On October 20, 2009, Senator Cardin of Maryland introduced, S. 1816, the “Chesapeake Clean Water and Ecosystem Restoration Act,” on behalf of himself and Senators Mikulski, Carper and Kaufman. The legislation reappeared from Senator Boxer’s Committee on June 30th 2010 with all 64 plus pages stricken and with a 98 page amendment. Expanding federal authority even beyond that of the original bill to determine what science is acceptable and funded.
The Chesapeake Bay Act is an amendment to the Clean Water Act that serves to expand federal authority down to the smallest potential source of pollution. In the findings section the Chesapeake Bay Act states that the largest land use and largest source of nitrogen, phosphorus, and sediment within the Chesapeake Basin is agriculture. It also states that air pollution of nitrogen oxides and ammonia from air pollution contributes 1/3 of nitrogen loadings to the Bay. Significantly, the legislation states that suburban and urban spread is the fastest growing land use and that suburban and urban storm water run off is the only major source of pollution in the watershed that continues to increase. The Chesapeake Bay Act goes on to state this has been caused by the impervious cover (pavement, buildings and roadways) increasing by 250,000 acres between 1990 and 2000. Finally, the Chesapeake Bay Act states that 58% of the watershed is undeveloped and mostly forested, but that 100 acres of forest are lost to development each day. These claims have been determined by modeling, confirmation sampling and interpretation of data. In other words by the federal government and universities and experts.
This new legislation grants sweeping new authority to promulgate any regulation and issue any permit needed to control pollution from any source (including your back yard) to meet water quality goals set by the EPA, notwithstanding any other provision of the Clean Water Act. Thus, the Clean Water Act exemptions for agricultural storm water or irrigation return flows, or residential storm water flows are voided. This provides authority for the EPA to issue section 402 permits to all minor sources of pollution including your home, certainly your neighborhood. States are given authority to issue permits for any pollution source that the Chesapeake Bay State deems necessary. In addition, it requires that the EPA establish standards relating to site planning, design, construction and maintenance for project resulting in impervious development (concrete, roads, buildings, patios, increasing building footprints), essentially any development. The federal government is granted the right to control building and developments within Chesapeake Basin of the six states.
The legislation creates a nutrient trading program throughout the Chesapeake Basin based on imperfect modeling of the effectiveness of agricultural best management practices, storm water management plans. To development essentially a cap and trade program to attempt to accelerate the restoration of the Chesapeake Bay by creating nutrient credits based on federal government blessed “Big Science and Expert” approved model and best management practices (BMPs) that can be bought and sold to meet nutrient reduction goals. One unintended consequence will be in exploitation of know inefficiencies and errors in the models to game the system. In addition, BMPs need to be adopted then maintained year in and year out, so they need to be tracked. It is not like buying a more efficient filter or machine, but maintaining plantings and drainage patterns, composting animal waste, rotating pastures. So the legislation requires EPA to maintain a database with comprehensive information on best management practices.
Many of the other things covered by the legislation codifies as law the requirements for states to adopt and submit to EPA for approval watershed implementation plans for each segment of the Chesapeake Basin within their states. Codifies the total maximum daily load TMDL limits for nitrogen, phosphorus and sediment and the methods for implementing enforcing the programs. These regulations are currently being implemented without this act which serves to place land use control into federal hands. With one piece of legislation we deliver into federal hands the authority to engage in social, economic and environmental engineering in the six state region.