The day after the presidential election, the Environmental Law Program and the Center for Progressive Reform hosted The Ward Kershaw Symposium addressing the progress made toward the U.S. Environmental Protection Agency’s (EPA) Chesapeake Bay Total Maximum Daily Load (Bay TMDL) on November 9. The Symposium focused on how well the states within the Chesapeake Bay watershed are progressing toward the Bay TMDL goals of reducing phosphorous, nitrogen and sediment pollution in the Bay watershed and the prospects of the Bay TMDL under a Trump administration.
The landmark 2010 Bay TMDL imposes a “pollution diet” on the six states in the Chesapeake watershed (New York, Pennsylvania, Delaware, West Virginia, Maryland and Virginia) and the District of Columbia. The diet includes traditional “point sources” of pollution managed under the Clean Water Act’s permitting program as well as “non-point source” pollution that typically is not subject to regulation, such as run-off from farms. The non-point source regulation is the most contentious part of the Bay TMDL because the Clean Water Act does not typically regulate agriculture practices or pollution run-off from agriculture operations.
Farm groups, including the American Farm Bureau, sued to block the implementation of the Bay TMDL, but were soundly defeated by the EPA and environmental groups, including the Chesapeake Bay Foundation, who defended the Bay TMDL. Despite these victories, environmentalists are concerned that Trump’s general promises to roll back environmental regulation could include the Bay TMDL.
Keynote speaker Jeff Corbin, former EPA adviser on the Chesapeake Bay, asserted that while the Trump administration will likely target environmental laws and/or regulations for repeal or roll back, Corbin was not sure the Bay TMDL would be a target because it does not create any new federal statutory or regulatory authority and EPA’s role is more of an arbiter than an enforcer. Instead, the Bay TMDL requires states to develop their own plans and regulations to achieve Bay TMDL goals and incorporates “free market” devices (preferred by industry and anti-regulation politicians) such as nutrient trading to achieve pollution reduction.
One of the issues raised during the symposium is whether a Trump administration could be an effective arbiter between the Bay states, an important issue due to the uneven implementation of the Bay TMDL halfway to the 2025 pollution reduction goals. While several states have exceeded their goals of cutting pollution from waste water treatment facilities, all states are behind in cutting pollution from storm water, septic systems and agriculture – the largest source of Chesapeake Bay pollution. In fact, pollution from storm water, septic systems and Pennsylvania agriculture has increased since 2010.
The reliance on individual states to implement the Bay TMDL, its biggest strength in surviving an anti-regulation Trump administration, is also its biggest weakness. The most significant improvements in pollution reduction in one state can be offset by failures in other Bay states. Moving forward, the question that remains: Will the Trump administration EPA be an effective and fair arbiter of state progress toward Bay TMDL goals? Former EPA administrator Lisa Jackson likened EPA’s role as an umpire calling “balls and strikes.” However, there is no guarantee that the new administration will adhere to this role or, even if it does, that it will have the same strike zone for each Bay state. What was clear from the speakers and participants at the symposium is that there will be many environmentalists scrutinizing EPA’s calls.