EPA threatens states for failing to clean up Chesapeake Bay

By David A. Fahrenthold
Washington Post Staff Writer
Wednesday, December 30, 2009; B01

The U.S. Environmental Protection Agency, hoping that a get-tough approach can turn around the failing effort to save the Chesapeake Bay, outlined Tuesday ideas for punishing states that don't do their part.

Those punishments, the agency said, will fall on states that either don't meet their goals for cutting pollution draining into Chesapeake tributaries or don't set those goals high enough. The consequences might include changes in federal funding, rejections of permits for new factories or tighter rules on some farms.

The mere threat of punishments is a new thing around the bay. Both federal and state governments have routinely missed deadlines and never faced consequences for it.

The question is: Can the EPA convince anyone that this time it's serious? Agency officials were vague Tuesday about when they would use specific punishments -- and said that none would be used until at least 2011.

"The idea of this is ensuring accountability, not looking to rattle the saber to rattle the saber," said Shawn M. Garvin, head of the EPA's mid-Atlantic region.

"Our hope is that the states . . . will be able to meet the commitments," Garvin said, so that no punishments would actually be required.

Under President Obama, the federal government is attempting a historic overhaul of the 26-year-old effort to restore the Chesapeake's health. That effort has spent billions yet has failed to solve the bay's main problem: pollution-driven "dead zones," places devoid of the dissolved oxygen that fish, crabs and oysters breathe.

In the fall, the federal government outlined what it expects of the jurisdictions in the Chesapeake watershed, which are Maryland, Virginia, the District, Pennsylvania, West Virginia, Delaware and New York. A computer model of the bay will be used to calculate a pollution "diet" for the Chesapeake -- and each state will have to reduce its pollution accordingly.

Tuesday's letter explained what might happen if they don't. EPA officials said they might:

-- Object to state-issued permits for new sources of pollution, such as factories, sewage-treatment plants or suburban storm sewers.

-- Require states to offset pollution in one area by cutting it in another. If a state can't find ways to curb pollution from farms, for instance, the EPA could require stricter cuts from sewage-treatment plants.

-- Take tighter control of federal money that goes to states for antipollution programs, to make sure it is used to solve outstanding problems.

In Virginia, Natural Resources Secretary L. Preston Bryant Jr. said he thought that the EPA's threats might actually change the trajectory of the Chesapeake cleanup, by forcing states to take their obligations more seriously.

"This letter, and whatever follows up from this, is going to get people's attention," said Bryant, part of the outgoing administration of Gov. Timothy M. Kaine (D).

But the Chesapeake Bay Foundation said the EPA's threats were not tough enough. William C. Baker, the foundation's president, said the EPA wants to wait for states to set new goals for cleaning up pollution late next year -- when it should instead hold the states to goals they've already set.

Oliver A. Houck, a Tulane University professor who studies water laws, said the EPA's threats don't solve a legal loophole that has bedeviled the Chesapeake cleanup since its beginning.

Clean-water laws make it easy to crack down on pollution that comes out of a pipe, such as treated sewage and factory discharges. But they give states less power to crack down on pollution that doesn't come from pipes, such as the fertilizer and animal manure that wash off suburban lawns and farm fields.

Houck said that the EPA's threats wouldn't give states a new way to tackle these diffuse sources -- and that they might only shift even more pressure onto polluters with pipes who have already made improvements.

"This is a little like, 'If you don't shape up, I'll kick your dog,' " Houck said. "Your dog isn't the problem."

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