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Bay TMDL Progress Report: A Critical Moment

In April, the Chesapeake Bay Program – a federal-state partnership dedicated to restoring the Bay – unveiled data tracking nutrient and sediment reductions since 2009, the year when the seven Bay watershed jurisdictions committed to new multiyear “milestone” goals in preparation to comply with the impending Chesapeake Bay Total Maximum Daily Load (TMDL).  With two years remaining until the midpoint assessment for the Bay TMDL, the data show mixed results. 

Before delving in to those results, it is important to note that there are several ways of measuring progress toward compliance with the Bay TMDL.  One must consider (1) the actions and resources committed by state and local governments and other regulated entities; (2) the Bay Program model’s estimated reductions generated by these actions and resources; and (3) the actual improvements in water quality measured through sampling.  While this last measure of progress is ultimately the most important, the Bay Program and jurisdictions subject to the TMDL rely on the Chesapeake Bay Program Watershed Model to provide ongoing estimates of the reductions achieved and for feedback to guide future planning.  And because of the inherent difficulties with modelling (including many reported issues with the current Phase 5.3 model) and the natural lag times between the implementation of a practice and its subsequent outcome, it is also important to consider the policies enacted and resources dedicated by a jurisdiction to achieve future reductions. 

This is the first in a series of posts to explore the progress – measured in all its forms – by each jurisdiction, starting with a look at the watershed as a whole.  First, the bad news:  Bay model data indicate that, overall, we are only 29 percent of the way to the 2017 goal for the reduction of nitrogen pollution.  We have achieved less than one-third of the nitrogen reduction goal about two-thirds of the way to the midpoint assessment.  However, hidden behind this troubling news is a silver lining that, if not for the lack of progress from two states, the remaining jurisdictions in the watershed would be roughly on pace to meet the 2017 goal for nitrogen.  Meanwhile, the story is basically the opposite for phosphorus, the other nutrient targeted by the Bay TMDL, with very positive data on its face obscuring a disconcerting trend. 

According to the model, the seven jurisdictions have already achieved – years early – more than what is required to meet the 2017 goal for phosphorus.  Overall, the watershed jurisdictions have achieved 119% of the needed phosphorus reduction, with four individual states achieving between 130% and 192% of the 2017 goal.  And yet, the results of water sampling revealed by the USGS in December show that phosphorus concentrations are actually increasing over both the short term (at two of the nine tributary monitoring stations in the Bay watershed) and the long term (at three stations – with three stations showing a decrease).  These disparate results once again highlight the need to appreciate the distinction between modelled progress and actual progress.  This is not to disparage the work of the Bay Program, which has committed a significant investment of time, energy, and resources on developing and updating a very sophisticated and useful model.  Instead, it must be understood that models are imperfect tools that produce results only as good as their inputs and assumptions (and substantial ongoing work is devoted to refining these).  Further, as several USGS reports over the last several years make clear, we still have a lot to learn about the timing and mechanisms of phosphorus transport.    

The Bay TMDL has reached a critical moment.  What has made the Bay TMDL so important and distinct from the previous, failed efforts is that it is, or at least can be, an enforceable framework.  Since then, some jurisdictions have at times acted accordingly, using the threat of enforcement and the spirit of regional cooperation to redouble some efforts to restore the Bay.  However, more often than not, most jurisdictions have essentially chosen to pursue business as usual, as if the TMDL were just the latest in a long series of Bay restoration plans with timelines they could blow off.  This series will explore the progress made by some jurisdictions in some sectors and expose inaction elsewhere, highlighting the need for the U.S. Environmental Protection Agency to act now and not allow the Bay to suffer another year of delay and broken promises.

 

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| June 1, 2015

Bay TMDL Progress Report: A Critical Moment

In April, the Chesapeake Bay Program – a federal-state partnership dedicated to restoring the Bay – unveiled data tracking nutrient and sediment reductions since 2009, the year when the seven Bay watershed jurisdictions committed to new multiyear “milestone” goals in preparation to comply with the impending Chesapeake Bay Total Maximum Daily Load (TMDL).  With two […]

Sidney A. Shapiro | May 28, 2015

Regulatory Delay: Why It Took OSHA 25 Years to Promulgate a Construction Safety Rule

OSHA has finally promulgated a Confined Spaces in Construction rule.  The agency waited 25 years after it had issued an Advanced Notice of Proposed Rulemaking (ANPR) to issue a rule.   Administrative law academics have been concerned for some time about the ossification of rulemaking due to a set of regulatory hurdles imposed by regulatory opponents. […]

James Goodwin | May 27, 2015

Obama Administration Crosses Off a Big Item on Its Safeguard To-Do List, But Much Remains to be Done

Unless you’re living under a rock or are a FIFA executive official being indicted for criminal conspiracy, you’ve no doubt heard by now that the Environmental Protection Agency (EPA) has at long last released its final rule establishing a clear regulatory definition that, consistent with both the previous court decisions and the best available science, […]

Erin Kesler | May 26, 2015

CPR’s Steinzor in the Houston Chronicle: With Dupont, OSHA’s Tough Talk Falls Faint

This past Sunday, the Houston Chronicle published an opinion piece by CPR Scholar and University of Maryland Carey School of Law professor Rena Steinzor entitled, “With Dupont, OSHA’s Tough Talk Falls Faint.” Steinzor recounts the chemical giant’s negligence and reckless disregard for safety which ultimately led to the deaths of workers Gilbert and Robert Tisnado, Wade Baker and Crystle Wise. She takes […]

Dave Owen | May 26, 2015

The Waters of the United States Rule, Congress, and

Perhaps as soon as this week, according to media reports, the Army Corps of Engineers and EPA will release a final “Waters of the United States” rule clarifying the scope of federal regulatory jurisdiction under the Clean Water Act.  Simultaneously, Congress is considering multiple bills that would block the new rule and undo portions of […]

Thomas McGarity | May 26, 2015

Corporate Crime Is Not ‘Civil Disobedience’

Cross-posted with ACSBlog. The Wall Street Journal recently devoted nearly two pages of its Saturday Review section to an editorial by Charles Murray of the American Enterprise Institute urging American corporations to violate laws that they deem to be “pointless, stupid or tyrannical” as acts of civil disobedience.  The article, which is a capsule summary of his recently published […]

Matthew Freeman | May 24, 2015

The Corps Gets More Blame for Katrina Flooding

It’s been almost 10 years now since Hurricane Katrina unleashed its fury on the Gulf Coast, setting in motion a massive failure of New Orleans’s flood-control system. More than 1,800 people lost their lives when Army Corps of Engineers-designed levees around New Orleans failed, allowing water to engulf the city. What followed the levee failures […]

Katie Tracy | May 21, 2015

Federal Agency Inaction amid Growing Concerns about Health and Safety of Nail Salon Workers

Whether you are a frequent visitor to your local nail salon, or just an occasional passer-by, you are likely familiar with the offending chemical stench that emanates from within.  You may have even considered whether the displeasing fumes are safe to breath, especially for the clinicians who work in the store every day.  This is […]

Rena Steinzor | May 21, 2015

Are We Done with Sweetheart Deals for Too Big Banks?

In her first major criminal settlement since becoming Attorney General, Loretta Lynch has delivered, trussed and on a platter, five of the world’s biggest banks—Citigroup, JPMorgan Chase, Barclays, Royal Bank of Scotland, and UBS.  The five will actually plead guilty to specific crimes involving manipulation of foreign currency markets and will pay close to $6 […]