New CPR Briefing Paper Recommends Next Steps on Chesapeake Bay Policy

by Yee Huang

Today the Center for Progressive Reform releases a briefing paper on Chesapeake Bay policy in anticipation of the one-year anniversary of President Obama’s Executive Order on Chesapeake Bay Protection and Restoration. The Choose Clean Water Coalition also today sent a letter to EPA Administrator Lisa Jackson stressing that EPA's strategy for the Bay must have robust requirements and tough consequences.

By next Wednesday, one year to the day after the Executive Order, the Federal Leadership Committee—made up of representatives from a range of federal agencies—is required to release its final Strategy for Restoration and Protection of the Chesapeake Bay. The final Strategy will integrate the draft reports issued under section 202 and the draft Strategy issued under section 203, all of which were previously released for public comment (See our comments from January). In the coming months, the future of Chesapeake Bay restoration will take shape. In addition to the release of the final Strategy, Bay states will begin to submit their preliminary Phase I Watershed Implementation Plans and EPA will finalize the Bay-wide Total Maximum Daily Load (TMDL). Collectively these developments promise to do what past Bay restoration efforts have not: to hold Bay jurisdictions and EPA accountable to specific commitments and hard deadlines. However, with much of the economy still in distress and a lack of resources in every Bay state, it is difficult to imagine that they will be able to consistently meet their commitments. In its new leadership role, EPA must distinguish between genuine efforts that fall short and intentional foot-dragging that fails to meet these commitments.

CPR’s briefing paper recommends that:

  • EPA must carefully scrutinize Bay jurisdictions’ Watershed Implementation Plans and actions during each milestone period to ensure that together they include specific, targeted actions to reduce pollutant loadings and concrete deadlines and guaranteed funding for implementing these actions so that Bay jurisdictions successfully meet the biennial milestones and interim and final Bay-wide TMDL goals.
  • In the Phase I Watershed Implementation Plans, EPA must require Bay jurisdictions to submit clear, uniform, and comprehensive baseline information, including NPDES coverage rates, basic enforcement information, and triggers for implementing contingency measures.
  • The final Strategy must align specific consequences with specific failures so that Bay jurisdictions and the public understand exactly what punitive actions EPA will take if a Bay jurisdiction fails to achieve a certain outcome. When imposing consequences, EPA must also follow the existing regulation that conditions the grant of new NPDES discharge permits on the availability of pollutant loads and the existence of a compliance schedule for all sources.
  • When imposing consequences, EPA must also follow the existing regulation that conditions the grant of new NPDES discharge permits on the availability of pollutant loads and the existence of a compliance schedule for all sources.
  • As the most severe consequence, EPA should exercise its existing authority to withdraw a jurisdiction’s delegated permitting authority. The final Strategy should specify the criteria and timetable for exercising this authority.
  • As part of the Chesapeake Bay Compliance and Enforcement Strategy, EPA must develop a list of standard and uniform enforcement data and require Bay jurisdictions to submit this data on a regular basis. The enforcement data must include the permit coverage universe, the inspection rate, and enforcement actions conducted by local governments.
  • The final Strategy must clearly describe and define the role of the independent evaluator, whose duties must include developing and assessing Bay restoration progress against an accountability metric and keeping lawmakers, policymakers, and the public fully informed of this progress and the obstacles to Bay restoration.
  • The final Strategy must clearly articulate concrete outcomes, milestones, and other objectives to be achieved through adaptive management in the context of Bay restoration. The FLC must ensure that adaptive management results in substantive achievement of goals instead of allowing it to become an excuse for delayed action.

President Obama’s Executive Order on the Chesapeake marked a pivotal moment in Bay restoration. The Order directed federal agencies, and specifically EPA, to take a strong leadership role in restoration efforts. This new role—a combination of enforcer and collaborator—is a welcomed, if overdue, change. The coming months will set the tone for what EPA and other federal agencies expect from Bay states, and that tone should be firm and forceful. All eyes—and our eyes—will be watching.

© 2016 The Center for Progressive Reform