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Budget amendment may torpedo Chesapeake Bay restoration plan

Chesapeake Bay watershed

Satellite image of the Chesapeake Bay watershed (USGS)

MECHANICSVILLE, Va. — Weeks after the U.S. Environmental Protection Agency announced a plan to restore the Chesapeake Bay by putting it on a strict “pollution diet,” a Virginia congressman has introduced a budget amendment that would prevent the use of federal funds to carry the plan out.

Republican Rep. Bob Goodlatte, who represents Virginia’s 6th District, introduced an amendment to the House funding bill that states that, “None of the funds made available by this Act may be used to develop, promulgate, evaluate, implement, provide oversight to, or backstop total maximum daily loads or watershed implementation plans for the Chesapeake Bay Watershed.”

The move to cut Bay restoration funding comes amid a GOP-driven effort to trim EPA funding by 30 percent before the current fiscal year ends. Goodlatte’s amendment targets the EPA’s total maximum daily load (TMDL) requirements, which caps the allowable limits of certain pollutants (such as nitrogen or phosphorus) that are discharged into or run off into the waters that feed the Bay.

Goodlatte’s action has triggered a strong reaction among groups supporting the Bay restoration effort.

“How unfortunate that Congressman Goodlatte, who represents one of the states that would benefit most from a healthy Chesapeake Bay, is seeking to torpedo the Bay restoration plan before its ink is scarcely dry,” said Chesapeake Bay Foundation President William C. Baker in a statement released Tuesday. “The cleanup plan, finalized just weeks ago, is the result of years of intense work, community outreach, and consensus agreement among scientists, policymakers, and leaders in six states. It follows decades of widely acknowledged failure to restore a national treasure that multiple presidents, governors, and members of Congress have pledged to restore and that millions of voters have consistently said they support.”

Baker’s statement noted the importance of federal participation in any Bay restoration effort.

“A successful Chesapeake Bay restoration plan simply must have a fully supportive and involved federal partner,” Baker said. “As history has shown, the Bay states cannot do it alone. The Bay TMDL may well represent the Bay’s best and last chance for restoration. Its goal is to restore clean water to the Chesapeake and to tributaries such as the Shenandoah River, a polluted river flowing through Congressman Goodlatte’s own district, by 2025. Pollution has resulted in fish kills, dead zones, and impacts to human health, as well as costing jobs and damaging local economies. CBF fervently hopes the Goodlatte amendment will be defeated.”

According to Associated Press reports, Goodlatte said he opposed the EPA plan because, “They are trying to take control from the states the ability to manage these watershed improvement programs, which have historically and clearly been under the Clean Water Act for states to do.”

TCR finds this justification puzzling. The strategy of most major federal environmental laws (including the Clean Air Act, Clean Water Act, Superfund, and others) is that the federal government sets overall standards. The states are free to act insofar as they can establish more stringent standards—but they are not free to set less stringent regulations.

Rather than rely on memory, TCR consulted a 2010 Congressional Research Service report on the Clean Water Act, which says, “Under this act, federal jurisdiction is broad, particularly regarding establishment of national standards or effluent limitations. Certain responsibilities are delegated to the states, and the act embodies a philosophy of federal-state partnership in which the federal government sets the agenda and standards for pollution abatement, while states carry out day-to-day activities of implementation and enforcement.”

TCR contacted Goodlatte’s office to give him an opportunity to explain his position, but has received no response to its questions from either the congressman or his press secretary, Kathryn Rexrode, by deadline (more later).

Chuck Epes, assistant director for media relations at the Chesapeake Bay Foundation, said the EPA’s TMDL limits were developed through just the type of federal-state partnerships that Goodlatte claims is lacking. Epes cited Virginia as an example, where EPA has for decades delegated enforcement of Clean Water Act provisions to the Virginia Department of Environmental Quality and the State Water Control Board. He said the state played a major role in helping determine what the TMDL limits should be.

“Virginia went through an exhaustive, public process last summer/fall to develop its Bay watershed implementation plan (WIP) that spells out how Virginia intends to comply with the Bay pollution diet,” Epes said. “So for Goodlatte to claim this process somehow usurps state authority is just nonsense. It’s ALL about state authority.”

In the past, Goodlatte has called for a scientific review of the EPA’s TMDL model. TCR asked Goodlatte if he was aware of any scientfically based challenges to the model’s validity.  In fact, the model has been under development for more than a decade and has been the subject of a rather extensive scientific review effort from the start.

“I think folks readily acknowledge that the model is what is typically utilized in a situation where you don’t have all the data you need to necessarily address the issues, said R. Christopher French, Virginia director for the Alliance for the Chesapeake Bay. “What people have to keep in mind is that a model is exactly that—it’s a model to try to help you get from point A to point B. …

“One of the things to keep in mind regarding the Chesapeake Bay Program’s model is that this has gone through a lot of changes through the past 15-plus years. That model is probably one of the most scientifically defensible models in the world because so much time and resources have been put into it.”

Epes said Goodlatte’s claim regarding the model is a a “red herring.”

Regarding the rigor of the Bay model, you are absolutely correct that it is imprecise,” Epes said. “EPA acknowledges that, and is constantly tweaking it to improve it. However, broad brush, it represents probably the most sophisticated watershed modeling of its kind on the planet and has been endorsed by the Bay region’s most respected scientists.”

The leaders of the Chesapeake Research Consortium—comprised of scientists from Johns Hopkins University, the University of Maryland system, Smithsonian Institution, Old Dominion University, Pennsylvania State University and the Virginia Institute of Marine Science—would agree. In a Nov. 8, 2010, comment on the EPA’s restoration plan, they concluded that, “… the modeling framework used to develop the Draft TMDL represents the best current incorporation of available science with which to set and allocate maximum loads within the watershed.”

Last year, Goodlatte had introduced legislation that, according to his Web site, would assume farmers were in compliance with any Chesapeake Bay restoration plan “as long as they have undertaken approved conservation activities to comply with state and federal water quality standards.” That legislation died in last year’s session, but a similar bill (HB 1830) is circulating through Virginia’s General Assembly this session.

Epes worries that such an approach could amount to a “perpetual ‘get out of jail free card'” for farmers who implement certain management practices.

“While CBF is OK with that general notion, the devil of course is in the details,” Epes said. “Goodlatte (and Va. HB 1830) propose that farmers be deemed in compliance with the TMDL if they implement a ‘resource management plan,’ but precisely who would prepare the plan, what it would include, how and when it would be implemented, what practices it would require (if any), how it would be monitored, whether and how it would be enforced remain undefined.

“Just yesterday the [Virginia] legislation was amended to include a provision exempting resource management plans from FOIA requirements—in other words, it lets farmers say they’re doing BMPs, use state tax dollars to pay for them, but not make public what they’re doing and whether it is making a difference. As you might expect, CBF has serious concerns about it.”

French likewise has concerns with the approach.

“In order to meet the provisions of the Clean Water Act, water quality monitoring is the ultimate test,” French said. “For all the things we are looking for in testing our waters, whether it’s DEQ in Virginia or Maryland Department of the Environment or other groups, when they send their staff out and test [waters], those results are what it ultimately comes down to to determine if waters meet standards or not. The Clean Water Act is very clear about that. There are no deviations from that to my knowledge.”

In the end, Goodlatte’s move frustrates those who have spent years working to develop a plan for the Bay’s cleanup.

“It is certainly frustrating and disappointing, particularly when those trying ‘to call off the race,’ as you term it, represent Virginia and frame the issue as some kind of ‘healthy bay vs. healthy economy’ either/or issue,” Epes said. “But CBF is optimistic and confident that, like with a lot of issues in this country, the citizens are actually out in front of the politicians on bay cleanup, and that they will insist that government deliver what the Clean Water Act, Virginia law, the state Constitution, and most citizens demand—clean water.”

Accountability Alert: TCR contacted Goodlatte’s office for comment by e-mail Wednesday night, and followed up with a phone call to his Washington office Thursday afternoon. It received an e-mail from Rexrode asking what publication this inquiry was from. TCR promptly responded. Despite a second phone call Friday morning, TCR has received no other response from Goodlatte’s office.

TCR will be happy to update this article should Goodlatte or his representatives respond at a later date.

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