The Chickahominy Report

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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