Why the Upcoming Release of EPA 'Expectations' for the Bay Plan Is Worth Watching

by Evan Isaacson

February 19, 2018

Anyone who's ever been to an organizational retreat can tell you that the worst fate any plan can suffer is to sit on a shelf, unused and collecting dust. The Chesapeake Bay restoration effort is one of the most complex and sophisticated environmental restoration plans ever created. But despite all the resources and energy that have been brought to bear under the Chesapeake Bay Total Maximum Daily Load (TMDL) initiative, the tie that binds it all together is simply the "expectations" of the Environmental Protection Agency (EPA). In a few weeks, EPA will release its expectations for the final phase of the Bay TMDL (Phase III), which ends in 2025. This document is an important piece in the current plan to restore the Bay's health. 

The Bay TMDL is neither a self-executing plan nor an enforceable document. Moving from plan to action, and from numbers on paper to real pollution reductions on the ground (and in the water), requires local, state, and federal entities to closely, carefully, and faithfully follow the instructions expressed by EPA as "expectations," which it has detailed for all parties involved in the clean-up plan in a series of letters, memos, guidelines, and other documents

To be clear, the legal basis for the Bay TMDL in its current form, including state implementation plans, is on sound footing. This much, federal courts have made clear, is not in question. Moreover, the other two branches of the federal government have also lent their support to this Bay restoration effort: the Chesapeake benefits from its own separate section of the Clean Water Act, and President Obama signed an executive order detailing what the federal government must do to ensure the Bay is finally restored to health after several previous efforts failed. Finally, a number of legal hooks are available for regulators and concerned citizens to hold unwilling Bay partners accountable or to bring individual scofflaws in line with the Clean Water Act and the other state and federal laws that undergird the TMDL

EPA and the other leaders that developed the TMDL orchestrated a thoughtful approach to carrying out this enormously complex plan through an extraordinarily detailed and transparent accountability framework that lays out exactly who needs to do what and when to usher the partners from plan to implementation. As EPA's regional administrator in charge of the Mid-Atlantic region wrote before the restoration plan was even created: 

[W]hile the TMDL is a powerful tool in the restoration of our nation's waters, it alone will not be sufficient to assure appropriate controls for the restoration of the Bay are in place in a timely manner. For this reason, EPA expects to work with the states and the District of Columbia to develop not only this TMDL, but also the necessary implementation plans, commitments, and evaluations of programs to ensure that our partner states and the District of Columbia will together undertake timely and effective pollution controls to restore the Chesapeake Bay. 

The new accountability framework created by EPA was to begin with "clear expectations laid out at the start, quantifiable measures established along the way, and public accountability with each step taken." To expand on the oft-used "blueprint" metaphor for the TMDL, EPA is the architect while the states are the contractors needed ...

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