Virginia's Bay TMDL Progress Report: A Complete Picture
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 taken long before the creation of the Bay TMDL; and (2) the vast majority of progress made under the Bay TMDL is the result of “first generation” Clean Water Act methods (traditional end-of-pipe stuff). The key question confronting Virginia and its regional partners is whether they will develop the “second generation” mechanisms needed …
In the shadow of the upcoming Supreme Court decisions on Obamacare and same-sex marriage is an important environmental case that has important implications for the health of women of childbearing age in America. The Court will decide whether to uphold the Environmental Protection Agency’s stringent limitations for emissions of the toxic metal mercury from the nation’s coal- and oil-fired power plants. And as with the Obamacare case, the case turns on a matter of language: the single word, “appropriate.”
If the Court adheres to a long line of its own precedents on how courts are to interpret statutes that delegate decisionmaking power to regulatory agencies, the case should be an easy win for EPA. If, however, some of the Justices cannot resist the temptation to impose their own policy preferences on EPA, the upcoming decision could be a very bad one for environmental regulation and …
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 …
William W. Buzbee, Professor of Law, Georgetown University Law Center, offers his comments here regarding the May 27, 2015 released final rule and accompanying materials regarding what waters are federally protected “waters of the United States.” Professor Buzbee is also a founding member-scholar of the Center for Progressive Reform. He has testified repeatedly before congressional committees about these issues and in 2006 served as co-counsel for an unprecedented bipartisan amicus brief of former US EPA Administrators filed with the Supreme Court. Wwb11@law.georgetown.edu. Office phone (202) 661-6536.
The United States Environmental Protection Agency and the Army Corps of Engineers on May 27, 2015 released their much awaited and debated final rule articulating what are federally protected jurisdictional “waters of the United States.” Before anyone outside the executive branch could have possibly read the 700 plus pages of legal analysis in the new “Waters Rule” (also …
In April, the Chesapeake Bay Program – a federal-state partnership dedicated to restoring the Bay – unveiled data tracking nutrient and sediment reductions since 2009, the year when the seven Bay watershed jurisdictions committed to new multiyear “milestone” goals in preparation to comply with the impending Chesapeake Bay Total Maximum Daily Load (TMDL). With two years remaining until the midpoint assessment for the Bay TMDL, the data show mixed results.
Before delving in to those results, it is important to note that there are several ways of measuring progress toward compliance with the Bay TMDL. One must consider (1) the actions and resources committed by state and local governments and other regulated entities; (2) the Bay Program model’s estimated reductions generated by these actions and resources; and (3) the actual improvements in water quality measured through sampling. While this last measure of progress is ultimately the most important …
Unless you’re living under a rock or are a FIFA executive official being indicted for criminal conspiracy, you’ve no doubt heard by now that the Environmental Protection Agency (EPA) has at long last released its final rule establishing a clear regulatory definition that, consistent with both the previous court decisions and the best available science, delineates which water systems are covered by the Clean Water Act. The rule was included in a recent CPR Issue Alert, highlighting 13 essential regulatory actions that the Obama Administration should commit to completing during its remaining time in office.
The rule would seem to provide everything that conservative opponents of regulation would want: regulatory certainty and efficient use of agency funds (i.e., by preventing the EPA from having to undertake wasteful case-by-case analyses of which water bodies warrant federal protection). Yet, it has been a lightning rod of …
Perhaps as soon as this week, according to media reports, the Army Corps of Engineers and EPA will release a final "Waters of the United States" rule clarifying the scope of federal regulatory jurisdiction under the Clean Water Act. Simultaneously, Congress is considering multiple bills that would block the new rule and undo portions of the Clean Water Act. There are many reasons for the opposition, but one key argument is grounded in federalism. According to the Wyoming Senator John Barrasso, chief author of the Senate bill (as quoted in Saturday’s New York Times):
"This rule is not designed to protect the traditional waters of the United States. It is designed to expand the power of Washington bureaucrats."
This is a familiar refrain. Politicians say similar things to oppose all sorts of governmental initiatives, ranging from the Common Core educational standards to the Affordable Care Act …
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 …
As many scholars have noted (see here and here, for example), the Federal Power Act’s bright line jurisdictional split between “retail” sales of electricity (regulated by states) and “wholesale” sales (regulated by the Federal Energy Regulatory Commission) is untenable in the modern era. The interconnected nature of the electric grid – electricity flows freely throughout the nation - means that many activities at one level affect the other, and vice versa. The precise allocation of state and federal jurisdiction to regulate this modern network, however, remains unclear.
On Monday, the Supreme Court took a step toward providing that clarity, granting the petition for certiorari in FERC v. Electric Power Supply Association. This case squarely tests the split of authority between FERC and the states, as it is an appeal of a decision by a divided D.C. Circuit panel that held that, although “demand response” can impact the …
Almost a decade after Hurricane Katrina, New Orleans-area residents are still trying to hold their government accountable for mistakes that allowed a monstrous flood to devastate their city. Last week, in a case called St. Bernard Parish v. United States, a federal judge helped their cause.
In a dispute involving a major navigation channel controlled by the Army Corps of Engineers, Judge Susan G. Braden of the United States Court of Federal Claims in Washington, D.C., found that the Corps’ negligence in maintaining that passage caused flooding of such consequence that it amounted to a “taking” of homeowners’ property under the federal constitution, thus requiring the payment of “just compensation.”
The facts behind the Katrina flood—perhaps the most expensive engineering failure in American history—are well known to experts. After Hurricane Katrina had passed over New Orleans, a series of levee breaches caused flooding to …
