On June 21, the Environmental Protection Agency (EPA) released its evaluation of the third and final round of state Watershed Implementation Plans (WIPs) under the Chesapeake Bay restoration framework known as the "Bay TMDL" (Total Maximum Daily Load). EPA's evaluation of the seven Bay jurisdictions broke no new ground regarding the quality or contents of the states' plans, but instead reiterated many of the same findings and concerns expressed by advocates, including the ones I expressed with my colleague David Flores. So what, if anything, is EPA going to do about the many shortcomings in the state WIPs?
From the looks of it, not nearly enough. The first indication that EPA's evaluation was not going to be a satisfactory response to the problematic WIPs was buried in a footnote. In the second footnote on the first page of each of the WIP evaluations, EPA says that it is replacing the legal term of art, "reasonable assurance" – as in, reasonable assurance that the planned steps will have the intended effect – with the word, "confidence" in order to "be more consistent with applicable guidance and regulations."
Without going into the long history of the courtroom and regulatory fights over the scope and effect of that Clean Water Act concept, it is worth noting that when the opponents of the Bay TMDL took EPA all the way to the Supreme Court to stop the cleanup effort from proceeding, one of their primary arguments concerned the scope and consequences of the "reasonable assurance" standard. It is also worth remembering that one of the attorneys representing the Bay TMDL opponents in that fight is now the head of EPA's Office of Water.
Should we interpret this footnote funny business as direct interference from the Trump administration in the Chesapeake's restoration or an effort to take care of unfinished business that was so abruptly set aside by the Supreme Court three years ago? Possibly yes to both. But regardless of the source or intent of this language, the footnote set the tone and expectations for everything that follows in the evaluation.
The second and even more glaring indication that EPA's evaluation would be toothless was the absence of any discussion of actions the agency is taking or will take to address deficiencies in the watershed plans. Merely identifying the deficiencies is next to meaningless if EPA does nothing to address them. In 2009, the agency issued a memo to the seven Bay jurisdictions describing the "actions or 'consequences' should jurisdictions not meet EPA's expectations" for development of effective WIPs. Sure enough, several months later, a few states submitted WIPs that were fundamentally inconsistent with EPA's written expectations and, true to its word, the agency took action.
In order to give effect to the "accountability framework" that set the Bay TMDL apart from its failed predecessor cleanup efforts, EPA took immediate "backstop" actions in several states, including reallocating pollution reduction responsibilities among sources of pollution in order to provide greater assurance that the task could get done. EPA's unwillingness to follow through on its obligation to uphold the accountability framework comes through both in tone and substance. The Phase I and Phase II WIP evaluations that EPA wrote in 2010 and 2013 were considerably shorter and their language more direct – especially in identifying deficiencies – than the Phase III evaluation just released. The agency also incorporated accountability into the evaluations by including section headings to describe "EPA Actions." By contrast, the Phase III WIPs are longer and provide greater factual detail, but generally avoid normative descriptions and omit any discussion whatsoever of EPA actions.
Nowhere is the weakness of the Phase III WIP evaluations more glaring than in EPA's review of Pennsylvania's plan. For Phase I, EPA wasted no time in its evaluation pointing out the problems with the state's WIP. Three sentences into the evaluation, EPA noted that the WIP "lacks clear strategies" and then proceeded to describe the "EPA actions" and "backstops" that the agency was immediately taking to help rectify the situation.
Fast forward to Phase III, and we find the agency burying the lede in the middle of the second page, which is that Pennsylvania's WIP contains a fatal flaw. The Commonwealth's WIP does not even describe a plan to reduce the amount of pollution that was agreed upon and instead describes a plan that comes up 36 percent short of its pollution reduction target. EPA notes this fact without calling it unacceptable or insufficient and then moves on. Ironically, the very next section in the evaluation is a description of the EPA oversight process, but there are no details about what the agency will do to fix this massive shortcoming. EPA graciously recognizes the "unique challenges" facing Pennsylvania, describes some "potential enhancements" that could be made to the draft WIP, and politely suggests that "the State may need to reevaluate its planned activities or schedule to achieve the planning targets."
The irony here is that EPA is guilty of the same thing as Pennsylvania. Both have abdicated responsibility under the Bay TMDL. Pennsylvania has not even pretended to develop a plan to meet the pollution reduction target under the Bay cleanup. Meanwhile, EPA has walked away from its role in overseeing the "accountability framework" that provides the public with assurances that the Chesapeake Bay will finally be on course for restoration in 2025.
Under the Clean Water Act, Congress directed EPA to "ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement to achieve and maintain" the necessary pollution reductions. To emphasize how important accountability would be in this restoration framework, Executive Order 13508 further required EPA to "make full use of its authorities under the Clean Water Act" and "identify pollution control strategies and actions" that are "publicly accountable."
Up until last Friday, we have had no clear indication that EPA would be abandoning its responsibility to the Chesapeake Bay. When it released its important "expectations" document a year ago describing what it would be looking for in the Phase III WIPs, I acknowledged the document looked consistent with the previous iterations developed by the Obama EPA for the Phase I and II WIP development processes and set an appropriate standard by which to measure and evaluate state plans for restoring the Bay.
One year later, I cannot say the same thing about EPA's third and final iteration of the WIP evaluation documents. The Phase III WIP evaluation is very much inconsistent with the evaluations produced by the previous administration and sends a strong signal that this EPA will no longer be taking seriously its role at the center of the Chesapeake Bay cleanup. Perhaps consistent with the current EPA administrator's obsession with "federalism" concerns, these evaluations show that the agency is content to allow each of the states to do as much or as little as they want to restore water quality, which is clearly a problematic approach to orchestrating a multi-state cleanup effort, especially given how far off track the cleanup is at this time.
The time for action is now, but we now know we can no longer count on EPA to take it.