Holding the Line on New Pollution While We Clean Up the Chesapeake Bay

by Evan Isaacson

March 21, 2018

This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort. 

A few weeks ago, I discussed why the periodic written "expectations" from the Environmental Protection Agency (EPA) are critically important to the Chesapeake Bay's restoration. These expectations communicate to the state and federal partners in the Chesapeake cleanup effort what they need to do and when in order to implement the coordinated plan of action necessary to reach the cleanup plan's interim and final reduction targets. This includes the fundamental expectation that states account for future pollution growth as they work to reduce existing pollution under the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) cleanup plan. 

It doesn't take any special knowledge of TMDL policy or practice to understand why it is imperative to deal with new pollution while simultaneously addressing ongoing pollution. If you don't account for and offset new and increasing sources of pollution at the same time you're reducing pollutant loads from current sources, then it's a bit like trying to bail out a sinking ship without first plugging the holes. 

Those crafting the Bay TMDL certainly understood how important developing a policy to offset growth would be to the overall cleanup plan. The TMDL authors included growth offsets as one of eight essential elements for states to include in their watershed implementation plans (WIPs), developed an appendix in the TMDL to govern how to account for growth, and issued many guidance documents and other educational materials to help states understand what they need to do. 

Unfortunately, we are now more than halfway through the TMDL and the states are nowhere close to remaining on track with their interim or final pollution reduction targets (a conclusion that will be confirmed in a few weeks when EPA releases its much-anticipated assessment of the states' progress in meeting the 2017 interim targets). Many factors have contributed to this significant failure, one of which was the unwillingness of the states to follow EPA's clear instructions on offsetting new and increased pollution from growth in human and farm animal populations and industrial development. 

What Was Supposed to Happen 

The notion that states need to account for growth to meet Clean Water Act goals is simultaneously bold and reflective of common sense. Anything that sounds like federal interference or regulation of local land use planning or economic growth through the use of Clean Water Act tools is certain to engender a swift and severe response from state and local officials and any number of industries. It is no wonder that the National Association of Home Builders and others sued EPA before the ink was even dry on the TMDL. And yet it would be irrational to omit plans to deal with pollution growth in any pollution reduction effort like a TMDL. Without a requirement that states hold the line on new pollution, the Bay partners would have a moving target as each year piles new pollution onto the existing cap; it's obviously tough to set a reliable budget if the top-line numbers change day by day. 

Ultimately, EPA's preferred approach to proceeding on an issue as politically fraught as addressing pollution associated with growing populations and industries was to maximize flexibility for the states while standing firm on ...

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