Sen. Cardin's Chesapeake Bay Bill Has Much to Laud, and a Bit to Improve

The Chesapeake Clean Water and Ecosystem Restoration Act of 2009, introduced today by Senator Ben Cardin (D-Md), is a marked improvement from legislation in past years and demonstrates the Senator's continued leadership on restoring one of this country's greatest natural resources. The bill rightly emphasizes the implementation and enforcement of the Bay-wide Total Maximum Daily Load (TMDL), which will be issued in draft form by the EPA later this year and finalized by December 2010. It requires Bay states to submit biennial progress reports and empowers the EPA to withhold funding for failure to do so. It also mandates no net increases in nitrogen, phosphorus, and sediment loading from the urban and suburban sector.

Today's bill takes big steps toward restoring the Chesapeake Bay, but it should be improved by adding an independent evaluator to monitor the states' performance. The bill requires the Inspector General of the EPA to evaluate implementation progress “not less than once every three years,” but the IG’s role is otherwise undefined and likely to produce just another report with no action. As part of the larger accountability mechanism, an independent evaluator could actually force the states to meet their targets, and that's desperately needed.

For decades, the Program has suffered from a pervasive lack of accountability. On one hand, the scientists in the Chesapeake Bay watershed have produced world-class studies on nearly every aspect of the Bay. On the other hand, the studies have remained in paper form without making the transition to actual improvements in Bay health and restoration. This voluntary culture has not only produced the lowest-common-denominator solutions but has also created a belief in many stakeholders that the Bay Program and EPA lack the authority and independence to demand action. The Chesapeake Bay partners have made a plethora of promises, but they have systematically failed to implement them. More than any other change, the codification of a transparent, mandatory, and enforceable accountability mechanism is essential to the transformation of the Bay Program’s voluntary culture. Without enforcement, the future looks to be much of the same.

President Obama’s Executive Order, Chesapeake Bay Protection and Restoration, directs Bay partners to report progress on Bay restoration to an independent evaluator. But the order provides little detail about the scope and objectives of the independent evaluator’s work. Requiring an independent evaluator by legislation, and detailing the responsibilities, would ensure a more durable and lasting office, necessary to follow an entire restoration plan that will last beyond 2025.

Some stakeholders have proposed that the independent evaluator be a one-time research project for the National Academy of Sciences. While the NAS is a highly respected and prestigious institution, its operational structure—defined exclusively by the agency or entity it works for—is not sufficiently dynamic, nimble, or long-term to effectively change the Bay Program’s culture. The independent evaluator should be completely independent of the Bay Program rather than constrained from the outset by the Bay Program.

The independent evaluator must, as we've outlined, be the voice of accountability, responsible for investigating and identifying the institutional barriers to achieving the statutory mission of Bay restoration. Congress must charge the independent evaluator with:

• Developing concise accountability metrics that reveal whether restoration efforts are being implemented, and conducting audits to evaluate the effectiveness of these efforts;
• Recommending policies for promoting Bay restoration and for improved information-sharing and coordination among federal, state, and local governmental agencies and nongovernmental organizations; and
• Keeping Congress, the EPA, the Executive Council of the Bay Program, the states, and the public fully informed about the progress and obstacles related to meeting milestones and overall Bay restoration goals and recommending corrective actions to address the problems.

The draft legislation already includes many accountability provisions, such as EPA approval of tributary implementation plans and publication of a federal annual action plan and progress report. An independent evaluator could augment these efforts and help ensure these provisions are fulfilled. Moreover, the evaluator could play a significant role in informing and involving a public that values the Bay so dearly.

Senator Cardin’s legislation builds on the momentum generated in May by President Obama’s executive order and, if passed, further strengthens protections for the Bay. Adding an independent evaluator would go a long way toward translating great rhetoric into a tangible outcome: a healthier Chesapeake Bay.