Text of S 1816
“(i) Actions by States.—
“(1) WATERSHED IMPLEMENTATION PLANS.—
“(A) PLANS.—
“(ii) TARGETS.—The watershed implementation plan shall establish reduction
targets, key actions, and schedules for reducing, to levels that will attain water
quality standards, the loads of nitrogen, phosphorus, and sediment, including
pollution from—
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“(II) nonpoint sources.
“(iii) POLLUTION LIMITATIONS.—
“(I) IN GENERAL.—The pollution limitations shall be the nitrogen, phosphorus, and
sediment load and wasteload allocations sufficient to meet and maintain
Chesapeake Bay and Chesapeake Bay tidal segment water quality standards.
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“(iv) PLAN REQUIREMENTS.—Each watershed implementation plan shall—
“(I) include State-adopted management measures, including rules or regulations,
permits, consent decrees, and other enforceable or otherwise binding measures, to
require and achieve reductions from point and nonpoint pollution sources;
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“(IV) provide for enforcement mechanisms, including a penalty structure for
failures, … for use in case a permittee, local jurisdictions, or any other party fails
to adhere to assigned pollutant limitations, implementation schedules, or permit
terms;
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“(B) IMPLEMENTATION.—
“(ii) DEADLINE.—Not later than May 12, 2025, each Chesapeake Basin State
shall—
“(I) fully implement the watershed implementation plan of the State; …
Basis for Interpretation
FEDERAL MANDATE TO ACHIEVE STANDARDS ON PRESCRIBED
TIMELINE, REGARDLESS OF COST OR OTHER HUMAN
CONSEQUENCES
These provisions would impose an unprecedented mandate that States achieve
water quality standards on a federally imposed timeline, through enforceable
controls on both point and nonpoint sources, regardless of cost, feasibility,
social and economic disruption, or other human consequences.
Whether an implementation plan is developed by the State or by EPA, the
plan:
 Must establish “pollution limitations” that will achieve standards;
 Must include enforceable measures to require reductions from
nonpoint sources, regardless of cost, feasibility, or human
consequences such as job loss, economic and social disruption,
stability and affordability of domestic food supply, etc.;
 Must be enforceable against any person who “fails to adhere to
assigned pollutant limitations” (e.g. landowners who exceed their
“pollutant limitations”); and
 Must be fully implemented by 2025.
In contrast, the current Clean Water Act (CWA):
 Encourages States to establish ambitious water quality goals, but does
not require attainment, let alone attainment on a federal timeline
without regard to cost (see CWA §§ 303(c)(2)(A), 303(d), 303(e));
 Leaves to the States decisions regarding whether, when, and how to
achieve water quality standards (see Pronsolino v. Nastri, 291 F.3d
1123, 1128-29, 1140 (9th Cir. 2002));
 Regarding nonpoint sources in particular, explicitly encourages only
control measures to reduce water quality impairment to the extent
practicable (see CWA §§ 319(a)(1)(C), 208(b)(2)(F)); and
 Explicitly adopts a policy “to recognize, preserve, and protect the
primary responsibilities and rights of States to prevent, reduce, and
eliminate pollution, to plan the development and use (including
restoration, preservation, and enhancement) of land and water
resources” (CWA § 101(b)).
Text of S 1816
“(i) Actions by States.—
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‘‘(2) ISSUANCE OF PERMITS.—
‘‘(A) IN GENERAL.—Notwithstanding any other provision of this Act (including
any exclusion or exception contained in a definition under section 502) …, for the
purpose of achieving the nitrogen, phosphorus, and sediment reductions required
under a watershed implementation plan, a Chesapeake Basin State, or, if the State
is not authorized to administer the permit program under section 402, the
Administrator, may impose limitations or other controls, including permit
requirements, on any discharge or runoff from a pollution source, including point
and nonpoint sources, located within the Chesapeake Basin State that the program
administrator determines to be necessary.
‘‘(B) ENFORCEMENT.—The Chesapeake Basin States and the Administrator shall
enforce any permits issued in accordance with the watershed implementation plan
in the same manner as permits issued under section 402 are enforced.
‘‘(j) Action by Administrator.—
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“(3) APPROVAL AND DISAPPROVAL.—
“(A) DEADLINE.—Not later than 90 days after determining that a watershed
implementation plan meets minimum completeness criteria in accordance with
paragraph (2), the Administrator shall approve or disapprove the plan.
“(B) FULL AND PARTIAL APPROVAL AND DISAPPROVAL.—In carrying out this
paragraph, the Administrator shall—
“(i) approve a watershed implementation plan if the Administrator determines that
the plan meets all applicable requirements under subsection (i)(1); and
“(ii) approve the plan in part and disapprove the plan in part if only a portion of
the watershed implementation plan meets those requirements.
“(4) CALLS FOR PLAN REVISION.—In any case in which the Administrator
Basis for Interpretation
FEDERALLY ENFORCEABLE PERMITS FOR AGRICULTURE AND
OTHER NONPOINT SOURCES
This section of the bill would, for the first time, authorize State agencies that
administer the NPDES program to issue federally enforceable CWA permits
regulating agriculture or other nonpoint sources, if deemed necessary by the
“program administrator”. While the CWA has always preserved State power
to regulate nonpoint sources under State law, the CWA has never itself
authorized the issuance of federally enforceable CWA permits for nonpoint
sources. This aspect of the bill usurps State legislative power by establishing
federal authority to regulate nonpoint sources.
This section of the bill also departs from current law by requiring that EPA
enforce any such State-issued nonpoint source permits through its substantial
CWA enforcement powers (e.g., civil penalties of up to $37,500 per violation,
per day). EPA currently has no authority to enforce State-issued permits
regulating nonpoint sources.
FEDERAL TAKE-OVER OF IMPLEMENTATION AND REGULATION
OF NONPOINT SOURCES
These provisions authorize direct EPA regulation of nonpoint sources –
effectively authorizing direct federal regulation of agriculture, forestry,
residential development, and other land uses.
By requiring in certain circumstances that EPA directly develop and carry out
a State’s implementation plan – which, in turn, must include enforceable
“pollutant limitations” for both point and nonpoint sources to achieve
standards – the bill would require that EPA directly regulate nonpoint
sources to achieve standards, regardless of cost or other human consequences.
Although the bill does not explicitly require that all States submit their plans
for EPA approval, that issue is moot because all Chesapeake States have
already done so. Thus, this federal take-over of implementation planning and
nonpoint source regulation will be triggered when any Chesapeake State fails
to revise its plan as required by EPA, to submit a biennial report, to achieve
Text of S 1816
determines that watershed implementation plan for any area is inadequate to attain
or maintain applicable pollution limitations, the Administrator—
Basis for Interpretation
its “2-year commitments”, or to remedy an EPA disapproval of its plan.
‘‘(5) FEDERAL IMPLEMENTATION.—If a Chesapeake Basin State that has submitted a
watershed implementation plan under (1)(A)(i) fails to submit a required revised
watershed implementation plan, submit a biennial report, correct a previously
missed 2- year commitment made in a watershed implementation plan, or remedy
a disapproval of a watershed implementation plan, the Administrator shall,…—
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(C) develop and administer the watershed implementation plan for the Chesapeake
Basin State until the Chesapeake Basin State has remedied the plan, reports, or
achievements to the satisfaction of the Administrator; …
This would dramatically change the current statutory scheme, under which:
 EPA has no authority to approve, disapprove, require revisions to, or
take over State implementation planning (see, e.g., Pronsolino, 291
F.3d at 1128-29; Guidelines for Reviewing TMDLs under Existing
Regulations Issued in 1992, p. 5 (EPA May 20, 2002).
 EPA has no authority to regulate nonpoint sources (see, e.g., ONDA v.
Dombeck, 172 F.3d 1092 (9th Cir.1998); ONDA v. U.S. Forest Service,
550 F.3d 778, 785 (9th Cir. 2008) (noting scholarly recognition that
lack of EPA implementation oversight regarding nonpoint sources
“appears consistent with Congress’s reluctance, as expressed in
sections 101(b) and (g) of the Act, to allow extensive federal intrusion
into areas of regulation that might implicate land and water uses in
individual states”).
“(B) ENFORCEMENT ACTION BY CITIZENS.—
CITIZEN LAWSUITS
‘‘(n) Effect on other requirements.—
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“(2) VIOLATIONS BY STATES.—
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‘‘(B) ENFORCEMENT ACTION BY CITIZENS.—
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‘‘(i) IN GENERAL.—The failure of a Chesapeake Basin State that submits a
watershed implementation plan under subsection (i) to meet or correct a previously
missed 2-year commitment made in a watershed implementation plan or implement
a watershed implementation plan or permit program under this section shall subject
the appropriate State officer to a civil action seeking injunctive relief
commenced by a citizen on behalf of the citizen.
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‘‘(iii) SAVINGS CLAUSE.—Nothing in this subsection affects the ability of a citizen
to bring an action for civil enforcement on behalf of the citizen under section 505.
These provisions create a new cause of action for citizens to sue States for
failing to implement their plans or missing their “2-year commitments”.
“(A) shall notify the Chesapeake Basin State of, and require the Chesapeake Basin
State to revise the plan to correct the inadequacies;
In addition, the bill would preserve citizens’ power to sue under the existing
CWA citizen suit provision to enforce the newly enacted mandates of the bill.
For example, under existing CWA § 505(a)(2), citizens could sue EPA for:
 Failure to disapprove a State plan (e.g., allegations that nonpoint
source limitations are too high, or that enforcement penalties are
insufficient to ensure compliance);
 Failure to require State plan revision; and
 Failure to take over a State’s implementation process, including
regulation of nonpoint sources.
This creates new power for federal judges to second-guess State policy
concerning agricultural and other land uses and appropriate control measures.
Under the current CWA, because EPA has no power to disapprove
implementation plans, there is no EPA implementation “action” to be
reviewed in federal court.