We are five years out from the final 2025 deadline for the Chesapeake Bay cleanup agreement, known as the Bay Total Maximum Daily Load (TMDL). With the approval of the U.S. Environmental Protection Agency (EPA), each of the Bay states has finalized the three required phases of their Watershed Implementation Plans (WIPs). This month, those states have released their draft 2020-2021 milestones, which, when final, will set out the key short-term goals states will work toward, stepping up their restoration work so that they can stay on track to meet their final 2025 pollution reduction goals.
Even though these five-year milestones play an important role in the accountability framework for the Bay TMDL, the WIPs serve as the main vehicle for comprehensively outlining how each state will achieve their commitments. Even the EPA has stated that the WIPs are the "cornerstone" of the Bay TMDL.
Despite this, the final WIPs for Pennsylvania and New York fell short of demonstrating how they would meet their 2025 Bay TMDL pollution reduction allocations. The final WIP for Pennsylvania, for instance, demonstrates that the state will only achieve about three-quarters of its nitrogen reduction allocation by 2025. The state will also suffer a shortfall in its restoration funding of nearly $324 million a year. New York's final WIP acknowledges that the state will only meet 61 percent of its nitrogen reduction commitment by 2025 and also and also falls short on funding.
EPA plays a critical oversight role in ensuring that each state meets its obligations under the Bay TMDL. EPA has broad authority to hold states accountable to the Bay TMDL, but it unfortunately missed the mark in its approval of the final plans for Pennsylvania and New York. In response to EPA's failure to hold the states' accountable, last month the Chesapeake Bay Foundation, other organizations, and the Attorneys General for Maryland, Virginia, and Washington D.C. filed a Notice of Intent (NOI) to sue EPA for its failure to take appropriate backstop actions in light of the insufficient final WIPs from Pennsylvania and New York.
Shortly thereafter, EPA Administrator Andrew Wheeler responded to the NOI in an oversight hearing before the U.S. Senate Environment and Public Works Committee, declaring that the Bay TMDL was "not legally enforceable." This statement is, in part, misleading because the EPA is the agency empowered to take the kind of backstopping measures it has taken in the past to make up for deficiencies in the state WIPs, for example. The more realistic meaning of Wheeler's assertion is that he doesn't think EPA can be forced to enforce the Bay TMDL if it doesn't want to. And that's exactly what the courts will be asked to decide.
This potential lawsuit is the latest development in the bumpy history of joint state and federal efforts to improve the health of the Chesapeake Bay. In 1987, Maryland, Virginia, Pennsylvania, and Washington D.C. came together in response to increasingly poor water quality in the Bay and agreed to achieve 40 percent reductions in nitrogen and phosphorus by 2000. The jurisdictions made little progress, and they struck a second agreement in 2000 that set new nutrient reduction goals for 2010. New York, Delaware and West Virginia joined this agreement.
In 2009, the Chesapeake Bay Foundation sued the EPA for its failure to play an effective oversight role or to ensure the success of these multi-state agreements. That lawsuit eventually led to a settlement agreement requiring EPA to establish science-based limits and an accountability framework that would help ensure the success of any future multi-state efforts. Ultimately, this culminated in the issuance of the Chesapeake Bay TMDL as we know it today. Third time's a charm, right?
After the Bay TMDL was released, its requirements were challenged by the American Farm Bureau Federation. The U.S. 3rd Circuit Court of Appeals upheld the agreement and its robust requirements. The Court went so far as to say that
[a]lthough Farm Bureau claims that the Chesapeake Bay will be cleaned up without EPA intervention, the contention defies common sense and experience. The Clean Water Act sought to eliminate water pollution by 1985, but by 2010 62% of the Bay had insufficient oxygen to support aquatic life, and only 18% of the Bay had acceptable water clarity…Our experience in state regulation of water pollution gave environmentalists poster material in the 1969 burning of the Cuyahoga River, the consequence of a classic “tragedy of the commons,” which occurs when society fails to create incentives to use a common resource responsibly.
This reaffirmed EPA's vested backstop authority to implement the Bay TMDL and all of its requirements.
More recently, EPA's actions in response to the inadequate Phase III WIPs from Pennsylvania and New York significantly differ from those the agency took in 2010 to address deficient Phase I WIPs. For instance, the first drafts of the Phase I WIPs from Pennsylvania and West Virginia did not provide "reasonable assurance" to the EPA that they would be on track to meet their Bay TMDL commitments for the 2017 Midpoint Assessment, and EPA conferred with them about needed changes to their plans. Additionally, the agency imposed a backstop adjustment, where it would require greater reductions from other federally regulated pollution sources (e.g. point sources) in those states if they could not meet their projected pollution load allocations. EPA also imposed a backstop allocation for New York, where it set greater pollution-limitations on point sources in that state.
In response to the states' deficient Phase III WIPs last year, EPA took no backstop actions, and it didn't suggest any, either. Responding to Pennsylvania's final Phase III WIP, for instance, the agency suggested that the state "may" want to "develop numeric 2020–2021 milestones that are based on implementing programs and practices to meet 100% of the planning target for nitrogen by 2025," along with a number of other recommended actions and documentation that would be highlighted in their 2020-2021 milestones. The response to New York's final Phase III WIP and EPA's recommended actions to remediate any facial deficiencies were similar. EPA did offer to provide both technical and funding assistance to these states, but the jury is still out on whether this assistance will result in robust 2020-2021 milestones that make up for the deficient final WIPs.
While EPA has repeatedly stated its strong commitment to ensuring that the science-based pollution reduction goals of the TMDL are met by 2025, Wheeler's comments about its enforceability and the failure of the EPA to take or suggest any backstop actions does not build much confidence. While we'd like to see all states uphold their Bay TMDL planning targets, it is particularly important that Pennsylvania uphold its 2025 commitments because the waterways in that state, primarily the Susquehanna River, provide roughly half of the Chesapeake Bay's fresh water and a tremendous amount of its harmful nutrient loading.
Although a lot of progress has been made to improve the overall health of the Bay, the country is looking at the Chesapeake Bay TMDL as a model, the first multi-state and federal effort of its kind. The Chesapeake Bay is a national treasure, the largest estuary in the United States and the most productive water body in the world. For those who live in the region or are traveling through, the Bay offers recreation, business, and reprieve. It provides an estimated $33 billion a year in economic and recreational benefits for the fishing, tourism, and real estate industries. Even though the two previous Bay Agreements were largely a failure, there's still time for the states and the EPA to step up to make the Bay TMDL a success.