Chesapeake Clean Water and Ecosystem Restoration Act- Managing an Ecosystem by Brute Force

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.

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.