Pollution Trading: Losing the Bay and Diminishing the Clean Water Act with It

Thursday, December 15, 2011 - 12:20pm

Why has the long effort to restore the Chesapeake Bay failed? Initiatives to fix the Bay date back to at least the mid-1960s, before the passage of the Clean Water Act. The Bay has now seen four “landmark agreements” passed to great fanfare from politicians and environmentalists alike – the 1983 and 1987 Chesapeake Bay Agreements, Chesapeake 2000, and recently the Chesapeake Bay Executive Order, all leading to the Chesapeake Bay TMDL.

The Chesapeake Bay TMDL offers a new chance at restoring the Chesapeake Bay and we support its establishment. However it is our concern that the Bay TMDL, as it is currently written, is not as strong as it should be and contains several weaknesses that could prove to be its undoing, thus adding it to the graveyard of empty promises, unmet deadlines, and failed agreements to restore the Bay. Additionally, we believe that several proposals contained in the language of the TMDL are not legal under the Clean Water Act and thereby threaten the integrity of the Act itself.

So why has the effort to restore the Bay failed? The answer is simple but most don’t want to hear it. The states have failed the Bay. The states continue in refusing to address the largest contributors of pollution to the Bay: nonpoint source agricultural and urban/suburban runoff pollution. The Clean Water Act sets minimum water quality standards that the states must follow. States have the authority to go above and beyond those minimum standards. The six states of the Chesapeake Bay watershed have the ability to restore the Bay. By enforcing the Clean Water Act, states succeeded in addressing pollution from industrial and sewage treatment facilities. Likewise, the same methods could successfully address waste from nonpoint source agricultural sites.

Contained within the TMDL is a proposal to create a pollution-trading scheme between nonpoint and point source polluters. It is our opinion that such a trading scheme is not legal under the Clean Water Act, making the TMDL a vehicle for polluters to avoid conforming with current laws – laws which are effective when actually enforced. Policies that have been shown to work in stopping pollution across the nation – enforceable, implementation deadlines with meaningful penalties – would not be possible with the vagaries and uncertainties present in the proposed trading scheme.  

Although it needs strengthening, the Chesapeake Bay TMDL is a great concept that owes its existence to the Clean Water Act. Since our founding, Potomac Riverkeeper has carried out a clear mission: Stop pollution and restore clean water using enforcement and community engagement. It is largely through the Clean Water Act that we are given the mandate to use those tools – enforcement and community engagement – to fulfill our mission. We believe that the Clean Water Act is indispensable for our work and that it is imperative that its strength not be undermined.

For almost 40 years, government agencies and citizen groups have used the Clean Water Act to stop pollution from entering our rivers and streams. It took public outrage at ever-increasing public health and safety hazards, policy designers with a moral vision backed by technical understanding, the override of a presidential veto, subsequent amendments, and testing in the courts to put the Clean Water Act in place. The result has been one of the greatest environmental, human health, and democratically principled success stories of the industrial age. Across the world, other countries cite America’s Clean Water Act for policy guidance. Now is the time to use the strength of the Clean Water Act to its fullest potential, not to weaken it with another handout to polluters.

TMDL: A Total Maximum Daily Load is sometimes called a pollution diet that must be legally followed. A TMDL is a safety net placed on already polluted water to stop more harm to the water. All states were to have TMDLs in place by 1979. This never happened.  It took legal action to force states to create TMDLs.