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Oct. 15, 2015 by Evan Isaacson

Too Little and Far Too Late, EPA Releases a Disappointing eReporting Rule

Last month, the Environmental Protection Agency finalized a long overdue rule that was designed, according to EPA’s description, to move the agency “into the 21st Century.” Since many of the rules’ provisions still will not be in effect more than two decades after the turn of the century, this rulemaking plays right into the hands of those who insist that the federal government cannot work efficiently — ironic, because efficiency is the very purpose of the eReporting rule. In this case, the absurdly slow pace of the rulemaking process and the final rule’s protracted implementation schedule also serves the critics’ agenda. Even after more than a decade in the making, the final rule hampers EPA’s ability to shine a light on the problem of underreporting of water pollution in the United States.

The National Pollutant Discharge Elimination System (NPDES) has long been the centerpiece of EPA efforts to implement the Clean Water Act. The success of the NPDES regime is largely attributable to the requirement that large “point sources” of pollution monitor their effluent discharge and provide publicly available reports on this pollution and any violations of their permits. This simple and transparent regulatory system provides a strong …

July 31, 2015 by Evan Isaacson
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Recently, the U.S. Court of Appeals for the Third Circuit affirmed the 2013 decision of the U.S. District Court for the Middle District of Pennsylvania that EPA did not exceed its Clean Water Act (CWA) authority in issuing the total maximum daily load (TMDL), or pollution diet, for the Chesapeake Bay.  The ruling affirmed the legality of the nation’s most ambitious TMDL and, more broadly, it also rejected the plaintiffs’ exceedingly narrow view of TMDLs.

As presented in a recent case brief, CPR Member Scholars Emily Hammond, Dave Owen, and Rena Steinzor and I argue that this decision is a good example of how judicial deference can protect important agency efforts to protect the environment.  According to brief co-author Rena Steinzor, “The Third Circuit provided resounding support for ongoing efforts to restore the Chesapeake and for EPA’s authority to work with states to …

July 27, 2015 by Evan Isaacson
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Last Wednesday, a Montgomery County Circuit Court judge held that the Montgomery County Water Quality Protection Charge is invalid and that the plaintiff should not have been required to pay any stormwater fee to the county. The case could have significant ramifications across the state for jurisdictions that have, like Montgomery County, established a stormwater fee similar to the one invalidated in the case.

First, some background.  In 2012, the Maryland General Assembly passed HB 987, which required any jurisdiction subject to a certain federal stormwater permit (including, for example, Baltimore City and Prince George’s County) to implement an annual stormwater remediation fee and a local watershed protection and restoration fund to hold those new funds. The law did not require the local governments to set the fee at any specific level or otherwise require them to collect a specified amount in revenues; each jurisdiction had …

July 1, 2015 by Evan Isaacson
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Editors’ Note:  This is the sixth in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL.  The first five posts cover the region as a whole, and then Maryland, Pennsylvania, New York, and Virginia, Future posts will explore the progress of the two remaining jurisdictions.

Like New York, the State of West Virginia can seem a bit distant from the Chesapeake Bay and the process of implementing the Bay Total Maximum Daily Load (Bay TMDL).  But, even though most of the state’s waterways drain into the Ohio River rather than to the Bay, some of the fastest growing counties in West Virginia are those surrounding the Potomac headwaters, and a short drive to the Bay itself.  West Virginia has experienced at least some success to date in reducing nutrient and sediment pollution under the Bay TMDL, but recent information …

June 24, 2015 by Evan Isaacson
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TMDL.  The first four posts cover the region as a whole, and then Pennsylvania, Virginia, and Maryland.  Future posts will explore the progress of the remaining three jurisdictions.                

So far, we have evaluated progress of the three core jurisdictions in the Chesapeake Bay Watershed in reducing nutrient and sediment pollution under the Chesapeake Bay Total Maximum Daily Load (Bay TMDL).  These “big three” states and members of the Chesapeake Bay Commission are the biggest contributors to the pollution problem affecting the Bay and, at least in the case of Maryland and Virginia, appear to have the most at stake if the Bay itself is finally restored.  But we now turn to the region’s periphery, where the big challenge may be how to motivate the people and policymakers in the Bay’s hinterlands – such as Upstate New York. 

Whatever their motivation, officials in New York State must …

June 22, 2015 by Evan Isaacson
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Editors’ Note:  This is the fourth in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL.  The first three posts cover the region as a whole, and then Pennsylvania and Virginia. Future posts will explore the progress of the remaining four jurisdictions.                

Judging from the Chesapeake Bay Program’s modeling of pollution in the Chesapeake Bay, Maryland is a tale of two states when it comes to reducing its polluting emissions.  On the one hand, the state is clearly lagging in reducing nitrogen pollution, one of two main contributors to the algal blooms that lead to “dead zones” in the Bay.  On the other hand, it has made some progress. Indeed, Maryland’s experience appears to be quite similar to that of Virginia, a leader in reducing nitrogen to date, in that it owes most of its success to significant …

June 17, 2015 by Evan Isaacson
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We recently explored how Virginia’s progress toward meeting the 2017 interim goal for the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) is mostly the product of decades’ old financial commitments.  So, we might hope to see much of the same from Pennsylvania, a fellow member of the Chesapeake Bay Commission since 1985.  Unfortunately, despite decades of participation in the various agreements to clean the Bay, Pennsylvania’s lack of progress is the single biggest reason to worry about the future health of the Chesapeake.

Although no part of Pennsylvania borders the Chesapeake, much of the state is in the Bay watershed. Its agriculture sector alone contributes more than one-quarter of all nitrogen pollution in the watershed.  Put another way, this one sector contributes more nitrogen than the entire Commonwealth of Virginia, or more than every sector in Delaware, the District of Columbia, Maryland, and West …

June 17, 2015 by Evan Isaacson
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This is the second in a series of posts to explore progress in cleaning up the Chesapeake Bay, as reflected in recent data from the Chesapeake Bay Program’s elaborate computer model of the Bay, which accounts for what the states are actually doing to reduce pollution. Read the first post, taking a look at the overall region’s progress, here.

Judging solely from the Chesapeake Bay Program’s Watershed Model, the Commonwealth of Virginia is doing a pretty good job of reducing its pollution “contribution” to the Bay. The most recent data (2014) from the Model indicate that the Commonwealth has achieved 97.6 percent of its nitrogen reduction goal for 2017 and 150.4 percent of its phosphorus reduction goal, three years ahead of schedule.

Virginia’s experience exemplifies two themes common among the Bay jurisdictions: (1) the Bay has reaped the benefits of actions …

June 9, 2015 by Evan Isaacson
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The State of Maryland released a long overdue report on Monday regarding the state’s plan to finance its implementation of the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) requirements.  The report was prepared by the Environmental Finance Center at the University of Maryland on behalf of the Maryland Department of the Environment, the Department of Natural Resources, and several other agencies in response to a 2014 request by the budget committees of the Maryland General Assembly.

Originating from a request in early 2014 by the joint chairs of the budget committees, the report was supposed to be released along with a companion report on past expenditures associated with restoring the Chesapeake Bay in time for preparation of the fiscal year 2016 budget this past winter.  However, in the preface to the report on historic expenditures, the agencies indicated that the report on future funding needs …

May 18, 2015 by Evan Isaacson
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Recently, the Chesapeake Bay Commission released a report Healthy Livestock, Healthy Streams to advocate for stream fencing, one of several dozen longstanding agricultural best management practices (BMPs) recognized by the Chesapeake Bay Program.  Promoting stream fencing is common sense: when livestock loiter near streams, they compact soil, clearing a path for runoff; when they enter the stream, they erode its bank and send sediment into the channel; and when nature calls, they deposit “nutrients” directly into the stream.  It is not just bad for aquatic habitats, it is bad for farmers and their vet bills. 

Despite significant reductions over the past 30 years in nutrient and sediment loading from agricultural sources, the share of these pollutants from the agriculture sector has remained remarkably consistent, contributing, for example, 45% of the nitrogen to the watershed in both 1985 and 2014.  However, the Bay TMDL calls for the agriculture …

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