The Chesapeake Bay Protection & Preservation Order seems limited in its scope. But it may be a defining moment in EPA history, broadly expanding the agency's authority over clean water and changing the way it enforces the rule.
At first glance, the Chesapeake Bay Protection & Preservation Order seems limited in its ability to influence those outside of the Bay’s watershed. Issued by the president as Executive Order No. 13508 in May 2009, it authorizes the federal government to restore the water quality in the badly polluted Chesapeake Bay.
But it may also be a defining moment in U.S. Environmental Protection Agency (EPA) history, broadly expanding the agency’s authority and revolutionizing the way it can enforce the Clean Water Act.
“The Clean Water Act,” says John Mitchell, director of the Burns & McDonnell wastewater practice, “revolves around a single goal: to make waters of the U.S. both fishable and swimmable.” Traditionally, the EPA pursued that goal by regulating discharges from major point sources, such as wastewater treatment plants.
“Scientific evidence shows that you can remove all point sources of pollution, and it will have minimal impact on water quality,” Mitchell said. According to the U.S. Geological Survey, the bigger culprits are nonpoint sources, such as agricultural and non-urban stormwater runoff.
The EPA’s regulatory authority has been limited in dealing with those forms of pollution. The executive order, however, changes that. The agency is now empowered to look at the entire watershed and consider all the factors that contribute to water quality. In the case of Chesapeake Bay, that encompasses parts of six states and the entire District of Columbia.
What it Means
The implications — both inside and outside the Chesapeake Bay — are profound.
“Most importantly, it establishes a framework for the EPA to regulate nonpoint sources of pollution and establishes clear lines of accountability,” Mitchell says. “That can impact uses and management of land within the watershed and can establish water quality trading and offset programs. The door has been opened.”
What happens in the Chesapeake Bay could become the model that the EPA uses to manage water quality issues elsewhere that transcend state or regulatory boundaries, or that cross EPA regions.
“This could set the precedent for nutrient management in the Mississippi River Basin,” Mitchell says. Currently, individual states develop their own strategies for water quality management, including the management of nutrients. Taking a watershed management approach, the EPA could use its authority to cross traditional boundaries and apply uniform standards.
The EPA also has opportunities for new enforcement strategies, such as withholding federal funds for noncompliance, including those unrelated to water quality.
A New Mindset
The challenge, of course, will be to find meaningful ways to regulate countless nonpoint sources of pollution. That will take new and different tactics, beginning with educating landowners on best management practices. Fertilizer and pesticide manufacturers, for example, may need to develop less water soluble products. Farmers may need new strategies for applying these products.
Best management practices may also include restoring land around streams to serve as natural soil buffers that capture and remove pollutants before they enter streams.
What it ultimately means is a more common sense approach to watershed management. “It makes ‘swimmable and fishable water’ a goal that can be reached,” Mitchell says.
For more information, contact John Mitchell, 816-822-3357.