Rescuing the Chesapeake by Anchoring the Goal Posts and Making Rules for the Game

by Rena Steinzor

September 24, 2010

With more than 7,000 miles of coastline and thousands of stream and river miles and lake acres, the Chesapeake Bay is the crown jewel of the region’s natural resource heritage. And its value to the region's economy is immense--$1 trillion according to one frequently cited estimate.  But the ecological health of the Bay is tenuous.  Primary pollutants are nitrogen, phosphorous, and sediment. These nutrients have accumulated in the Bay to unsustainable levels, contributing to algal blooms and dead zones during the summer months.

For 20 years, a moveable feast of bureaucratic in-fighting known as the Chesapeake Bay Program* has bobbed and weaved, making pretend promises to the public and, for as long as they could get away with it, posing the Bay State governors at annual photo ops with their hair blowing in the wind and their eyes misting in response to their own Bay-Love rhetoric. So long as that love does not involve commitments to pollution reduction that would cost real money, the scam was viable. But after missing two highly publicized deadlines for reducing the nutrients that render large areas unfit for fishing and recreation, Congress wheeled around and started withdrawing funding for this PR fest. And we wonder why people hate government.

With the election of Barack Obama and the appointment of “eco-warrior” Lisa Jackson as EPA administrator, Bay cleanup efforts may be getting a big stick to go with its many baby carrots. Sometime later today, EPA will issue the Chesapeake Bay Total Maximum Daily Load (TMDL) – a numerical cap on the total pollution that can be dumped into the Bay. For years now, the Bay states have permitted pollution sources, from publicly owned sewage treatment plants to privately owned factories without really paying attention to the cumulative load—sadly measured in millions of gallons of watery waste—pumped into the Bay’s tributaries. After years of effort involving the best and brightest scientists, engineers, and other technicians in the country, EPA will cut that Gordian Knot, setting forth 92 individual caps on pollution loads for each of 92 segments of the Chesapeake Bay, 89 of which are considered “impaired,” meaning that the water is unfit for its designated use as a source of drinking water, place of recreation, or fishing area. By 2025, the Bay states and the District of Columbia must have accomplished—through binding regulations, far more stringent permitting, and incentive programs to reduce agricultural pollution—both the 92 individual TMDLs and, collectively, the overall TMDL.

Or, in other words, the goal posts are anchored into the ground, the game has real rules, and unless Congress interferes, we will have accountability at last.

The year 2025 may well seem a long time away and should give the Bay states plenty of time to get their houses in order and begin the serious work of actually requiring reductions rather than simply palavering about them. Earlier this summer, the EPA assigned target load allocations of nitrogen, phosphorous, and sediment to each Bay jurisdiction, allowing each to further subdivide the allocations between river basins and between point (sewage plants) and nonpoint (run off from fields and parking lots) sources. 

Also to be released on Friday are a series of state specific Watershed Implementation Plans (WIPs) explaining how Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia plan to meet those targets (see the links to state plans on right side of page). Unfortunately, the advance drafts of those plans are far from specific, omitting concrete information on how each state will raise the money necessary to achieve—or even compel through enforcement–the necessary reductions. CPR Member Scholars have developed a set of metrics and plans to grade those individual plans over the next few months, so people can look past photo ops and hold each state’s top politicians accountable.

Establishing the Bay TMDL is no small feat, and detractors—including the poultry industry, wastewater utilities, and even some states—began complaining months ago. In demanding perfection from the science and the model, they risk losing sight of the very utility of models as essential tools simulating ecosystems that are either too large or too complex to isolate for experiments in the real world. Quibbling over the model is just another delay tactic to avoid the inevitable pollutant controls needed to restore the Bay.

The public comment period for the Bay TMDL is open until November 8, 2010, and EPA has said that it plans to issue the final Bay TMDL by December 31, 2010. The Bay state draft Phase I WIPs will also be open to public comment. Stay tuned here for updates throughout the day as those plans are issued.

There’s good reason to hope that, decades from now, we’ll look back on the issuance of the TMDLs as a watershed moment in the protection of the Bay. It’s been years in the making, and what came before it was anything but pretty. But after years of developing and refining the models to produce the Bay TMDL, EPA should be applauded for this critical accomplishment.

*This post originally referred to the Chesapeake Bay Commission, when it should have referred to the Chesapeake Bay Program. We've corrected the error.


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Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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