Tough state cops wanted to protect water

By Karen Hosler

01/05/2010

Consider the handicaps of Maryland's top cop in charge of policing water quality:

Short on manpower and money in good times; really broke now. Guided by enforcement enthusiasm that wavers in the political wind. Impaired by an institutional culture that shrinks from confrontation with the state's major employers and seemingly just wants everyone to get along.

So, the recent allegation that Maryland's Department of the Environment is failing at eliminating pollution as mandated by the 1972 federal Clean Water Act is hardly shocking. The sad state of the Chesapeake Bay all but makes the case.

MDE's poor enforcement record is hardly unique. Extensive research last year by the New York Times revealed that states all over the nation aren't meeting their water protection responsibilities. In fact, the data suggests Maryland does a better job than any of its bay watershed neighbors, including Pennsylvania, Virginia and West Virginia, where enforcement agencies face similar handicaps.

But that doesn't change the bottom line for bay advocates. For them, the larger questions are whether state regulatory agencies subject to such keen economic and political pressures can ever be the tough cops this most difficult beat demands. And, if so, how does the problem get fixed? What they learn in Maryland, might be applied watershed wide.

"The Chesapeake Bay is dying and nobody is doing anything about it," said Eliza Smith Steinmeyer, the Baltimore Harbor Waterkeeper. "There is a lack of political will."

A coalition of Maryland-based waterkeepers is asking the federal Environmental Protection Agency to void the state's authority to police water pollution. Similar action has already been taken in West Virginia and is being considered in Pennsylvania. But the waterkeepers don't really want a federal takeover. Their goal is to force state regulators to concede they can't do their job, and to seek help.

"I frankly don't care what their problems are; I just want the law enforced," Fred Tutman, the Patuxent Riverkeeper, explained.

MDE acknowledges its shortcomings, but blames them on a chronic shortage of money and resources magnified by the deep recession. The agency's operating budget has been reduced by nearly a third over the past three years. With the state facing a $2 billion hole in its budget for next year, MDE Secretary Shari Wilson said in a letter to the waterkeepers that "additional resources are simply not available."

MDE's inconsistent approach to enforcement over the years was one of the chief concerns Wilson mentioned when she took office in 2007. She promised to do better. The following year enforcement actions against polluters increased 34 percent.

Even so, the agency's effectiveness continues to be limited by penalties so low they pose no deterrence, permit fees so low they don't cover their administrative costs, and an information data base difficult even for MDE employees to navigate. MDE has been so slow and seemingly clueless in providing information about compliance with a court-ordered clean-up of the steelyard at Sparrows Point, the Chesapeake Bay Foundation found itself feeding MDE data back to the regulators, according to CBF president Will Baker.

"Where is government," Baker asked, "when it comes to defending and protecting clean water?"

Government is guided by elected officials who respond to what they perceive as the desires of their constituents. Individual voters don't usually make a big deal about pollution until it suddenly appears as a poisonous mass in their backyard. But potential polluters large and small who seek permits from MDE and other regulatory agencies are constituents, too -- constituents who create jobs, pay taxes, make campaign donations and employ ever-present lobbyists.

"MDE's problems run deeper than money: the agency is trying to strike a balance between the polluter and protection," said Drew Koslow, the Choptank Riverkeeper.

MDE spokeswoman Dawn Stoltzfus put it this way: "We try to be objective, putting science first."

So, what to do? Maryland legislators reconvene soon (Jan.13) for their 2010 session. They should move quickly to make some inexpensive changes waterkeepers believe would help.

For starters, the legislators should raise permit fees to cover their processing costs, and increase penalties for violations. Further, polluters should be subject to mandatory minimum penalties to eliminate the discretion that now allows MDE to let violators off the hook.

The state could actually save money by ending the practice of intervening in citizen lawsuits against polluters and settling for terms the citizens consider too weak. And Maryland's attorney general should be empowered to act on his own against polluters rather than waiting for MDE.

Most crucial, however, to stiffening the spine of the regulators is for residents throughout the Chesapeake Bay watershed to send a clear message to their elected leaders that they want a cop tough enough to get the clean-up job done.

Splitting the difference with polluters isn't working.