The Chesapeake Bay is the largest estuary in the United States. More than 150 major rivers and streams flow into the Bay's 64,299-square-mile drainage basin, which covers parts of six states (Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia) and all of Washington, D.C. (the Bay jurisdictions). With its diverse flora and fauna, the Chesapeake Bay is a very important feature for the ecology and economy of these regions. But for more than half a century, the Chesapeake Bay and many of its tributaries have suffered from poor water quality.
The U.S. Environmental Protection Agency (EPA) issued the Chesapeake Bay total maximum daily load (Bay TMDL) in 2010 to reduce pollution discharges and thereby restore Bay water quality by 2025. Unfortunately, the Bay TMDL will fail to meet its 2025 objective. In the June 2024 issue of ELR—The Environmental Law Reporter, author Jon Mueller argues it is time for EPA to use the tools provided to it under the Clean Water Act to reduce pollution. He also urges the Bay jurisdictions to sign a binding and enforceable Bay agreement to ensure accountability. In sum, the Article explains, if CWA authorities and other legal mechanisms are fully utilized, the Bay can be restored.
The Bay TMDL required each of the seven Bay jurisdictions to reduce their respective discharges of nitrogen, phosphorus, and sediment according to assigned allocations for point sources and nonpoint sources in 92 Bay watershed segments. Each jurisdiction was to write watershed implementation plans (WIPs) in three phases over a seven-year period and explain what actions they would take to meet the pollution allocations. Work identified in the final phase III WIP is to be completed by 2025. To help meet this deadline, the TMDL contained a “Reasonable Assurance and Accountability Framework” that required the Bay jurisdictions to meet two-year interim goals. If a jurisdiction failed to meet those goals or develop adequate pollution-reduction plans, EPA would use its CWA authorities to take one or more of eight “backstop” actions.
Sadly, EPA and the Bay jurisdictions will not meet the 2025 deadline. And the reason for the Bay TMDL’s demise, writes Mueller, is clear: “Despite the Bay jurisdictions and EPA recognizing 40 years ago that agriculture and urban stormwater are the primary sources of Bay pollution and identifying the specific CWA legal mechanisms available, they have continually bowed to powerful economic and political interests and declined to use those mechanisms.”
The Article, 40 Years of Chesapeake Bay Restoration: Where We Failed and How to Change Course, is available for free download. It begins with a brief description of the Chesapeake Bay, its natural resources, the primary sources contributing to its poor water quality, and why Bay restoration is imperative. It then reviews prior attempts at cleaning the Bay via voluntary Chesapeake Bay Agreements and their inability to restore it. The Article next examines the development of the Bay TMDL, the legal challenge to its issuance, and why citizens and Bay jurisdictions later sued EPA to enforce its terms. The Article also evaluates progress implementing the Bay TMDL over the past 13 years and why the Bay jurisdictions will miss the 2025 deadline, as well as discussing EPA’s failure to honor its TMDL commitments and some potential reasons why the Agency has not taken action. Last, the Article delves into the various CWA authorities and other legal mechanisms that, if fully utilized, can achieve Bay restoration.
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