Bay Senators Urge New EPA Administrator Regan to Enforce Bay Pollution Standards

Today, U.S. Senator Chris Van Hollen (D-Md.) joined by Chairman of the Environment and Public Works Committee Senator Tom Carper (D-Del.) and Senators Ben Cardin (D-Md.), Mark Warner (D-Va.), Chris Coons (D-Del.), and Tim Kaine (D-Va.) sent a letter to Environmental Protection Agency (EPA) Administrator Michael Regan, urging the EPA to use all tools available to meet the 2025 goals of the Chesapeake Bay Total Maximum Daily Load (TMDL). The pollution reduction requirements in the Bay TMDL are vital to protecting the health of the Chesapeake Bay and ensuring the Bay’s surrounding states each do their part in reducing pollution. Recently, however, Pennsylvania has fallen behind in their TMDL requirements. While the Trump Administration refused to use its legal authority to ensure compliance, the Senators are urging the EPA to take the necessary action to do so.

The Senators write, “On December 29, 2010, the U.S. Environmental Protection Agency established the Chesapeake Bay TMDL, a historic and comprehensive agreement that includes accountability features to restore clean water in the seven jurisdictions within the Chesapeake Bay watershed. The agreement is a national and indeed international model for watershed restoration. It sets limits for pollution that equate to a 25 percent reduction in nitrogen, 24 percent reduction in phosphorous, and 20 percent reduction in sediment. As the Bay TMDL states, ‘The TMDL is designed to ensure that all pollution control measures needed to fully restore the Bay and its tidal rivers are in place by 2025[.]’”

“The Courts have upheld the legality of the Bay TMDL. As the U.S. Court of Appeals for the Third Circuit has noted, the ‘Clean Water Act does not simply direct the publication of the TMDL; it is one step in a process with several layers, each placing primary responsibility for pollution controls in state hands with ‘backstop authority’ vested in the EPA,’” they continue.

“The implementation of the Bay TMDL and the Bay jurisdiction’s Watershed Implementation Plans are, therefore, part of EPA’s legal obligation to achieve and maintain the nutrient goals of the Chesapeake Bay TMDL under the Clean Water Act,” the Senators note.

The Senators point to the need for action, writing, “We are at a critical juncture in implementation of the Bay TMDL. EPA’s response to Pennsylvania’s Phase III Watershed Implementation Plan (WIP) noted that Pennsylvania is on track to meet only 75 percent of its nitrogen reduction targets and the Commonwealth itself identified a $324 million annual shortfall in their plan. The State of New York’s Phase III WIP is also 1 million pounds under its nitrogen goal. We ask that you use all tools at your disposal—including those identified in Bay TMDL Section 7—to make sure that all jurisdictions are on track for 2025.”

The text of the letter is available here and below.

Dear Administrator Regan:

Congratulations on your confirmation as Administrator to the Environmental Protection Agency (EPA). 

We stand by to offer our partnership to your efforts as Administrator of the EPA to achieve our mutual goal of clean water in the Chesapeake Bay by 2025.

On December 29, 2010, the U.S. Environmental Protection Agency established the Chesapeake Bay Total Maximum Daily Load (TMDL), a historic and comprehensive agreement that includes accountability features to restore clean water in the seven jurisdictions within the Chesapeake Bay watershed. The agreement is a national and indeed international model for watershed restoration. It sets limits for pollution that equate to a 25 percent reduction in nitrogen, 24 percent reduction in phosphorous, and 20 percent reduction in sediment.  As the Bay TMDL states, “The TMDL is designed to ensure that all pollution control measures needed to fully restore the Bay and its tidal rivers are in place by 2025[.]”

The goal of the Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” To that end, states are first required to set water quality standards for all waters within their boundaries regardless of the sources of pollution.  When those water quality standards cannot be met and maintained through effluent limitations and technology-based controls on point sources, water quality-based controls are required under Section 303(d) of the Act. States are required to identify waters within its boundaries that cannot achieve water quality standards based on effluent limitations, and then “shall establish for [impaired] waters […] the total maximum daily load, for those pollutants which the Administrator identifies […] as suitable for such calculation.” A TMDL is a specification of the maximum amount of a particular pollutant that can pass through a waterbody each day without violating water quality standards.  Such “load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge[.]” Once the 303(d) list and any TMDLs are approved by the EPA, the reporting state must incorporate the list and TMDLs into its continuing planning process.

The Courts have upheld the legality of the Bay TMDL. As the U.S. Court of Appeals for the Third Circuit has noted, the “Clean Water Act does not simply direct the publication of the TMDL; it is one step in a process with several layers, each placing primary responsibility for pollution controls in state hands with ‘backstop authority’ vested in the EPA.”

In addition to these requirements, Section 117(g) of the Act requires EPA to take certain actions regarding the implementation of the Chesapeake Bay Agreement and the Chesapeake Bay TMDL.  It states that the EPA Administrator, “in coordination with other members of the Chesapeake Executive Council, shall ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement to achieve and maintain (A) the nutrient goals of the Chesapeake Bay Agreements for the quantity of nitrogen and phosphorous entering the Chesapeake Bay and its watershed; (B) the water quality requirements necessary to restore living resources in the Chesapeake Bay ecosystem; […] (D) habitat restoration, protection, creation, and enhancement goals established by Chesapeake Bay Agreement signatories for living wetlands, riparian forests, and other types of habitat associated with the Chesapeake Bay ecosystem; and (E) the restoration, protection, creation, and enhancement goals established by the Chesapeake Bay Agreement signatories for living resources associated with the Chesapeake Bay ecosystem.” (emphasis added).

The implementation of the Bay TMDL and the Bay jurisdiction’s Watershed Implementation Plans are, therefore, part of EPA’s legal obligation to achieve and maintain the nutrient goals of the Chesapeake Bay TMDL under the Clean Water Act. 

Since the inception of the Chesapeake Bay TMDL – and through its Reasonable Assurance and Accountability Framework in Section 7 – EPA has communicated its expectations for the Bay watershed states and the District of Columbia to develop Watershed Implementation Plans and two-year milestones and “demonstrate satisfactory progress toward achieving nutrient and sediment allocations established by EPA in the Chesapeake Bay TMDL.” In addition, the Agency laid out potential backstop actions the Bay jurisdictions would face if they failed to demonstrate progress on their obligations under the Bay TMDL, noting that the “identification of possible federal actions is intended to strengthen our individual and collective resolve to make the difficult choices and decisions along the road to a restored Chesapeake Bay and watershed and fill in the gaps to aid States and the District to meet their commitments in order to ensure that the allocations in the TMDL are achieved.”

Time and again, EPA has demonstrated through its approach in establishing and implementing the Bay TMDL, including its application of “backstop actions” when states deviated from their respective obligations, its view that the Bay jurisdictions are responsible for meeting the allocations in the Bay TMDL.  Indeed, as recently as April of 2017, in laying out its expectations for Pennsylvania’s Phase III Watershed Implementation Plan, EPA noted several examples of potential actions it could take specific to Pennsylvania if it determined that the state did not meet these expectations.  Those backstop actions included: (1) Targeting federal enforcement and compliance assurance in the watershed; (2) Directing Chesapeake Bay funding to identified priorities; (3) Establishing finer scale wasteload and load allocations through a Pennsylvania state-specific proposed amendment to the Chesapeake Bay TMDL; (4) Requiring additional reductions of loading from point sources through a Pennsylvania state-specific proposed amendment to the Chesapeake Bay TMDL; and (5) Initiating a process to propose promulgating nitrogen and phosphorous numeric water quality standards for Pennsylvania applicable to streams and rivers in the Chesapeake Bay Watershed.

EPA’s defense of the Bay TMDL and its historic approach to the Bay jurisdiction’s development of the Watershed Implementation Plans clearly indicates that it took its responsibilities under Sections 303d and 117(g) seriously and that it viewed achieving the allocations in the Bay TMDL as necessary to meet the requirements of the Clean Water Act.

We are at a critical juncture in implementation of the Bay TMDL.  EPA’s response to Pennsylvania’s Phase III Watershed Implementation Plan (WIP) noted that Pennsylvania is on track to meet only 75 percent of its nitrogen reduction targets and the Commonwealth itself identified a $324 million annual shortfall in their plan. The State of New York’s Phase III WIP is also 1 million pounds under its nitrogen goal.

We ask that you use all tools at your disposal—including those identified in Bay TMDL Section 7—to make sure that all jurisdictions are on track for 2025. 

The Chesapeake Bay Total Maximum Daily Load has made strong progress towards cleanup of this national treasure and economic engine in our region. We are at a critical moment, and we look forward to working with you to make sure we meet our 2025 goals for clean water in the Chesapeake Bay.

Sincerely,