EPA proposes penalties in Chesapeake cleanup

By David A. Fahrenthold, Washington Post Staff Writer
Tuesday, November 10, 2009

Trying to impose new accountability measures in the failing effort to clean up the Chesapeake Bay, the Obama administration is considering an odd-sounding threat.

Stop missing deadlines for cleaning up polluted waterways, the U.S. Environmental Protection Agency would tell states in the bay watershed.

Or we’ll . . . cut off funding for cleaning up polluted waterways.

That idea, announced Monday in a new "draft strategy" for the Chesapeake, might sound as if the EPA is threatening to shoot itself in the foot.

But it is at the heart of the Obama administration’s plans to overhaul the failed cleanup of the Chesapeake, where federal and state governments have repeatedly broken promises to reduce pollution.

EPA officials said this tactic, and other possible punishments announced Monday, are intended to erase the sense that deadlines mean little around the bay.

"It is counterproductive, and nobody wants to ever get to that point," said J. Charles Fox, a special adviser to EPA Administrator Lisa P. Jackson. "But it is a way of assuring that in fact you can have a productive conversation" with states that are lagging behind their goals, Fox said

To work, the strategy would require two things. One is rare; the other, unprecedented.

The first would be for the federal government to dig up little-used powers to threaten states that exceed their pollution "budgets" — limits on the total pollution that flows through their rivers to the bay.

One threat under consideration is for the EPA to object to state-issued environmental permits for sewage plants, farms or stormwater systems, if federal officials think the permits are too lax.

Another would be to rejigger the budget. That might mean forcing states that don’t fix pollution from farms to cut even more pollution from another source, such as sewage plants.

And then there’s the foot-shooting option.

By law, the EPA has the authority to take away grants for attacking water pollution. Such grants vary nationally, but they average about $2 million per year. Federal officials said Monday that they had been revoked only twice: once in Louisiana, and once in Hawaii.

Oliver Houck, a law professor at Tulane University who studies water-pollution laws, said it is unlikely to happen again in the Chesapeake area.

"It’s a little like a parent saying, ‘If you don’t eat your supper, we’re going to starve you to death,’ " Houck said. "Parents don’t do that."

The next step is the unprecedented one.

States in the watershed would have to figure out how to reduce pollution from farms, cities and suburbs — places where pollution doesn’t run out of one pipe, but seeps off thousands of fields, streets and lawns during rainstorms.

States have tried to solve this problem through persuasion, such as helping farmers pay for measures that keep manure from washing away. To fix the problem by force, by imposing costly new requirements on farmers or new suburbs, has been seen as financially, and therefore politically, painful.

On Maryland’s Eastern Shore, an official at a bureau that lends money to farmers said Monday that a typical chicken farmer makes about $28,000 in profit per year. But, the official said, his company has calculated that current and planned environmental measures in Maryland might cut $18,000 from that, without government aid.

Add new rules on top of that, and "you’re taking all the profit out of the business," said Kenneth Bounds of MidAtlantic Farm Credit, based in Denton, Md. "It now makes poultry farming difficult, at best."

For now, it’s not clear whether states will change their tactics.

Your browser may not support display of this image.

Your browser may not support display of this image. Your browser may not support display of this image. "We don’t have a plan mapped out right now," said Dawn Stoltzfus, a spokeswoman for the Maryland Department of the Environment.

Officials in the District and Virginia said they were at a similar stage.