Revision as of 10:56, 21 May 2017

Summary

Natural, Historic, Economic, Regional, and Political Framework

Chesapeake Bay Watershed Map (Source: https://en.wikipedia.org/wiki/Chesapeake_Bay)

The Conflict

The conflict has been over how to best restore the bay’s environmental conditions. Some have favored voluntary approaches, with others calling for stricter regulatory approaches. Given states’ reluctance towards additional regulation, especially with economic interests that favor minimal regulation, voluntary approaches have been the main approach to targeted bay restoration. The conflict resolution mechanism for those efforts has been multi-state agreements, coordinated by the Chesapeake Bay Program and EPA. Through those documents, states have agreed to joint restoration goals, with varying levels of specificity, but little or no particular commitment or accountability (Cannon, 2006). After several failed agreements and new versions of agreements, the states and EPA finally acknowledged the need for a TMDL, a regulatory approach for bay restoration with specific commitments, accountability, and backstops.

Geographic Background

The Chesapeake Bay is a tidal estuary, with a watershed area of 64,000 square miles in the states of Virginia, Maryland, Delaware, West Virginia, Pennsylvania, and New York, as well as Washington D.C. The bay’s coastline stretches 11,864 miles, with 50 major tributaries including the Susquehanna, Potomac, Rappahannock, York, and James Rivers. The bay’s watershed has a land to water ratio of 14:1, the largest such ratio of any coastal waterbody in the world. As a result, land use greatly influences the quality of the bay’s waters (CBP, 2017).

Over 17 million people live in the watershed (CBF, 2017), with a diversity of jurisdictions and land uses. In particular, the watershed includes 1,650 local governments, four large metropolitan areas in Baltimore, Maryland, Norfolk and Richmond, Virginia, and Washington, D.C (Ernst, 2003, 39-40). In addition, the watershed includes rural areas and productive agricultural areas, such as Lancaster County in Pennsylvania and the Delmarva Peninsula (Brull, 2006, 2), which includes most of Delaware and the Eastern Shores of Maryland and Virginia.

The bay is home to over 3,600 species of plants and animals, including 348 finfish species and 173 shellfish species (CBF, 2017). The blue crab is perhaps the most famous and critical of these species. In fact, the name Chesapeake Bay comes from the Algonquin description “great shellfish bay.” The bay’s fish population was once so great that early English settlers were said to have tried to catch them with a frying pan. Famous Baltimore report H.L. Mencken once referred to the Chesapeake as “the immense protein factory” (Brull, 2006, 3). Today, the bay continues to support a fishing industry worth $1 billion (Ernst, 2003, 11).

Water Quality Issues

Despite this historic productivity, by the 19th century, the Chesapeake was severely degraded. In the 1850s, Baltimore, for example, was the third largest city in the United States, yet it lacked a modern sewage treatment system until the 1900s. Sewage from Baltimore’s 170,000 residents went directly to its harbor on the Chesapeake, leading one person to describe it as “among the greatest stenches of the world” (Ernst, 2003, 3).

Similar conditions were present throughout the watershed into the 20th century. In the 1950’s, the Potomac River, near Washington, D.C., was described as “malodorous…with gas bubbles from sewage sludge over wide expanses of the river…and coliform content estimated as equivalent to dilution of 1 part raw sewage to as little as 10 parts clean water” (US EPA, 2000, 8-5). Such degraded environmental conditions eventually led to great public concern.

Cases like the Potomac River and Baltimore Harbor inspired passage of the US Clean Water Act in 1972, which improved the environmental conditions of the nation’s waterways. In fact, by the 1980s, the Potomac frequently met bacteria standards for boating and swimming, except during wet weather conditions (US EPA, 2000, 8-12). Following the passage of the Clean Water Act, there were further water quality improvements in nutrients, biological oxygen demand, suspended sediments, dissolved oxygen, and ecological indicators of the Potomac (US EPA, 2000).

However, the bay was not fully restored to its pre-industrial and pre-urbanization condition. As in many waterbodies of the United States, nonpoint source pollution, largely unaddressed by the Clean Water Act, except for a few voluntary programs, remained and remains a major issue for the bay (Brull, 2006). Excess nutrients from agriculture, stormwater, and sewage continue to be the primary environmental concerns. Recently, the bay’s water quality has been described as still “very poor” (Klopman, 2013, 1) (Cohen, 2017).

Stakeholders and Interests

States

The Chesapeake Bay Watershed includes parts of six states: New York, Pennsylvania, West Virginia, Virginia, Delaware, and Maryland. Delaware comprises 1% of the land area, West Virginia 6%, New York 10%, Maryland 14%, Virginia 34%, Pennsylvania 35%, and Washington, D.C. 0.1% (Ernst, 2003, 173). With Maryland, Virginia, and Pennsylvania covering a combined 84% of the watershed and including many large urban and agricultural areas, those states have the biggest influences on the bay. Different areas in the states have different impacts on and interests in the bay, based on land uses, economic factors, and local politics. Above all, given competing interests in the states, especially economic interests that challenge regulations, the goal of many states – and sectors within states – is “little action and more delay” (Steinzor and Jones, 2013, 55). With these competing interests, superficial environmental goals without strict commitments that would threaten any interests tends to be the preferred approach (Cannon, 2006, 3). One large reason for this reluctance is related to Derek Parfit’s so-called contributor’s dilemma described as follows:

It can be true of each person that, if he helps, he will add to the sum of the benefits or expected benefits. But only a very small portion of the benefit he adds will come back to him. Since his share of what he adds will be very small, it may not repay his contribution. It may thus be better for each if he does not contribute. This can be so whatever others do. But it will be worse for each if others contribute. And if none contribute this will be worse for each than if all do (Colburn, 2016, 2, 22).

Such is the case in the Chesapeake where sate efforts to control pollution would benefit the watershed as a whole, but each state’s benefits might be comparatively small, especially for upstream states not on the bay (Dukes, 2015, 4). Further, if states don’t contribute to restoring the bay, there is no incentive for others to, but continued environmental degradation leaves all states worse off. Nevertheless, the voluntary approach has persisted, as it accommodates all states without defined commitments. In addition, the powerful political-economic interests of many sectors, especially agriculture, limit states’ abilities to enact strict approaches to restoration, even if they do prioritize restoration (Cannon, 2006, 3). Above all, most state officials do not want their state to look bad, so they further promote nonbinding approaches. That condition is particularly problematic because state officials lead the establishment of the Chesapeake Bay restoration approaches and goals. Such a lack of commitment to specific binding requirements tends to lead to lowest common denominator agreements, without accountability (Steinzor and Jones, 2013, 57-8).

The Headwater States: New York, West Virginia, Delaware

New York is the farthest upstream state in the watershed. The area in New York in the watershed is predominately agricultural and rural. The state contributes 4% of the nitrogen, 5% of the phosphorus, and 4% of the sediment loads to the bay. West Virginia is in a similar position to New York, as an upstream state not on the bay, with agricultural and rural land in the watershed. The state contributes, 2% of the nitrogen, 5% of the phosphorus, and 5% of the sediment loads to the bay (US EPA, 2010, 4-1-4-2).

New York became part of the Chesapeake Bay Program in 2000 and West Virginia in 2002, through memoranda of understanding and formally joined the effort through the 2014 agreement. However, neither state has formal representation on the Chesapeake Bay Commission (Ernst, 2003, 134). In recent monitoring of Chesapeake Bay restoration, New York has lagged behind in some TMDL commitments, especially related to agriculture (US EPA, 2016, 2-3). Because these states are not on the bay itself and in fact quite far away, environmental connections to the bay are less immediate (Dukes, 2015, 4).

Like New York and West Virginia, Delaware has a small area in the watershed and was not in the original agreement or in the Chesapeake Bay Commission (Ernst, 2003, 134). Delaware contributes 2% of the nitrogen, 2% of the phosphorus, and 1% of the sediment loads to the bay (US EPA, 2010, 4-1-4-2). Tourism, fishing, agriculture, and real estate development are important industries related to the bay in Delaware. Exemplifying those mixed interests, at one point for restoration purposes, Delaware passed a fishing moratorium on striped bass from 1985-1989 (Ernst, 2003, 22), yet agricultural industry groups like the Delaware-Maryland Agribusiness Association frequently lobby against environmental regulations on farmers (Ernst, 2003, 82). Agriculture is a particularly big industry on the Delmarva Peninsula, with poultry farms, many run by large companies like Tyson Food and Perdue Farms, producing 3.2 billion pounds of waste, with 13.8 million pounds of phosphorous and 48.2 million pounds of nitrogen each year (Brull, 2006, 3). Industry groups there frequently challenge regulatory attempts and are quite influential (Colburn, 2016, 11).

The Big Three: Pennsylvania, Virginia, Maryland

Pennsylvania is also an upstream state, removed from the bay, but with a large amount of land in the watershed, its influence is quite substantial. Without land on the bay itself, Pennsylvania has less incentive to improve the bay (Steinzor and Jones, 2013, 53). Nevertheless, Pennsylvania contributes nearly half (44%) of the nitrogen pollution load, 24% of the phosphorus, and 32% of the sediment load to the bay, mostly via the Susquehanna River and its tributaries, which provide 50% of the bay’s freshwater. Because of the geography of the river – it is deep and flows quickly – it does not suffer from the same environmental water quality challenges (i.e., eutrophication from excess nutrients) as the shallow, slow-moving Chesapeake Bay estuary. Further, more than half of Pennsylvania is actually outside the Chesapeake Bay Watershed, so bay concerns are even less important in the state. These conditions exemplify the aforementioned participant’s dilemma, as Pennsylvania lacks direct incentive to restore the bay. Reflecting that lack of interest, in 2010, Pennsylvania contributed far less state funding ($256.6 million) to bay restoration than Maryland or Virginia (Steinzor and Jones, 2013, 54).

Agriculture is the big culprit of the water pollution from Pennsylvania. Lancaster County is one of the largest sources of pollution, with 22 million cows, pigs, chickens, and turkeys. Covering only 1.5% of the watershed, Lancaster County generates more manure – 72 million pounds annually – than any other county in the entire watershed (Steinzor and Jones 2013, 55). Statewide, there are 30,000-40,000 family farms, and there are concerns that regulations on farms would severely impact Pennsylvania’s economy (Dukes, 2015, 13). In the 1990s, there were several attempts to enact mandatory environmental controls on farms, and each time, those regulations were stopped by agricultural and business interests, due to economic concerns (Ernst, 2003, 76-8). Above all, agricultural production grosses $4 billion every year in Pennsylvania (Ernst, 2003, 79). Further, when the American Farm Bureau Federation and other parties sued the EPA over the TMDL, the lawsuit was entered in the Middle District of Pennsylvania (Klopman, 2013, 6). In terms of meeting nutrient commitments in the TMDL, Pennsylvania and its agricultural sector have lagged (US EPA, 2016)

With a large area in the watershed and some urbanization, stormwater runoff is also an important contributor to bay degradation, with 33% of nitrogen, 16% of phosphorus, and 21% of sediment bay loads coming from that sector in Pennsylvania (US EPA, 2010, 4-5-4-6).

Virginia has been involved in the interstate and federal efforts to improve the bay since the earliest collaborations, going back to a conference with Maryland in 1924. Virginia is a large state, directly on the bay with fishing and tourism as critical industries directly tied to the bay. In addition, Virginia includes larger urban areas around Washington, D.C., Norfolk, and Richmond. It also includes substantial agricultural areas, including its portion of the Delmarva Peninsula, which it shares with Delaware and Maryland. Virginia contributes 27% of the nitrogen, 43% of the phosphorus, and 41% of the sediment loads to the bay (US EPA, 2010, 4-1-4-2).

Fishing is a particularly important industry in Virginia, along with Maryland, as the seafood industry contributes $3.39 billion in sales, $890 million in income, and nearly 34,000 jobs to the local economies in those two states (Steinzor and Jones, 2013, 54). The blue crab is a particularly important species. Virginia has adopted efforts to manage blue crab harvesting since the 19th century, but the regulating bodies are closely tied to the commercial fishing industry. In that context, Virginia allows harvesting of egg-bearing crabs and a winter dredge season (Ernst, 2003, 108) (D'Angelo, 2016). Like Pennsylvania, with a large area in the watershed and some urbanization, stormwater runoff is also an important contributor to bay degradation from Virginia, with 33% of nitrogen, 50% of phosphorus, and 39% of sediment loads coming from that sector in Virginia (US EPA, 2010, 4-5-4-6). Those particularly high numbers likely reflect the urbanized and suburbanized areas of the state.

Many of the same agricultural factors in Pennsylvania and Delaware are applicable to Virginia. In fact, the state has resisted any strict regulations of agricultural activities (Ernst, 2003, 75), as agricultural grosses $2.4 billion annually in Virginia (Ernst, 2003, 79). Highlighting that regulatory reluctance, a 1999 lawsuit forced Virginia to establish an impaired water bodies list and TMDLs for those water bodies, as required under the Clean Water Act (Mueller and Murdoch, 2014, 6). Virginia, does however, have a water quality trading program (CBC, 2016) that some have suggested be adopted on a bay-wide level for nonpoint source pollution (Brull, 2006, 9-10).

In general, because Virginia is on the bay and the bay is so critical to its economy and identity, it has been more proactive in restoration than upstream states. Contrasted with Pennsylvania, Virginia spent more than twice as much state funding on bay cleanup in 2010 ($367 million) (Steinzor and Jones, 2013, 54). Frequently, Virginia and Maryland scapegoat Pennsylvania for its lack of action (Steinzor and Jones, 2013, 53).

Maryland has led much of the initiative to restore the Chesapeake Bay, likely because the bay is so deeply tied to the state’s identity, but it also faces similar limitations to other states. Most of the factors in Virginia that contribute to concerns about the bay are also applicable to Maryland, with fishing and tourism key industries. Above all, Maryland contributes 20% of the nitrogen, 20% of the phosphorus, and 32% of the sediment loads to the bay (US EPA, 2010, 4-1-4-2. As in Virginia and Pennsylvania, with a large area in the watershed and urbanization, stormwater runoff is also an important contributor to bay degradation from Maryland, with 28% of nitrogen, 28% of phosphorus, and 32% of sediment bay loads coming from that sector in Maryland (US EPA, 2010, 4-5-4-6).

Maryland politicians have led much of the environmental stewardship and policy approaches in the bay, even going back to the 19th century when the Maryland General Assembly made it illegal to throw dead animals in the Potomac River (Ernst, 2003, 2). In the 20th century Maryland Senator Charles Mathias spearheaded the initial effort to restore bay, leading the way towards the 1983 agreement. In 2009, Maryland Senator Ben Cardin introduced the comprehensive Chesapeake Bay Clean Water and Ecosystem Restoration Act, which included specific federal support for the bay through enforcement, a TMDL, and over $1 billion in funding. However, agricultural interests, the Republican takeover of Congress, and economic downturn ultimately defeated its chances of passage (Houck, 2011, 11-4).

On specific policies, Maryland has also advanced environmental efforts. Unlike Virginia, Maryland’s blue crab management tends to be more independent from industry and harvesting of egg-bearing crabs is not permitted in Maryland, leading to some tensions between the states (Ernst, 2003, 108-114). Further, Maryland is on track with commitments under the TMDL (CBC, 2016) and has set more aggressive targets than EPA’s requirements. In addition, when states submitted to EPA draft Watershed Implementation Plans (WIPs) under the TMDL, Maryland was the only state (along with Washington, D.C.) whose WIPs had only “some deficiencies,” instead of “serious deficiencies” as in the other states (Zawitoski, 2011, 30). Lastly, Maryland has enacted mandatory manure management plans and innovative manure transport systems.

However, those laws have been challenged by farmers with many submitting delay forms or simply ignoring the new regulations. Above all, there is limited enforcement and funding for those efforts, leading to a similar lack of progress as in the other states in the watershed (Ernst, 2003, 77-8) (Brull, 2006, 6). Agriculture is still a powerful interest in Maryland, grossing $1.4 billion annually, with the same interests in the Delmarva Peninsula as Virginia and Delaware. Further, a similar lawsuit to the one in Virginia was brought against Maryland in 2001 that required the state to create an impaired waterbodies list and TMDLs (Mueller, and Murdoch, 2014, 6). In addition, the construction sector, also an important interest in the state with groups like the Maryland Sate Builders Association, has rejected regulations (Houck, 2011, 12). Thus, despite perhaps being more proactive than other states in working towards restoration, Maryland still faces many of the political and economic limitations on restoration efforts.

Washington, D.C.

Washington, D.C. is a small portion of the watershed and almost entirely urbanized. As a result, urban stormwater, sewage, development, and tourism are the primary bay-related concerns. Washington, D.C. contributes 1% of the nitrogen, 1% of the phosphorus, and less than 1% of the sediment loads to the bay ((US EPA, 2010, 4-1-4-2). With urban stormwater as a key issue, Washington, D.C., has an innovate stormwater green infrastructure program (DC Water, 2017).

United States Environmental Protection Agency (US EPA)

The US EPA is the primary federal environmental enforcement regulatory body, established in 1970. It oversees the Chesapeake Bay Program and the TMDL. For much of the history of the Chesapeake Bay restoration efforts, the EPA deferred to the states’ voluntary approaches, not seeking a TMDL (Ernst, 2003, 131-2). In fact, EPA was slow to develop TMDLs nationwide, even though the requirement and tool existed in the Clean Water Act (Houck, 2011, 2-3).

Chesapeake Bay Commission

The Chesapeake Bay Commission is a tri-state (Virginia, Pennsylvania, and Maryland) legislative, policy, and scientific assembly founded in 1980. All but three of the 21 members are elected officials or designees of elected officials from three states. It serves the interests of its member states (CBC, 2017). Some have called for broader role for the commission, arguing for the need for deeper connections to all bay watershed states and the federal government (Ernst, 2003, 133-4).

The Chesapeake Bay Foundation

The Chesapeake Bay Foundation is a large advocacy group for the bay, with over 100,000 dues paying members (Ernst, 2003, 137) and more than $25 million in revenue and expenses in 2016 (CBF, 2016). The group works through advocacy, restoration, education, and legal action (CBF, 2017). However, the group only engages in limited political lobbying and legal action, in part due to its wide constituency and reluctance to alienate members, leading some to call for the organization to take a more activist approach (Ernst, 2003, 137-9).

Other Stakeholders

There are other specific, more targeted stakeholder interest groups within the bay watershed. Many tributaries have their own advocacy and interest groups who push for restoration. Specific industries, from fishing to real estate development, have their own interests as they relate to the bay restoration, seeking to avoid threats to their livelihoods. Those groups are not involved in or signatories to the bay-wide agreements, and only influence the process through political or legal channels, as well as involvement through their states.

Bay Specific Efforts

Overview

In the context of the severe degradation of the mid-20th century, a targeted bay-wide restoration effort was initiated. States began with voluntary agreements that became more specific over time, incorporating more and more elements of the WDF in subsequent agreements, yet also missing opportunities to deeply integrate the WDF. Eventually, these voluntary approaches were deemed unsatisfactory, leading to a bay-wide total maximum daily load.

Precedents

States began efforts to coordinate bay restoration at least as far back as 1924, when the governors of Maryland and Virginia met to discuss management of blue crab populations. A decade later in 1933, representatives from the US Bureau of Fisheries, Virginia, Maryland, Delaware, and Washington, D.C. met in Baltimore to discuss a range of environmental issues in the bay, including proposing a joint committee made up of the non-federal representatives at the conference and possibly Pennsylvania. However, the committee was never established, and the bay entities remained uncoordinated in their restoration efforts.

From 1965-1973, the United States Army Corps of Engineers engaged in a comprehensive $15 million study of the bay, focusing on environmental conditions, projected water needs to 2020, and development of solutions using a model. The study was funded by the Rivers and Harbor Act of 1965, one of the many precursors to the Clean Water Act. Despite its details, the findings were never converted to a management plan for implementation of bay restoration (Ernst, 2003, 13).

Nevertheless, in 1976, the US Congress funded the recently-formed United States Environmental Protection Agency (US EPA), to develop a seven year, $27 million study. The study documented the degradation of the bay and proposed government action to improve it. That study represented the start of the EPA leading the Chesapeake restoration (Ernst, 2003, 14).

In that context, the states of Virginia and Maryland established the Chesapeake Bay Commission (CBC) in 1980, with Pennsylvania joining in 1985. The commission was established to serve in an advisory role to federal and state authorities, coordinating science and policy activities, with no regulatory authority itself (Ernst, 2003, 14) (CBC, 2017) (Cohen, 2017).

1983 Agreement

In 1983, following the release of EPA’s seven-year study, the governors of Maryland, Pennsylvania, and Virginia, along with the mayor Washington, D.C., the EPA administrator, and the chair of the CBC singed the Chesapeake Bay Agreement of 1983 (Mueller and Murdoch, 2014, 6. The agreement recognized the degradation of the bay and the need for the parties to work together to address bay pollution. To coordinate plans to restore the bay, the agreement established the Chesapeake Bay Executive Council, made up of designees of the signatories to the agreement. It further established an implementation committee and a bay liaison office at EPA’s Central Regional Laboratory in Annapolis, Maryland. Above all, the agreement called for a “cooperative approach” (CBP, 1983). However, it did not include specific numeric commitments, plans, or implementation strategies, and left out any mention of specific responsible sectors, such as agriculture. As some legal scholars described it, the 1983 agreement was “formal but voluntary” (Mueller and Murdoch, 2014, 6). With the agreement at the state and federal level only, it did not include the broad stakeholder approach or mutual gains ideals of the WDF, even though it did promote cross-boundary cooperation.

1987 Agreement

The 1983 agreement led to the establishment of the Chesapeake Bay Program, spearheaded by EPA and tasked with implementing agreements and subsequent efforts (Ernst, 2003, 15). The reauthorization of the Clean Water Act in 1987 included a specific section (117) formalizing the Chesapeake Bay Program, leading to the 1987 Chesapeake Bay Agreement (Mueller and Murdoch, 2014, 6). The agreement included specific objectives and commitments in the areas of living resources; water quality; population growth and development; public information, education and participation; public access; and governance. These elements represented a more detailed and broader approach than the 1983 agreement. In particular, the 1987 agreement noted the important roles of local governments and the private sector influencing conditions in the bay, highlighting development and wastewater treatment, with a broader stakeholder understanding than the 1983 agreement. The 1987 agreement also called for coordination on data, plans, and information, as well as updates on milestones, calling for a progress report in January, 1989 (CBP, 1987). Of the agreement’s 31 formal commitments (Ernst, 2003, 15), the key piece of the agreement was a goal to reduce the bay’s nutrient pollution by 40% by 2000 (Mueller and Murdoch, 2014, 6). That agreement was further amended in 1992 calling for strategies specific to each tributary (Mueller and Murdoch, 2014, 6). However, responsibility for these commitments and initiatives remained ambiguous and voluntary. Thus, the 1987 agreement began to include elements of the WDF, with an understanding of diverse stakeholders and the need for joint fact finding, but it did not have any mechanisms for joint value creation or trades across sectors.

2000 Agreement

Signatories realized that they would fail to meet the 1987 agreement’s 40% nutrient reduction goal, leading to a new agreement in 2000 (Mueller and Murdoch, 2014, 7). The agreement represented an expansion from the earlier agreements. The 2000 version included 105 commitments in the areas of living resources, habitat restoration, water quality, land use, and community engagement (Ernst, 2003, 15). These sections included more details and scientific language than previous agreements. For example, specific fish species and habitat types were addressed. Further, the agreement included further emphasis on collaboration, public information, and engagement with diverse stakeholders, again increasing in specificity and expansiveness from previous agreements, with data and annual reporting commitments (CBP, 2000). During the same year, Delaware and New York signed a memorandum of understanding, agreeing to adopt the same water quality goals of the agreement, and West Virginia did the same in 2002 (Mueller and Murdoch, 2014, 7). Thus, the agreement and subsequent MOUs finally included all states in the Chesapeake Bay Watershed.

Above all, the agreement led to the development of water quality standards and nutrient and sediment load allocations needed in order to meet those standards for all river basins and states (Mueller and Murdoch, 2014, 7). Those standards set the precedent for a total maximum daily load (TMDL) or “pollution diet” for the whole bay. Required under the Clean Water Act for impaired waterbodies, a TMDL is “the calculation of the maximum amount of a pollutant allowed to enter a waterbody so that the waterbody will meet and continue to meet water quality standards for that particular pollutant. A TMDL determines a pollutant reduction target and allocates load reductions necessary to the source(s) of the pollutant” (US EPA, 2017). Thus, with the 2000 agreement, the partners had laid the groundwork for such an effort, acknowledging that if voluntary approach didn’t work, they’d agree to a TMDL (Klopman, 2013, 4. However, the 2000 agreement remained voluntary and ambiguous without specific accountability. Therefore, it expanded on some of the WDF elements of the 1987 agreement, such as stakeholder engagement throughout the watershed, but was still far from a comprehensive WDF approach.

Towards a Total Maximum Daily Load (TMDL)

Several developments preceded the establishment of the bay-wide TMDL. First, lawsuit settlements in Virginia and Maryland in 1999 and 2001, respectively, forced the states to develop impaired waterbodies lists and TMDLs, as required under the Clean Water Act. The settlements also required EPA to intervene if the states didn’t complete the requirements (Ernst, 2003, 132) (Mueller and Murdoch, 2014, 6).

In 2005, a Government Accountability Office report demonstrated that bay restoration was not proceeding as had been previously indicated. That development led Maryland Senator Barbara Mikulski to withhold $5 million from the CBP until the report’s recommendations were implemented. Further reports and press over the next three years demonstrated other failures and misrepresentations of the effort (Steinzor and Jones, 2013, 58-9).

Following this bad publicity, by 2007, the bay partners recognized and acknowledged that they wouldn’t meet the goals of the 2000 agreement and needed a TMDL (Mueller and Murdoch, 2014, 6). Around that same time, in 2009, the Chesapeake Bay Foundation sued EPA for failing to meet restoration commitments in the 2000 agreement. The settlement for that case required EPA to establish a TMDL and further implement and regulate toward the restoration of the bay. Also in 2009, the Obama Administration issued Executive order 13058, which committed the federal government to collaboratively work toward restoring the bay, focusing on water, habitat, fish and wildlife, land conservation, and public access (Klopman, 2013, 4).

These developments forced the bay partners and EPA to establish a bay-wide TMDL, which EPA completed in late 2010. The TMDL set limits for phosphorus, nitrogen, and sediments and required the states to create watershed implementation plans for each bay jurisdiction (Mueller and Murdoch, 2014, 7). The TMDL included modeling and reporting mechanisms for these efforts, through state and EPA channels. Thus, the bay effort now included a regulatory approach, while states retained implementation flexibility, under a “cooperative federalist” model (Colburn, 2016, 3).

2014 Agreement

Following the TMDL, the bay partners signed a new agreement in 2014, tied to the TMDL. For the first time, all bay watershed states signed the agreement. The agreement included a broader and more detailed perspective, with vision, preamble, principles, and goals and outcomes sections. Those outcomes were specifically tied to the TMDL, with numeric goals for water quality and the other sections of sustainable fisheries, vital habitats, toxic contaminants, healthy watersheds, stewardship, land conservation, public access, and environmental literacy. Other section included particular goals and outcomes, several with specific numeric commitments, different from earlier agreements. New topics, such as healthy watersheds and climate resiliency, reflected an understanding of the complexity of the restoration. The agreement also included a broader and greater emphasis on stakeholders and local partners, defined in the document’s preamble. In addition, the principles section defined a “framework by which the Chesapeake Bay Program commits to operate,” a new strategic idea, with elements of the WDF, such as seeking consensus, adaptive management, local coordination, and an overarching recognition of flexibility and change as needed. The TMDL provided two-year milestone periods as a form of adaptive management, with opportunities to adjust, but other than that, those principles of the WDF were mostly broad guidelines, rather than tied to concrete commitments beyond the TMDL. Another new element of the agreement was a section of management strategies, with implementation and reporting timelines and commitment to stakeholder engagement. At the end, the document specifically recognized the TMDL and coordination with it, but also sought to go beyond the TMDL, highlighting broader and more comprehensive restoration efforts. Lastly, prior to the signatures, the 2014 agreement still emphasized the voluntary nature of the agreement and included a caveat that the work was subject to available funding, perhaps recognizing the need for future federal funding that could be uncertain (CBP, 2014). Nevertheless, the 2014 agreement represented a much more detailed and defined commitment to bay restoration, reflecting more of the WDF ideals, especially adaptive management, without being a full WDF approach. This increase in details might have been a direct result of a 2011 Government Accountability Office report that criticized the Chesapeake effort for overlapping goals, lack of coordination and alignment, and failure to recognize external influences like climate change and funding (GAO, 2011).

Discussion and Water Diplomacy Framework Critical Analysis

As these agreements evolved, they included greater elements of the Water Diplomacy Framework, yet missed opportunities for comprehensive WDF approaches. In particular, later agreements included broadening the effort to include all states in the watershed and mentioning of diverse stakeholders, reflecting key elements of the WDF. However, those non-state actors were not directly involved in the state agreements, other than through existing political or legal channels. Further, the agreements did not expand beyond the boundaries of the watershed, a potentially key element in this case, given the lack of prioritization of the bay among upstream states like Pennsylvania. It seems that there might have been opportunities to link issues within portions of states outside the watershed boundary with the watershed. For example, while Pennsylvania may have lagged on its nutrient commitments to the Chesapeake, Philadelphia, Pennsylvania has a very innovative stormwater green infrastructure program, directly related to the issue of nonpoint source pollution (Philly Watersheds, 2017). Commitments and efforts, such as technical assistance, under that program might have been linked to efforts within the Chesapeake, despite being in different watersheds, especially because the issue of stormwater runoff is applicable – albeit different – in each context.

Further, the states missed opportunities to seek mutual gains and trades. Again, states, especially upstream states, might be reluctant to make changes, given the political and economic constraints, but there are other relevant issues that could have generated value. Tying in issues and commitments related to drinking water quality, agricultural productivity, and/or fishing might have helped the states find mutual benefits. However, watershed agreements tended to focus only on water quality, although later agreements did include goals related to habitat, conservation, and fisheries. Those topics present mutual gain and trade opportunities that the states don’t seem to have addressed. In particular, in the US, the Clean Water Act and Safe Drinking Water Act approaches tend to be fragmented, yet connecting goals related to each law might have led to mutual gains in this case. For example, nitrogen controls for drinking water quality is a key issue in agricultural areas and in the case of the Chesapeake Bay’s water quality. In this effort, such connections might have helped developed commitments and interest from upstream areas.

In addition, the Chesapeake Bay efforts have included vast amounts of studies and research around the bay. Even critics of the bay’s minimal restoration applaud the level of scientific analysis and understanding in the bay (Steinzor and Jones, 2013, 63). In many ways those studies have taken a joint fact finding approach, with multi-party entities like the Chesapeake Bay Council and Chesapeake Bay Program leading the way. Those efforts do reflect the WDF ideal of joint fact finding, but they tend to be siloed in governmental organizations. More collaboration with broader stakeholder groups, such as advocacy organizations, fishers and others with interests in the bay, could make the joint fact finding broader and more effective.

With these issues, several alternative approaches have been proposed in addition to the TMDL. Many of those options present further opportunities to draw on the WDF. Among many suggestions for the bay, Howard Ernst proposed a bi-state living resources management council for fisheries in Maryland and Virginia and an expansion of the Chesapeake Bay Commission to include all watershed states and/or a separate, interrelated council of headwaters states (Ernst, 2013, 129-145). Those types of arrangements could set-up the framework for the types of mutual gains just described and the types of collaborative decision-making proposed by the WDF. However, those entities would need to think and act more creatively and collaboratively in order to reach that type of joint value creation.

Rena Steinzor and Shana Jones argued for an independent monitor for the Chesapeake Bay Program. In particular, they suggested that such a position would ensure accountability and coordination among the states and EPA. Steinzor and Jones highlight the importance and challenge of neutrality for that position (Steinzor and Jones, 2013). Within the WDF, that position might be expanded or reconsidered as a mediator or facilitator role to potentially help the states and EPA find joint gains and maximize value in the agreements. To this point, it appears that the state-EPA relationship is too contentious for anyone from those entities to serve in that role. However, an outside neutral – perhaps in the independent monitor role that Steinzor and Jones proposed – could help parties identify and commit to those mutual gains. Such a position might have enabled the voluntary approaches to be more effective by creating some accountability and coordination by a neutral party through a mutual gains approach.

Another suggestion has been expanding water quality trading programs to a bay-wide level (Brull, 2006 9-10). That type of program might provide for the types of mutual gains and value trading that the WDF suggests. However, in order to achieve the comprehensive restoration, such a program might be more successful with a broader purview. States could package different environmental restoration efforts, from crab harvesting to water quality. That type of arrangement would match the WDF’s idea of working across sectors.

Above all, many have argued that the top-down regulatory approach of the TMDL was the only way to restore the bay and that collaboration simply wouldn’t work because of the lack of accountability (Cannon, 2006) (Houck, 2011) (Steinzor and Jones, 2013). Given the history, that argument certainly seems valid. However, even the top-down regulatory approach includes opportunities to incorporate the WDF. For example, EPA and states should seek efforts to understand all relevant stakeholders, something they appear to be doing based on recent stakeholder assessments involving states and EPA, conducted by the University of Virginia (Dukes, 2015). More broadly, with the TMDL and WIQs, states should seek to find mutual gains and engage diverse stakeholders within their own boundaries in order to meet their commitments. The TMDL requires identifying all major sources of nitrogen, phosphorus, and sediments. States should use that assessment as an opportunity to not only identify, but also engage stakeholders who can contribute to restoration. There may be mutually-beneficial trades for states within their borders among the regulated community. For example, perhaps state regulatory agencies could offer regulated entities other benefits, such as expedited permitting or technical assistance, in return for commitments to restore the bay. There are relevant cases of using mutual gains approaches in regulatory contexts that could provide important precedents, such as an arrangement in the Boston area between hospitals and the Metropolitan Water Resources Authority (MWRA). Through that program, hospitals and the MWRA found jointly-beneficial approaches to reducing mercury pollution that met the different parties’ interests, with the regulated parties (the hospitals) receiving some enforcement relief in return for information and detailed commitments and progress, without further violating regulations (Thomas-Larmer, 2000, 209-127). Such a case provides interesting opportunities for the Chesapeake states and EPA to find potentially similar mutual gains and trades across issues, beyond just water quality, even within a regulatory context.

In conclusion, the argument for top-down regulatory approaches appears valid, given the failures of previous voluntary agreements. However, if those approaches included more elements of the WDF, such as mutual gains and trading value to form commitments and accountability, they likely would have been more successful. Now that the TMDL has been established, there are further opportunities to include those elements of the WDF to maximize effectiveness. As some have argued, the collaborative nature of the Chesapeake Bay Program and the Clean Water Act in general enhances “flexibility” and “responsiveness” (Cannon, 2006, 9). Those two principles are also hallmarks of the WDF. Thus, perhaps incorporating features of the WDF into the regulatory approach of the TMDL is the most pragmatic and effective way to restore the Chesapeake Bay within the existing flexibility of the Chesapeake Bay Program and the Clean Water Act.

Further Study

Many of the specific elements of the Chesapeake Bay case could provide their own material for a specific WDF analysis. Future research could analyze the TMDL development, agricultural regulations in a specific state, fisheries management, or one of the Chesapeake court cases from a WDF perspective. In addition, there are tributary-specific issues, such as dam management on the Susquehanna River (American Rivers, 2017) or wastewater treatment in one of the urbanized areas, that could provide an interesting WDF cases study.

References

• American Rivers (2017). https://www.americanrivers.org/endangered-rivers/2016-susquehanna/
• Brull, S. (2006). An Evaluation of Nonpoint Source Pollution Regulation in the Chesapeake Bay. University of Baltimore Journal of Environmental Law, Spring, 2006, pp. 221-249.
• Cannon, J (2006). Checking in on the Chesapeake: Some Questions of Design. University of Richmond Law Review, May, 2006, pp. 1131-1153.
• Chesapeake Bay Commission (CBC) (2015). Policy for the Bay. Annapolis, MD: CBC.
• Chesapeake Bay Commission (CBC) (2016). Policy for the Bay. Annapolis, MD: CBC.
• Chesapeake Bay Commission (CBC) (2017). www.chesbay.us/
• Chesapeake Bay Foundation (CBF (2016). Moving Forward: 2016 Annual Report Annapolis, MD: CBF.
• Chesapeake Bay Foundation (CBF) (2017). http://www.cbf.org/about-the-bay/chesapeake-bay-watershed-geography-and-facts.html
• Chesapeake Bay Program (CBP) (1983). The Chesapeake Bay Agreement of 1983.
• Chesapeake Bay Program (CBP) (1987). The Chesapeake Bay Agreement of 1987
• Chesapeake Bay Program (CBP) (2000). The Chesapeake Bay Agreement of 2000
• Chesapeake Bay Program (CBP) (2014). The Chesapeake Bay Agreement of 2014
• Chesapeake Bay Program (CBP) (2016) Bay Barometer 2015-2016: Health and Restoration in the Chesapeake Bay Watershed. Annapolis, MD: CBP.
• Chesapeake Bay Program (CBP) (2017). http://www.chesapeakebay.net/discover
• Cohen, N. (2017). Assessing The Clean Water Through its History, Effectiveness, and Application. Unpublished.
• Colburn, J.E. (2016). Coercing Collaboration: The Chesapeake Bay Experience. William and Mary Environmental Law and Policy Review, Spring, 2016, pp. 677-743.
• D’Angelo, P. (2016, October 3). Without the she crab, there'd be no he crab. Retrieved from http://wypr.org/post/without-she-crab-thered-be-no-he-crab
• DC Water (2017). https://www.dcwater.com/green-infrastructure
• Dukes, F.E. (2015). Chesapeake Bay Stakeholder Assessment. Unpublished, 2015.
• Dukes, F.E. (2015). Summary of Local Concerns and Needs From the Chesapeake Bay Stakeholder Assessment. Unpublished.
• Dukes, F.E. (2015). Summary of State Participant Concerns and Needs From the Chesapeake Bay Stakeholder Assessment. Unpublished.
• Environmental Integrity Project (2012). The Clean Water Act and the Chesapeake: Enforcement’s Critical Role in Restoring the Bay. Washington, D.C.: Environmental Integrity Project.
• Ernst, H. R. (2003). Chesapeake Bay Blues: Science, Politics, and the Struggle to save the Bay. New York, New York: Rowman & Littlefield Publishers, Inc.
• Houck, O.A. (2011). The Clean Water Act Returns (Again): Part 1, TMDLs and the Chesapeake Bay. Environmental Law Reporter 41 (3), pp. 10208-10228.
• Klopman, A. (2013). An Undercurrent of Discontent: The Chesapeake Bay Total Maximum Daily Load and Its Impact on Bay Industries. Villanova Environmental Law Journal, 2013, pp. 97-123.
• Messing, T. (2014). Solution to the Pollution: Development of the Chesapeake Bay TMDL Through Cooperative Federalism. American Bar Association Agricultural Management Committee Newsletter, 12 (2), pp. 6-8.
• Mueller, J. and Murdoch, A. (2014). The Chesapeake Bay Total Maximum Daily Load: An Example of Cooperative Federalism. American Bar Association Agricultural Management Committee Newsletter, 18 (4), pp. 5-8).
• Palmer, M.T. (2004). The Chesapeake Bay Restoration Act of 2000: New Requirements for Federal Agencies. William and Mary Environmental Law and Policy Review, Winter, 2004, pp. 375-422.
• Philly Watersheds (2017). http://www.phillywatersheds.org/what_were_doing/green_infrastructure
• Pomeroy, C.D. (2011). Chesapeake Bay TMDL Pushing the Clean Water Act’s Limits. American Bar Association Trends, 42 (5), pp. 1-14.
• Steinzor, R. and Jones, S (2013). Collaborating to Nowhere: The Imperative of Government Accountability for Restoring the Chesapeake Bay. George Washington University Journal of Energy & Environmental Law, Winter, 2013, pp. 51-67.
• Thomas-Larmer, J. (2000). Mercury Discharge Permits In Susskind, Levy, and Thomas-Larmer, Negotiating Environmental Agreements; How to Avoid Escalating Confrontation, Needless Costs, and Unnecessary Litigation (pp.109-127). Washington, D.C.: Island Press
• United States Environmental Protection Agency (US EPA) (1995) Chesapeake Bay: Introduction to an Ecosystem. Annapolis, MD: US EPA.
• United States Environmental Protection Agency (US EPA) (2000) Progress in Water Quality: An Evaluation of the National Investment in Municipal Wastewater Treatment. Washington, D.C.: US EPA.
• United States Environmental Protection Agency (US EPA) (2007) Federal Facilities in Chesapeake Bay Watershed Generally Comply with Major Clean Water Act Permits. Washington, D.C.: US EPA.
• United States Environmental Protection Agency (US EPA) (2010). Chesapeake Bay TMDL. Washington, D.C.: US EPA.
• United States Environmental Protection Agency (US EPA) (2016). EPA Evaluation of Chesapeake Bay, 2016.
• United States Environmental Protection Agency (US EPA) (2017). https://www.epa.gov/tmdl
• United States Government Accountability Office (GAO) (2011). Chesapeake Bay Restoration Effort Needs Common Federal and State Goals and Assessment Approach. Washington, DC: GAO.
• Zawitoski, G.M. (2011). Restoring the Chesapeake Bay Water Quality Through TMDL. Maryland Bar Journal, January, 2011, pp. 24-31.

Issues and Stakeholders

The bay’s environmental quality, especially water quality, is degraded. How should those conditions be restored?

There are competing interests among and within jurisdictions. Voluntary, interstate agreements have been the primary approach, with minimal results. Eventually, those agreements led to a total maximum daily load (TMDL).

Stakeholders

• States (Virginia, Maryland, Delaware, West Virginia, Pennsylvania, New York)
• Washington, D.C.
• Federal Government (United States Environmental Protection Agency (US EPA))
• Chesapeake Bay Commission
• Chesapeake Bay Foundation
• Interest Groups

Analysis, Synthesis, and Insight

No ASI articles have been added yet for this case

Key Questions

Transboundary Water Issues: What kinds of water treaties or agreements between countries can provide sufficient structure and stability to ensure enforceability but also be flexible and adaptable given future uncertainties?

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