EPA Releases Expectations for Chesapeake Bay States

This is an update to an earlier post explaining why the release of EPA’s TMDL expectations is important. These posts are part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort. 

This week, EPA’s Mid-Atlantic regional office released its final expectations for how states and their federal partners are to implement the third and final phase of the Chesapeake Bay cleanup process, which runs from 2018 to 2025. The good news is that the document is generally consistent with previous drafts and the expectations of Bay advocates. 

In my previous post, included below, I emphasized that the document would be a bellwether signaling the extent to which EPA Administrator Scott Pruitt or other Trump administration officials are overtly or publicly interfering with the future of the Bay cleanup process known as the Chesapeake Bay TMDL. At least on its face, the document shows no signs of such interference. 

Much of the strong language present in earlier drafts, including the first draft released just days before President Obama left office, are retained. In fact, in some instances, the current document doubles down on the importance of effective enforcement, accountable regulatory agencies, and increasing budgeted resources for clean water. Some of the innovative initiatives that make the Bay TMDL so unique, such as the need for jurisdictions to account for and offset the impacts from growth, are still present. 

The final expectations document also includes a new section and an entire appendix laying out expectations for Pennsylvania, the source of the greatest shortfall in pollution reductions holding the Bay restoration process back. Additionally, EPA took the opportunity to include new language reiterating the consequences of states’ failure to adhere to EPA’s expectations and the pollution reduction targets of the TMDL. Those consequences were originally presented in unabridged form in two separate memos to the seven Bay jurisdictions back in 2009 and 2010 and contained dozens of ‘backstop’ actions that EPA could take under existing authority pursuant to the Clean Water Act or other statutory provisions in order to keep the Bay TMDL on track. 

Finally, it should be noted that in the time since I wrote the original post previewing the release of these final expectations, there were many rumors about attempts by states to convince EPA to push back the final deadline of the Bay TMDL – something that was previously unthinkable. Regardless of how close the rumors were to becoming reality, the document puts an end to the issue with a recommitment to the 2025 deadline. 

Neither the release of this expectations document nor the bureaucratic machinations of EPA during the transition from the first half of the Bay TMDL to its second half should be particularly newsworthy. If the states were living up to their public commitments to deliver clean water in the Chesapeake Bay watershed by investing in clean water projects and enforcing our environmental laws, we would be well on our way to proving once and for all that state and federal cooperation under the Clean Water Act can restore a major interstate waterway. But as it stands, states are woefully behind, making EPA’s job as referee that much more important. 

As I noted in the original post on this topic, a TMDL is just a plan; moving from plan to action is far more important. This week’s release of a strong document by EPA is a good sign that it is still invested in pushing states to act. 

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Original post published February 19, 2018, titled "Why the Upcoming Release of EPA 'Expectations' for the Bay Plan Is Worth Watching"

Anyone who's ever been to an organizational retreat can tell you that the worst fate any plan can suffer is to sit on a shelf, unused and collecting dust. The Chesapeake Bay restoration effort is one of the most complex and sophisticated environmental restoration plans ever created. But despite all the resources and energy that have been brought to bear under the Chesapeake Bay Total Maximum Daily Load (TMDL) initiative, the tie that binds it all together is simply the "expectations" of the Environmental Protection Agency (EPA). In a few weeks, EPA will release its expectations for the final phase of the Bay TMDL (Phase III), which ends in 2025. This document is an important piece in the current plan to restore the Bay's health. 

The Bay TMDL is neither a self-executing plan nor an enforceable document. Moving from plan to action, and from numbers on paper to real pollution reductions on the ground (and in the water), requires local, state, and federal entities to closely, carefully, and faithfully follow the instructions expressed by EPA as "expectations," which it has detailed for all parties involved in the clean-up plan in a series of letters, memos, guidelines, and other documents. 

To be clear, the legal basis for the Bay TMDL in its current form, including state implementation plans, is on sound footing. This much, federal courts have made clear, is not in question. Moreover, the other two branches of the federal government have also lent their support to this Bay restoration effort: the Chesapeake benefits from its own separate section of the Clean Water Act, and President Obama signed an executive order detailing what the federal government must do to ensure the Bay is finally restored to health after several previous efforts failed. Finally, a number of legal hooks are available for regulators and concerned citizens to hold unwilling Bay partners accountable or to bring individual scofflaws in line with the Clean Water Act and the other state and federal laws that undergird the TMDL. 

EPA and the other leaders that developed the TMDL orchestrated a thoughtful approach to carrying out this enormously complex plan through an extraordinarily detailed and transparent accountability framework that lays out exactly who needs to do what and when to usher the partners from plan to implementation. As EPA's regional administrator in charge of the Mid-Atlantic region wrote before the restoration plan was even created: 

The new accountability framework created by EPA was to begin with "clear expectations laid out at the start, quantifiable measures established along the way, and public accountability with each step taken." To expand on the oft-used "blueprint" metaphor for the TMDL, EPA is the architect while the states are the contractors needed to actually build the TMDL. And all of us – the public, the media, and our elected officials – are the inspectors in this metaphor, making sure at every step in the building process that the states and other entities primarily responsible for implementing the TMDL are in fact following the plan and collaborating effectively with each other. 

Coordination and cooperation among each of the state, local, and federal partners are crucial for the TMDL to work. If the state and other partners blow off EPA's carefully crafted expectations and other instructions, the entire framework will unravel, with states racing to the bottom, each one committing to do no more than their neighbors. 

And now more than ever, we need strong leadership from EPA's regional office in charge of overseeing the Bay TMDL and from the governors of each state. Despite all of the good news lately about how beautifully the Bay ecosystem is responding to previous pollution controls and management actions taken by state and federal partners, the region is actually falling further behind in meeting its pollution reduction goals. We have just passed the 2017 midpoint of the TMDL and are nowhere close to achieving the interim goal of creating 60 percent of the reductions needed to reach the final 2025 pollution reduction targets. 

The successful ecosystem response we are seeing today is based on yesterday's actions, decisions, and funding commitments. But if today's leaders don't provide the same level of commitment, future environmental progress in the Bay will cease. Worse, if we lose federal leadership from EPA, the TMDL itself could fall apart altogether. It is for this reason that the upcoming release of EPA's expectations for the third and final watershed implementation plans (WIPs) is crucial for the future of the Chesapeake Bay. 

What to Watch for with New EPA Expectations on the Way 

Bay advocates will scrutinize the Phase III WIP expectations to learn of any changes from the various earlier drafts that might signal a strategic shift by EPA on the TMDL. A shift might be expected, for example, if the Trump administration wanted to overtly interfere with the inner workings of the Bay TMDL during its final phase. We have already seen hostile and draconian actions taken by the Trump administration in one form or another. But the telling question is whether the middle managers at EPA's regional office in Philadelphia will take similar action. 

Another less sinister but nevertheless concerning source of a shift in EPA's expectations might be pressure from the states. After all, EPA Administrator Scott Pruitt's favorite catch-phrase – "cooperative federalism" – stands (in his rendering) for the proposition that EPA will step back and let states do as they please with respect to implementing and enforcing environmental and public health protections. This is precisely the opposite of the strong federal leadership and coordinated action that the TMDL needs to get back on track. Whether EPA is seen more as a cop, umpire, or instructor in leading the Bay TMDL to completion, the reality is that it must lead. 

If Pruitt's EPA decides to flip this relationship on its head and acquiesce to the states, and the states' message back to EPA is, "Yes, we're lagging, but we don't need you keeping score or telling us what we need to do to restore the Bay," then Pruitt-style "cooperative federalism" could lead to the ultimate demise of the TMDL.

In looking through past expectations documents and other EPA letters to the states, it is clear that some of the strong language and firm expectations expressed by prior EPA leadership may be at risk if Pruitt or other political appointees have a hand in reviewing this key document. For example, EPA had previously required states to specify dates by which they would take crucial actions to carry out the TMDL, including "adopting new regulatory authorities, improving compliance with existing regulations, securing additional resources" and issuing "permits with more stringent effluent limits." In order to provide reasonable assurance to EPA and the public that the Bay TMDL's interim (2017) and final (2025) pollution reduction targets would be met, EPA expected states to establish policies and programs with "enforceable or otherwise binding commitments," "permits or contracts with quantifiable limits and milestones," "estimates of the necessary resources (funds)," and – importantly – "resources for assuring … compliance, such as inspections, effectiveness monitoring, self-audits, and any necessary enforcement actions."

In addition to clear guidance as to the types of general activities expected of states, EPA's previous expectations documents have also included guidance on specific policy issues. For example, one fundamentally important expectation underlying the TMDL is that states would develop procedures to ensure that all new and expanded sources of pollution would be offset. Thus, EPA established an entire section of expectations devoted to "procedures for estimating additional loads due to growth" that would "provide for pollution load reductions that are at least sufficient to offset the growth and development." 

And offsetting the impact of growth is just one of several essential elements that EPA has expected states to address in their final watershed implementation plans, alongside other issues like accounting for the additional loads due to climate change and the filling of the Conowingo Dam, the development of local TMDL planning goals, and more. Advocates, as well as state and local leaders, will be carefully examining the details of these elements and reading between the lines at the language and overall tone of the soon-to-be-released expectations document to gauge whether and to what extent the new EPA leadership will be backing off of the approach taken by previous administrations in providing clear, specific, and firm expectations for the state partners.

The Bay TMDL is already dangerously off track as we head into its final phase. With progress in a precarious state, the EPA's Mid-Atlantic office needs to buck recent trends from headquarters and ensure that the agency actively and constructively leads the restoration effort and assists the Bay states in meeting their goals under the TMDL.