Legislation is moving through Congress that would tell the U.S. Environmental Protection Agency to be “cooperative” with states that should be curbing pollution to the Chesapeake Bay – a directive that one Maryland lawmaker warns could undermine compliance with Bay cleanup goals.
The language was part of a larger bill designed to streamline but also to weaken several provisions of the Clean Water Act. The U.S. House of Representatives passed the PERMIT bill (Promoting Efficient Review for Modern Infrastructure Today) Dec. 11, but it still requires Senate approval to become law.
Rep. Sarah Elfreth, a Maryland Democrat who voted against the measure, said the bill would transform the EPA from an active partner in the Bay restoration effort into a passive observer.
“All states rely on the EPA to conduct oversight and enforcement of pollution entering our waterways and to hold everyone accountable to our shared communities,” she said during her remarks on the House floor. “Yet the bill before us today … attempts to dismantle this partnership between states and the EPA by watering down the key enforcement mechanisms that are needed to ensure compliance with evidence-based pollution standards.”
The EPA, along with six states in the Bay drainage basin and the District of Columbia, are signatories to a voluntary regional cleanup pact known as the Chesapeake Bay Agreement.
But the region is also under a 2010 mandate from the EPA to meet a “pollution diet” for the Bay, formally known as the total maximum daily load or TMDL. The TMDL sets limits for the amount of sediment and nutrient pollution that each jurisdiction can discharge to the Bay.
A section of the PERMIT bill, though, says that the federal government should take “a collaborative and cooperative approach to the parties with regard to their compliance with the Chesapeake Bay total maximum daily load.”
The statement is provided as Congressional opinion and is not legally binding. But a “Sense of Congress” statement typically serves as guidance for the executive branch, courts and future legislation, often influencing agencies on how they implement existing statutes.
Questions about the EPA’s enforcement powers for the Bay cleanup go back at least to the birth of the TMDL itself. When the agency created the pollution diet in 2010, states were asked to craft plans showing how they would achieve their share of the cleanup goals. Most of the initial plans failed to provide adequate assurance that they could meet their goals, leading the EPA to respond with a threat of “backstop” measures.
At that time, EPA leadership said the agency would require more reductions from regulated sources, such as wastewater treatment plants, unless states could better ensure reductions from unregulated sources, such as agriculture. Under the Clean Water Act, the EPA has clear authority to regulate so-called point sources, such as end-of-pipe discharges, but scant power to control nonpoint sources, such as stormwater runoff from farm fields.
The EPA itself, in multiple administrations, has wrestled with the question of how much authority it has to force states to take greater actions to curb those sources of runoff. It has taken some actions, such as increasing oversight of state programs and temporarily withholding some grant funds, but not more aggressive measures that would affect permits.
In 2020, two lawsuits – one filed by Maryland, Virginia, Delaware and the District of Columbia and another by the Chesapeake Bay Foundation and others – accused the EPA of failing to do enough to get Pennsylvania to take stronger Bay cleanup actions.
The suits argued that the EPA should harness the power granted to it by the Clean Water Act to crack down on the upstream state, potentially imposing costly cleanup measures.
The suits were settled in 2023, with the EPA pledging to maintain their recently ramped-up inspections of Pennsylvania farms, stormwater systems and water dischargers.
The EPA also agreed to make public periodic reports about its findings. It vowed to prioritize efforts and funding in parts of the state that have the greatest impact on local waterways and the Bay.
Elfreth, while speaking on the House floor, touted some of the Bay cleanup’s accomplishments, including preserving millions of acres of farmland from development, opening thousands of miles of streams to fish passage and upgrading pollution-control measures at most of the watershed’s large wastewater treatment facilities. Weakening the EPA’s enforcement powers in the way the bill sets out to do, she said, would hinder the program’s progress going forward.
David Reed, executive director of the Chesapeake Legal Alliance, said that both voluntary actions and enforcement actions are factors in the Bay cleanup, making for a complex situation.
“Going back to the TMDL litigation, it’s a delicate dance,” he said. “There are backstop enforcement mechanisms, and the actual enforcement mechanisms make it kind of quasi-cooperative. Ideally, I think it was formed with cooperation in mind, but with any agreement you need to have some enforcement mechanisms.”
The PERMIT Act passed the House with a vote of 222 to 205, largely along party lines.
Six Democrats joined the Republican majority. One Republican voted against the measure: Pennsylvania Rep. Brian Fitzpatrick, whose district in the southeast portion of the state lies just outside the Bay watershed.
“The PERMIT Act delivers much-needed reform to the Clean Water Act that will overhaul permitting processes and reduce burdens on permit seekers,” Rep. Mike Collins, the Georgia Republican who sponsored the bill. “As we enter a new era with a renewed focus on domestic energy production and growth, this legislation delivers the tools that our country needs to build faster, smarter, and safer.”
The legislation could further weaken protections for water quality in the Bay watershed by limiting the scope of the Clean Water Act. It aims to redefine “navigable waters,” a long-standing point of contention that establishes the reach of EPA review and regulations. It would also limit timelines to file lawsuits against permits to destroy wetlands, allow facilities in some situations to knowingly discharge contaminants into waterbodies and allow the U.S. Army Corps of Engineers to exclude any type of water body from Clean Water Act protections.
Many environmental groups oppose the bill, saying it would solidify and extend the Trump administration’s rollbacks of environmental protections.
“This dangerous bill would increase water pollution, accelerate wetlands destruction, give polluters a free pass, and threaten to reverse states’ hard-won gains restoring the Bay and its rivers and streams,” said Keisha Sedlacek, Chesapeake Bay Foundation senior policy director, in a statement. “The harm it could do is staggering.”
Peter Marx, federal affairs director for the Choose Clean Water Coalition, said the bill would need 60 votes in the Senate to pass. That means winning support from all 53 Republicans in addition to seven Democrats.
“We’re hoping that this is the end [and] that it doesn’t even get introduced in the Senate or move at all, but we’ll see,” Marx said.