Chesapeake Bay Pollution Diet

The U.S. Environmental Protection Agency (EPA) has outlined an aggressive approach to place the Chesapeake Bay on a "pollution diet" through a Total Maximum Daily Load (TMDL) that would regulate the discharge of nitrogen, phosphorus and sediment that flowi into the bay. The EPA issued its final TMDL for the Chesapeake Bay and its tributaries at the end of 2010 with the goal of this new federal-state partnership having all practices and requirements in place by 2025.

The
Issue

The TMDL for the Chesapeake Bay watershed includes new water implementation plans (WIPs) submitted by the District of Columbia and the six states within the 64,000 square mile of Chesapeake Bay watershed - Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia. While EPA would like for the states to take the lead, the EPA has also built-in federal enforcement measures or "backstops" though the TMDL process to force pollutant reduction levels if the District's and states' WIPs fall short of meeting their goals.

The aggressive action taken by the EPA began when President Barack Obama signed an Executive Order declaring the Chesapeake Bay a national treasure and instructing the federal government to work with states to reduce pollution discharges and restore the bay. The EPA has taken the lead and asserts existing authority under the Clean Water Act allows it to move forward with imposing the "pollution diet" for the Chesapeake Bay.

The federal TMDL for the Chesapeake Bay, along with the WIP plans submitted by the states and the District of Columbia, would apply new water treatment requirements for both existing and future commercial properties and would dramatically impact local land use decisions and agricultural operations throughout the Bay's watershed.

On January 10, 2011, the American Farm Bureau (AFB) filed a lawsuit in federal court to stop EPA's approach towards cleaning up the Chesapeake Bay The AFB claims that the rule unlawfully "micromanages state actions," that the EPA relied on a flawed model incorporating inaccurate assumptions and that the EPA process did not allow for meaningful public input under the federal Administrative Procedure Act.

In the fall of 2013, the U.S. District Court ruled against AFB and the other organizations who had joined the lawsuit by upholding EPA’s authority to enforce a federal TMDL on the Chesapeake and its tributaries. Twenty-one state attorneys general and eight counties have filed a friend of the court briefs in support of the plaintiffs citing states’ rights. Having been confirmed by the U.S. Third Circuit Court of Appeals, the decision by the U.S. Supreme Court in 2016 to not hear the case left in place the lower court’s ruling and the federal "pollution diet" for the Chesapeake Bay.

Position

NAIOP recognizes the importance of the nation's natural resources and ecosystems, including the Chesapeake Bay. However, as EPA and the states move forward with implementing a "pollution diet" for the Chesapeake Bay, NAIOP recognizes there are important issues that require further discussion:

  • An economic and cost assessment of meeting discharge reductions under the TMDL and WIPs
  • Additional transparency and clarity on federal model assumption and conclusions
  • A technical feasibility analysis
  • A water quality credit and trading program
  • A fair and balanced sharing in pollution reduction requirements within the watershed.

Status

States and District of Columbia are in the process of developing their Phase III Water Implementation Plans for submission to US EPA in 2018 based on evaluations of practices and protocols that were in place by the end of 2017 to achieve 60 percent reduction on the pollution discharges of nitrogen, phosphorus and sediment compared to 2009 levels.

Phase III WIPs will set the foundation for implementing the final practices and programs for meeting required pollution reductions under the federal TMDL in 2025.

Talking
Points

  • EPA pollution models should be based on accurate and reliable scientific assumptions and conclusions.
  • The final TMDL, along with state WIP plans, would have a detrimental impact on commercial and industrial properties, which provide the necessary infrastructure for economic growth and job creation.