The Chesapeake Bay and Beyond: Pollution Targets Met, Not Just Set

Today, the Senate Environment & Public Works Committee's Subcommittee on Water and Wildlife is holding a hearing entitled “A Renewed Commitment to Protecting the Chesapeake Bay: Reauthorizing the Chesapeake Bay Program." Here's something that should be on Congress's agenda: making the Bay-wide TMDL (“pollution cap”) enforceable to ensure that it is actually implemented.

First, some background: Congress created the Bay Program in 1983, establishing it under the Clean Water Act. The regional partnership, which now includes several federal agencies in addition to Maryland, Virginia, Pennsylvania, Delaware, West Virginia, New York and the District of Columbia, is world-renowned for the quality of its science and its monitoring capabilities. Yet, although approximately $4 billion has been spent on restoration efforts since 1995, the Chesapeake Bay remains “severely degraded.” While population growth in the region has certainly made Bay restoration efforts more difficult, the critical problem lies with the underlying premise of the Program itself: that a voluntary, cooperative approach among federal and state partners without genuine accountability and strong leadership results in improved Bay health. A quarter century of experience demonstrates conclusively that it does not.

Momentum to reform the Bay Program has been building (President Obama’s Executive Order on the Bay and EPA Administrator Lisa Jackson’s appointment of Chuck Fox to be her special assistant on the Bay are particular bright spots), but it remains to be seen if Congress will make the hard legislative changes necessary to transform the Bay Program from a voluntary, information-gathering program that values consensus over accountability into a genuine restoration program that demands results and works. If it does, it could have ramifications for watersheds across the country.

Last month, in our report Reauthorizing the Chesapeake Bay Program: Exchanging Promises for Results, CPR President Rena Steinzor and I recommended that Congress take a series of actions to reform the Bay Program. One of our proposals in particular – making the Bay-wide TMDL enforceable to ensure that it is actually implemented – would provide a long-needed correction to the Clean Water Act. If adopted, it could set the stage for broader TMDL reform that would improve water quality across the country.

A TMDL – or “total daily maximum load” – is nothing more than a pollution budget for an impaired waterway. When a waterbody is listed as impaired under the Clean Water Act, an upper limit on the amount of pollution that may enter the waterbody must be set. Once this pollution cap is established, the states must work to reduce pollution down to that cap. A TMDL sounds like a reasonable way to go about things except for one very big problem: the Clean Water Act does not expressly require that a TMDL be implemented. In other words, it requires a target to be set, but not met.

The court-imposed deadline for developing the Bay-wide TMDL is December 2010. According to EPA, the Bay-wide TMDL will set pollutant caps by major river basin in the 64,000-square-mile Bay watershed. These pollution caps will be subdivided into “load allocations” of nitrogen, phosphorus and sediment among all of the jurisdictions in the watershed, which includes New York, Pennsylvania, West Virginia, Delaware, Maryland, Virginia and the District of Columbia. Once established, the Bay-wide TMDL will be the largest TMDL to date and will serve as an example – for good or bad – for large-scale TMDLs nationwide.

Developing the Bay-wide TMDL is an enormous task that will cost millions of dollars and countless human resources to complete. Yet there's no plan, at the moment, to have enforceable requirements and deadlines that translate it into actual pollution reductions. In other words, on the current track, all that money and work could result in very little. In order for the Bay-wide TMDL to result in real cleanup, the Bay Program must have the tools and authorities it needs to ensure that the Bay-wide TMDL is actually implemented. A real “renewed commitment” for protecting the Bay demands no less.