This morning, the U.S. Environmental Protection Agency (EPA) released its annual assessments of progress made by the seven jurisdictions in the Chesapeake Bay watershed. The bottom line: nothing has really changed in terms of the content or tone from the previous annual assessments, and they do not appear to reflect a shift in strategy by EPA toward greater enforcement against lagging states under the “accountability framework” of the Chesapeake Bay Total Maximum Daily Load (Bay TMDL).
First, a quick summary of some of the highlights. EPA downgraded Delaware’s agriculture sector from “ongoing oversight” (no significant concerns) to “enhanced oversight” (some concerns) because the state has been slow to issue permits and extend coverage under permits for Concentrated Animal Feeding Operations (CAFOs) – or industrial-scale poultry operations – and because Delaware failed to substantiate the nutrient management plan compliance levels that it has reported to the Chesapeake Bay Program for entry into the Bay models used to track progress under the Bay TMDL.
EPA also upgraded West Virginia’s agriculture sector from “enhanced oversight” to “ongoing oversight” because the state addressed a few of the EPA expectations contained in the prior assessments. It probably also helps that, according to the Bay model, West Virginia has the only agriculture sector that is estimated to have reached its 2017 goals so far, progress which has also been substantiated with some positive monitoring trends in nutrient and sediment concentrations in nine streams recorded by the U.S. Geological Survey.
EPA threatened to downgrade two other states’ sectors from “ongoing oversight” to “enhanced oversight” based on concerns about Maryland’s lack of enforcement of stormwater permit violations and about the lack of effort or progress from New York’s agriculture sector in reducing nitrogen pollution from farm fields and agricultural operations.
Finally and most importantly, because Pennsylvania’s agriculture and stormwater sectors could not be downgraded any further, EPA announced that it will enhance its review of specific actions taken by the state, including: conducting an additional watershed-scale assessment of animal feeding operations in the Commonwealth, conducting direct field assessments of some operations, and evaluating implementation of some Pennsylvania farms’ nutrient management plans to ensure that they are actually being carried out. Additionally, EPA announced that it would consider developing separate and specific expectations for Pennsylvania as part of the Phase III Watershed Implementation Plan process that is getting underway to guide Bay restoration efforts between 2018 and 2025.
Today’s assessments reflect the concerning state of “cooperative federalism” between EPA and states in implementing the Clean Water Act. EPA is primarily in charge of implementing most of the Clean Water Act and making sure that states and private industry comply with the law. It has delegated some of its authority to the states to implement and enforce certain programs and duties for the sake of administrative efficiency and because of the recognition that states are able to be more responsive to local needs. But the Bay TMDL is a clear example of how this arrangement can fail if states are unwilling to commit the resources or the political capital to effectively enforce the law and if EPA is unwilling to take concrete action when states fall short.
In each of the annual Bay assessments, EPA expresses clear “expectations” to the states, many of which continue to be ignored. If states don’t face real consequences for ignoring the federal agency in charge of implementing the Clean Water Act, and particularly for the high-priority Chesapeake Bay restoration effort, then what can we say about the current state of clean water in this country or about one of the nation’s most important environmental laws?
It is no secret among EPA, state officials, and many Bay advocates that the restoration effort is way off track heading into the Bay TMDL’s 2017 midpoint assessment. We did not need today’s assessments to tell us that. What many advocates had been hoping to see, however, was a sign that EPA has had enough of inaction, lagging progress, and the general failure by states to protect or restore their citizens’ – and our nation’s – waters. That was not evident in today’s assessments, notwithstanding the pronouncement that EPA would be working more closely and directly with Pennsylvania moving forward.
It is worth reminding readers that EPA does not have to make this up as it goes along. The agency developed an enforcement “playbook” years ago to address situations like this, in response to an executive order from President Obama that spurred the federal government into action on the Chesapeake Bay. That order tasked EPA with holding states accountable. Indeed, former EPA Administrator Lisa Jackson said way back in May 2009 that the agency would “make full use of its authorities under the Clean Water Act to protect and restore the Chesapeake Bay and its tributary waters.” EPA proceeded to establish the enforcement playbook, with both its Office of Enforcement and Compliance Assurance and the Mid-Atlantic Region 3 Office crafting their own memoranda to give teeth to the Bay TMDL.
As the region as a whole is running at only about half of the pace needed to reach the 2017 interim deadline of the Bay TMDL, we’re seeing more assessments from EPA, but little in the way of enforcement action. We’re hearing words of caution, but we’re not seeing consequences, even for states like Pennsylvania, which received a red card today with the “Backstop Actions Level” for the third straight year. Last month, EPA Administrator Gina McCarthy called the lack of effort by Pennsylvania “discouraging at the very least.” But now we have another year’s assessment of progress, or lack thereof, and no signs that EPA is planning to do much about it.
In order to accelerate progress and start achieving our Bay restoration goals, EPA needs to play its part by opening its enforcement playbook and holding lagging states accountable.
Oversight chart credit: U.S. EPA