By: Evan Isaacson* and Kennedi Fichtel*
I. Introduction
The Clean Water Act (the “CWA”) and the effort to restore the Chesapeake Bay trace their origins to the actions of Congress from more than fifty years ago.[1] While water quality has improved in the Chesapeake Bay watershed and around the United States since the early 1970s, the story of both endeavors is characterized primarily by missed deadlines and unfulfilled promises.[2] Water quality advocates around the country often look to the Chesapeake with envy, hope, and curiosity about whether the efforts in this region provide proof of concept. Instead, with the impending failure to meet yet another deadline—or Bay restoration target—it is time for leaders in the Bay watershed to look elsewhere for ideas.
The recent multi-state effort to take all necessary actions to restore the Chesapeake Bay by 2025 relied excessively on untested ideas with insufficient attention to the basics of the CWA.[3] While it is impossible to prove a counterfactual, the lack of progress in pollution reduction makes one wonder whether a spirit of anti-regulatory experimentalism pervading recent restoration efforts in Maryland created less progress than what would have occurred had the present multi-state effort did not exist.[4] Even if the current framework catalyzed some degree of additional nutrient reductions, some of the newer Bay restoration policies adopted in Maryland have wrought unintended consequences, halting progress for many other policies, including climate adaptation, environmental justice, and public health.[5]
Part II of this article explores the coincident origins of the CWA and intersecting efforts to restore the Bay.[6] Part III explores how in crafting its plan to meet the Bay TMDL, Maryland has departed from the traditional approach of faithfully adhering to the CWA in favor of policy experimentation, ignoring the law, disregarding scientific data, and introducing unintended consequences.[7] Finally, Part IV explains why recommitting to the robust implementation of the CWA will benefit our efforts to restore the Chesapeake, among other environmental goals.[8]
Ultimately, this article is a wakeup call and plea to public officials to return to the CWA’s underappreciated approach. The CWA was more ambitious than present Bay restoration efforts and the other recent policies established in the name of Bay restoration.[9] If the CWA’s goal of eliminating pollution from regulated point sources were achieved—or had even been pursued in good faith all along—the Bay would undoubtedly be in much better condition than it is today. Moreover, comprehensive implementation and enforcement of the CWA would allow society to reap numerous co-benefits rather than grappling with a myriad of unintended consequences.
II. The Clean Water Act and Bay Restoration in Context
- The Clean Water Act
The 1972 Amendments to the Federal Water Pollution Control Act, which largely created what is known today as the CWA, represented both a “total restructuring” and “complete rewriting” of legislation governing water pollution.[10] A large part of what made the CWA a “bold and sweeping legislative initiative”[11] was its “ambitious purpose.”[12] Unlike most statutes, the CWA “shouldered a weightier burden—namely, ‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’”[13]
Critically, the CWA highlights its purpose at the start of the statute, not buried in legislative history or purpose language.[14] Courts interpreting the CWA have repeatedly emphasized the practical function of embedding such a bold expression of legislative intent in the very first section of the statute, ensuring that it finds effect throughout the law’s “distinct, though interlocking, regulatory schemes.”[15] Thus, the CWA cannot be understood properly without a firm grasp of its purpose-driven and goal-oriented nature.[16]
The concept of creating increasingly stringent controls has been called the “guidepost” or “guiding star” that courts must keep in sight when evaluating the sufficiency of proposed regulatory activities in relation to water quality and pollution.[17] While Congress had established very ambitious timelines to attain water quality standards and to eliminate point sources of pollution, this “cannot be done overnight.”[18] Courts thus look for whether “reasonable further progress” has been made toward these goals.[19] Importantly, water quality standards “by themselves have no effect on pollution; the rubber hits the road when the state-created standards are used as the basis for specific effluent limitations in [pollution] permits.”[20] That is because the CWA prohibits any person from discharging any pollutant from a point source unless those discharges are in compliance with a permit.[21]
All point source discharges of pollutants are first subject to technology-based effluent limitations based on the level of pollution reduction achievable with available technology.[22] Where no uniform effluent limitation guidelines prescribe such standards, permitting agencies should establish limitations based upon their “best professional judgment.”[23] When technology-based effluent limitations fail to establish sufficient water quality standards, the permit then must contain an additional water quality-based effluent limitation irrespective of what is achievable through the application of a technology-based effluent limitation.[24] Thus, if a discharge from a point source has the potential to cause—or even contribute to—a violation of water quality standards, a valid permit will impose a water quality-based effluent limitation.[25]
Crucially, this regime has been in effect for more than a half-century, begging the question: Why are our nation’s waters—certainly the Chesapeake Bay—not already attaining water quality standards? This article argues that regulatory agencies have long shirked their duty to ensure that the CWA’s regulatory implementation rises to the ambitious levels Congress specifically wrote into the statute. For many agencies, inaction has been the primary obstacle to progress. However, in Maryland, policy experimentation in lieu of faithful execution of the law has become a separate barrier to fishable and swimmable waters.[26]
b. Early History of the Chesapeake Bay Restoration Efforts
The timeline of the CWA and the movement to restore the Bay share many parallels. After passing through Congress nearly unanimously, the Federal Water Pollution Control Act Amendments of 1972 became law in October 1972.[27] The sprawling history of Chesapeake restoration efforts arguably coincided with Maryland Republican Senator Charles Mathias embarking on his legendary 1973 boat trip to raise awareness of the Bay’s plight and funds for its restoration.[28] This early leadership resulted in a 1976 Congressional mandate for the Environmental Protection Agency (“EPA”) to study the Bay’s resources and water quality and devise a management plan.[29]
In 1983, Congress expressed their intent to make all of the United States’ waterways fishable and swimmable.[30] Yet, in 1983, the Chesapeake Bay was nowhere near fishable or swimmable. In response, Congress created the Chesapeake Bay Program[31] and funded over fifty research projects.[32] The results of these studies demonstrated that the Bay had: (1) excess amounts of nitrogen and phosphorus, (2) suffocatingly low levels of dissolved oxygen, and (3) bottom sediment containing high levels of metals and toxic compounds.[33]. The efforts to connect science and action culminated in a management report known as a “Framework for Action” (the “Framework”) that relied on the “existing” and recently enacted tools of the CWA to establish the path forward.[34] The Framework also created a three-stage implementation plan for abating nonpoint source pollutants, a critical element because these types of pollutants are not regulated by the CWA in the same fashion as pollution from “point sources.”[35]
Lastly, theFramework for Actionrecommended the formation of “an agreement that establishes a cooperative commitment to work toward the goal of improved water quality in the Chesapeake Bay and its tributaries.”[36] Thereafter, on December 9, 1983, a portion of the Chesapeake Bay States[37] entered into the very first “Chesapeake Bay Agreement.”[38] In this Agreement, the signatories[39] voluntarily committed to meet twice per year to coordinate restoration efforts.[40] The Framework thus laid out two parallel approaches—voluntary interstate cooperation, and the use of the CWA regulatory and nonregulatory programs—to restore the Bay. Furthermore, the same year that all of our nation’s waters were to be fishable and swimmable, the federal government, the state governments, and the new interstate commission all signed an agreement to work together to create fishable and swimmable waters for the Chesapeake Bay.
After, the Bay Agreement was amended and re-signed in 1987,[41] 1992,[42] and 2000.[43] Each agreement constituted an iteration of the last, but the perpetual lack of satisfactory progress compelled signatories to inch toward greater accountability through numeric goals, such as the 40% reduction in controllable nutrient loads, and restoration deadlines.[44] The 2000 Agreement was also accompanied by the enactment of the Estuary Restoration Act of 2000,[45] which formally amended the CWA to incorporate the goals of the Chesapeake Bay Agreement.[46] This new legislation would later serve as the basis for program-altering litigation.[47]
c. The Chesapeake Bay TMDL
After the 2000 Agreement, the voluntary commitments of the Bay States did not amount to tangible improvement.[48] As the 2010 target date approached with substantially similar water quality, the focus finally turned to creating a multi-state Total Maximum Daily Load (“TMDL”), a core component of the CWA that, like the restoration of the Bay, got off to a late start and needed further litigation to come to life.
The CWA originally set an ambitious deadline requiring states to submit TMDLs in their “continuing planning processes” no later than February 15, 1973.[49] Ideally, each state would: (1) Adopt water quality standards for its waters, identifying the desired use of that water body; (2) Identify which segments could not meet their designated use because of a water quality “impairment”; and (3) Create TMDLs for pollutants in each impaired water body unable to meet its designated use.[50] Ultimately, this process never came to fruition, leaving the public to step in to compel agency action.[51] Nevertheless, thanks to the efforts of the public and advocacy organizations in the 1990s, the nascent TMDL program was up and running, with thousands of new TMDLs in development by state agencies.[52] The EPA even cited the litigation from the 1980s and 1990s[53] that led to the creation of tens of thousands of TMDLs and served as a the “technical backbone” of the EPA’s approach to cleaning the Nation’s waterways.[54]
Despite national attention, strong state and federal leadership, successive Bay Agreements, litigation and court orders, state-of-the-art science, and repeated federal appropriations that steadily built the Bay restoration apparatus over the first thirty-five years of the CWA, this growing multi-state effort never achieved the pollution reduction and watershed restoration goals set forth under the 2000 Agreement.[55] By 2007, there were little—if any—measurable improvements in the nitrogen, phosphorus, or sediment pollution levels of the Bay,[56] rendering it virtually impossible to achieve the nutrient and sediment reduction goals by 2010.[57] This realization forced the states to finally capitulate and request that the EPA establish a multi-state Chesapeake Bay TMDL.[58] Thus, the EPA and the states had finally began preparations for a regulatory approach to restoring the watershed.[59]
In addition, The 2009 issuance of Executive Order 13508 highlighted the importance of both federal leadership and accountability in the upcoming Bay restoration reboot.[60] Spurred by this new Executive Order, the EPA began establishing not only a Bay-wide TMDL, but also an entire “Accountability Framework” surrounding and undergirding the TMDL.[61] The Accountability Framework largely consisted of state “Watershed Implementation Plans” (“WIP”) and a federal process for reviewing progress toward EPA-approved “milestones.”[62] Most importantly, the Accountability Framework included consequences that would be levied by the EPA should a state’s progress begin to veer off course.[63] As described in a series of documents created by EPA’s mid-Atlantic regional office and headquarters, the agency reaffirmed that it possessed an extensive suite of existingregulatory tools called federal “backstops.”[64]
While aspects of the Bay TMDL and the Accountability Framework were arguably novel or unique among the TMDLs, the EPA’s authority to impose the Bay TMDL relied on the agency’s existing statutory and regulatory authority pursuant to the CWA. In other words, this new approach to the Bay’s restoration under a traditional CWA TMDL instrument was predicated on the full, active use of the authorities and enforcement tools under the CWA rather than some new or concocted framework by the EPA.
In the first years of the Bay TMDL, there was no reason to believe that this effort to finally restore the Bay would not work. However, as the 2025 deadline approaches, it is clear that the Bay TMDL has neglected its intended purpose to remove the Chesapeake Bay from the list of impaired waterways.[65] The lack of faithful adherence to the TMDL and Accountability Framework has caused yet another missed Bay restoration deadline.[66] Even worse, by placing so much stock in the success of the Bay TMDL, the Bay States have abandoned smaller waterways, failed to protect communities from toxins, and—in some circumstances— thwarted the use of CWA tools for restoring water quality throughout the Chesapeake Bay watershed.[67]
III. Maryland’s Watershed Implementation Plan
- Early Divergence from Clean Water Act Tools
Much of the Bay TMDL and its Accountability Framework represents fairly straightforward applications of CWA authorities, though there were some novel approaches that likely reflected the necessity of implementing a TMDL of this magnitude. For example, the concept of establishing comprehensive WIPs outlining the numerous policies of each jurisdiction, while rare and perhaps unprecedented among the more than 75,000 TMDLs in existence,[68] made perfect sense for a multi-state TMDL. Each of the seven Bay jurisdictions submitted these WIPs in three phases, with each subsequent phase adding specificity and incorporating new information gathered during the previous phase.[69] The EPA also required the jurisdictions to set the pollutant load caps for each pollutant source sector within each of the tidal segments of the Bay watershed in their WIPs.[70] While there were other mandatory elements that the EPA required in their WIPs,[71] the jurisdictions still had considerable flexibility regarding how they were to close the gaps between baseline pollution levels and the levels needed to meet the TMDL.[72] As long as the WIP met the EPA’s requirement to provide “reasonable assurance” that the WIP would successfully reach the TMDL target, the states could choose their own avenue.[73]
The WIPs also constituted a somewhat creative exercise by the EPA and the states. Through this creativity and relative novelty in approach, enemies of the Bay TMDL found opportunities for litigation.[74] Nevertheless, the TMDL survived these challenges, with the EPA winning its defense at both the Middle District of Pennsylvania[75] and the Third Circuit[76] before the United States Supreme Court finally denied the industries’ petition, closing the case on this challenge to the Bay TMDL.[77]
Notably, it is unlikely that this case would have had the same outcome if the suit were filed today. The landscape of administrative law has dramatically shifted since those cases were decided. In 2024, the Court’s decision in Loper Bright Enterprises v. Raimondo ended the doctrine of judicial deference to federal agencies, [78] which the Third Circuit relied upon in its decision. Moreover, in 2022, the Court’s decision in West Virginia v. EPA emphasized the potency of the “major questions doctrine” concocted to thwart agency actions—such as the establishment of a novel, multi-state TMDL—that are deemed by a court to have significant economic impacts.[79] Agencies must now make a more concerted effort to trace their actions to a narrow, unambiguous grant of statutory or regulatory authority.
What this shift in administrative law means for the future of the Bay restoration efforts is not fully clear. One of the silver linings is an opportunity for the government to restore the CWA’s traditional role to protect communities and their waterways, and to disallow Bay policy experiments that usurp the CWA’s role. The Accountability Framework, the quintessential feature of the Bay TMDL restoration effort that distinguished it from its failed predecessors, was predicated on the vigorous use of existing statutory and regulatory authorities.[80] In addition, a more traditional approach hewing closely to the CWA’s text appears could also be more consistent with this Court’s preferred view of administrative law.[81] The same approach water quality advocates are urging for the sake of the Bay, protection of local water quality, and the benefit of vulnerable communities,[82] is also more likely to avoid scrutiny by an activist Supreme Court determined to divert power from the Executive Branch to the Judicial Branch.
While this approach to Bay restoration may seem mundane or uncreative, advocates recognize the immense but unrealized potency of the CWA. The scope of the CWA’s regulatory framework is vast compared to both the Bay TMDL’s narrow focus on nutrients and sediment and the several associated water quality standards for tidal waters of the Bay watershed. Congress broadly mandates under the CWA the eventual elimination of point source pollution along with attainment of all water quality standards—a goal generally characterized as making waters “fishable and swimmable.”[83] In its early analyses, the Supreme Court was floored by the boldness of the CWA.[84] For example, in Milwaukee v. Illinois, the Court characterized the CWA as “perhaps the most comprehensive legislation . . . ever developed in its field.”[85]As a “self-consciously comprehensive program” of pollution reduction, the CWA’s lofty goals likely encompass the Bay TMDL target and even other goals under the Bay Agreement beyond the scope of the CWA.[86] Consequently, a focused effort to fully implement and enforce the CWA would immensely benefit the Bay.[87]
b. How Maryland’s WIP Resulted in the Commodification of Pollution in Maryland
Through the TMDLs, the EPA requires states to allocate “pollutant loads,” which comprise pounds of nitrogen, phosphorus, and sediment among various sources and source sectors, by turning a pound of pollution into the common currency of those involved with implementing the Bay TMDL.[88] To some extent, the concept of commodifying pollution, or at least pollution reductions, was foreseeable. The EPA and Chesapeake Bay Program Partnership developed a highly complex system of pollution reduction progress tracking and modeling.[89] To facilitate the uniform crediting of pollution reduction progress from a vast array of programs, policies, and investments, the EPA would need to devise an accounting system and crediting protocols.[90] Without such a framework, it would be difficult to track progress and reports necessary to model environmental impacts, or to hold the jurisdictions accountable to their commitments.
The treatment of both the creation and reduction of pollution as a fungible token also dovetailed with the rise of market-based pollution reduction policies.[91] Maryland moved swiftly to embrace this flexible and alternative approach to water pollution reduction.[92] Within six months of the effective date of the Bay TMDL, the Maryland Department of the Environment (the “Department”) released a document (“Stormwater Accounting Guidance”) providing a catalog of alternative best management practices (“BMPs”) that a regulated stormwater source could choose in lieu of actually reducing stormwater pollution, which was based on a pollution reduction “credit” assigned to each BMP.[93] This Guidance reflected the Department’s willingness to embark down this path of treating all pollution as fungible, no matter the source or place.[94]
While the Stormwater Accounting Guidance was maligned by water quality advocates, its initial development and future implications were somewhat buried in the frenzy of activity during the early years of Maryland’s Bay TMDL implementation.[95] In Maryland, the period between 2010 and 2014 saw the development of the Phase I WIP, Phase II WIP, and the numerous new and generally ambitious regulatory and nonregulatory policies and programs.[96] In our opinion, these were the halcyon days for Chesapeake Bay restoration in Maryland. Although the Farm Bureau and others had already filed suit to stop the TMDL,[97] both Maryland and the federal government’s response to the Bay TMDL reflected a boldness, commitment, and seriousness in policymaking that had not been seen before. In Maryland, each major source sector of nutrient pollution—agriculture, wastewater, stormwater, and septic systems—saw several new laws passed, billions of dollars appropriated, and major new programs[98]Thus, a problematic technical document like the Stormwater Accounting Guidance could easily be overlooked, and any criticisms were muted by the otherwise favorable receptions given to Maryland’s early efforts to rise to the occasion.
However, by 2015, this zenith in Maryland’s Bay policymaking was manifestly in the rear view. Out went envelope-pushing policies justified by the State’s commitment to the WIP and in came a rapid fading of CWA implementation and enforcement replaced by some unusual new policy experiments.[99] The epitome of this new experimentalism is, perhaps, Maryland’s embrace of “nutrient trading.”[100]
- Pollution Trading
In July 2018, the Department’s nutrient trading regulations took effect.[101] Maryland had previously confined pollution trading to transactions between unregulated nonpoint sources of agricultural pollution that the Maryland Department of Agriculture (the “MDA”) managed.[102] Now, the new regulations formed a regulatedpoint source discharger with legal obligations under the CWA to ignore their regulatory responsibility to reduce pollution by contracting with another entity to reduce their pollution elsewhere. There are many reasons that pollution trading can be harmful, but three in particular stand out in the specific context of Maryland’s nutrient trading regulations.[103]
First, nutrient trading is a main source of credits likely to be generated and sold from unregulated sources, like farmers,[104] where there is no monitoring of pollution reductions. Farmers may generate credits by installing BMPs, never monitor the practical effects of the BMPs, and then trade those credits with assumed pollution reductions.[105] Research has consistently shown that agricultural pollution reduction practices generally result in less pollution reduction than initially anticipated.[106] While this particular criticism of nutrient trading schemes had previously been dismissed, it is now uniformly accepted in the Bay science community as true.[107]
The second and more egregious problem with Maryland’s nutrient trading regulations is that the State has fostered what could be considered fraudulent[108] trades in many other types of markets. A fundamental principle of pollution trading theory is that each pollution credit generated must be backed by an actual, additional pollution reduction—above and beyond what would otherwise occur.[109] The vast majority of credits generated in Maryland to date lack this concept of “additionality.”[110] According to Maryland’s nutrient credit registry, a significant portion of the credits traded to date have been generated by wastewater treatment plants,[111] which did nothing new nor additional as part of the credit generation. With technology already subsidized by taxpayers years ago, the facilities were allowed to flood the market with hollow credits not backed by any new pollution reductions by simply discharging pollution below their permitted limit.[112] Thus, the buyer of a pollution credit can forego the process of reducing pollution—as would otherwise be required by law—by purchasing credits from a seller who, in many cases, also did not reduce pollution.
Lastly, and worst of all, the CWA neither contemplates nor authorizes pollution trading.[113] The CWA expressly demands the eventual elimination of pollution from all point sources.[114] Yet, Maryland’s regulations effectively circumvent the CWA by allowing certain holders of a NPDES permit to neither eliminate nor reduce pollution as long as they hold a credit that another polluter generated.[115] Consequently, those who live near the pollution source suffer when a credit is exchanged and have been .excused from the CWA’s responsibilities to control their pollution.[116] Thus, nutrient trading creates and exacerbates pollution “hot spots” and harm communities long suffering from environmental injustices, which Congress had intended the CWA to help, living in “sacrifice zones.”[117] The current pollution trading policy seemingly adds a state-sanctioned seal of approval to that notion.[118]
Even in a rare scenario where a credit being purchased was not arguably fraudulent,[119] consequences are clear. Pollutants being controlled are predominantly nutrients, like nitrogen and phosphorus, because that is the primary source of pollution from a farm’s fertilizer.[120] Additionally, the pollution is reduced in a rural area that may otherwise enjoy relatively unpolluted conditions, and with fewer people potentially exposed to any such pollution in the first place.[121] On the other end of this transaction is an industrial facility that is usually in an urban area.[122] Rather than generating primarily nutrient pollution like a farm, there may be hundreds, if not thousands, of manmade chemicals found in the relatively toxic runoff from that facility.[123] Thus, a farmer might profit from selling credits, an industrial facility might save when buying credits instead of installing pollution controls, rural water might benefit from a little less nutrient pollution, but urban communities are stuck with more toxic runoff on their streets, sidewalks, and yards and in their water and air.[124] This example demonstrates the innumerable and cumulative environmental stressors urban communities may face under the Department’s nutrient trading scheme. It is difficult to imagine a more flawed policy that contradicts the CWA.
ii. Crediting of Alternative Stormwater Management Practices
Early in the process of developing Maryland’s WIP to meet their TMDL reduction targets, the Department understood that the most expensive part of the entire plan was the implementation of policies to reduce pollution from stormwater runoff.[125] Maryland leaders remained transparent about the funds and resources necessary to fulfill the State’s commitments[126] and unapologetic about pursuing an approach to Bay restoration centered on “equity” rather than “efficiency.”[127] Thus, Maryland fully understood and endorsed a WIP that centered the most expensive sector of nutrient pollution—stormwater—despite the cost.[128] The EPA reviewed this plan via the WIP to ensure there was a reasonable assurance that Maryland’s responsibilities under the TMDL would be satisfied.[129] This also echoes the intentions of the original congressional leaders who crafted the CWA in the 1970s and downplayed considerations of cost and financial burdens in an all-out effort to restore water quality.[130]
Regardless of whether the leaders developing Maryland’s initial Phase I and II WIPs understood it, their equity-based approach was also the most efficient approach to restoring water quality, a point lost by those in charge of Bay restoration in recent years. One of the central unintended consequences of Maryland’s current approach to Bay restoration is its overwhelming focus on nutrient pollution, especially nitrogen. When the Department evaluates the cost-effectiveness or efficiency of an application for the hundreds of millions of grant and loan dollars it doles out, it primarily considers only one singular pollutant: nitrogen.[131] Without thinking about just how inefficient this approach really is, the Department is now clearly evaluating how it spends its Bay restoration dollars based on efficiency rather than equity.
A project that efficiently or effectively controls nitrogen pollution may differ greatly from effective or efficient approaches to managing other toxic, carcinogenic, or otherwise extremely harmful pollutants.[132] Maryland seems content to label something “efficient,” even where the approach may only be cost-effective in reducing a single type of pollutant. Stormwater management would include pollution reduction projects that control hundreds or thousands of pollutants simultaneously. Moreover, these projects come with “co-benefits,” including mitigating the urban heat island effect, reducing flooding, boosting property value, benefitting air quality and public health, and more.[133]
The Department certainly understands and acknowledges the concept of co-benefits and the considerable benefits of stormwater management.[134] However, Maryland’s policy actions— simply do not match the State’s rhetoric. Instead of the billions of dollars of stormwater management committed to reducing the Phase II WIP that would be needed by 2025, the State ultimately allowed an approach that let municipalities earn “credit” for reducing this stormwater pollution by doing things that had little—or, in some cases, nothing—to do with actually managing stormwater. The Department’s 2011 Stormwater Accounting Guidance[135] contained stormwater management alternatives, and subsequent iterations only expanded the menu of cheaper, less valuable alternatives.[136] Some jurisdictions relied heavily or almost exclusively on practices such as street sweeping, in-stream construction projects, septic system practices, or pollution trading credits.[137]
For years, advocates argued for eliminating or at least capping the amount allowed for municipalities to claim credit, rather than desperately needed stormwater management and corresponding flood control.[138] In recent years, Baltimore City residents have endured repeated flood events of a magnitude and frequency that would have been virtually impossible under past climate patterns.[139] Even though basic stormwater management reduces flooding, inadequate stormwater infrastructure has caused sinkholes[140] or landslides[141] that have swallowed homes and street blocks.[142]
Recently, Baltimoreans[143] and Marylanders have directed their outrage against the adverse impacts of Maryland’s new approach to Bay restoration.[144] One of the most commonly funded practices under Maryland’s stormwater permit is “stream restoration,” an authorized alternative to stormwater management under the stormwater accounting guidance document.”[145] Unlike pollution trading, which is an inherently flawed policy,[146] stream restoration is a project that, if done correctly, can have some environmental benefits in certain places.
However, those benefits do not include the reduction of stormwater runoff. The massive proliferation of stream restoration in Maryland neglects its intended purpose. Stream restoration projects are supposed to restore physically degraded stream channels that prevent natural biological integrity and deliver sediment downstream from the ongoing erosion of their streambanks.[147] They do not prevent the generation of stormwater runoff in any way. Maryland’s ongoing policy of commodifying pollution reductions to an absurd degree has resulted in an incredible number of stormwater management credits given for a type of project that does not reduce runoff at all. The most significant problem is that the Department’s repeated refusal[148] to put any cap on the credits given for stream restoration or any other alternative to stormwater management has incentivized municipalities to seek the cheapest possible credits, including practices like stream restoration projects. An entire cottage industry of restoration contractors and, increasingly, construction companies with little experience working in sensitive riparian areas have sprouted up to meet the demand for cheap credits.[149]
The creation of a new or larger stream restoration industry has undercut demand for the stormwater management practices, its co-benefits for local communities and waterways, and treatment for pollution that would otherwise be directly discharged into their communities and urban waterways.[150] Whereas green infrastructure relies on the planting of trees, grasses, and other vegetation and soils, some stream restoration projects actually remove riparian forests.[151] Ironically, a policy designed to meet one of the Bay Agreement’s goals—nutrient reduction through a TMDL—works counter to the Agreement’s goal to increase riparian vegetative buffers, an outcome that the Department has acknowledged.[152] Thus, like pollution trading, the unintended victims of this ill-fated policy are our most vulnerable communities in desperate need of the benefits provided by green infrastructure and stormwater and flood water management.
c. How the WIP’s Unintended Consequences Lead to Water Degradation
Since the adoption of the Bay TMDL, there has been no significant improvement in attainment of Bay water quality standards.[153] This outcome is antithetical to the statutorily codified goals of the CWA[154] and calls for the return to a more traditional approach reliant on the potency of “one of the landmark statutes of the twentieth century.[155] The CWA has an abundance of available tools to improve water quality, yet, by focusing almost solely on the Bay TMDL, many of those tools have been under-utilized. Even worse, Bay restoration has ignored many of those tools, like setting local TMDLs with numeric and disaggregated waste load allocations and translating them into enforceable permit limits, in favor of policies nominally geared toward attaining the dissolved oxygen levels of the Bay TMDL.[156]
- TMDLs and How They Work
A TMDL is simply “the sum of the individual Waste Load Allocations for point sources and Load Allocations for nonpoint sources and natural background.”[157] TMDLs thus comprise the total amount of pollutants capable of being discharged into a waterway without impairing its designated uses,[158] making them the perfect instrument to facilitate the Bay Program Partnership’s new focus on prioritizing certain shallow waters. Thus, the TMDL framework allocates a specific volume of pollutants from point and nonpoint sources to be discharged to the receiving waterway.[159] Combined, the amount should not exceed the TMDL cap set based on the level of pollutants needed to restore that waterway.[160]
A core part of the CWA is its requirement for each state to create TMDLs for every water-quality limited segment.[161] This requirement ensures that, after applying modern technology-based controls on all point sources, every impaired water segment benefits from additional water-quality-based effluent limits inserted into permits for point sources.[162] These effluent limits would ideally be based on the numeric Waste Load Allocations (WLAs) of each TMDL.[163]
This pollutant cap lends itself well in setting numeric effluent limitations for reasons that can be identified using municipal stormwater (“MS4”) discharged through local Municipal Separate Storm Sewer Systems.[164] Accordingly, these permits are well-equipped to help address local impaired waterways, especially because urban stormwater conveys any and all pollution running off of the landscape.[165] The CWA requires that permits issued to municipal storm sewer systems have controls that reduce the discharge of pollutants to the “maximum extent practicable (or “MEP”),”[166] which presents a challenge because it is a lesser standard than other classes of point sources required under the CWA.[167] Despite this, the EPA’s current policy directs state agencies issuing permits to MS4s to include “clear, specific, and measurable permit requirements and, where feasible, numeric effluent limitations.”[168] The change in approach from the previous focus on narrative conditions[169] is important because it unlocks the potentially massive pollution reduction opportunity associated with urban stormwater runoff, a sector most state regulators did not previously consider.
The EPA’s policy change means that both MS4 permits and TMDLs could become more potent tools for pollution reduction, which opens a new opportunity for agencies and their TMDL writers to more effectively allocate load reductions among the various source sectors that might have previously been off limits. Agencies might now be encouraged to consider writing new TMDLs for pollutants that plague urban communities, which they might not have previously considered due to a perceived lack of effective options for reducing such pollution. Finally, agencies can also develop more nuanced, granular, “disaggregated” allocations in the parlance of the EPA guidance. Such an approach might allow regulators to distinguish the polluted runoff attributable more capably to MS4s, industrial stormwater sources, construction stormwater sources, and unregulated commercial, industrial, and institutional stormwater sources that might need to be “designated” for regulation under CWA “residual designation authority” (“RDA”).[170]
This examination of permitting in the stormwater context demonstrates just one way the CWA was intended to function in restoring impaired waterways down to the smallest segments. However, with the Bay TMDL being the center of attention over the last fifteen years, local TMDLs have been deprioritized, with greater consequences for the urban waters where most people live. In fact, a review of the EPA’s data reveals that the Department wrote one fewer TMDL during the entire eight-year period between 2015 and 2022 than the Department wrote in 2014 alone.[171] Worse, some of the existing TMDLs written prior to the Bay TMDL were deleted, further depriving local Maryland waters and communities of the promise of effective TMDLs and watershed restoration tools.
ii. The Bay TMDL Has Caused De-Prioritization of Local TMDLs
Maryland’s de-prioritization of local TMDLs favors achieving the Bay TMDL and creates major downstream effects. For example, without the numeric waste load allocations that accompany a local TMDL, MS4 permits are less likely to contain water quality-based effluent limitations beyond the weaker MEP standard. If Maryland had continued to develop its TMDL and MS4 permitting programs, Maryland’s most recently issued MS4 permits would have included disaggregated and numeric WLAs to bring about the restoration of dozens of local waterways.
Chesapeake Bay Program scientists and leaders have begun to recognize that this sort of progress has not happened. In May 2023, the Chesapeake Bay Program Scientific and Technical Advisory Committee (“STAC”) published a Comprehensive Evaluation of System Response (“CESR”) report evaluating the efforts and progress toward meeting the Bay TMDL.[172] The CESR report evaluated the last forty years of restoration and preservation efforts in the Chesapeake Bay, and concluded that these efforts have not been effective.[173] For example, leading STAC scientists determined that many of the efforts designed to reduce nutrient pollution in the Bay are not as effective as envisioned, and that efforts must shift toward a more “holistic” approach to restoring water quality, including “addressing the impact of emerging chemicals on the ecosystem.”[174]
The CESR report concludes that “[p]ossible changes to TMDL implementation could help prioritize water quality investments that have greater and more immediate impacts on living resources.”[175] The CESR report then states that “a tiered approach to TMDL implementation would identify the locations or habitats expected to achieve pollutant reduction limits first.”[176] Specifically, ”shallow water habitats in specific regions of the Bay may offer significant opportunities to produce living resource responses.”[177] STAC recommends that Bay jurisdictions focus more on local water quality in segments upstream of the main stem of the Chesapeake Bay, and less on the deeper waters of the Bay itself.[178]
It is unfortunate that the Bay TMDL, which was logically predicated on a greater use of a traditional statutory framework, ushered in an era that de-prioritized the full use of the CWA, including the greater use of traditional TMDLs for local waters. It is even more disappointing that our leaders are only now coming to this realization when advocates have urged state and federal leaders to jettison untested policy experiments and instead fully and vigorously recommit to the use of statutory authorities for waters everywhere.[179] The public should not have wait for the entire duration of the Bay TMDL process for leading Bay scientists to confirm what was manifestly obvious all along.
Fortunately, this new call for “a tiered approach” to Bay restoration could align with the overdue return of TMDL development and the CWA’s implementation and enforcement to levels reflective of historic norms. Maryland and her six sister jurisdictions in the Bay watershed must not make the same mistake twice. A tiered approach based on local TMDLs—one that shifts to an “outside in,” from shallower upstream water focus on Bay restoration as opposed to the “inside out” approach that has predominated for the last fifteen years—is necessary
At its core, a TMDL is a planning tool, making one a logical first step to restoring any shallow water body.[180] Maryland is already busy executing this new move toward shallow water restoration.[181] Before tens of millions more in restoration projects are paid for, it is imperative that the ecological gains from any such investments are protected by the “whole watershed” approach[182] to pollution prevention Congress created more than fifty years ago: the TMDL. We strongly advise Maryland to continue its past campaign of evaluating all waterways, designating the impaired ones, and, most importantly, expeditiously establishing TMDLs for each impaired segment. The future of watershed restoration in the Bay and around the country must rest upon a foundation of TMDLs that strike a balance between conservation investments, restoration projects, and pollution reductions through permits, enforcement, and TMDLs.
iii. The Bay TMDL’s Sole Focus on Nutrient Pollution Ignores Toxic Pollutants Entirely
With the concern for nutrient pollution being the central focus of the Bay TMDL[183] and the corresponding shift away from local TMDLs over the last decade, we argue that there has also been significantly less focus on toxic pollutant management in Maryland’s local waters. The CWA provides for comprehensive and indiscriminate control of pollutants, including lead, mercury, and other heavy metals; benzene, PCBs,[184] PFAS,[185] and other organic compounds, micro- and nano-plastics pervasive around the planet and in human bodies; and tens of thousands of other chemicals that may be present in industrial or even municipal “discharges” the CWA regulates.[186] Thus, a heavy emphasis on nutrient pollution has created harmful effects.
States must develop TMDLs for each pollutant impairing each water segment.[187] However, many states, including Maryland, have chosen to delay or even to de-list impairments that form the basis for a TMDL.[188] As agencies continue to slow-walk TMDL development, they become less able to establish permit limits to prevent toxic pollutants from contaminating waterways.
Worse, this decline in TMDL development creates a weak legal backdrop upon which toxic or emerging contaminants, such as PFAS,[189] may be regulated. The EPA has stated that there is no safe level of PFAS in drinking water,[190] and exposure to specific PFAS leads to various health concerns, including “altered immune and thyroid function, liver disease, lipid and insulin dysregulation, kidney disease, adverse reproductive and developmental outcomes, and cancer.”[191] Nevertheless, in 2020, industrial facilities discharged over 94,000 pounds of toxic chemicals, including PFAS, into Maryland’s waterways.[192]
In June 2024, the EPA set a federal maximum level of PFAS for drinking water,[193] which is zero for some PFAS chemicals and extremely low maximum contaminant levels (MCLs) for other forms of PFAS.[194] However, the most that the Department is now contemplating is to require BMPs for PFAS when point sources apply for individual NPDES permits,[195] a far cry from setting a numeric water quality criteria and/or establishing effluent limits for PFAS in permits as other states are now considering.[196] With fewer listed impaired waterways, fewer TMDLs, and fewer numeric effluent limitations generally, Maryland is a very long way from establishing comprehensive protections from PFAS, much less fully eliminating these harmful chemicals and other water pollutants as the CWA demands.[197]
IV. We Must Re-Center the CWA in the Bay Restoration Effort to Reduce Unintended Consequences and Maximize Co-Benefits
In Maryland, the unintended consequences and unfortunate outcomes of the State’s WIP have not corresponded with any major successes.[198] To the contrary, in October 2022, state and federal leaders of the Chesapeake Bay Program Partnership acknowledged that the 2025 target was hopelessly out of reach.[199] Like most states, Maryland is not on track to reach its own modeled pollution reduction targets.[200] Any nutrient reduction progress has little to do with the policies established under the WIPs in recent years. Instead, most of the nutrient reductions have come from wastewater treatment plant upgrades resulting from state policies enacted decades ago, long before the development of WIPs [201]and enforcement of the CWA[202] and the Clean Air Act.[203] Thus, the policy experimentation of the last decade has seemingly brought plenty of side effects without healing what ails the Chesapeake Bay, local water quality, and community health.
Thankfully, the solution is both straightforward and already underway. The prior retreat from traditional implementation and enforcement under the CWA in favor of policies that commodify pollution and rely on untested “market-based” principles may be coming to an end. For example, while enforcement of Maryland’s water pollution control and wetlands protection laws plummeted 85 percent below the long-term average in 2020,[204] they have somewhat rebounded[205] with indications that the traditional CWA enforcement posture of the Department of the Environment is returning.[206] Since 2020, the Maryland General Assembly has also passed new laws in response to previous and worrying trends in CWA permitting and enforcement.[207] These laws include a new legal right for the public to intervene in enforcement actions taken by the Department,[208] and requiring the Department to post all of its inspection and enforcement data in an online portal.[209] Other bills established new penalties for certain water pollution violations,[210] such as quarterly reporting of enforcement and inspection activities,[211] and provided a new right for the public to extend the comment period for certain types of permits to give the public more say in permitting decisions.[212] The most important law came in 2022, with the enactment of a bill that created monthly inspections and automatic penalties for facilities in significant noncompliance and required the State to eliminate its backlog of expired water pollution permits.[213] This bold, potentially nation-leading water pollution permit and enforcement reform came in response to the surge in pollution in Baltimore’s waterways after its two large sewage treatment plants teetered on the brink of failure.[214] This massive increase in pollution was the exact opposite of the outcome Maryland committed to in its WIP, which had foolishly put almost the entirety of the State’s nutrient reduction burden on an assumed over attainment in progress from wastewater treatment plants.[215] Instead of over-attainment, the inadequate enforcement regime in Maryland produced almost catastrophic under-attainment.[216]
The General Assembly has clearly expressed its desire to return to a more deliberate regime of CWA permitting and enforcement, going as far as removing discretion from the Department[217] and adding new staff targeted specifically for writing permits, conducting inspections, and enforcing the law.[218] With a vastly revamped compliance unit and a state law mandate to virtually eliminate significant noncompliance with water pollution control laws and expired permits,[219] Maryland has what it needs to dramatically reduce pollution of all kinds, from all regulated sources, into Maryland’s waterways and communities. Maryland will not only regain prior patterns of compliance activity but can surpass most states in reaching the congressional goal of eliminating water pollution from point sources regulated under the CWA. It may seem pollyannaish after all these decades to strive for this long overdue goal of eliminating pollution and attaining water quality standards, but the tides are changing. While restoring the Chesapeake Bay has not provided the impetus to eliminate pollution, the twin crises of climate change and contending with threats from nanoplastics and PFAS might be the catalyst for this effort.[220]
With the growing recognition of the public health impacts caused by these ubiquitous and highly persistent chemicals found on Earth and in most human bodies,[221] policymakers are turning to scientists and engineers to understand the solutions. In the wastewater pollution control context, one such solution is “potable water reuse,” which uses a series of filtration stages in sequence to transform polluted wastewater into pure water. A growing number of municipalities, primarily in the West, have already deployed this concept of water recycling for years[222] to resolve our worsening droughts and aquifer depletion caused by climate change.[223] In fact, local governments in Maryland have already started to embark on these projects without any state mandate.[224] Regardless of the reason motivating municipalities and other facilities to adopt ultra-filtration technologies, we believe this trend will accelerate rapidly with immense health and economic benefits in the years ahead.[225] What was once a congressional mission,[226] and later a pipedream after many failed attempts to restore the Bay could become a reality when pollution from thousands—and eventually millions—of point sources are fully eliminated, leaving only the increasingly scarce and valuable resource of pure water behind. That is the promise of the CWA if we choose to fully embrace it.
V. Conclusion
The Bay States’ early efforts to use the CWA to further restoration goals for the Chesapeake were admirable, and the unprecedented collaboration through the Bay TMDL was monumental. However, fifteen years later, progress is stagnant. In an effort to efficiently accomplish this lofty goal, the excessive experimentation and ignorance of the CWA that have come to dominate Bay restoration efforts has led to slow progress and new sacrifice zones for local communities and waterways. The consequences of these policies include the degradation of water quality, the de-prioritization of setting local TMDLs, and an almost complete lack of focus on toxic pollutants aside from nutrients. The CWA is a revolutionary piece of legislation with many effective, but forgotten, tools designed to protect this Nation’s waters. It is time to fully embrace the CWA for the sake of the Chesapeake Bay, local water quality, and public health, and to unlock the environmental and social co-benefits that come with widespread investment in pollution control strategies and technologies.
* Evan Issacson is a Senior Staff Attorney, Chesapeake Legal Alliance; The authors would like to acknowledge the recent passing of several Chesapeake Bay champions. Ridge Hall was a co-founder of Chesapeake Legal Alliance (“CLA”) and a leading expert on the Clean Water Act, having worked at EPA shortly after the Act and the Agency were created. Nick DiPasquale was another board member of CLA, a former Director of the Chesapeake Bay Program Office, and an exemplar of strong federal leadership for Bay restoration. Beth McGee was the director of science and agricultural policy for the Chesapeake Bay Foundation and a leader in estuarine science. Doug Myers was the senior scientist in the Chesapeake Bay Foundation’s Maryland Office and a lifelong advocate for the protection of estuaries like the Chesapeake. Each of these leaders were not only passionate advocates, but friends and mentors to us and countless others trying to restore and protect water quality in the region. We were deeply saddened by their loss, but also because they were not able to finally see the restored Chesapeake Bay that they deserved to enjoy. Their work inspires us to make sure that another generation does not have to go by before the Bay is brought back to health.
* Kennedi Fichtel is Staff Attorney, Chesapeake Legal Alliance; Kennedi would also like to recognize and thank her mother, who didn’t get the chance to see her reach her goals of following in the footsteps of the amazing individuals above. Without her mother, none of what she does would have been possible.
[1] See The Clean Water Act, 33 U.S.C. §§ 1251-1387 (2024); see also discussion infra Part II.A.
[2] 50 Years After the Clean Water Act—Gauging Progress, Gov’t Accountability off. (Oct. 17, 2022), https://www.gao.gov/blog/50-years-after-clean-water-act-gauging-progress (“Over the last 50 years, the health of our waters has improved . . . .”); Ann Mills, Water Quality Trading in the Chesapeake Bay: Partnerships for Success, Dep’t of Agric. (June 11, 2013), https://www.usda.gov/about-usda/news/blog/2013/06/11/water-quality-trading-chesapeake-bay-partnerships-success (“[T]he health of the Chesapeake Bay has improved since the 1970s.”).
[3] See discussion infra Part II.C.
[4] See discussion infra Part II.
[5] See discussion infra Part III.C.
[6] See discussion infra Part II.
[7] See discussion infra Part III.
[8] See discussion infra Part IV.
[9] See discussion infra Part II.
[10] Milwaukee v. Illinois, 451 U.S. 304, 317 (1981) (citation omitted).
[11] Dubois v. United States Dep’t of Agric., 102 F.3d 1273, 1294 (1st Cir. 1996) (quoting United States v. Puerto Rico, 721 F.2d 832, 834 (1st Cir. 1983)).
[12] Am. Petroleum Inst. v. EPA, 661 F.2d 340, 344 (5th Cir. 1981).
[13] Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1027–28 (5th Cir. 2019) (first quoting 33 U.S.C. § 1251(a) (2024); and then quoting Milwaukee, 451 U.S. at 318).
[14] See N. William Hines, History of the 1972 CWA: The Story Behind How the 1972 Act Became the Capstone on a Decade of Extraordinary Environmental Reform, 4 Geo. Wash. J. Energy & Env’t L. 80 (2013) (internal quotation marks omitted) (“Section 101(a) emphatically states that the objective of the 1972 CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”).
[15] See Sw. Elec. Power Co., 920 F.3d at 1004 (quoting Chem. Mfrs. Ass’n v. EPA, 870 F.2d 177, 195 (5th Cir. 1989); see also Am. Petroleum Inst. v. EPA, 540 F.2d 1023, 1028 (10th Cir. 1976) (“[T]he guiding star is the intent of Congress to improve and preserve the quality of the Nation’s waters. All issues must be viewed in the light of that intent.”).
[16] See Milwaukee v. Illinois, 451 U.S. 304, 318 (1981); see also Jessica Owley et al., The Tyranny of Baselines, 54 Env’t L. Rep. 10219, 10226 (2024).
[17] See Tex. Oil & Gas Ass’n v. EPA, 161 F.3d 923, 927 (5th Cir. 1998) (“The CWA prescribes progressively more stringent technological standards that the EPA must use as a guidepost in setting discharge limits for regulated pollutants.”); see also Am. Petroleum Inst., 540 F.2d at 1028 (“[T]he guiding star [of the Clean Water Act] is the intent of Congress to improve and preserve the quality of the Nation’s waters.”).
[18] Am. Petroleum Inst., 540 F.2d at 1032.
[19] See E. I. Du Pont de Nemours & Co. v. Train, 430 U.S. 112, 127 n.17 (1977) (quoting 33 U.S.C. § 1311 (1970 ed., Supp. V)); see also Sw. Elec. Power Co., 920 F.3d at 1016.
[20] Am. Paper Inst. v. EPA, 996 F.2d 346, 350 (D.C. Cir. 1993).
[21] 33 U.S.C. §§ 1311(a), 1342(a) (2024).
[22] See id. §§ 1311(b), (e).
[23] 40 C.F.R. § 125.3 (2024).
[24] 33 U.S.C. § 1311(b)(1)(C).
[25] 40 C.F.R § 122.44(d)(1)(i).
[26] See discussion infra Part III.
[27] See History of the Clean Water Act, EPA, https://www.epa.gov/laws-regulations/history-clean-water-act (last updated June 12, 2024) (explaining that the 1972 amendments became known as the Clean Water Act (CWA)).
[28] Michael W. Fincham, The Voyages of “Mac” Mathias, 14 Chesapeake Q. 13, 13 (2015) (“Mathias launched a historic, well-publicized boat trip in June 1973 that would last five days . . . . The tour, as planned, turned into a major media event that helped Mathias publicize the pollution problems of the Bay and persuade Congress to fund a major scientific study of the estuary.”).
[29] Greene Jones & Virginia K. Tippie, Foreword to Env’t Prot. Agency, Chesapeake Bay: A Framework for Action (Debra A. Barker et al. eds. 1983), https://d18lev1ok5leia.cloudfront.net/chesapeakebay/documents/Chesapeake_Bay_A_Framework_for_Action.pdf [hereinafter Framework for Action]; 132 Cong. Rec. S17410, S17413 (1986) (stating Senator Charles Mathias’s six recommendations for improving the Chesapeake Bay after the congressionally authorized study found high levels of toxic chemicals in the Bay).
[30] See 33 U.S.C. § 1251(a)(2) (2024) (providing that the national goal is “the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water[.]”).
[31] Id. § 1267(b) (codifying the Chesapeake Bay Program as a formal branch of the Environmental Protection Agency that is dedicated to protecting the Chesapeake Bay).
[32] Framework for Action, supra note 29, at 5–8.
[33] Id. at 19 (resulting in far more than three findings, but these three are the focus of this article; furthermore, engaging with the other study results would be outside the scope of this research). In particular, the last finding was and continues to be overlooked. See discussion infra Part III.D.
[34] Framework for Action, supra note 29, at 19 (emphasis added).
[35] Id. at 23 (explaining that Stage 1 addresses priority sub-basins of the Chesapeake Bay Basin, Stage 2 addresses intermediate priority sub-basins, and Stage 3 addresses setting annual conservation goals in soil conservation districts).
[36] Id. at 102.
[37] See The Chesapeake Bay Accountability and Recovery Act of 2014, Pub. L. No. 113-273, § 2(2), 128 Stat. 2967, 2967 (2014) (codified at 33 U.S.C. § 1267(a)) (defining “Bay States” as Maryland, West Virginia, Delaware, New York, Virginia, Pennsylvania, and the District of Columbia).
[38] See Chesapeake Bay Program, The Chesapeake Bay Agreement of 1983, at 1-2 (1983), https://d18lev1ok5leia.cloudfront.net/chesapeakebay/documents/1983_CB_Agreement2.pdf.
[39] Id. at 2(displaying that Virginia, Maryland, Pennsylvania, Washington, D.C., the Chesapeake Bay Commission, and the U.S. Environmental Protection Agency signed the first Chesapeake Bay Agreement).
[40] Id. at 1 (showing that this iteration of the Agreement did not contain robust goals and promises like the 1987 and 2000 Agreements).
[41] SeeChesapeake Bay Program, 1987 Chesapeake Bay Agreement 7 (1987), https://d38c6ppuviqmfp.cloudfront.net/content/publications/cbp_12510.pdf.
[42] Id.; see also Chesapeake Bay Program, The Chesapeake Bay Agreement: 1992 Amendments 2 (1992), https://d38c6ppuviqmfp.cloudfront.net/content/publications/cbp_12507.pdf (amending the 1987 Agreement but not reissuing the Agreement in its entirety).
[43] See Chesapeake Bay Program, The Chesapeake 2000 Agreement 1, 13 (2000), https://d18lev1ok5leia.cloudfront.net/chesapeakebay/documents/cbp_12081.pdf [hereinafter 2000 Agreement].
[44] Id. at 5–6 (stating that a failure to meet a 40% reduction in controllable nutrient loads led to a recommitment in 2000 to the same goal).
[45] Estuary Restoration Act of 2000, 33 U.S.C. §§ 2901–2909 (2024); see also John A. Mueller, 40 Years of Chesapeake Bay Restoration: Where We Failed and How to Change Course, 54 Env’t L. Rep. 10470, 10474 (2024).
[46] See 33 U.S.C. § 1267(g) (2024) (The EPA Administrator “shall ensure that management plans are developed[,] and implementation is begun by signatories to the Chesapeake Bay Agreement.”).
[47] See discussion infra Part II.C.
[48] Mueller, supra note 45, at 10470 (describing that the 2000 Agreement’s goals included sufficient restoration of the Bay such that it could be removed from the U.S. list of impaired waterways by 2010, which became impossible as early as 2007).
[49] 33 U.S.C. § 1313(e)(2); see also Am. Farm Bureau Fed’n. v. EPA, 792 F.3d 281, 290 (3d Cir. 2015) (finding that the CWA required states to submit TMDLs in their “‘continuing planning process’ not later than February 15, 1972”).
[50] See Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality–Based Regulation Under the CWA, 27 Env’t L. Rep. 10391, 10392 (1997).
[51] See 33 U.S.C. § 1365 (The CWA’s “citizen suit” provision suggests that Congress foresaw a need for such litigation.).
[52] Assessment, Total Maximum Daily Load (TMDL) Tracking and Implementation System (ATTAINS) database, Env’t Prot. Agency (Feb. 14, 2024), https://www.epa.gov/waterdata/attains [hereinafter ATTAINS]; see also Mary E. Christopher, Time to Bite the Bullet: A Look at State Implementation of Total Maximum Daily Loads (TMDLs) Under Section 303(d) of the Clean Water Act, 40 Washburn L.J. 480, 508 (2001).
[53] See Scott v. Hammond, 741 F.2d 992 (7th Cir. 1984) (holding that a state’s failure to submit a statutorily required TMDL amounted to a refusal to do so, thus triggering the EPA’s duty to develop a TMDL itself should one be necessary); see also Dianne K. Conway, TMDL Litigation: So Now What?, 17 Va. Env’t L. J. 83, 93-97 (1997) (summarizing subsequent TMDL litigation in various states following Scott, 741 F.2d 992).
[54] Am. Farm Bureau Fed’n, 792 F.3d at 291 (citing Env’t Prot. Agency, Off. of Water, Total Maximum Daily Load (TMDL) Program Draft TMDL Program Implementation Strategy§ 1.2 (1996)).
[55] See Water Quality Standards Attainment and Monitoring, Chesapeake Progress, https://www.chesapeakeprogress.com/clean-water/water-quality (providing historic water quality attainment data).
[56] Am. Farm Bureau Fed’n., 792 F.3d at 292 (providing that the EPA promulgated the Bay TMDL in December 2010).
[57] Developing the Chesapeake Bay TMDL, Env’t Prot. Agency (July 5, 2024), https://www.epa.gov/chesapeake-bay-tmdl/developing-chesapeake-bay-tmdl.
[58] See id.
[59] Mueller, supra note 45, at 10474.
[60] Exec. Order No. 13508, Chesapeake Bay Protection and Restoration, 75 Fed. Reg. 26226 (May 11, 2010).
[61] Env’t Prot. Agency, Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus, and Sediment § 7 (2010), https://www.epa.gov/sites/default/files/2014-12/documents/cbay_final_tmdl_section_7_final_0.pdf.
[62] Letter from Env’t Prot. Agency Region III to the Hon. L. Preston Bryant, Sec’y of Nat. Res. (Dec. 29, 2009), https://www.epa.gov/sites/default/files/2015-07/documents/bay_letter_1209.pdf [hereinafter Letter].
[63] Id.
[64] Id; see, e.g., Env’t Prot. Agency, Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus, and Sediment § 8 (2010), https://19january2017snapshot.epa.gov/sites/production/files/2014-12/documents/cbay_final_tmdl_section_8_final_0.pdf.
[65] Mueller, supra note 45, at 10475.
[66] See Karl Blankenship, With 2025 Chesapeake Bay Goal Out of Reach, Region Plans for What’s Next, Bay J. (Oct. 7, 2022), https://www.bayjournal.com/news/pollution/with-2025-chesapeake-bay-goal-out-of-reach-region-plans-for-what-s-next/article_cdf53162-4655-11ed-a3e3-bf2bb6077897.html (explaining that in 2022, it was already clear the 2025 goal would be missed and speculating as to what comes next); see also Michael W. Fincham, A Chesapeake Bay Recovery: Half Empty or Half Full? 11 Chesapeake Q. 2, 2(2012) (“In 1987 . . . the states and the federal government first committed themselves to specific goals and deadlines: a 40 percent reduction in nutrient pollution by . . . 2000. When that deadline was missed, another was set: 40 percent by 2010. And when that was missed, another goal was set: 40 percent by 2025.”).
[67] See discussion infra Part III.
[68] See ATTAINS, supra note 52.
[69] See Env’t Prot. Agency, Chesapeake Bay Watershed Implementation Plans § 8 (2024), https://www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay-watershed-implementation-plans-wips.
[70] Id.
[71] Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus, and Sediment, supra note 61, § 7.2.1.
[72] Id.
[73] Id.
[74] Am. Farm Bureau Fed’n v. EPA, 278 F.R.D. 98, 101 (M.D. Pa. 2011).
[75] Am. Farm Bureau Fed’n v. EPA, 984 F. Supp. 2d 289, 304 (M.D. Pa. 2013).
[76] Am. Farm Bureau Fed’n. v. EPA, 792 F.3d 281, 290 (3d Cir. 2015).
[77] See Am. Farm Bureau Fed’n v. EPA, cert denied, 577 U.S. 1138 (2016).
[78] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024) (“Chevron is overruled. . . . . [C]ourts need not and under the [Administrative Procedure Act] may not defer to an agency interpretation of the law simply because a statute is ambiguous.”).
[79] West Virginia v. EPA, 597 U.S. 697, 735 (2022) (“[I]t is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme . . . . A decision of such magnitude and consequences rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”).
[80] See Letter, supra 62.
[81] See Loper Bright, 144 S. Ct. at 2273; see also West Virginia, 597 U.S. at 735.
[82] See, e.g., Our Mission, Chesapeake Accountability Project, https://chesapeakeaccountability.org/our-mission (last visited Aug. 5, 2024) (protection of the Bay); Letter from Env’t Prot. Agency Region III to The Hon. L. Preston Bryant (protection of local water quality); Rena Steinzor et al., Env’t Integrity Project, Toxic Runoff from Maryland Industry 9 (2017), https://environmentalintegrity.org/wp-content/uploads/2017/02/Industrial-Stormwater.pdf. (protection of vulnerable communities).
[83] See The Clean Water Act, 33 U.S.C. §§ 1251-1387 (2024); see also discussion supra Part II. What is less obvious but helps explain why advocates are so interested in restoring the centrality of the CWA in agency activities is how the CWA also provides an extraordinary array of ecological and societal co-benefits beyond simply “fishable and swimmable” waters. See, e.g., 120 Cong. Rec. 11324 (1974) (statement of Sen. Edwin Muskie). As the CWA’s chief architect, Senator Muskie was keenly interested in how greater environmental protections and health and sanitation; thus, Congress created the CWA and other bedrock environmental statutes with broader visions of equity and social progress, aiming to advance those visions. See Joel K. Goldstein, Edmund S. Muskie: The Environmental Leader and Champion, 67 Me. L. Rev. 225, 231 (2015).
[84] See Dubois v. United States Dep’t of Agric., 102 F.3d 1273, 1294 (1st Cir. 1996) (describing the CWA as a “bold and sweeping legislative initiative” to improve the Nation’s waters) (citations omitted).
[85] Milwaukee, 451 U.S. at 318 (emphasis added) (citations omitted).
[86] Id. at 319.
[87] Another area of improvement is, for example, the National Pollutant Discharge Elimination System (“NPDES”) permitting program under the CWA, which has received far less attention in the recent history of the Bay TMDL despite the power of the program. See 33 U.S.C § 1342 (2024).The NPDES system ensures compliance with the CWA by regulating individual pollutants discharged from point sources, rather than all pollution sources and waterbodies. See Conway, supra 53, at 92. Rather than taking center stage in the states’ WIPs, the NPDES program has taken a back seat as states began allocating how much pollution each sector should reduce in various watersheds and determining which existing or future policies or programs would achieve those reductions. See, e.g., Cristen C. Flynn & Chantelle M. Green, Md. Dept. of Leg. Services, Cleaning Up the Chesapeake Bay: Maryland’s Current Policy Framework, Progress, and Implementation Costs 10 (2014), https://dls.maryland.gov/pubs/prod/NatRes/Cleaning-Up-the-Bay.pdf.
[88] Chesapeake Bay TMDL Fact Sheet, Env’t Prot. Agency (June 7, 2024), https://www.epa.gov/chesapeake-bay-tmdl/chesapeake-bay-tmdl-fact-sheet; see also Chesapeake Bay TMDL Executive Summary 8 (2010), https://www.epa.gov/sites/default/files/2014-12/documents/bay_tmdl_executive_summary_final_12.29.10_final_1.pdf.
[89] See Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus, and Sediment, supra note 57, § 7.2.1.
[90] Chesapeake Bay TMDL Executive Summary, supra note 88, at 5; see also BMP Calculations, Chesapeake Assessment Scenario Tool, https://cast.chesapeakebay.net/Documentation/BMPs (last visited Aug. 5, 2024).
[91] See Lisa Heinzerling, Selling Pollution, Forcing Democracy, 14 Stan. Env’t L.J. 300 (1995). Unfortunately, the rise of pollution trading at the turn of the century coincided with other market-based alternatives to environmental regulation that purported to instill greater efficiency into our environmental policies. Id.
[92] See e.g., Md. Dep’t of the Env’t, Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated: Draft Guidance for National Pollutant Discharge Elimination System Permits 1 (2011), https://mde.maryland.gov/programs/water/stormwatermanagementprogram/documents/npdes%20draft%20guidance%206_14.pdf (stating that this draft’s “primary goal . . . is to expand the list of traditional urban BMPs with a suite of alternative water quality practices.”).
[93] Id.
[94] Id.
[95] Cong. Rsch Serv., R42752, Clean Water Act and Pollutant Total Maximum Daily Loads (TMDLs) 11 (2014).
[96] Id.
[97] See Am. Farm Bureau Fed’n v. EPA, 278 F.R.D. 98, 101 (M.D. Pa. 2011).
[98] See Md. Gen. Assembly, Major Issues Report 2011-2014, at K-1 to -28 (2014), https://dlslibrary.state.md.us/publications/OPA/4/MIR_2011-2014.pdf.
[99] Chesapeake Accountability Project, Maryland Cap Enforcement Scorecard 15–16 (2022), https://chesapeakeaccountability.org/sites/default/files/attachments/2022-03/2022-cap-enfc-scorecard-3922.pdf [hereinafter Maryland Cap Enforcement Scorecard].
[100] Rona Kobell, MDE, MDA Join Forces to Establish Nutrient Trading, Bay J. (July 27, 2020), https://www.bayjournal.com/news/pollution/mde-mda-join-forces-to-establish-nutrient-trading/article_c7838a7d-66fb-5d92-a706-9efd79831567.html (“Maryland is moving ahead with plans to launch a nutrient trading program that it hopes will set the standard for a market-based and cost-effective way to reduce pollution in the Chesapeake Bay.”).
[101] See Md. Code Regs. 26.08.11.01 (2024).
[102] See generally Md. Dep’t of Agric.,AgBrief, Nutrient Trading Program 1 (2015), https://mda.maryland.gov/documents/ag_brief/agbrief_nutrienttrading.pdf.
[103] Evan Isaacson & Abel Russ, Ctr. for Progressive Reform & Env’t Integrity Project, Trading Away Clean Water Progress in Maryland2 (2017), https://environmentalintegrity.org/wp-content/uploads/2017/02/ChesBayMDTrading.pdf.
[104] Cy Jones et al., World Res. Inst., Nutrient Trading by Municipal Stormwater Programs in Maryland and Virginia: Three Case Studies 3 (2017), https://www.cbf.org/document-library/cbf-reports/nutrient-trading-by-municipal.pdf.
[105] Sara Walker & Mindy Selman, World Res. Inst., Addressing Risk and Uncertainty in Water Quality Trading Markets 2 (2014) (“Uncertainties can arise because of the possibility of farmers breaching their contracts, either because they did not implement practices, adequately maintain practices, or otherwise unintentionally defaulted on the trade agreement.”).
[106] Isaacson & Russ, supra note 103, at 15–20.
[107] See William Dennison et al., Chesapeake Bay Program, Achieving Water Quality Goals in the Chesapeake Bay: A Comprehensive Evaluation of System Response 32 (K. Stephenson & D. Wardrop
eds., 2023), https://www.chesapeake.org/stac/wp-content/uploads/2023/05/CESR-Final-update.pdf [hereinafter CESR Report].
[108] In this context, “fraudulent” means sold without being backed by an actual additional pollution reduction attached.
[109] See, e.g., Nina Randazzo, The Importance of Additionality and Accurate Baselines for Carbon Credit Integrity, Env’t Defense Fund (Mar. 3, 2023) https://blogs.edf.org/growingreturns/2023/03/03/carbon-credit-integrity/.
[110] See Water Quality Trading Registry and Marketplace, Md. Dep’t of the Env’t (Nov. 2024), https://mde.maryland.gov/programs/water/WQT/Pages/WQT_Registry_Market.aspx.
[111] Id.
[112] See Md. Dep’t of the Env’t, Bay Restoration Fund Targeted Wastewater Treatment Plants 1-2 (2024), https://mde.maryland.gov/programs/water/BayRestorationFund/Documents/7-24-BRF-WWTP%20Update%20for%20BayStat.pdf (displaying that all but 4 of the 67 major wastewater treatment plants were fully upgraded before the regulations took effect).
[113] After the Supreme Court holding in Loper Bright Enter. v. Raimondo, it is not clear whether a non-regulatory substitute for a statutorily required program that is actually antithetical to the purpose of the CWA would be found as a legally permissible interpretation of any part of the Act. 144 S. Ct. 2244, 2273 (2024).
[114] See Hines, supra note 14.
[115] See Letter from Scott Edwards, Co-Director Food & Water Justice, Food & Water Watch, & Fred Tutman, Patuxent Riverkeeper, Patuxent Riverkeeper Ctr., to Gary Setzer, Senior Advisor, Md. Dep’t of the Env’t (Jan. 8, 2018), https://mde.maryland.gov/programs/Water/Documents/WQTAC/MDWQTPRegsComments/Food-Water-Watch.pdf.
[116] See id.; see also Isaacson & Russ, supra note 103, at 5-6.
[117] Maximillian Alvarez, Scenes From a Sacrifice Zone: South Baltimore Residents Fight Back Against Industrial Pollution, In These Times (Aug. 14, 2024), https://inthesetimes.com/article/curtis-bay-action-south-baltimore-csx-pollution-air-coal.
[118] According to the Department’s trading market registry and market board, one frequent type of buyer or prospective buyer of credits are industrial facilities seeking to escape the burden of reducing industrial stormwater runoff from their facilities amidst a capital-intensive endeavor. Water Quality Trading Registry and Marketplace, supra note 110.
[119] In this context, “fraudulent” means sold without being backed by an actual additional pollution reduction attached.
[120] See Nonpoint Source: Agriculture, Env’t Prot. Agency (Nov. 6, 2024), https://www.epa.gov/nps/nonpoint-source-agriculture.
[121] See Jones et al., supra note 104, at 13-14 (finding that rural counties and agricultural communities may benefit from nutrient trading credits).
[122] Steinzor et al., supra note 82, at 3. In Maryland, hundreds of facilities and thousands of people are in and around Baltimore City. See Md. Dep’t of Com., Brief Economic Facts: Baltimore, Maryland 1, 3 (2024), https://commerce.maryland.gov/documents/researchdocument/baltcitybef.pdf.
[123] See, e.g., International Stormwater BMP Database, Int’l Stormwater BMP Database, https://bmpdatabase.org (last visited Aug. 5, 2024).
[124] Isaacson & Russ, supra note 103, at 28.
[125] See Md. Dep’t of the Env’t, Maryland Watershed Implementation Plan, at ES-14 (2010), https://mde.maryland.gov/programs/water/TMDL/Documents/www.mde.state.md.us/assets/document/MD_Phase_I_Plan_12_03_2010_Submitted_Final.pdf.
[126] See, e.g., Md. Dep’t of Legis. Serv., Fiscal Note for HB 549 of 2012, at 5 (2012), https://mgaleg.maryland.gov/2012rs/fnotes/bil_0009/hb0549.pdf; see also Md. Dep’t of the Env’t, Maryland’s Phase II WIP—Appendix C(2012), https://mde.maryland.gov/programs/water/TMDL/TMDLImplementation/Documents/Archive/FINAL_PhaseII_Report_Docs/Final_Documents_PhaseII/Appendix_C_PhIIWIP_Cost_Funding_Studies_101512.pdf
[127] Md. Dep’t of the Env’t, Maryland’s Phase II Watershed Implementation Plan for the Chesapeake Bay TMDL 53 (2012), https://mde.maryland.gov/programs/water/TMDL/TMDLImplementation/Documents/Archive/FINAL_PhaseII_Report_Docs/Final_Documents_PhaseII/Final_Phase_II_WIP_MAIN_REPORT_102612.pdf.
128 See, e.g., Md. Dep’t of Legis. Serv., Fiscal Note for HB 549 of 2012, at 5 (2012), https://mgaleg.maryland.gov/2012rs/fnotes/bil_0009/hb0549.pdf; see also Md. Dep’t of the Env’t, Maryland’s Phase II WIP—Appendix C(2012), https://mde.maryland.gov/programs/water/TMDL/TMDLImplementation/Documents/Archive/FINAL_PhaseII_Report_Docs/Final_Documents_PhaseII/Appendix_C_PhIIWIP_Cost_Funding_Studies_101512.pdf.
[129] Am. Farm Bureau Fed’n v. EPA, 984 F. Supp. 2d 289, 304 (M.D. Pa. 2013).
[130] See, e.g., EPA v. Nat’l Crushed Stone Ass’n, 449 U.S. 64, 69 (1980); Nat. Res. Def. Council v. EPA, 808 F.3d 556, 565 (2d Cir. 2015).
[131] See, e.g., Water Quality Restoration Funding Sources, Md. Dep’t of the Env’t, https://mde.maryland.gov/programs/water/TMDL/Pages/Funding_Sources.aspx (last visited Aug. 5, 2024).
[132] See generally Tom Schueler & Anna Youngk, Chesapeake Stormwater Network, Potential Benefits of Nutrient and Sediment Practices to Reduce Toxic Contaminants in the Chesapeake Bay Watershed, Part 1: Removal of Urban Toxic Contaminants (2015), https://cbtrust.org/wp-content/uploads/FY14-Potential-Benefits-of-Nutrient-and-Sediment-Practices-to-Reduce-Toxic-Contaminants-in-CBW.pdf.
[133] See Benefits of Green Infrastructure, Env’t Prot. Agency (Aug. 27, 2024), https://www.epa.gov/green-infrastructure/benefits-green-infrastructure.
[134] See generally Md. Dep’t of Nat. Res., Trust Fund Co-Benefit and Targeting Map Guidance, https://dnr.maryland.gov/ccs/Documents/trustfund/Trust-Fund-Co-Benefit-and-Targeting-Map-Guidance.pdf; see also Advancing Stormwater Resiliency in Maryland, Md. Dep’t of Env’t, https://sb-227-maryland.hub.arcgis.com/pages/resources-library (last visited Aug. 5, 2024).
[135] See Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated: Draft Guidance for National Pollutant Discharge Elimination System Permits, supra note 92, at 11.
[136] Id.
[137] Thomas B. Wheeler, Stormwater Requirements Come Under Legal Challenge in Maryland, Bay J. (Dec. 8, 2021), https://www.bayjournal.com/news/pollution/stormwater-requirements-come-under-legal-challenge-in-maryland/article_a21f9c84-5831-11ec-9b60-13d76a4aa2df.html; see also discussion supra Part III.B.1.
[138] Maryland’s NPDES Municipal Separate Storm Sewer System (MS4) Permits, Md. Dep’t of the Env’t, https://mde.maryland.gov/programs/water/stormwatermanagementprogram/pages/storm_gen_permit.aspx (last visited Nov. 22, 2024) (providing information on the several rounds of comments produced by numerous water quality advocates and experts and submitted to the Department of the Environment in response to their issuance of draft municipal stormwater permits for public comment).
[139] Rona Kobell, Where Was Everyone When Southwest Baltimore Flooded?,The Balt. Banner (Dec. 19, 2022), https://www.thebaltimorebanner.com/community/climate-environment/south-baltimore-flood-ellicott-city-GFRGBEWLDJFFDFRGOKI4AILTJU/; see also Evan Isaacson, Startling Surge in Annual Rainfall Levels Demands State Action, Chesapeake Legal All. (June 4, 2021), https://www.chesapeakelegal.org/startling-surge-in-annual-rainfall-levels-demands-state-action/. According to a nationwide Yale University survey, Baltimore City residents registered one of the highest single values in the United States for the question, “Do you feel like climate change will personally harm me?” Jennifer Marlon et al., Yale Climate Opinion Maps 2023, Yale Program on Climate Commc’ns (Dec. 13, 2023), https://climatecommunication.yale.edu/visualizations-data/ycom-us/.
[140] Barry Sims, Homes Demolished as Sinkhole on North Avenue Grew Larger, WBAL TV (July 5, 2022, 5:33 PM), https://www.wbaltv.com/article/north-avenue-baltimore-sinkhole-homes-demolished/40515043.
[141] Jeremy Berlin, Baltimore “Sinkhole” Actually a Landslide, Nat‘l Geographic (May 4, 2014), https://www.nationalgeographic.com/science/article/140502-baltimore-sinkhole-landslide-geology-science.
[142] Michael J. Pennino et al., Watershed-Scale Impacts of Stormwater Green Infrastructure on Hydrology, Nutrient Fluxes, and Combined Sewer Overflows in the Mid-Atlantic Region, 565 Sci. Total Env’t, 1044, 1045 (2016).
[143] Timothy B. Wheeler, Stream Restoration Draws Fire for Plan to Carve Up Baltimore Forest, Bay J. (Nov. 8, 2023), https://www.bayjournal.com/news/pollution/stream-restoration-draws-fire-for-plan-to-carve-up-baltimore-forest/article_6a4eb704-71cf-11ee-9a25-939480d99308.html.
[144] See, e.g., P. Mason et al., Chesapeake Bay Found., Evaluating an Improved Systems Approach to Wetland Crediting47–59 (2022), https://www.chesapeake.org/stac/wp-content/uploads/2024/04/FINAL_Report_Wetland-Crediting_24_004.pdf; see also Wheeler, supra note 137.
[145] Md. Dep’t of the Env’t, Water and Sci. Admin., Annual Report on Financial Assurance Plans and the Watershed Protection and Restoration Program 7 (2022), https://mde.maryland.gov/programs/water/StormwaterManagementProgram/Documents/FAP-WPRP/2022%20Stormwater%20Financial%20Assurance%20Plan%20Annual%20Report%20to%20Governor_%20MSAR%20%23%2010954%2010.18.2022.pdf.
[146] See discussion supra Part III.B.1.
[147] Barbara A. Doll et al., N.C. Stream Restoration Inst. & N.C. Sea Grant, Stream Restoration: A Natural Channel Design Handbook 9 (2003), https://repository.library.noaa.gov/view/noaa/36133.
[148] See Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated: Draft Guidance for National Pollutant Discharge Elimination System Permits, supra note 92.
[149] See, e.g., S.B. 798, 2024 Gen. Assemb., 446th Reg. Sess. (Md. 2024) (providing one of several legislative attempts that have been made to regulate, via a licensing body, those who seek to construct stream restoration projects).
[150] Stormwater management practices are generally referred to as “green infrastructure.” See Env’t Prot. Agency, EPA Green Infrastructure Case Studies: Municipal Policies for Managing Stormwater with Green Infrastructure 2 (2010), https://www.adaptationclearinghouse.org/resources/epa-green-infrastructure-case-studies-municipal-policies-for-managing-stormwater-with-green-infrastructure.html; C. Hegberg et al., Using Carbon to Achieve Chesapeake Bay (and Watershed) Water Quality Goals and Climate Resiliency, Chesapeake Bay Program60 (June 20, 2024), https://www.chesapeakebay.net/what/publications/using-carbon-to-achieve-chesapeake-bay-and-watershed-water-quality-goals-and-climate-resiliency-the-science-gaps-implementation-activities-and-opportunities.
[151] See Timothy B. Wheeler, Stream Restoration Techniques Draw Pushback, Bay J. (Oct. 7, 2020), https://www.bayjournal.com/news/pollution/stream-restoration-techniques-draw-pushback/article_ffc96960-0895-11eb-b36f-efa466158524.html.
[152] See P. Mason et al., supra note 144, at 54 (“The presentation noted that crediting for TMDL credit is only given for nutrient and sediment load reductions, without consideration of the living resources which are to be the beneficiaries of the load reduction. The importance of living resources and maintaining and improving their habitat is mentioned in numerous other Chesapeake Bay Agreement commitments. These commitments include goals for improving Submerged Aquatic Vegetation (SAV); wetlands; riparian forest; healthy streams, fish passage; and anadromous fish, brook trout, and other fisheries. Outcomes of restoration projects are known to vary. There may be overall improvement, while only some components may benefit. Other elements of the ecosystem may be lost or perform at a lower level of functioning in services and processes. This has led to debates about resource tradeoffs.”).
[153] Water Quality Standards Attainment and Monitoring, supra note 55.
[154] The Clean Water Act, U.S. Dep‘t of Just. Env’t and Nat. Res. Div., https://www.justice.gov/enrd/water (last updated Jan. 30, 2024).
[155] William L. Andreen, The Evolution of Water Pollution Control in the United States – State, Local, and Federal Efforts, 1789-1972: Part II, 22 Stan. Env’t L.J. 215, 216 (2003).
[156] See discussion infra Part III.C.2.
[157] 40 C.F.R. §130.2(i) (2024).
[158] See Am. Farm Bureau Fed’n. v. EPA, 792 F.3d 281, 290 (3d Cir. 2015).
[159] Id.
[160] Id.
[161] See 40 C.F.R. §130.2(i) (providing that water quality limited segment is defined as any segment where it is known that water quality does not meet applicable water quality standards and/or is not expected to meet applicable water quality standards, even after the application of the technology-based effluent limitations required by sections 301(b) and 306 of the Act); see also 40 C.F.R. §130.7(b).
[162] See 33 U.S.C. § 1311(b)(1)(C) (2024).
[163] Cong. Rsch Serv., R42752, Clean Water Act and Pollutant Total Maximum Daily Loads (TMDLs) 1 (2014).
[164] See Stormwater Discharges from Municipal Sources,EPA, https://www.epa.gov/npdes/stormwater-discharges-municipal-sources (last updated May 8, 2024); see also Maryland’s Municipal Separate Storm Sewer System (MS4) Permit Program, Md. Dep’t of the Env’t, https://mde.maryland.gov/programs/water/StormwaterManagementProgram/Pages/MS4-Landing.aspx (last visited Dec. 23, 2024).
[165] See Schueler & Youngk, supra note 132.
[166] 33 U.S.C. §1342(p)(3) (2024).
[167] Robert H. Wayland, III & James A. Hanlon, Env’t. Prot. Agency, Establishing Total Maximum Daily Load (TMDL) Waste Load Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs 3(2002), https://www3.epa.gov/npdes/pubs/final-wwtmdl.pdf.
[168] Andrew D. Sawyers & Benita Best-Wong, Env’t. Prot. Agency, Revisions to the November 22, 2002 Memorandum “Establishing Total Maximum Daily Load (TMDL) Waste Load Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs 2(2014), https://www.epa.gov/sites/default/files/2015-12/documents/epa_memorandum_establishing_tmdl_wlas_for_stormwater_sources_2014_00000002.pdf.
[169] Id.
[170] 40 C.F.R 122.26(a)(9)(i)(C)–(D) (2024).
[171] See ATTAINS, supra note 52; see also Jennifer Chavez & Mitchelle Stephenson, EPA Sued Over 53 “De-Listed” Rivers in the Chesapeake Bay Watershed,Earthjustice(Mar. 11, 2016), https://earthjustice.org/press/2016/epa-sued-over-53-de-listed-rivers-in-the-chesapeake-bay-watershed; see also Blue Water Balt. v. Pruitt,266 F. Supp. 3d 174 (D.D.C. 2017) (involving a 2016 suit where local environmental organization Blue Water Baltimore, represented by Earthjustice, unsuccessfully sued the EPA over the “delisting” of 53 river segments in 17 Maryland counties and Baltimore City).
[172] See generally CESR Report, supra note 107.
[173] Id.
[174] Id.; Using Carbon to Achieve Chesapeake Bay (and Watershed) Water Quality Goals and Climate Resiliency: The Science, Gaps, Implementation Activities and Opportunities, supra note 144.
[175] See CESR Report, supra note 107, at 10.
[176] Id.
[177] Id.
[178] Id. at 9.
[179] See, e.g., Maryland Cap Enforcement Scorecard, supra note 99. See CESR Report, supra note 107; see generally James Webber et al., Evaluating Water-Quality Trends in Agricultural Watersheds Prioritized for Management-Practice Implementation, 60J. Am. Water Res. Ass’n 305 (2024).
[180] Md. Dep’t of the Env’t v. County Comm’rs, 465 Md. 169, 193 (2019).
[181] H.D. 1165, 446th Gen. Assemb., Reg. Sess. (Md. 2024).
[182] Id. (noting that the title of the legislation is the “Whole Watershed Act”).
[183] See Chesapeake Bay TMDL Fact Sheet, supra note 88.
[184]Polychlorinated biphenyls. See What are PCBs?, Nat’l Ocean Serv., https://oceanservice.noaa.gov/facts/pcbs.html (last updated June 6, 2024).
[185]Per- and polyfluoroalkyl substances. See PFAS Explained, EPA, https://www.epa.gov/pfas/pfas-explained (last updated Oct. 3, 2024).
[186] 40 C.F.R. §401.15 (2024) (containing the list of toxic pollutants to be regulated under the CWA).
[187] See discussion supra Part III.C.1.
[188] SeeBlue Water Balt. v. Pruitt,266 F. Supp. 3d 174, 178 (D.D.C. 2017).
[189] There are many different substances under the umbrella of PFOS or PFAS. See PFAS Explained, supra note 185.
[190] Josh Kurtz, Report Details Alarming Levels of Toxins Being Dumped in Md. Waterways, Md. Matters (Sept. 28, 2022, 6:45 AM), https://marylandmatters.org/2022/09/28/report-details-alarming-levels-of-toxins-being-dumped-in-md-waterways/.
[191] Suzanne E. Fenton et al., Per- and Polyfluoroalkyl Substance Toxicity and Human Health Review: Current Stage of Knowledge and Strategies for Informing Future Research, 40 Soc’y of Env’t Toxicology and Chem. 606, 606(2021); see also Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), Nat’l Inst. of Env’t Health Scis. (May 3, 2024), https://www.niehs.nih.gov/health/topics/agents/pfc.
[192] Kurtz, supra note 190.
[193] See PFAS National Primary Drinking Water Regulation, 89 Fed. Reg. 32532, 32532 (June 25, 2024) (to be codified at 40 C.F.R pts. 141, 142) (announcing PFAS limit under the commonly known statute—Superfund; this statute, and drinking water regulations, are outside the scope of this article and will not be discussed at length for the sake of brevity); see generally Radhika Fox, Memorandum on Addressing PFAS Discharges in NPDES Permits and Through the Pretreatment Program and Monitoring Programs, Env’t Prot. Agency (Dec. 5, 2022), https://www.epa.gov/system/files/documents/2022-12/NPDES_PFAS_State%20Memo_December_2022.pdf. (releasing guidance on how States may use the CWA to implement PFAS restrictions).
[194] PFAS National Primary Drinking Water Regulation, 89 Fed. Reg. at 32532.
[195] See generally Fox, supra note 193.
[196] See, e.g., N.C. Off. of State Budget & Mgmt. Div. of Water Res., Fiscal Note for Adoption Amendment of 15A NCAC 02B .0200 and 15A NCAC 02B .0400 (2024), https://www.osbm.nc.gov/documents/files/DEQ_2024-07-10/open (explaining North Carolina’s new regulatory proposal for regulating wastewater discharges of PFAS).
[197] See The Clean Water Act, 33 U.S.C. §§ 1251-1387; 33 U.S.C. § 1342.
[198] See discussion supra Part III.C.
[199] Blankenship, supra note 66.
[200] See Env’t Prot. Agency, EPA Evaluation of Maryland’s 2022-2023 and 2024-2025 Milestones 6 (2024), https://www.epa.gov/system/files/documents/2024-05/2024_maryland_2022_2023_2024_2025_evaluation_draft_ms2.pdf.
[201] See Va. Code Ann. §§ 10.1-2117–10.1-2134.1 (1997); see also Md. Code, Env’t § 9-1605.2 (2004).
[202] Environmental Groups Announce Landmark Agreement to Resolve Wastewater Treatment Plant Violations, Blue Water Balt. (Nov. 2, 2023), https://bluewaterbaltimore.org/blog/environmental-groups-announce-landmark-agreement-to-resolve-wastewater-treatment-plant-violations/ (“The two WWTPs discharged twice as much dead zone-causing nitrogen pollution in 2021 as they did in 2019. That excess alone – more than 2 million pounds – was equal to nearly every other WWTP in Maryland combined.”).
[203] See 2025 Watershed Implementation Plans (WIPs), Chesapeake Progress, https://www.chesapeakeprogress.com/clean-water/watershed-implementation-plans (last visited Aug. 3, 2024).
[204] See Maryland Cap Enforcement Scorecard, supra note 99.
[205] See generally Md. Dep’t of the Env’t, Annual Compliance and Enforcement Report, Fiscal Year 2023 (2023), at 68-89, https://dlslibrary.state.md.us/publications/Exec/MDE/EN1-301%28d%29_2023.pdf.
[206] See, e.g., Christine Condon, Maryland Reaches $12 Million Settlement with Perdue Over Air Pollution from Soybean Plant, Balt. Sun (July 31, 2024), https://www.baltimoresun.com/2024/07/31/maryland-reaches-12-million-settlement-with-perdue-over-air-pollution-from-soybean-plant/ (“The civil penalty is the second largest in the agency’s history”).
[207] See infra notes 208-13 and accompanying text.
[208] S.B. 334, 442nd Gen. Assemb., Reg. Sess. (Md. 2021).
[209] H.D. 204, 442nd Gen. Assemb., Reg. Sess. (Md. 2021); S.B. 324, 442nd, Gen. Assemb., Reg. Sess. (Md. 2021).
[210] S.B. 546, 440th Gen. Assemb., Reg. Sess. (Md. 2019).
[211] Md. Gen. Assemb. Report on the Fiscal 2025 State Operating Budget (SB 360) and the State Capital Budget (SB 361) and Related Recommendations 230 (2024), https://mgaleg.maryland.gov/Pubs/BudgetFiscal/2024rs-budget-docs-jcr.pdf.
[212] S.B. 471, 444th Gen. Assemb., Reg. Sess. (Md. 2023).
[213] H.D. 649 443rd, Gen. Assemb., Reg. Sess. (Md. 2022).
[214] See Christine Condon, Blistering State Report on Baltimore’s Back River Wastewater Treatment Plant Details ‘Failures at Nearly Every Level’, Balt. Sun (June 9, 2022), https://www.baltimoresun.com/2022/06/09/blistering-state-report-on-baltimores-back-river-wastewater-treatment-plant-details-failures-at-nearly-every-level/.
[215] Md. Dep’t of the Env’t, Maryland’s Phase III Watershed Implementation Plan to Restore Chesapeake Bay by 2025, at 5 (2019), https://mde.maryland.gov/programs/water/TMDL/TMDLImplementation/Documents/Phase-III-WIP-Report/Final%20Phase%20III%20WIP%20Package/Phase%20III%20WIP%20Document/Phase%20III%20WIP-Final_Maryland_8.23.2019.pdf.
[216] See, e.g., Condon, supra note 214.
[217] Md. Code Ann., Env’t § 9-328.1(d) (2024) (removing enforcement discretion by establishing an automatic penalty for significant noncompliance).
[218] Md. Dep’t of Budget & Mgmt., Budget Highlights 28 (Jan. 20, 2023), https://dbm.maryland.gov/budget/Documents/operbudget/2024/proposed/FY2024MarylandStateBudgetHighlights.pdf.
[219] See Ridge Hall, Tackling the Zombies, Am. Coll. of Env’t Law. (Apr. 13, 2023), https://acoel.org/tackling-the-zombies/.
[220] See Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), Nat’l Inst. of Env’t Health Scis., https://www.niehs.nih.gov/health/topics/agents/pfc (last visited Aug. 5, 2024).
[221] See PFAS – Perfluoroalkyl and polyfluoroalkyl substances, Dep’t of Veterans Affs., https://www.publichealth.va.gov/exposures/pfas.asp (last visited Aug. 5, 2024).
[222] See, e.g., Case Studies That Demonstrate the Benefits of Water Reuse, Env’t Prot. Agency (Mar. 7, 2024), https://www.epa.gov/waterreuse/case-studies-demonstrate-benefits-water-reuse.
[223] Mira Rojanasakul et al., Uncharted Waters: America is Draining its Groundwater Like There’s No Tomorrow, N.Y. Times (Aug. 28, 2023), https://www.nytimes.com/interactive/2023/08/28/climate/groundwater-drying-climate-change.html.
[224]See PUREWater Westminster, City of Westminster, https://www.westminstermd.gov/purewater (last visited Aug. 5, 2024); see also Our wAAter, Anne Arundel Cnty., https://ourwaater.aacounty.org/about/managedaquiferrecharge.html (last visited Aug. 5, 2024).
[225] See, e.g., Case Studies That Demonstrate the Benefits of Water Reuse, supra note 222.
[226] See The Clean Water Act, 33 U.S.C. §§ 1251-1387 (2024).
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