Over the past several months, environmentalists in the Chesapeake Bay region have been closely watching the Chesapeake Clean Water and Ecosystem Restoration Act of 2009, introduced by Sen. Benjamin L. Cardin of Maryland. The Cardin bill, as it is commonly known, is being offered as a way to clean up a watershed that has suffered for decades from industrial abuse and political ineptitude. It is being touted by some as the last great chance to save the bay.
Unfortunately, in its current form, this bill will end up doing more harm than good.
As written, the bill weakens the Clean Water Act, the one tool that we know can help us clean up our impaired waterways. Indeed, several of the bill's provisions undermine the act's very foundations. For example, for the first time since the Clean Water Act was passed in 1972, states would be allowed to exempt point source polluters from permitting requirements. The bill also creates a shield against the act's enforcement for the agriculture industry, the biggest single pollution source in the bay watershed.
Perhaps the most disturbing aspect of the bill is a market-based trading scheme that allows polluters to generate and sell nutrient and sediment pollution credits to other polluters. This pollution trading system will, according to its supporters, bring a much-needed level of "flexibility" to pollution control and result in a cleaner bay by 2025.
But is "flexibility" really what's driving this market approach? The Delmarva Poultry Institute's June 2010 newsletter, Timely Topics, applauds nutrient trading as "a program [that] has been created to help farmers earn money while providing polluters with the opportunity to increase their pollution to the Chesapeake Bay and its tributaries." Finally, some honesty about what nutrient trading is really all about — some polluters making more money while other polluters get to make more pollution. It's a win-win ... for polluters.
Many supporters of the bill claim that an inadequate Clean Water Act is to blame for repeated bay cleanup failures. However, that law is not the problem. The reason why the bay isn't clean today is because of a decades-long lack of political will at both the state and federal level. It's due to the failure of bay state environmental agencies to establish enforceable pollution limits on most of their nutrient-impaired waterways. It's because political officials won't stand up to some of the biggest polluters, and refuse to direct their agencies to fulfill their missions and enforce current law. It's because nearly every bay state has allowed developers, counties and cities to short-circuit any meaningful controls on urban/suburban runoff. It's because state legislators spend more time running interference for industry than protecting citizens who rely on healthy waterways. And it's because the EPA continues to allow bay states to treat clean water like it's an option instead of a basic, legally protected right.
The Clean Water Act, as currently written, contains all the tools necessary to clean up the bay — without bringing the market into it. There are protective point source permitting programs, incentives for non-point-source controls, requirements to attain water quality standards that allow state government to force polluters to reduce pollution. And when states fail to protect water resources, as the bay states have, it allows the EPA to step in and strip away the state's delegated authority and administer the act itself. The CWA has been used by Waterkeepers and governments to clean up waterways across the country through state and federal resolve, industry compliance, citizen oversight and diligent enforcement.
To get a clean and healthy bay, we don't need a new bill — we need to enforce the current law. Keep trying to reinvent the wheel to hide the real reasons for the dismal failure in the Chesapeake, and in 2025 we will still be sitting in a boat in the middle of a heavily polluted bay. Strip the Clean Water Act of its power, and we'll be there — without a paddle.