The CWA at the Outer Edge of Doable

• Author: Ann Pesiri Swanson
• Position: Executive Director Chesapeake Bay Commission
• Pages: 47-47

NOVEMBER/DECEMBER 2021 | 47

Reprinted by permission from The Environmental Forum®, November/December 2021.

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

Sidebar

SI DE BAR

Chesapeake Bay restoration

efforts have been pushing

the limits of the doable

since the early 1980s. Improving

the conditions of the nation’s larg-

est estuary, with a 64,000-square-

mile watershed that spans six

states and the District of Colum-

bia, was, and remains, an ambi-

tious undertaking. More than 40

years later, the current Total Maxi-

mum Daily Load is but the latest

example of the ongoing evolution

of a restoration effort that has



and evaluated like no other.

This evolution would not have

occurred absent the formation and

existence of an incredibly resilient

basin-wide collaboration among

the federal and state governments,

the executive and legislative

branches, research institutions,

and stakeholders of all types.

This resultant web of knowledge,

policy, and funding provided a sup-

port structure for the restoration

that has only grown in breadth and

depth over time.

-

peake Bay Agreement in 1983,

the Chesapeake Bay Program

Partnership is the administrative

home of the restoration effort.

The commitments pledged by the

signatories to the agreement and

its successors, including the most

recent in 2014, are voluntary, with

few direct consequences for failing

to deliver.

Amazingly, much of the col-

laborative, voluntary approach



30 years of the restoration, the

population of the watershed grew

by 43 percent while the nutrient

pollution loads to the bay de-

creased by more than one-fourth.

Nevertheless, the progress made

was far short of what was needed

to attain healthy water quality.

By 2008, it was clear that for

additional progress to occur, ac-

countability beyond mere political

opinions was necessary. While the

Clean Water Act provided for the

TMDL process, there was no his-

tory of creating or implementing

one on such a large, multi-juris-

dictional scale. The process that

followed tested both the strength

of the partnership and the Clean

Water Act itself.

The American Farm Bureau

Federation sued EPA in 2011,

claiming that the level of detail in



sector allocations and expectations

of performance, illegally infringed

on states’ rights. In upholding the

TMDL, the district court relied on

the 30-year history of the collab-

orative Chesapeake Bay Program,

concluding it was, in fact, a success-

ful example of cooperative feder-

alism. While the court observed

that cooperative federalism can

sometimes be “messy and cumber-

some,” the judge noted that it is

“one of the most enduring char-

acteristics of pollution control law

over the past three decades.”

With the increased level of

accountability provided by the

TMDL, the program partners,

as a whole, took a notable move

away from broad policy initiatives,

shifting toward inventorying ac-

tions taken to reduce pollution. A

-

cracy emerged, one exemplifying

the “messy and cumbersome” as-

pect of cooperative federalism. In

spite of this, the TMDL generated

remarkable momentum toward

pollution reduction.

With the adoption of a series of

two-year incremental milestones,

the partnership set an implemen-

tation target of having practices

and programs in place by 2017 to

achieve 60 percent of the 84-mil-

lion-pound nitrogen reduction

goal. A 2025 deadline to have 100

percent of the necessary practices

and programs in place has further

driven momentum.

Nevertheless, challenges re-

main. A lack of robust state fund-

ing in Pennsylvania demonstrates

the limits to success when suf-



The TMDL’s exclusive focus on wa-

ter quality has also diverted atten-

tion from other important aspects

of the restoration, such as habitat

and education. And climate change

will only complicate the restora-

tion efforts. Fortunately, the Ches-

apeake Bay Program continues to

provide structure and science to

support the effort. It remains the

model for similar efforts around

the globe.

The CWA at the Outer Edge of Doable

“ e Chesapeake Bay Program

continues to provide structure

and science to support pollution

reduction. It remains the model

for similar eorts around the

globe”

Ann Pesiri Swanson

Executive Director

Chesapeake Bay Commission