Developments May Influence Track of Chesapeake Bay Restoration Job

• Author: Linda K. Breggin
• Position: Director of ELI's Center for State, Tribal, and Local Environmental Programs
• Pages: 11-11

SEPTEMBER/OCTOBER 2021 | 11

Reprinted by permission from The Environmental Forum®, September/October 2021.

Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.

Around the States

CHESAPEAKE BAY restoration

eorts are at a critical juncture.

e country’s largest estuary is

both environmentally signicant (esti-

mated to support over 3,600 plant and

animal species) and economically im-

portant (valued at over a trillion dollars

by a blue ribbon panel). But a recent

University of Maryland report card

gives the bay a “C” health score, based

on 10 indicators that include dissolved

oxygen, nitrogen, and phosphorus. e

score reects only a “slightly improving

trend” over the last 35 years.

Whether progress can ramp up will

hinge on the resolution of a bevy of re-

cent developments, all of which high-

light the governance challenges that

mark the decades-long cleanup eort.

To succeed, restoration eorts require

not only interstate coordination among

the watershed jurisdictions — Dela-

ware, the District of Columbia, Mary-

land, New York, Penn-

sylvania, Virginia, and

West Virginia — but

also federal and state

partnerships, as well

as collaboration with

the watershed’s 1,800

local governments.

Add to the mix private environmental

governance initiatives which involve

businesses and households doing their

part, and the landscape is even more

complex.

Today, watershed restoration eorts

are governed, in part, by an EPA Total

Maximum Daily Load level that sets

out pollution reductions for nitrogen,

phosphorus, and sediment designed to

“ensure that all pollution control mea-

sures needed to fully restore the bay and

its tidal rivers are in place by 2025.” In

addition, the TMDL is supported by an

accountability framework that includes

“rigorous accountability measures to

ensure cleanup commitments are met,

including short- and long-term bench-

marks, a tracking and accountability

system for jurisdiction activities, and

federal contingency actions that can be

employed if necessary to spur progress.”

However, EPA’s assessment that the

most recent Pennsylvania and New

York Watershed Implementation Plans,

known as WIPs, fail to achieve their

cleanup commitments quickly laid bare

the complicated governance dynamics

at hand. is is not the rst time that

Pennsylvania — the state responsible

for almost half of the nitrogen and a

quarter of the sediment that enters the

bay — has lagged behind. An imple-

mentation funding gap is causing ad-

ditional consternation.

In the absence of EPA follow-up,

the Chesapeake Bay Foundation and

its partners, as well as several state at-

torneys general, led lawsuits to require

the federal agency to take actions to en-

sure the plans will achieve the required

nutrient reductions and water quality

goals. e litigation is pending.

Another develop-

ing situation involves

the Conowingo dam

WIP that was devel-

oped when it became

clear that the reser-

voir behind the dam

was reaching capacity

and could not continue to trap sedi-

ment and nutrient pollution — a situ-

ation that could lead to “catastrophic

events,” whereby “large slugs of pollu-

tion” escape into the bay, according to

the CBF’s Jon Mueller. EPA has agged

several concerns, noting its lack of

condence that the plan “will be fully

implemented to meet the necessary

nitrogen reductions without dedicated

funding mechanisms in place” — a

concern that remains unaddressed.

Also in ux are the Biden adminis-

tration’s overall eorts to chart a path

forward in the wake of the prior ad-

ministration’s eorts to eviscerate bay

restoration support and clean water

regulatory protections. Mueller points

out that “bedrock” pieces of the federal

regulatory scheme that were under-

mined during the last administration

need to be in place for restoration ef-

forts to succeed, citing the Waters of

the United States rule as an example.

In addition, according to Mueller, “It’s

crunch time if we are going to meet the

2025 targets,” and that means the ad-

ministration needs to quickly ll high-

level government positions, in order to

achieve necessary policy changes.

Another potential game changer is

a recent Maryland court decision that

the state is required to regulate air emis-

sions of ammonia as a water pollutant

pursuant to the Clean Water Act and

state law. e court explained that mil-

lions of pounds of manure generated

by concentrated animal feed operations

release ammonia, which is blown out

of poultry houses by industrial fans to

settle on nearby land and water, “caus-

ing signicant pollution to the bay.”

e opinion is stayed pending appeal.

Also subject to a recent stay order

is a Maryland county’s lawsuit against

fossil fuel companies seeking to hold

them liable for “climate crisis-caused

environmental changes,” including

costs incurred for measures to protect

the bay’s “fragile ecosystems.” e case

follows similar actions brought by Bal-

timore and Annapolis that are winding

through the courts.

ese myriad pending policy,

budget, personnel, and judicial deci-

sions make the trajectory of bay res-

toration murky for now — hopefully

they will resolve in a manner that al-

lows cleanup eorts to rush forward

rather than stagnate.

Developments May Inuence Track

of Chesapeake Bay Restoration Job

Whether progress can

ramp up hinges on the

resolution of a bevy of

recent challenges

Linda K. Breggin is director

of ELI’s Center f or State, Tribal, and

Local Environ mental Progr ams. She

can be reache d at breggin@eli.org.