The Ball Is Back in EPA's Court Following Release of Final Bay Restoration Plans

Evan Isaacson

Sept. 3, 2019

Last week, the six Chesapeake Bay states and the District of Columbia posted their final plans to meet the 2025 pollution reduction targets under the Bay cleanup effort known as the Chesapeake Bay Total Maximum Daily Load ("Bay TMDL" for short). These final Watershed Implementation Plans (WIPs) were, by and large, little different from the draft ones released this spring, at least for the big three Bay jurisdictions (Maryland, Pennsylvania, and Virginia) that are responsible for roughly 90 percent of the nutrient pollution in the Bay.

When the draft Watershed Implementation Plan (WIP) for Pennsylvania was released in April, many were outraged that it contained a fatal flaw. The WIP failed to pass the most basic test, which is to propose actions that would actually provide the pollution reductions needed to meet the state's 2025 final Bay TMDL target. That fatal flaw still remains, although the final WIP would close the gap slightly. Without a plan in place to fully reduce pollution to the level needed to deliver clean water throughout the Susquehanna River watershed and the Chesapeake Bay, there really is not much else to say about Pennsylvania's final WIP other than that EPA, advocates, and concerned citizens must call on the Commonwealth to rip up this plan and start over.

Maryland unveiled a draft WIP in April that could be described as a plan in name only. The state produced a lengthy and vague document chock full of descriptions of problems affecting the Bay, its ecosystem, and related public health and economic issues, as well as the many good reasons to do something about them. But the draft WIP contained almost nothing that could be recognized as a concrete series of steps to actually fix any of these issues or capitalize on the many benefits that the WIP described. In short, Maryland's draft WIP was an exercise in saying a lot while committing to do almost nothing new or different to jump start its lagging efforts (it is far ahead of Pennsylvania but still well short of Virginia's level of progress or, more importantly, its 2025 target). A side-by-side comparison of the draft and final WIP reveals very few substantive changes were made. Moreover, the responses provided by the state to those who submitted comments during the public comment period for the draft WIP confirm that the state simply did not view the WIP as the place for describing a plan for decisive action. Instead, Maryland is choosing to reserve the right to consider taking action in the future under an "adaptive management" approach. Of course, reserving the right to take action at some point in the future is what has gotten the Chesapeake Bay to this point in the first place.  

Finally, when Virginia released its draft WIP, it was described by many as the best of the bunch (admittedly, a low bar). The draft WIP was far more detailed, coherent, and serious than Maryland's WIP and actually described a plan to meet the 2025 pollution reduction targets, unlike Pennsylvania's WIP. Thus, while the draft WIP had a few significant inadequacies that needed fixing before the plan was finalized, Virginia's WIP was far ahead of the other two core Bay watershed states. It should not be surprising then that Virginia is also by far the closest to reaching its 2025 pollution reduction target, or that Virginia's final WIP, which was already in better shape than most, took public comments the most seriously and incorporated quite a few of them into the final version, including a few new policy and programmatic commitments.

With the final WIPs now released, we find ourselves back to where we were in the spring when the drafts were published. The most problematic state remains the most problematic. The most advanced state continued to prove itself the most serious about the process of reaching Bay restoration goals. And the restoration effort as a whole appears hopelessly lost, as the final plans due under the Bay TMDL fail to come close to providing the public with the reasonable assurance that EPA demanded of the states when the Bay TMDL was launched at the beginning of this decade. Most importantly, we find ourselves, once again, hoping that EPA will wake up, listen to the public's concerns, observe key state relationships breaking down, realize what is at stake, and apply real pressure on Pennsylvania first and foremost, but on all lagging states, to honor the commitments they made to do their part in cleaning up this most precious of natural resources.

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