Continuously confronted with land-use change, sea-level rise, nutrient and sediment pollution, invasive species, and overharvesting, the Chesapeake Bay has endured a rough few decades. As the largest and most biologically diverse estuary in the United States, the Chesapeake Bay is home to more than 3,600 plant and animal species, with a watershed that supports 18 million people. The Bay’s wide geographic range and its ecological diversity make it an immensely difficult estuary to protect. This is especially challenging when one can easily get bogged down by legal terms, fine print in old legislation, and rolls of bureaucratic red tape which complicates any restorative action. In the face of looming environmental hazards, the Chesapeake Bay needs holistic restoration which improves existing federal legislative tools and considers all aspects of environmental quality.
One issue is the fact that current policy addressing environmental issues in the Chesapeake Bay does not effectively combat transboundary pollution, which occurs when the source of pollution creates consequences that affect another party. In regards to the Bay, Pennsylvania and New York are upstream states, meaning those areas often do not bear the brunt of environmental degradation from nutrient runoff, but they do benefit from economic activity, especially agriculture. In contrast, the downstream states of Virginia and Maryland face the majority of the negative externalities associated with upstream state pollution, such as toxic contamination and harmful algal blooms. Due to this issue, allowing states to take restorative action independently is not productive, as upstream states have no incentive to reduce pollution because they are not directly burdened by it. Transboundary pollution greatly complicates restorative policy action, especially if that pollution is from nonpoint sources.
Nonpoint source pollution, which does not originate from a single and discrete source, composes the majority of the total pollution entering the Bay through its tributaries, such as nutrient runoff from farms and lawns. In the late 1960s, some environmentalists and politicians argued that in order to balance the amount of nonpoint source pollution entering the Bay, the Environmental Protection Agency (EPA) should tighten requirements on point sources to reduce the pollution that is easier to target. However, this is not only unjust, but also economically and environmentally inefficient as it does not address the problem holistically. Considering this, the Clean Water Act of 1970 attempted to address the issue of nonpoint source pollution.
The Clean Water Act (CWA) leaves regulatory standards for nonpoint source pollution up to the states, with the exception that if states exceed federal standards, they are then required to establish Total Maximum Daily Loads, or TMDLs. A TMDL is the maximum amount of a pollutant that can enter a body of water in order for it to meet and maintain water quality standards. The TMDLs for the Chesapeake Bay were created in 2010 and are a list of amounts of nitrogen, phosphorus, and sediment which would imply meeting CWA standards. Under the CWA, the EPA also has the power to redirect federal funding or tighten requirements if state efforts fail to meet federal standards. These powers are known as backstop actions: a last-resort measure for emergency situations. Unfortunately, the CWA and the 2010 TMDLs are inherently flawed in providing holistic restoration to the Chesapeake Bay, as they do not fully address transboundary pollution, fail to fully mitigate nonpoint sources, and do not consider all hazards to the Bay.
Political and economic circumstances largely complicate restorative action on transboundary pollution. For point sources, any significant increase in costs in order to comply with TMDLs is also a cost to consumers of industrial products or municipal actions which result in that pollution. This is especially controversial in downstream situations, where point sources are usually not the major cause of the pollution. For instance, if a nonpoint source in Pennsylvania is continuously polluting the Bay through the Susquehanna River but facing none of the repercussions, industries and their consumers in downstream states would push back on any large-scale EPA backstop action because it was not necessarily their fault in the first place. Additionally, the cost of upgrading and maintaining wastewater treatment facilities in order to comply with the 2010 Chesapeake Bay TMDLs is expensive, and these facilities argue that they cannot afford pollution mitigation, especially ones which cut funding as a punishment for noncompliance.
Nonpoint source mitigation through the TMDLs is also flawed. First, nonpoint source pollution is not addressed holistically under the 2010 TMDLs, because a simple listed budget of nutrient amounts cannot completely capture the great diversity and geographical range of the Chesapeake. Since nonpoint source pollution is inherently complex to regulate, the TMDLs do not follow the “polluters pay principle,” which asserts that sources responsible for pollution should pay for the prevention of its damage.
According to recent statistical analysis, TMDLs are lacking in ways to monitor for chlorophyll a, primary productivity, and phytoplankton blooms, all of which affect the overall health of the Bay. Researchers also argue that TMDLs should be more explicit in addressing climate change by considering the effects of warming water temperatures and sea-level rise on water quality. Research and monitoring already exists to address ecosystem water quality outside of only nutrients and sediment pollution, so Congress should improve TMDL standards to more accurately address the entire Bay ecosystem by adding these other components.
Further restorative action for the Chesapeake Bay can––and should––focus on improving existing policy tools. Congress should adopt legislation to make the Bay TMDLs of 2010 legally binding and invoke penalties for noncompliance, which can be enforced by federal agencies, the states, or citizens. Nonpoint source pollution, especially runoff from agriculture and suburban areas, should be specifically addressed and must entail the same level of mandatory action as point sources do under the TMDLs. Funding for TMDL enforcement should also be streamlined in order to ensure compliance with federal water quality standards. Congress should fund state and regional efforts to meet TMDL compliance because the Chesapeake Bay is inherently a national resource, transcending state boundaries, ecosystems, and water bodies, and pollution which is transboundary has proven to be ineffectively regulated when left to state discretion.
The last concept that the EPA needs to adopt through TMDL regulations is to consider holistic approaches to restoration. For the Chesapeake Bay, holism is the idea that all parts of the Bay––all watershed states, cities, farms, and plants and animals––are connected, and that parts of this system should be viewed in relation to the whole Bay. Among the civic environmentalism community, there are arguments that policies and regulators should not target local farmers and individuals like they are villains, but instead, regulators should work alongside local stakeholders to achieve shared goals. The idea of holistic restoration policy is also important when considering sustainability and longevity of environmental policy through time. The more thoughtful policy is, the longer it should last, and the more effective it should be––for all parties. The University of Maryland is taking great strides in organizing Chesapeake Bay water quality data which also includes economic and social variables, considering the farm economy and local stakeholders’ perceptions of Bay restoration.
Confronted with the combination of transboundary and nonpoint source pollution, the Bay needs a more holistic approach to regulatory policy that is focused on federal standards and fixes the major collective action problem between the states that persists today. Sustainable and proactive policy action is necessary in order to conserve the Chesapeake Bay, its watershed, its resources, and its ecological significance, both now and in the future.
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