricultural groups, but is vigorously opposed by environmentalists. No hearings or committee action have been scheduled for that bill.
Virginia Rep. Gerald Connolly, D-VA, has also introduced a bill focused on stormwater, although several of its ideas were incorporated into the Cardin bill.
The bill that has made it the furthest so far is legislation introduced by Rep. Rob Wittman, R-VA, who introduced the Chesapeake Bay Accountability and Recovery Act in February 2009 as part of an effort to improve coordination among states and federal agencies working on the Bay.
Wittman's legislation would require coordinated budgets for the multiple agencies involved with the Bay's restoration and would require that Bay-related agencies follow adaptive management principals in operating their programs.
Although the bill has cleared the House, there is no indication that it will be taken up by the Senate.