09/27/2017 - Regulatory Rollback

Chesapeake Bay and Nonpoint Source Programs / TMDLs

by EELP Staff

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

The Chesapeake Bay is the largest estuary in the US. Pollution from agriculture and urban runoff has impaired Chesapeake water quality, damaging its fisheries and recreational and natural value. Through collaborative agreements between federal and state governments and support of private restoration efforts, the Chesapeake Bay Program has helped the bay improve over the last three decades. In 2010, EPA issued a Total Maximum Daily Load (TMDL) for the bay, establishing enforceable limits of pollutants that can enter the bay.

Current Status

Sep. 10 2020 DC, Maryland, Virginia, and Delaware file a lawsuit asking the court to compel EPA to ensure that each of the signatories to the Chesapeake Bay Agreement develops and implements management plans that comply with the goals of the agreement. It asks the court to find EPA’s approval of NY and PA’s management plans arbitrary and capricious. MD v. Wheeler, 1:20-cv-02530 (D.D.C.) The Chesapeake Bay Foundation and other entities also file a lawsuit against EPA for failing to perform obligatory duties and failure to abide by the terms and conditions of the CWA, the APA, and the Chesapeake Bay Agreements. CBF v. EPA, 1:20-cv-02529 (D.D.C).

October 1, 2020 The U.S. House of Representatives passed the America’s Conservation Enhancement Act, S.3051. This package includes reauthorization of the Chesapeake Bay Program and the Chesapeake Bay Gateways and Watertrails Network for five years. Along with a number of other conservation initiatives, the America’s Conservation Enhancement Act also establishes the Chesapeake Watershed Investments for Landscape Development Program, known as the Chesapeake WILD program. America’s Conservation Enhancement Act passed the Senate on September 16, 2020 and has not yet been signed by the President. 

History

Dec. 9, 1983 EPA, Virginia, Maryland, DC, Pennsylvania, and the Chesapeake Bay Commission sign the first Chesapeake Bay Agreement, forming the Chesapeake Bay Program. This is followed by additional agreements in 1987 and 2000 which set pollution goals and guided restoration efforts.

May 12, 2009 President Obama signs Executive Order 13508 calling for a renewed federal government effort to restore the bay.

Dec. 29, 2010 EPA establishes the Chesapeake Bay TMDL which sets limits on nitrogen, phosphorus, and sediment pollution to help the bay meet water quality standards.

Trump Era

March 16, 2017 President Trump’s proposed 2018 EPA Budget eliminated funding for the Bay cleanup activities needed to meet the TMDL.

May 5, 2017 The President signs a budget to fund the federal government through Sept. 30, 2017, with the Chesapeake funding restored.

Sept. 8, 2017 The President signs a deal to extend federal funding through Dec. 8, 2017. The FY18 funding battle remains in play.

Feb. 12, 2018 The Trump administration’s fiscal year 2019 budget request proposes to dramatically reduce the Chesapeake Bay cleanup and pollution control funds in order to shift the burden of these activities to states and municipalities. The remaining funds will be about 10% of what they were the previous year.

March 23, 2018 Congress approves and the President signs a 2018 spending plan that includes maintaining full funding for these programs, which Trump had sought to eliminate.

June 20, 2018 EPA sends letters to Pennsylvania, New York, Delaware, Maryland, Virginia, West Virginia, and the District of Columbia (the seven states covered by the TMDL) outlining its expectations for each jurisdiction’s Phase III Watershed Implementation Plan. The Chesapeake Bay Foundation has expressed its support for the expectations outlined by EPA. The expectations document highlights Pennsylvania’s difficulty in meeting its milestones to date and incorporates the impacts of climate change, which is expected to cause an increase in the amount of nitrogen and phosphorus entering the bay, into the planning process.

July 27, 2018 EPA releases its Midpoint Assessment of the Chesapeake Bay Total Maximum Daily Load. While acknowledging “considerable progress in reducing pollution to local waters and the Bay” and that the jurisdictions have exceeded their goals for phosphorus and sediment, the report noted that nitrogen goals have not been met.

Aug. 7, 2018 The Chesapeake Executive Council holds its annual meeting and signs a directive in support of increasing technical assistance to farmers for conservation efforts.

March 11, 2019 Trump administration proposes 90% cuts to funding in draft budget. The President’s proposed budget would cut EPA funding for the Chesapeake Bay Program. Maryland Gov. Hogan has asked Congress to increase funding instead.

April 2019 The seven states covered by the TMDL each release their draft Phase III Watershed Implementation Plans for public comment. The Phase III plans address how the states will meet their 2025 pollutant reduction goals. Pennsylvania’s plan is criticized for falling short of its goal to reduce nitrogen and for its lack of funding.

May 28, 2019 The non-profit Chesapeake Bay Foundation releases its 2019 State of the Blueprint report in which it noted that Pennsylvania’s efforts to meet the pollution diet requirements are “far off track”. The Foundation reportedly mentioned in a press call that it may turn to litigation to ensure EPA enforcement should the state’s final implementation plan not meet established targets.

Aug. 23, 2019 Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia release their final Phase III Watershed Implementation Plans. There is still concern about Pennsylvania’s plan and its ability to meet 2025 goals.

Dec. 19, 2019 EPA’s review of Pennsylvania’s Phase III Watershed Implementation Plan finds that the plan fails to meet the state’s TMDL requirements and would account for only 75% of the state’s nitrogen reduction goal.

Jan. 9, 2020 The Senate approves “America’s Conservation Enhancement Act,” a wildlife conservation package that would reauthorize the Chesapeake Bay Program until 2025 and allocate $90 million annually for Bay initiatives.

Jan. 10, 2020 Members of Congress from Chesapeake Bay states send a letter to EPA Administrator Wheeler reminding him of EPA’s legal responsibility under the Clean Water Act to enforce the agency’s TMDL. The letter responds to a recent comment by Dana Aunkst, EPA’s head of the Chesapeake Bay Program, who said that the Bay’s TMDL is “aspirational” and “not enforceable.” The congressional letter also reprimands EPA for not holding Pennsylvania accountable for missing its nitrogen reductions targets when reviewing the state’s review of Phase III Watershed Implementation Plan.

Jan. 27, 2020 A bipartisan group of Representatives introduces the Chesapeake Bay Science, Education, and Ecosystem Enhancement (SEES) Act, a bill that would, among other things, reauthorize the NOAA Chesapeake Bay Office and provide funding for enhanced protection of Bay habitats and fisheries.

Jan. 27, 2020 The Chesapeake Bay Foundation announces its intent to sue EPA for failing to enforce the Clean Water Act.

May 18, 2020 A group of environmental organizations led by the Chesapeake Bay Foundation notify the EPA that they intend to sue EPA for failing to ensure that the Bay jurisdictions meet their water quality pollution reduction commitments. Likewise, Maryland, D.C., and Virginia also issue a notice of intent to sue EPA for failing to ensure New York and Pennsylvania meet their water quality commitments.

Sep. 10 2020 DC, Maryland, Virginia, and Delaware file a lawsuit asking the court to compel EPA to ensure that each of the signatories to the Chesapeake Bay Agreement develops and implements management plans that comply with the goals of the agreement. It asks the court to find EPA’s approval of NY and PA’s management plans arbitrary and capricious. MD v. Wheeler, 1:20-cv-02530 (D.D.C.) The Chesapeake Bay Foundation and other entities also file a lawsuit against EPA for failing to perform obligatory duties and failure to abide by the terms and conditions of the CWA, the APA, and the Chesapeake Bay Agreements. CBF v. EPA, 1:20-cv-02529 (D.D.C).

October 1, 2020 The U.S. House of Representatives passed the America’s Conservation Enhancement Act, S.3051. This package includes reauthorization of the Chesapeake Bay Program and the Chesapeake Bay Gateways and Watertrails Network for five years. Along with a number of other conservation initiatives, the America’s Conservation Enhancement Act also establishes the Chesapeake Watershed Investments for Landscape Development Program, known as the Chesapeake WILD program. America’s Conservation Enhancement Act passed the Senate on September 16, 2020 and has not yet been signed by the President.