The Leviathan in the Chesapeake Clean Water Act

Each year, hundreds of millions of pounds of nitrogen, phosphorus and sediment reaches the Chesapeake Bay. The majority of this pollution comes from sewage treatment plants, large-scale animal operations, agriculture, and air pollution from vehicle exhaust and power plants and other industrial sources. Other sources of pollution include septic systems, runoff from roadways, runoff from commercial development, residential and commercial lawn fertilizers, and small scale animal and agricultural sources (the keeping of horses, poultry, and other animals and growing vegetables in predominately suburban or exurban locations. Solutions to this pollution include upgrading sewage treatment plants, proper operation of septic systems, using nitrogen removal technologies on septic systems, decreasing fertilizer applications to and agriculture, controlling suburban and exurban animal waste, and controlling storm water run off from urban, suburban and agricultural sources.

Over the past quarter century the excess nutrient and sediment contamination to the Chesapeake Bay has decreased in total, but the Bay’s waters remain seriously degraded and considerably short of attaining the 2010 water quality goals set forth in the Chesapeake 2000 agreement. During this time agricultural and industrial sources of pollution have been significantly reduced while urban runoff and suburban sources have increased significantly. As a result US EPA is developing a new federally mandated Total Maximum Daily Load (TMDL) plan to establish and apportion an allowable pollution budget among the states. However, S.1816/H.R. 3852, the Chesapeake Clean Water and Ecosystem Restoration Act (known as the Chesapeake Clean Water Act), represents a radical change in the regulatory approach and an expanse of federal power. Congress will vote on this act to control “non-point” source pollution and delegate to the federal control of every backyard in the six state area of the Chesapeake Bay basin. This legislation would take regulation down to every drop of water and every household activity, uniformly across the region.

The federal government will decide across the six state region whether you can have dogs, cats or other pets, how many if you can let them out in your yard or if you need to gather their waste. There will be regulations for maintaining a horse in hunt country, if you can fertilize your lawn, the types and quantities of plants, if you can wash your car, wash or even build a patio or deck, and acceptable materials of construction for these items. The allocation of the pollution budget will be based on the negotiating power and influence of the federally recognized “stakeholders,” which has never included the American homeowner. In addition, the legislation changes the definition of waters regulated under the Federal Water Pollution Control Act beyond navigable water of the United States down to all the waters, every storm sewer, creek and puddle in the Chesapeake Basin. This is a fundamental increase in power for the federal government.

While it is necessary to put the states on a pollution diet by mandating the TMDL, the determination of how to achieve those goals should be left to local control and homeowner within the region need to have strong representation. As it stands now homeowners are not invited to the table with the other stakeholders. EPA has determined the TMDL allocations based on models of the Chesapeake basin. These models are evolving and improving, but still are only approximations of the ecology of the watershed. EPA has found the modeled results tend to show more attainment from implementation than the monitored results, the cause of this difference has not been fully determined. While the states are insisting they have not been given full credit for agricultural mitigations called “best management practices or BMPs,” the EPA reduced the allocations by an arbitrarily applied margin of safety of about 20-25%. However, now this legislation proposes to use these models to create monetary value from installing mitigations that need to be maintained and that can be bought and sold instead of using monitoring results. This creates the possibility of large scale operations exploiting any flaw in the model to game the system for profit. When there is money involved, there will be someone to find them.

Furthermore the legislation enables the EPA to control growth through pollution allocations, pollution offsets and acceptance of methods of control. Federal power to regulate my backyard is not granted by the constitution under any interpretation of the interstate commerce clause. The federal government exists to serve the individual, and the family not rule it. The Federal government is not the highest expression of moral good and has never been granted the kinds of power assumed here.