Long-Term Forecast for Bay Restoration: Cloudy with a Chance of Storms

by Evan Isaacson

November 18, 2016

Last week, the Center for Progressive Reform co-hosted a symposium with the University of Maryland School of Law entitled "Halftime for the Bay TMDL." The symposium was supposed to be about what states, cities, counties, the U.S. Environmental Protection Agency (EPA), industry, and citizens can do to accelerate progress in the second half of the 15-year Chesapeake Bay clean-up effort. However, participants decided that it was equally important to discuss the potentially alarming prospects facing future Bay progress when a new administration and Congress take control next year.

Given that the conference was held one day after the election, it is no surprise that the agenda was partially hijacked by the need to answer big questions about the very future of the Chesapeake Bay Total Maximum Daily Load (TMDL). Attendees readily identified some threats to the Bay TMDL, such as the pending congressional effort to eliminate certain EPA authorities over the program, and the existential threat that the incoming Trump administration could pose. The Bay Journal and Environment in Focus have done a laudable job discussing these issues; below, you can find even more questions and answers about what the future holds for Bay clean-up efforts, as well as some assurance that all of the great work that has been done to move the ball forward in restoring the Bay will not be for nothing.

Can Trump get rid of the Bay TMDL?

No. The Clean Water Act and regulations prescribe a process for listing a water as impaired and for establishing a TMDL. And in the case of the Bay TMDL specifically, it's important to note that the TMDL came about as a result of litigation and years of interstate cooperation. Moreover, Chesapeake Bay restoration has enjoyed widespread, bipartisan support, operating for more than three decades under a tristate framework consisting of the Chesapeake Bay Commission and various Chesapeake Bay Agreements signed by Maryland, Virginia, and Pennsylvania. In short, the Trump administration can't just pull the plug on the Bay TMDL on day one, and it is not even clear that it would want to given the enormous blowback it would face.

What will happen to the Bay restoration progress we've seen? Will it disappear?

Probably not any time soon. The more likely concern in the short term is a stall in further progress rather than pure backsliding. To understand why, it is helpful to look at where progress has come from. A large percentage of the reduction in nutrient pollution accomplished to date has come from the installation of projects at sewage treatment plants, not from short-term practices that could be immediately reversed.

Another interesting question might be whether Trump's promise to rejuvenate the coal industry could have an impact on water quality. After all, a reduction in air deposition of nutrients from coal plants has been a big driver of water quality improvements across the northeastern United States over the last several decades and a huge boost for the Bay. But it seems unlikely that a number of new coal plants will be coming online anytime soon (coal has a competitiveness problem and a demand problem, not a problem that can be quickly reversed through policy action despite what Trump and the industry claim). In any event, any slight revival in the prospects for the coal industry would be more likely to manifest themselves in localized impacts to the environment nearest the mines, plus greater global greenhouse gas emissions down the line, but not likely in any meaningful increase in air pollution in the Bay region.

However, just because the progress accomplished to date cannot be easily reversed doesn't mean that the new administration's policies will have no impact on the Bay. The greatest concern for the future of water quality in the Bay region has to be the likely retreat that we will see in federal leadership in addressing the most intractable problems facing the Bay: runoff from farm fields and urban roads, roofs, and other impervious surfaces. These are the areas that have lagged the furthest behind and that would likely have received the greatest attention going forward.

Without any credible threat of federal enforcement, it is quite possible that states will simply not feel pressured to do something about these historically difficult sources of pollution. We might even see an alarming surge in previously well-controlled industrial pollutants if EPA enforcement is absent altogether. CPR will continue to work with local and regional groups to ensure that citizen suit litigation and other efforts fill any gaps in enforcement caused by a Trump EPA.

What about the recent congressional attempt to ban EPA from enforcing the Bay TMDL?

This past summer, Chesapeake Bay advocates were alarmed by the passage of a U.S. House amendment to an Interior and Environment appropriations bill that would block EPA from imposing any "backstop" actions on states that fail to meet their goals under the Bay TMDL. (More on these "backstops" below.)

This amendment was offered by Republican Bob Goodlatte of Virginia, and it faced opposition from both Democratic representatives in the region (and the White House) and a significant number of conservative Republicans, serving as a testament to the bipartisan support for the Bay and clean water in this region.

During the current lame duck session, the Senate will take up some sort of funding measures to finish appropriations for some or all of this fiscal year. That could mean an omnibus appropriations bill, a handful of separate "minibus" appropriations bills, or another continuing resolution if conservative lawmakers decide they would rather negotiate the budget next year with the new administration. Regardless of the course, the anti-Bay TMDL policy rider is unlikely to pass in the lame duck session, especially with a champion like Sen. Barbara Mikulski still serving as Ranking Member of the Appropriations Committee.

But won't this anti-Bay TMDL amendment just pass next year?

Not necessarily. The idea behind the amendment was to try to restrain the Obama EPA and what seemed likely to be the Clinton EPA from "enforcing" the Bay TMDL (note that a TMDL is not itself enforceable, but that EPA and the states create enforceable policies to implement a TMDL). The amendment is essentially a second attempt at accomplishing what the Bay TMDL's opponents couldn't do through the courts after the Supreme Court declined to hear their appeal earlier this year.

But the unfortunate reality we now face is that there may be no need to "restrain" the EPA anymore. It's probably safe to say that congressional lawmakers will find much less need in the next four years for a budget amendment to prohibit EPA from taking so-called "backstop" actions against states that are failing to live up to their commitments to the Bay TMDL.

Perhaps a more likely prospect would be a new executive order that replaces the order that President Obama issued shortly after taking office in 2009 to push the federal government to assist in restoring the Bay. While executive orders are, by their nature, quite limited in what they can accomplish (e.g. they cannot amend or contradict a statute), it is possible that the next president could issue an order that directs the EPA or other federal agencies to limit the scope of their involvement in the Bay restoration process.

What are "backstop actions?"

Like a backstop in baseball, the term refers to a sort of federal safety net that EPA has established to ensure that Bay restoration progress can never fall too far behind. With pollution reduction progress measured by EPA each year, and states responsible for meeting two-year milestone goals, EPA has regular check-ins with states. And if EPA finds progress lagging, the idea is it would step in to take corrective action.

Backstop actions came in to play early on in the TMDL planning phase. EPA reviewed each state's original plan to make sure that it would be sufficient to implement the TMDL's targets. Most states worked with EPA to correct the deficiencies identified, but a few states did not play along. In those cases, EPA took action to simply reallocate pollution reduction responsibilities and effectively allowed the agency to have somewhat greater authority over efforts in those states.

Can Congress get rid of backstop actions?

That's a difficult question to answer, but probably not. TMDLs are part of the Clean Water Act, but "backstop actions" are not. EPA created the concept of backstop actions for the Bay TMDL. If you read a few of the key guidance documents that describe EPA authority to push states to comply with the Bay TMDL goals, it's clear that EPA's lawyers really did their homework and came up with a pretty extensive list of existing statutory and regulatory provisions that EPA could rely on to keep states in line.

Together, this list of measures constitutes EPA's vision of its backstop authority. So, unless Congress were able to dramatically re-write the Clean Water Act, it's not at all clear whether the anti-Bay TMDL rider currently under consideration would even work to effectively prohibit EPA from taking action to keep the Bay TMDL moving forward. But again, the whole issue may be moot if a Trump EPA simply backs away from enforcing the law altogether.

Why are backstop actions important?

Unlike a standard permit that sets legally enforceable limits on how much pollution a person can emit, a TMDL is not an enforceable document. Rather, a TMDL is just a planning framework, like a blueprint. And like any plan or blueprint, it requires further actions taken to implement or build something.

There are basically two ways that TMDLs are carried out. The first is that some of the pollution reduction targets in the TMDL are translated into legally binding permits, which are enforceable by EPA, states, and private citizens. The second way is through ongoing EPA oversight. EPA provides continuous oversight of Bay restoration progress by the states, which are given most of the responsibility under the Bay TMDL, and it has cobbled together a long list of actions that it has authority to take should state efforts fall short.

The glue keeping the entire Bay TMDL framework together is this EPA oversight. It lays out very specific and clear expectations regarding what the states should do. The only thing keeping states from ignoring those expectations or defaulting on their promises is the credible threat of enforcement and EPA carrying out backstop actions.

If a Trump administration promised never to take a backstop action, or were barred from doing so by Congress, then the fate of the Bay TMDL would be left in states' hands. Not only would state leaders need to fill the power vacuum by passing new laws, creating new pollution reduction programs, and taking a greater leadership role, more importantly, the states would be on the hook for coming up with greater inspection and enforcement resources to fill the void left by EPA.

Thankfully, the Clean Water Act vests in each of us the power to act as private attorneys general. We all can play a role in making sure the Bay is restored, regardless of what the Trump administration says or does.

Evan, A fine and very clear summary of what we are looking at. The only thing I would have added is the (significant) threat that federal money to support Bay programs will be cut back significantly or eliminated.
— Russ Stevenson
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Also from Evan Isaacson

Evan Isaacson, J.D., is a CPR Policy Analyst. He joined the organization in 2015 to work on its Chesapeake Bay program, having previously worked as a policy analyst at the Maryland Department of Legislative Services.

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