Posted on February 5, 2021 by Ridgway Hall
At ACOEL’s 2019 annual meeting in Williamsburg I chaired a panel on the ongoing restoration of the Chesapeake Bay Watershed, which I described as the biggest, and arguably the best, example of cooperative federalism in the country. The Chesapeake Bay is the biggest estuary in North America. Its watershed covers 64,000 square miles in 6 states and the District of Columbia. It is home to 18 million people and over 3600 varieties of fish, shellfish, plants and animals, and is a multi-billion dollar driver of the mid-Atlantic economy.
However several centuries of commercial development and deforestation have resulted in severe pollution, with nitrogen, phosphorus and sediment posing the most serious problems, reflected in widespread violation of water quality standards. The biggest sources of these are farming and stormwater runoff. These sources involve almost entirely nonpoint source pollution which is not subject to regulation under the Clean Water Act. After decades of unsuccessful efforts by the states to reduce this pollution, EPA in 2010 issued a multistate total maximum daily load (TMDL) under the CWA – the largest ever – which assigned to each state its share of the necessary load reductions of nitrogen, phosphorus and sediment. These reductions are designed to achieve water quality standards by 2025. EPA committed to oversee state compliance. For a detailed discussion of this TMDL and its implementation, see R. Hall, “Restore The Chesapeake”, The Environmental Forum (Jan/Feb 2016).
In 2009 President Obama issued an Executive Order declaring the Bay “a national treasure” and directing 7 federal agencies, under EPA’s leadership, to work with the states to restore the health of the Bay watershed and its habitat. To achieve the TMDL goals each Bay State developed its own “Watershed Implementation Plan” (WIP) laying out the regulatory measures, pollution reduction strategies, personnel and funding resources, and responsibilities for state and local agencies. The restoration effort has also generated an outpouring of participation from private sector organizations, NGOs and individual citizens.
In 2014 the Bay States and EPA entered into a “Chesapeake Watershed Agreement” identifying specific measures and responsibilities to achieve the water quality and habitat restoration goals. EPA reiterated its commitment to be the referee, making sure that each state does its fair share, and imposing sanctions for failures. This responsibility is based on language in the TMDL and CWA Section 117(g), specific to the Chesapeake, which requires EPA to “ensure that management plans are developed and implementation is begun [by the states] … to achieve and maintain … the [applicable] water quality requirements”.
At the Williamsburg meeting our panel described both the tremendous success of this program and the significant challenges it was facing, including funding shortfalls at the federal and state levels, compliance verification, climate change impacts (like heavier rainfall), the fact that Pennsylvania is far behind the other states, and the fear that the Trump EPA would not exercise effective oversight to make sure each state did its share. All of these challenges have proven to be significant, especially EPA’s failure to ensure performance. Then came Covid, forcing cutbacks in state funding, technical support and enforcement, and complicating performance in the field.
So what’s happening? Improvement in water quality, fish and shellfish populations and habitat has slowed or stalled, as documented in a recent “2020 State of the Bay Report” issued by the Chesapeake Bay Foundation. Because EPA approved WIPs from Pennsylvania and New York which on their face fail to achieve their TMDL requirements, suits were filed against EPA by the Attorneys General of Maryland, Virginia, Delaware and the District of Columbia and by the Chesapeake Bay Foundation under CWA 117(g) and the APA, raising issues of first impression. Pennsylvania’s failure to commit the necessary resources to restoring the health of its degraded rivers and tributaries has placed achievement of the 2025 goals in serious jeopardy.
Meanwhile the Bay states continue working hard with diminished resources, and support from the private sector is as strong as ever. The arrival of the Biden administration promises fresh and much stronger leadership at EPA, which will be essential to renewed progress. While it will take months before a new Region 3 Administrator is installed and up to speed, just the prospect has energized the spirits of all involved in the restoration. Nevertheless, even if a reinvigorated EPA and an economic recovery provide twin shots of adrenaline to the restoration, achieving the TMDL goals by 2025 will still be a heavy lift. Stay tuned.
Tags: Cooperative Federalism, Chesapeake Bay, total maximum daily load, Section 117