Not Just An “Aspiration”

Remember that huge algae bloom that ravaged Anne Arundel County rivers over the holiday break? On Friday afternoon, the head of EPA’s Chesapeake Bay Program, Dana Aunkst, gave us to believe we should expect more of that kind of thing when he stated that the mandates of the Chesapeake Bay’s
Total Maximum Daily Load (“TMDL”) were “an aspiration” and not legally enforceable.

This marks a dark and abrupt departure from EPA policy in the Bay for the past decade. In fact, the very first sentence in the TMDL’s Executive Summary defines the TMDL as a “pollution diet” supported by “rigorous accountability measures”. These accountability measures include, among other things, “short- and long-term benchmarks, a tracking and accountability system for jurisdiction activities, and federal contingency actions that can be employed if necessary to spur progress.”

Perhaps this shift in opinion comes in view of the serious lack of progress coming from Pennsylvania, or perhaps in response to new leadership at the EPA, where de-funding Bay cleanup efforts has been a top priority from the get-go. Maybe it’s a combination of the two–significant factual setbacks mixed with administrative antagonism toward meaningful environmental improvement resulting in what appears like a total abdication of duty by the Bay Program.

Whatever the cause, I fear that would-be polluters and heel-dragging governmental bodies will view this statement as a license to ignore their Bay cleanup duties going forward. Whatever merits “aspiration” may have, it is not the same as law. As Abraham Lincoln famously said, “laws without enforcement are just good advice.”

While it is true that the TMDL is not a law, it is required by law—the Clean Water Act. Moreover, the TMDL does carry with it a number of regulatory tools that EPA can use to force compliance with its terms:

“If a jurisdiction’s plans are inadequate or its progress is insufficient, EPA is committed to take the appropriate contingency actions to ensure pollution reductions. These include expanding coverage of NPDES permits to sources that are currently unregulated, increasing oversight of state-issued NPDES permits, requiring additional   pollution reductions from point sources such as wastewater treatment plants, increasing federal enforcement and compliance in the watershed, prohibiting new or expanded pollution discharges, redirecting EPA grants, and revising water quality standards to better protect local and downstream waters.”

But that was then (2010) and this is now. A lot changed in the recently concluded decade. The 2010’s saw a lot of progress in the Bay’s cleanup, and indeed, for a while there it seemed we
had turned a corner. Notwithstanding some modest progress, so far for the Chesapeake Bay the 20’s are not off to a roaring start.

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