The CWA at the Outer Edge of Doable
Ann Pesiri Swanson - Chesapeake Bay Commission
Chesapeake Bay Commission
Current Issue
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Chesapeake Bay restoration efforts have been pushing the limits of the doable since the early 1980s. Improving the conditions of the nation’s largest estuary, with a 64,000-square-mile watershed that spans six states and the District of Columbia, was, and remains, an ambitious undertaking. More than 40 years later, the current Total Maximum Daily Load is but the latest example of the ongoing evolution of a restoration effort that has been expanded, refined, analyzed, and evaluated like no other.

This evolution would not have occurred absent the formation and existence of an incredibly resilient basin-wide collaboration among the federal and state governments, the executive and legislative branches, research institutions, and stakeholders of all types. This resultant web of knowledge, policy, and funding provided a support structure for the restoration that has only grown in breadth and depth over time.

Originating with the first Chesapeake Bay Agreement in 1983, the Chesapeake Bay Program Partnership is the administrative home of the restoration effort. The commitments pledged by the signatories to the agreement and its successors, including the most recent in 2014, are voluntary, with few direct consequences for failing to deliver.

Amazingly, much of the collaborative, voluntary approach yielded great successes. In the first 30 years of the restoration, the population of the watershed grew by 43 percent while the nutrient pollution loads to the bay decreased by more than one-fourth. Nevertheless, the progress made was far short of what was needed to attain healthy water quality.

By 2008, it was clear that for additional progress to occur, accountability beyond mere political opinions was necessary. While the Clean Water Act provided for the TMDL process, there was no history of creating or implementing one on such a large, multi-jurisdictional scale. The process that followed tested both the strength of the partnership and the Clean Water Act itself.

The American Farm Bureau Federation sued EPA in 2011, claiming that the level of detail in the bay TMDL, including specific sector allocations and expectations of performance, illegally infringed on states’ rights. In upholding the TMDL, the district court relied on the 30-year history of the collaborative Chesapeake Bay Program, concluding it was, in fact, a successful example of cooperative federalism. While the court observed that cooperative federalism can sometimes be “messy and cumbersome,” the judge noted that it is “one of the most enduring characteristics of pollution control law over the past three decades.”

With the increased level of accountability provided by the TMDL, the program partners, as a whole, took a notable move away from broad policy initiatives, shifting toward inventorying actions taken to reduce pollution. A reporting and verification bureaucracy emerged, one exemplifying the “messy and cumbersome” aspect of cooperative federalism. In spite of this, the TMDL generated remarkable momentum toward pollution reduction.

With the adoption of a series of two-year incremental milestones, the partnership set an implementation target of having practices and programs in place by 2017 to achieve 60 percent of the 84-million-pound nitrogen reduction goal. A 2025 deadline to have 100 percent of the necessary practices and programs in place has further driven momentum.

Nevertheless, challenges remain. A lack of robust state funding in Pennsylvania demonstrates the limits to success when sufficient resources are not available. The TMDL’s exclusive focus on water quality has also diverted attention from other important aspects of the restoration, such as habitat and education. And climate change will only complicate the restoration efforts. Fortunately, the Chesapeake Bay Program continues to provide structure and science to support the effort. It remains the model for similar efforts around the globe.

National Treasure = Federal Obligation
Matthew J. Strickler - Secretary of Natural and Historic Resources for the Commonwealth of Virginia
Secretary of Natural and Historic Resources for the Commonwealth of Virginia
Current Issue
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In 2009, President Obama signed the executive order that reenergized a long, but to that point unsuccessful, effort to restore the Chesapeake Bay. Calling the bay a national treasure, Obama put EPA and the six bay watershed states on a course to save the Chesapeake from pollution and degradation by 2025.

The key difference between this effort and others that had failed over the previous thirty years was the requirement to develop a Total Maximum Daily Load — known as a pollution diet — for the bay. Under the Clean Water Act, states have the lead for developing TMDLs, but EPA has the authority to enforce them if state efforts do not produce results.

The Chesapeake Bay TMDL requires states to develop clean water blueprints — Watershed Implementation Plans — that clearly articulate what each state will do to achieve its required pollution reductions affecting the bay. The WIPs provide assurances that each state will produce laws, regulations, and funding necessary to meet its commitments by the 2025 deadline.

Under Governor Northam’s leadership, Virginia has done its part, and is on track to meet its pollution reduction requirements by 2025. Our Phase III WIP is the strongest bay cleanup plan in the commonwealth’s history, and is backed up by tougher nutrient limits for wastewater treatment plants and deadlines for farmers to implement priority conservation practices. Virginia has made record investments in agricultural water quality measures and clean water infrastructure, including dedication of significant American Rescue Plan Act funds.

Unfortunately, not every state has followed suit. In particular, Pennsylvania’s state legislature has failed to take the bay cleanup effort seriously, and has refused to provide the funding or legal authorities necessary for the Keystone State to live up to its commitments under the federal-state bay partnership, even with massive amounts of federal assistance available for this purpose under the ARPA legislation.

As a result, Pennsylvania’s Phase III WIP is woefully inadequate. Even the Trump administration said as much, though his EPA refused to hold Pennsylvania accountable by fulfilling its essential backstop responsibility to enforce the TMDL. Governor Northam had no choice but to join Delaware, Maryland, and the District of Columbia in filing suit against EPA for failing to do its part to ensure that the actions of one partner do not jeopardize the work and investment of the others.

We are currently working toward resolution of this lawsuit, and I am hopeful that we can arrive at an agreement that will avoid the courtroom and put in place measures that will bring Pennsylvania into compliance with the TMDL and the Clean Water Act. Without such an outcome, the most recent and most promising effort to save the Chesapeake Bay will fail.

That outcome is unacceptable to Virginia, and it should be unacceptable to every American who enjoys Chesapeake Bay oysters, blue crabs, and rockfish, vacations along its shores, or simply wants to go fishing or swimming in a local bay tributary.

Saving a national treasure requires national action, and the time for action is now. It has been two years since EPA reviewed state WIPs for adequacy. The Biden administration began by pledging a renewed focus on environmental protection. The bay states need EPA to step in and play the heavy in order to fulfil the promise of President Obama’s 2009 executive order.

Congress has a role to play here as well, by dedicating funding in the pending infrastructure package to help Pennsylvania and other jurisdictions pay for restoration work. Earlier this year, Governor Northam led the bay jurisdictions in asking Congress to fund the Billion for the Bay initiative to jump start the final phase of the Chesapeake cleanup.

Governor Northam and I remain optimistic about the prospects for Chesapeake Bay restoration. But that optimism relies on the federal government’s doing its part to hold all states accountable for reducing water pollution. We will continue working with the Biden EPA to ensure that happens.

Pushing the Legal Limits
Ridgway M. Hall - Chesapeake Legal Alliance
Chesapeake Legal Alliance
Current Issue
Pushing the Legal Limits

The challeneges of the biggest watershed restoration project in the country’s history are testing the limits of the Clean Water Act. The law’s “pollution diet” for the Chesapeake Bay, issued by EPA in 2010, serves as the basis of a ground-breaking multi-state experiment in cooperative federalism. The CWA tool is known by the abbreviation TMDL, for Total Maximum Daily Load of pollutants. The term has emerged front and center in reducing the contaminants that continue to enter the Chesapeake from countless individual sources in a watershed spanning 64,000 square miles. Mixed recent progress reports make us ask what needs fixing at the same time that some successes suggest measures that warrant replication in other regions.

For non-CWA buffs, a TMDL is the highest amount of a pollutant that can be discharged daily into a waterbody — critically, from all sources combined — and still meet water quality standards. A water quality standard has two components: a designated use (such as swimming or trout habitat) and the maximum ambient concentration of any pollutant that still allows the use to be achieved. A TMDL is calculated such that it can’t be exceeded without bad water quality results.

The Chesapeake Bay is the biggest estuary in the country. It is a multi-billion-dollar driver of the mid-Atlantic economy, including commercial and recreational fishing, shipping, tourism, and the many businesses that support them. Its watershed covers parts of six states — New York, Pennsylvania, Virginia, West Virginia, Maryland, and Delaware — plus the District of Columbia. It is home to 18 million people, plus over 3,500 species of plants, fish, and other animals. It is famous for its blue crabs, oysters, skipjack sailboats, and rich cultural history based on the bay’s bounty and abundance. However, several centuries of land development, deforestation, and industrialization have resulted in serious pollution of the bay and its tributaries. Nitrogen, phosphorus, and sediment runoff, mainly from farms and contaminated urban and suburban stormwater, have caused widespread exceedance of water quality standards for dissolved oxygen, chlorophyll-a (an indicator of algae levels), and water clarity. All of these are vital to the survival of fish, shellfish, and countless aquatic organisms up and down the food chain. As a result, the oyster population is at one percent of its historic level. Blue crabs and striped bass are also far below their levels in a healthy Chesapeake.

To reverse the damage, the bay jurisdictions began in 1983 to coordinate efforts to reduce pollution entering the estuary. They formed the Chesapeake Bay Program, with a staff in Annapolis. In 1987 Congress codified this arrangement in a new Section 117 of the CWA, which provided funding to achieve the desired water quality goals. However, after 24 years it became clear that the state-by-state approach was not working. Among other things, there was no mechanism for interstate enforcement. Virginia and Maryland had no authority to require farmers in Pennsylvania to curtail polluted runoff into the Susquehanna River, which accounts for half the freshwater flow into the bay.

In 2007 the states asked EPA to develop an interstate TMDL that would determine the amounts of nitrogen, phosphorus, and sediment that the bay could tolerate and still meet water quality standards. EPA would then allocate the allowable loadings among the states based on their contribution volumes, and further allocate them among major river basins to help the states in the planning process. This would enable each state to calculate how much it needed to reduce its discharges of each pollutant to reach the allowable levels. EPA proceeded to develop this biggest-ever TMDL, in consultation with the states, numerous technical experts, and the public.

The process got a boost in 2009 when President Obama issued an executive order declaring the Chesapeake a “national treasure” and proposing to “protect and restore the health, heritage, natural resources. and social and economic value of the nation’s largest estuarine ecosystem and the natural sustainability of its watershed.” It directed EPA and six other federal agencies to work with the states, local communities, and the private sector to develop a strategy to achieve these goals, including milestones, transparency, and stakeholder outreach and accountability.

At this point, let’s take a quick look at the history of EPA’s use of TMDLs. What we call the Clean Water Act today had legal predecessors. When Congress passed the far-reaching Federal Water Pollution Control Amendments in 1972, it preserved in Section 303 the states’ role to set water quality standards. If a state fails to do so, or EPA finds them inadequate, the federal agency can set them. States must maintain a list of all waters not meeting water quality standards (“impaired waters”), which must be submitted to EPA in even-numbered years. For all pollutant-impaired waters the state must develop TMDLs. If a state fails to do so, or if EPA finds the offering inadequate, EPA develops the TMDL and the state must include it in its water quality planning process. While EPA periodically reviews a state’s planning process for consistency with the act, the federal government may not step in and write the plan itself. What if a state fails to implement a TMDL? EPA has no authority to enforce it.

For a dozen years after enactment of what we came to call the Clean Water Act, EPA largely ignored the use of TMDLs. Then, starting in the mid-1980s, environmental groups began suing the agency and the states for failure to adopt them. Courts frequently put the agencies under consent orders to move forward, and soon TMDLs were being developed for impaired waters across the country. However, a Government Accountability Office report issued in December 2013 found that although by then some 50,000 TMDLs had been issued, often little was being done to implement them or prioritize the more needy waters.

In that same month, EPA issued “A Long-Term Vision for Assessment, Restoration, and Protection Under the Clean Water Act Section 303(d) Program.” This plan called on states to engage the public and prioritize their impaired waters. It promoted integrating the CWA’s planning and funding programs and the resources of other agencies (such as the Agriculture Department’s farmland conservation programs) to do a more effective job.

This followed a March 16, 2011, memorandum from EPA’s assistant administrator for water to the regional administrators on “Working in Partnership With States to Address Phosphorus and Nitrogen Pollution Through Use of a Framework for State Nutrient Reductions.” It stated: “Over the last 50 years. . . the amount of nitrogen and phosphorus pollution entering our waters has escalated dramatically,” producing a “degradation of drinking and environmental water quality.” Citing agricultural practices and stormwater runoff as among the main causes, the memorandum stated prophetically: “Nitrogen and phosphorus pollution has the potential to become one of the costliest and most challenging environmental problems we face.” That problem was already apparent in the Chesapeake.

When the federal environmental agency developed the Chesapeake Bay TMDL, it set annual allowable loadings of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus, and 6.5 billion pounds of sediment. To achieve these caps required a 25 percent reduction of nitrogen, a 24 percent reduction of phosphorus, and a 20 percent reduction of sediment loadings. This would be especially challenging because the two biggest sources of all three pollutants are farm runoff, carrying nutrient-laden manure and pesticides, and contaminated urban and suburban stormwater runoff. With minor exceptions these are nonpoint sources, and as such are not subject to regulation by EPA under the CWA. Instead, regulation of these sources is left to the various authorities held by states, and that regulation is spotty.

Given the extraordinary magnitude of the task, the TMDL included a novel “accountability framework” consisting of four main components. First, by 2017 the states were to have in place all the measures needed to achieve 60 percent of the required reductions, and by 2025 they need to have in place 100 percent of the needed measures. Second, each state was to develop a Watershed Implementation Plan, or WIP, describing in detail all the measures that will be taken to achieve the necessary pollution reductions with “reasonable assurance,” including permits, regulations, and other measures, along with the financial and personnel resources and legal authority to implement the measures. This requirement is based on the Section 303(e)’s “continuing planning process,” referred to above, and the resulting plan designed to achieve compliance with water quality standards and TMDLs. It is also supported by Section 117(g), applicable specifically to the Chesapeake Bay Program, requiring the development and implementation of “management plans” for pollution reduction.

The third component of the accountability framework was the use of two-year “milestones” and annual progress reports to ensure that each state is making reasonable progress toward the water quality goals. While this mechanism is not mentioned in the statute, EPA relied in part on Section 303(d)’s requirement that a TMDL “be established at a level necessary to implement the applicable water quality standards” and the broad goal in Section 101(a) “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” Every two years, each state publishes for public comment and EPA review its proposed measures for the coming two years, as well as its assessment of what it has accomplished during the previous two years.

The fourth component, in the absence of enforcement authority, is EPA’s use of “backstop” measures when a state either submits an inadequate WIP or fails to make reasonable progress on its milestones. These include expanding permit coverage under the federal water law’s National Pollutant Discharge Elimination System to point sources not currently covered, requiring additional reductions of nutrients or sediment from existing point sources, requiring greater offsets for new or expanded discharges, increasing federal inspections and enforcement, and conditioning or redirecting grant funds. EPA’s commitment to act as the referee to make sure that each state does its fair share was an essential component of the accountability framework. During the first six years of implementation, EPA imposed backstops where state WIP or milestone provisions, or actual progress, were inadequate. During the Trump years, EPA did not play this essential role, which, among other things, allowed Pennsylvania to fall far behind.

Various aspects of the TMDL, including the accountability framework, were challenged in court by agricultural and construction industry groups as exceeding EPA’s statutory authority. But those challenges were all rejected in 2015 by the Third Circuit in American Farm Bureau Federation v. EPA, and the Supreme Court denied certiorari a few months later.

In an article in the January/February 2016 issue of this journal, I discussed the initial implementation of the TMDL, the important issues resolved in the litigation, and the widespread cooperation among federal, state, and local stakeholders, including the NGO community and the private sector. This has been matched by the cooperative work done via the Chesapeake Bay Program Partnership by governors, agency heads, program staff, and the scientific community. I described the Chesapeake Watershed Agreement executed in 2014 by the governors of the bay states, the DC mayor, the Chesapeake Bay Commission (a unique body representing the legislatures of Pennsylvania, Virginia, and Maryland) and EPA, recommitting to the goals of the TMDL and to the broader objectives of the executive order. These include habitat and wetland restoration, species protection, and environmental education. I also identified some challenges: funding shortfalls, a shortage of technically skilled personnel, and difficulties in verifying that pollution control measures were actually improving water quality.

In the five years since then these problems have persisted, aggravated by lax regulatory enforcement. In addition, the program is facing new challenges that were not fully appreciated then. These include the significant adverse effects of climate change; the unexpected addition of six million pounds of nitrogen because the Conowingo Dam, on the Susquehanna River, used up its sediment storage capacity; the failure of Pennsylvania to adequately fund its WIP; the failure of EPA for four years to act as an effective referee; and constraints on field work caused by Covid.

DESPITE enormous efforts during the past decade, the health of the bay is a mixed picture. According to the Chesapeake Bay Foundation’s widely respected 2020 “State of the Bay Report,” water quality is improving, though at a slower pace than will be needed to meet the 2025 goals. The states are relying heavily on farmers to achieve major reductions of nitrogen runoff, but this is based mainly on voluntary action and substantial public funding. Blue crab and oyster populations are showing modest improvement. The 2025 target for total acres of bay grasses, which provide critical habitat for juvenile fish and birds and are an important gauge of progress, is 130,000 acres. By 2018 the figure stood at a 30-year high of 108,000 acres, but two seasons of heavier than usual rains, attributed to climate change, reduced that figure to 66,387. The 2025 goal for restored wetlands is 85,000 acres, but only 16,000 have been added since 2014.

Pennsylvania is responsible for 40 percent of the nitrogen, 24 percent of the phosphorus, and 31 percent of the sediment entering the bay. It is far behind the other states in nitrogen reduction, and in 2019 submitted to EPA a Phase 3 WIP (covering the period from the 2017 midpoint assessment through 2025) which on its face will not achieve the 2025 goals. It also shows an annual funding shortfall of $324 million, with no fresh source of funding in sight. The state’s failure to provide the needed funds reflects the fact that a majority of its legislators are not from the Chesapeake watershed (almost entirely the Susquehanna River watershed), and many complain that they get much less enjoyment from the Chesapeake Bay than do Marylanders or Virginians. This overlooks the fact that the state’s failure to clean up the Susquehanna is not just causing problems in downstream waters, but has major adverse impacts on Pennsylvania’s own drinking water supplies and recreational and commercial activities.

After EPA approved Pennsylvania’s WIP in 2019 and failed to apply backstops, the attorneys general of Maryland, Virginia, Delaware, and the District of Columbia sued the federal agency based on EPA’s “nondiscretionary duty” under Section 117(g) to “ensure that management plans are developed and implementation is begun . . . to achieve and maintain . . . the [prescribed] nutrient goals . . . for the quantity of nitrogen and phosphorus entering the Chesapeake Bay and its watershed.” The suit alleges that the agency’s approval of the defective WIP violated this duty. A similar allegation was made concerning EPA’s approval of New York’s facially inadequate WIP. New York has since tried to cure its defects. The Chesapeake Bay Foundation filed a similar suit. Fortunately this litigation does not appear to have dampened the states’ commitments to the restoration goals or the partnership process.

What will the new administration do? EPA’s Michael Regan has pledged strong support for the bay restoration. Whether this results in backstops or other measures remains to be seen. As of this writing we are awaiting appointment of an administrator for Region 3, where the bay program is housed. In any case, Pennsylvania’s shortfall will pose a big challenge for the partnership going forward.

Meanwhile the effects of climate change in the watershed are now far more apparent than they were 10 years ago. Sea-level rise is already affecting many low-lying communities, routinely flooding large areas and destroying wetlands. Heavier spring rains during the past three years have washed larger quantities of contaminated soil into the bay and its tributaries. In addition to the devastating effects on fragile bay grasses noted above, it is estimated that this “new normal” level of precipitation will annually bring five million more pounds of nitrogen into bay waters. Each state WIP now has provisions to deal with climate change, and to build resiliency into its land use planning. Priority will increasingly go to measures that both reduce nutrient and sediment runoff and sequester carbon dioxide, such as streamside vegetated buffers, wetland restoration, and urban tree canopy.

In addition, the Conowingo hydroelectric dam, located on the Susquehanna River in Maryland just below the Pennsylvania border, has for many decades trapped large quantities of sediment behind it. This trapping capacity has been exceeded, resulting in an additional 6 million pounds of nitrogen and 260,000 pounds of phosphorus flowing into the bay annually. By coincidence in 2014 the 50-year license of the operator, Exelon, came up for renewal before the Federal Energy Regulatory Commission. There was hope that Maryland would use its CWA Section 401 authority to require Exelon to contribute major funding to reduce this pollution and thereby protect downstream water quality, but that fell through when Maryland settled for a contribution that was viewed by many as way too cheap. The license is being challenged in the D.C. Circuit.

There was no plan to deal with this additional pollution. Because the states had no extra funds, and cost allocation will be contentious, they decided to develop a new Conowingo WIP with long-term funding. To my knowledge, this is the first interstate WIP in the country, and something not contemplated by the CWA. Instead of becoming part of a state’s “continuing planning process,” this plan will be supervised by the Bay Program Partnership. Specifically, this will be the Principals’ Staff Committee, which consists of all the state agency heads, reporting to the governors. The states anticipate selecting an interstate entity to manage the activities and the finances, such as the Susquehanna River Basin Commission, but the financing has yet to be identified.

What have we learned from all this? First, a multi-state TMDL is the only Clean Water Act tool available to address interstate pollution. It has provided a highly effective framework, enabling the states to secure an allocation of the watershed-wide loadings for three major pollutants. Given the increasing recognition of the effectiveness of watershed-wide approaches to water quality restoration, this is a valuable lesson. Second, the pathbreaking level of detail in the WIPs provides useful models for other watersheds. Third, the accountability framework has been essential not only in keeping the states moving forward, but in providing each state with the needed assurance that the others are doing their fair share.

The failure of Pennsylvania to lift its part of the burden is as much the failure of EPA oversight as it is the failure of the legislature in Harrisburg to provide the funds. It also highlights EPA’s inability to actually enforce a TMDL, which is a shortcoming in the statute. While Section 117 gave EPA a bit more authority to require WIPs than Section 303(e) alone, since such plans are required by Section 303(e) and this accountability framework was upheld based on that section by the Third Circuit, this framework is available for use elsewhere.

Fourth, establishment of the Chesapeake Bay Program office, with a permanent staff of scientists and managers, has been vital to the provision of technical support and the performance of tasks one time for all seven jurisdictions. Fifth, the Chesapeake Watershed Agreement of 2014, by recommitting all the parties to the TMDL and the broader watershed restoration objectives of the executive order, facilitated the establishment of specific goals and outcomes, with activities managed by committees and work groups drawing from all of the bay states under the oversight of the Principals’ Staff Committee.

Sixth, the process has demonstrated that cooperative federalism — which in this case involves federal, state, county, and local governments, universities, NGOs, and private individuals — can succeed. This was energized by a commitment to collaboration, outreach, and good communications.

In the scientific area, the use of modeling to predict environmental outcomes has been refined and applied in multiple contexts. These include the setting of the TMDL itself, using a series of interconnected bay watershed models, and the ability to predict what the likely reductions in pounds per year of nitrogen, phosphorus, and sediment will be from the application of any of some 200 different Best Management Practices on any given piece of property. Studies have also confirmed that the most cost-effective reductions of these pollutants occur on farms. Since Department of Agriculture cost-share programs have often not been adequate, this has stimulated state legislation to provide incentives for farmers to install the needed measures, including outright purchase of the pollution reductions. The only sector that has been losing ground is stormwater, both uncontrolled runoff and areas covered by MS4 permits. Here experience shows a need for more green infrastructure and stronger enforcement.

Barring a miracle in Pennsylvania, the bay states will not meet their 2025 water quality goals on time. Other significant challenges include climate change, financing the Conowingo WIP, the perennial shortfall in program funding and technical support, and the need for strong federal oversight. However those issues are dealt with, we have learned a lot from the Chesapeake Bay restoration so far. Given the widespread determination to succeed, there is good reason to believe that the water quality and the overall health of the watershed will continue to improve. It is exciting to see people rising to the challenge. TEF

COVER STORY The Chesapeake Bay restoration faces big challenges on multiple fronts. Some of the thoughtful response measures are stretching the Clean Water Act creatively. The results provide lessons for complex environmental problems elsewhere.

It's Deja Vu All Over Again With Storm Over Waters of U.S. Rule
Ethan Shenkman - Arnold & Porter
Arnold & Porter
Current Issue
Ethan Shenkman

Next year will mark the 50th anniversary of the Clean Water Act, one of the nation’s bedrock environmental laws. Chances are we will be no closer to resolving its jurisdictional scope. Practitioners involved in the use and management of natural resources and the compliance issues they raise will want to pay close attention, as the situation is turbulent at best.

In the early 1980s, EPA and the Army Corps adopted a definition of “waters of the United States” — found in the text of the statute but not defined further — that included a broad swath of non-navigable tributaries, adjacent wetlands, and other waters. That definition lasted nearly four decades, although it experienced rough waters in the Supreme Court. The government’s approach to CWA jurisdiction was upheld in Riverside Bayview (1985), trimmed back in Solid Waste Agency of Northern Cook County (2001), and thanks to a splintered 4-1-4
decision rendered topsy-turvy in Rapanos (2006).

In the aftermath of Rapanos, stakeholders debated which view should prevail: Justice Scalia’s plurality opinion limiting jurisdiction over wetlands to those with a continuous surface connection to other waters of the United States (supported by four justices); or Justice Kennedy’s concurring opinion covering all wetlands with a “significant nexus” to navigable-in-fact waters. For the most part, agencies and courts would apply the significant-nexus test, but its precise meaning proved murky.

The Supreme Court expressed frustration with this state of affairs — albeit arguably of their own making. Justice Alito lamented in Sackett (2012) that “for 40 years, Congress has done nothing to resolve this critical ambiguity” and “EPA has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase.” He proclaimed, “The reach of the Clean Water Act is notoriously unclear.”

The Obama administration finally decided to take the plunge in 2015, issuing a major WOTUS rulemaking based on a voluminous scientific record. Scores of plaintiffs challenged the Obama rule; scores of intervenors sought to defend it. There was a small detour back to the Supreme Court to decide whether the proliferating legal challenges should be heard in the appeals courts or the trial courts in the first instance (answer: the latter). And then, an election happened. The Trump administration, fulfilling a campaign promise, issued an executive order directing the agencies to hew more closely to Scalia. The agencies repealed the 2015 regulation and replaced it with the Navigable Waters Protection Rule, scaling back CWA jurisdiction.

Scores of plaintiffs challenged the Trump rule; scores of intervenors sought to defend it. And then, once again, an election happened. This time it was the Biden administration fulfilling a campaign promise and issuing an executive order. EPA and the Corps announced an intent to proceed with new rulemakings in two stages: first to repeal, then to replace. (Sound familiar?)

Meanwhile, challenges to the Trump rule are still pending in over a dozen courts around the country. Justice Department attorneys had no interest defending the Trump rule while the Biden administration charted a new course. So the government filed a series of motions for voluntary remand, asking the courts to send the matters back to EPA for further proceedings. And, in DOJ’s view, the Trump rule could stay in place in the meantime.

Safe harbor? Not so fast. In late August, Judge Rosemary Márquez of the District Court of Arizona granted DOJ’s remand request, but in an unexpected twist vacated the Trump rule. The judge’s order resurrected the 1980s-era definition, returning full circle to where the WOTUS journey began. Judges in other cases expressed disagreement with Marquez’s remedy, since the courts had not decided the merits of the pending legal challenges.

A debate ensued as to whether Márquez’s order had nationwide effect. The agencies cut it short, however, by posting a notice on their websites in September indicating that the Trump rules would no longer be enforced. EPA and the Corps announced that they, too, would return full circle to the definition of “waters of the United States” first promulgated in the early 1980s — at least for now.

Channeling Bill Murray in Groundhog Day, environmental practitioners find themselves back in the situation they were in for decades before 2015: a broad and open-ended WOTUS definition, subject to numerous administrative and judicial interpretations, exacerbated by a splintered Supreme Court opinion.

Peering down river, what will happen next? Will Márquez’s order be appealed? Will the agencies propose new rules any time soon? Will they scale back their ambition and make minimal changes to the WOTUS definition this time around? Or will they launch into new and unchartered waters? Time to batten down the hatches once again.

It's Deja Vu All Over Again With Storm Waters of U.S. Rule

War on Science — and Environment
Stephen R. Dujack - Environmental Law Institute
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue

One voter in seven believes that Hillary Clinton is running a cabal of satan-worshipping cannibalistic pedophiles. A member of Congress charges that last year’s wildfires in the western states were caused by Jewish space lasers. A U.S. senator insists that China aims to breed a race of super soldiers by harvesting visiting athletes’ DNA when it hosts the winter Olympics in 2022. The Ohio legislature recently heard testimony alleging that the Covid vaccines are magnetizing people. According to a 2012 survey, one in four members of the U.S. public does not know the Earth orbits the Sun. A poll by the Associated Press in 2014 found that four in ten Americans dispute evolution and half do not believe the Big Bang theory.

According to Peter Lantos, reporting new poll results in the Skeptical Inquirer last spring, the situation is getting worse. Indeed, one third of the country is now suspicious of science in general, a larger portion of the populace than in other surveyed nations. “People are becoming increasingly distrustful of science; they express doubts about the validity of scientific findings. One hears popular slogans, such as that the scientific method doesn’t work; science has an agenda; science is unreliable.” This is bad news for environmental protection, which is based on government’s using the best available science to require public and private actions.

The signal environmental statutes were passed by a Congress dominated by veterans of World War II. In that conflict, the Manhattan Project showed what government-funded science could produce when it is a matter of national security. It is hard, however, to see a weapon of mass destruction serving as a positive example. But there were other miracle inventions during that war that have unequivocally benefited humanity, such as radar and digital computers. Americans were impressed by what science could do in a positive vein as well.

After the cessation of hostilities, lawmakers established government funding of basic research on an ongoing basis by creating the National Science Foundation. But national security came back as a driver of government projects during the Cold War. When Americans were shocked by the launch of the first artificial satellite by the Soviet Union, the U.S. response was to invest even more billions in science and engineering research. The Apollo Program that won the ensuing space race became the new standard for what government-funded science could achieve for national security when put to the test, although this one had a justification in scientific exploration as well.

It is no coincidence that all the major environmental statutes were passed during the decade that began with Americans regularly treading the lunar dust. To congressional leaders at the time, the environmental threat was as important to national security as the standoff with the Soviets. And lawmakers from both parties, reflecting public sentiment, had a trust in science once again to come to the rescue.

The statutes they enacted require new science that in turn requires a response. Ratcheting down health-based air quality standards set with “an adequate margin of safety” is key to the Clean Air Act. The Clean Water Act insists on maintaining or restoring the “biological integrity” of the nation’s waters. Regulations to achieve emissions targets often require the “best available” or sometimes “maximum achievable” pollution reduction technology. EPA even engages in “technology forcing” — setting environmental goals beyond present-day engineering capabilities.

The problem now is that the science behind further government interventions in the market is difficult to convey. Today, pollution and its effects can be invisible. Take this hard fact: more Americans have died of air pollution than have died of the coronavirus. And the toll of particulate pollution alone continues at over 100,000 cases of “premature mortality” a year. The fact that small particles are usually not visible means there was little outcry when EPA decided last year not to lower the ambient standard — in effect, refusing to lower the death toll.

In fact, we are losing American lives to air pollution at a faster rate over time than the nation lost combat soldiers during World War II. Every ten days we endure another Pearl Harbor, an event that shocked the nation and loosened billions to win the war, with little public concern over personal sacrifice — including giving one’s own life, to defend our way of life.

Unfortunately, to quote Pogo, in this case “the enemy is us.” In addition, the public can’t see deaths from air pollution; only with a broad statistical universe can one tease out the huge death toll. It then becomes challenging to create the kind of public response that helped win World War II and the space race. Even more difficult to convey are the benefits of decarbonizing, since the worst effects are years away and greenhouse gases cannot be seen. Consensus in fighting emissions thus has become difficult.

The coronavirus brought out the divide between Americans who value science and those who are suspicious of it. It has become clear that some people’s political frameworks inform their scientific views to the extent that they are willing to flout mask rules and avoid vaccination, endangering countlesss others. These folks are not likely to respond well to government programs to achieve pollution reduction goals, especially if they require personal action or sacrifice.

— Stephen R. Dujack, Editor
Notice & Comment is written by the editors and represents their views.


Annual Cost of Fossil Fuel Use $820 Billion in U.S. Alone

The annual health costs of using fossil fuels and resulting extreme weather events from climate change total more than $800 billion, according to a new analysis.

Hospitalizations, lost wages, premature deaths and even prescription medications caused by air pollution, heat waves, hurricanes, floods, pollen seasons and insect-borne illnesses all contribute to those costs, according to [a] report from the Medical Society Consortium on Climate and Health, the Natural Resources Defense Council, and the Wisconsin Health Professionals for Climate Action.

Particulate matter pollution alone, they estimate, created $820 billion in health care costs and killed 107,000 people prematurely. Ground-level ozone also comes with a high price tag — $7.9 billion — and led to 795 premature deaths and more than 4,000 respiratory-related hospitalizations in 2002. . . .

“Climate change is an underrecognized public health problem,” said NRDC climate and health scientist Vijay Limaye, who co-authored the study.

— E&E News


A Summer in Seattle

Entering summer now carries a new sense of dread. Holding our breath, we lurch into a season of extreme heat, flood, drought, and wildfire. In an article from July titled, “What It Feels Like to Lose Your Favorite Season,” the writer Anne Helen Petersen reflects: “It’s not just the summer, of course, that I’m mourning. It’s an entire understanding of the world and its resplendence.”

This past year, I’ve stayed at my parents’ home in the suburbs of Seattle. When I think of my hometown, I remember a quote from the novel Where’d You Go, Bernadette by Maria Semple that always makes me laugh. The protagonist, who lives in Seattle but hates it, laments: “People are born here, they grow up here, they go to the University of Washington, they work here, they die here. Nobody has any desire to leave. You ask them, ‘What is it again that you love so much about Seattle?’ and they answer, ‘We have everything. The mountains and the water.’ This is their explanation, mountains and water.”

Maria Semple, a longtime Seattle resident, clearly meant to poke fun at this common sentiment. But what happens when the things you love most about home start to radically change — when the mountains are shrouded in smoke, the stream emptied of salmon, and normally temperate summer days soar above 110 degrees? What happens when home is unrecognizable?

What makes the Pacific Northwest feel like home to me is the trees. Douglas fir, western hemlock, western red cedar, Sitka spruce — I furiously tried to learn their names this past year, desperate to make up for lost time when I took the trees for granted. Now, with forests stripped down to dusty gray skeletons by fires each summer, I worry I can no longer count on them to frame the backdrop of every happy memory I have outdoors.

In the comments section of Anne Helen Petersen’s article, I scroll through pages and pages of thoughtful, poignant messages from other readers, people like me who find joy and comfort in the cyclic changing of the seasons, and who mourn the loss of this predictability as our climate changes.

Maybe what I mourn most is the loss of something I’ve never had: a true connection to the nature and abundance that sustains us. Indigenous botanist and writer Robin Wall Kimmerer writes in Braiding Sweetgrass, “Philosophers call this state of isolation and disconnection ‘species loneliness’ — a deep, unnamed sadness stemming from estrangement from the rest of Creation, from the loss of relationship. As our human dominance of the world has grown, we have become more isolated, more lonely when we can no longer call out to our neighbors.”

As much as I miss the summers as they once were, I still struggle to recognize my “neighbors” in this increasingly altered landscape: the trees I pass on hikes, the migrating birds, the bright red salmon arriving to spawn in the fall. Spending life through a screen allows us to disengage, to turn a blind eye to the damage we’ve done and the harm we’ve caused to the most vulnerable in our communities.

Inspired by Robin Wall Kimmerer’s words, and cooped up inside during the pandemic, I started to go bird-watching this year. I watched as the winter’s dark-eyed juncos became replaced by arrow-shaped tree swallows in the spring, swooping and skydiving with the breeze. Buoyed by warming temperatures and blooming flowers, my heart soared with their movements.

“See, the chicks come out and learn how to fly in the spring,” a friend informed me. I hadn’t ever noticed before.

— Akielly Hu, Associate Editor

A Progress Report From the War on Science — and the Environment.

EPA Must Be an Active Agent of Change
Martin A. McCrory - Indiana University
Indiana University
Current Issue
Parent Article
Martin A. McCrory

Fredrick Douglass said that America glories in its refinement, but continues to maintain a dreadful system begun in avarice, supported in pride, and perpetuated in cruelty. The subordination and oppression of the non-elite and non-entitled is now reaching crisis level.

For decades we have known that there is a direct correlation between race, income, socioeconomic status, and the amount of environmental degradation people are forced to endure. Flint, Michigan, and Franklin, Indiana, are prime examples of how racism and classism create a persistent, intergenerational pattern of differentiation in relation to risks and harms. Whether intentionally or not, EPA and the regulatory elites have promulgated so-called “neutral rules” that perpetuate an ever-growing environmental caste system.

Black Lives Matter and Stop AAPI Hate typify the call for a system of governance that does not default to the template that has for decades oppressed and subordinated rural communities, poor communities, and communities of color. EPA must stop being a knowing or unknowing participant in regulatory oppression and become an active agent of change. This type of equitable social change is only possible when all people are seen as important and all “the important people” are seated at the regulatory table.

To accomplish this, the Biden EPA must go beyond working primarily with states and localities to working directly with the disenfranchised. It must come in as a mindful collaborator, building the power of non-elites. Active engagement would be a step toward ending the hegemonic power exercised by governmental regulators over historically subordinated people.

One example of where such a partnership between EPA and the traditionally disenfranchised should be leveraged is in addressing the recent Clean Water Act regulatory changes relative to the statute’s protection of Waters of the United States. Our country contains forty million acres of lakes, ponds, and reservoirs; over two million miles of rivers and streams; one hundred million acres of wetlands; and twenty to thirty times more groundwater than all of these surface waters combined. After last year’s WOTUS changes, many of these miles and acres are no longer protected by the CWA — affecting millions who rely on these sources for drinking water, fishing, farming, and recreation.

As with most environmental laws, the WOTUS regulations can have both immediate and multigenerational effects on communities. EPA must actively bring in previously excluded peoples in regulatory negotiations and rule promulgations. Accordingly, the agency must build new collaborative alliances based on transcultural and transracial respect and understanding.

After issuing an executive order formalizing the principles of inclusion, antiracism, anticlassism, and antisubordination, President Biden should direct EPA to evaluate the new WOTUS regulations with an eye toward those who are currently affected by contaminated water and those who could be most adversely affected by a lessening of CWA protections. Next, the agency must go to the affected or potentially affected communities and let the people speak for themselves. Therefore, elites, such as scientists, lawyers, judges, regulators, corporations, NGO officials, legislators, academics, etc., cannot be “the sole or controlling voices” in this transformative paradigm for multigenerational socioenvironmental change.

WOTUS regulations must incorporate the voices, the experiences, and perspectives of traditionally eco-marginalized and subordinated peoples. Enhanced participation and collaboration will help ensure the agency’s environmental protection for all. EPA can create a new era of equitable, sustainable and representative environmental justice for the people who need it the most. Affected communities can actively and directly share the responsibility of environmental governance and regulatory change. This is the essence of our democracy; this is the essence of “We the People.”

Improving Compensatory Mitigation Project Review Through Best Practices
Rebecca Kihslinger - Environmental Law Institute
Environmental Law Institute
Current Issue
Rebecca Kihslinger

Healthy wetlands and streams benefit our environment and economy in a number of important ways, from providing habitat for wildlife and fisheries, to improving water quality, to providing flood protection.

The Clean Water Act requires permits for impacts to aquatic resources and that permitted impacts be compensated for by offsetting them. Each year, thousands of acres of wetlands and streams are restored, enhanced, and protected to satisfy the act’s compensatory mitigation requirements. The estimated market value of the compensatory mitigation program is between $1-2 billion annually.

The success of these projects relies on a robust review and approval process that ensures that the protections in federal regulations are implemented in practice on the ground and that compensation projects effectively offset permitted impacts. Currently, however, the review and approval process can often be lengthy, sometimes greatly exceeding the regulatory time lines. ELI conducted research to understand the reasons for these delays, with the goal of identifying best practices and efficiencies that could continue to produce quality results.

Approximately 70 percent of compensatory mitigation annually is accomplished via third-party mitigation, i.e. mitigation banks and in-lieu fee programs. These entities assume responsibility for designing and constructing the actual compensation projects and the liability for ensuring project success in place of the permittee.

Designing quality third-party compensatory mitigation projects can present complex issues requiring good site selection, thorough understanding of aquatic resource functions, and a well-grounded, interdisciplinary use of science. In 2008, EPA and the Corps of Engineers issued federal regulations that, among other things, promoted timely decisions on third-party mitigation activities. The 2008 rule established time lines for project review and approval for banks and in-lieu fee programs. It also defined an Interagency Review Team process. The IRT provides a framework for close collaboration among the Corps, other federal agencies with overlapping regulatory authorities, and state and tribal regulators and resource agencies in the review, approval, and oversight of banks and ILF programs.

Although the rule generally improved and regularized the review and approval process, mitigation providers indicate that the process can take up to several years for a project and can impose significant costs and delays in the implementation and availability of quality mitigation options. ELI’s new report Improving Compensatory Mitigation Project Review identifies a number of challenges in the implementation of review and approval — from both the agencies’ and providers’ points of view — as well as best practices that may improve future implementation.

The report found that there are still a number of recurring substantive issues. Review and approval of banks and in-lieu fee programs and projects often exceeds the regulatory timeframe, but delays often occur due to known causes — some of which, like poor communication, lack of templates, lack of project management strategies, and data gaps, can be addressed with governmental process and management improvements.

The report also found the IRT process is very effective at evaluating complex compensatory mitigation actions requiring interdisciplinary review, but it could be improved with little or moderate investment. Strategies include proactive scheduling and organization of IRT meetings; better use of remote meeting techniques; regularly scheduled meetings to address policy issues apart from individual project review; and advance scheduling of opportunities for site visits to facilitate easy coordination among providers and government field staff.

Efficiencies in the review process can be gained via project management tools applied to the review process, such as detailed schedules with tracking tools; best management practices to aid providers on project submissions; and additional training on the regulatory process and substantive issues. Finally, standard operating procedures and templates make it easier for providers and IRTs to achieve a common understanding and can result in timely project approvals.

In preparing the report, ELI worked with a panel of experts to conduct a wide-ranging analysis of the review and approval processes applied to mitigation banks and in-lieu fee programs and projects across the country.

For decades, ELI has been the leading research institution to evaluate compensatory mitigation required to offset adverse impacts to wetlands — beginning with the first national study of third-party mitigation in 1993 and continuing to this day.

Improving Compensatory Mitigation Project Review Through Best Practices.

An Aide for the Ages
Joel K. Goldstein - St. Louis University School of Law
St. Louis University School of Law
Current Issue
An Aide for the Ages

His New York Times obituary declared him “the largely unheralded chief architect of the Clean Air Act.” It and the Washington Post story also noted his key role in the Clean Water Act. These and other posthumous recognitions of a congressional aide’s impact followed an extraordinary lifetime event, a 2014 Supreme Court oral argument on a major environmental case, when Justice Stephen Breyer wondered what “Mr. Billings . . . the staff person” would have intended regarding the meaning of the Clean Air Act. That shout out to Leon G. Billings prompted Supreme Court scholar Richard J. Lazarus to write that America has “reason to be grateful” for the “impressive work” of staffers like Leon.

As staff director of the Senate Subcommittee on Air and Water Pollution from 1966 to 1978, Leon worked with a talented, bipartisan group of senators to produce, implement, and preserve a revolutionary new environmental regulatory regime which has made profound, enduring contributions to improving public health and the environment. A half century after the two landmark laws, it’s worth reflecting on Leon’s life for lessons about effective political activism, in the environmental arena and elsewhere.

Leon’s 1966 resume made him an unlikely staff architect of an environmental legislative revolution. He wasn’t a lawyer or an ecologist and had no environmental credentials. And he was, and remained, a partisan Democrat, a disposition seemingly inconsistent with shepherding bipartisan legislative triumphs. When, during Leon’s later service in the Maryland General Assembly (1991-2003), conservative columnist Robert Novak labeled him the nation’s most partisan Democratic legislator, Leon dispatched a thank you note. Yet Leon’s political understanding, skill, commitment, and personal qualities made him indispensable in creating and preserving the 1970s’ environmental regime.

Prior to his death four years ago, Leon often wrote, spoke, and taught about the extraordinary legislators on the Senate subcommittee whom he so admired. Edmund S. Muskie, whom Leon served, officially or unofficially, for three decades, was “this nation’s most important environmental leader” and “the first steward of the planet Earth,” Leon said in eulogizing the senator. Leon’s 2005 lecture “In the Shadow of Greatness” celebrated Muskie and his Republican colleague, Howard Baker. Together they used law to force technological innovation to promote health and environmental values. In Eagleton and the Environment: Promises Made; Promises Kept and elsewhere, Leon credited Thomas Eagleton, a Democrat, with the statutes’ premise that government should be accountable, by making promises mandatory, setting deadlines, and providing remedies including citizen suits. Leon praised Republicans John Sherman Cooper, J. Caleb Boggs, and others, too. Few so selflessly celebrated these public servants so often for so long. But not only was Leon in the room when the great environmental laws happened, he was instrumental in their happening. “Simply put, absent Leon, the Clean Air Act and the Clean Water Act, strong, durable, effective statutes, would not have been enacted,” judged Tom Jorling, the Republicans’ committee counsel and Leon’s close friend.

Leon was born in Helena, Montana, in 1937 to two crusading, progressive journalists. His parents often hosted visiting activists, exposing the child to vibrant political discourse. Leon inherited many of his parents’ political sensibilities. After short-term jobs in the West, newlywed Leon and wife, Pat, arrived in Washington, D.C., in 1963, when Leon began as legislative representative of the American Public Power Association, which advocated for community-owned power. That work engaged him with the Senate Committee on Public Works, whose staff director, Ron Linton, recruited Leon for Muskie’s pollution subcommittee.

His first years there presented challenges. He erred occasionally in an unfamiliar field. Muskie’s preference that staff report through administrative assistant Don Nicoll initially limited Leon’s access to the senator. Leon was responsible for staffing Muskie regarding public works issues generally, including Maine’s proposed Dickey-Lincoln hydroelectric project. In an early encounter, Leon told Muskie that he needed to ask Senate majority leader Mike Mansfield for appropriations for that project, giving Muskie four arguments to use. The brilliant, but sometimes short-tempered Maine senator replied with a fierce, incisive attack on Leon’s arguments. Shaken, Leon started to retreat from the senator’s office only to be restrained by Nicoll. Muskie then phoned Mansfield and repeated three of Leon’s points virtually verbatim. Lessons from that experience helped Leon build his creative partnership with the senator.

Leon soon established himself as a formidable Senate figure. In short, Leon’s talent, approach, and performance translated into influence. But it’s worth disentangling some of the interrelated qualities.

Leon was committed to vindicating the public interest. He saw pollution as a struggle between haves and have nots, a battle between public and private interests. As Jorling later observed, Leon “saw the outrage in a person or corporation degrading the commons of air and water, especially threatening public health. When Leon’s sense of fairness and justice were offended —watch out. The strength of the Clean Air Act and the Clean Water Act were very much a response.”

Leon was a learner. He mastered environmental subjects by preparing for, attending, and studying hearings, reading reports, and conversing with experts, including during daily commutes in his pickup truck with Jorling, a lawyer and ecologist. That process converted Leon from environmental know-nothing to environmental expert, but required a continuing commitment in a dynamic field.

Leon established relationships with senators and their staffs by open and frequent communication. Leon understood that his influence derived from his relationship with Muskie and the others and nurtured those relationships. Even before Leon and Jorling began commuting together, Leon had morning coffee with Boggs’s aide William Hildenbrand, who shared insights about building committee consensus. He met with diverse Senate aides to understand their members’ inclinations and needs. He learned to read Muskie and others. He interacted with full committee staff to keep them informed and on board. Conversations continued and relationships deepened at the Tune Inn, a Capitol Hill bar, where Leon ate and drank often enough to command a VIP table.

There was nothing obsequious about Leon. He battled people from Ralph Nader to auto executives whose talking points Leon once legendarily converted into a paper airplane that wouldn’t fly. When Leon asked Muskie during the 1976-77 transition to recommend him as Jimmy Carter’s EPA director, Muskie replied, “Leon, you don’t know how to kiss ass well enough to be EPA administrator.” Muskie supported Leon’s bid and, when Carter chose another, Muskie communicated his displeasure in what Carter considered the second most unpleasant conversation of his first year as president.

Characteristically, however, Leon helped Carter’s environmental team; commitment to the cause, professionalism, and decency, not personal disappointment, governed his behavior. Leon functioned as sort of a junior partner to Muskie, in Nicoll’s observation, and in 1978 Muskie made Leon his administrative assistant, partly because Leon would level with, and argue with, him.

Integrity guided Leon in his work. His intellectual honesty infused countless memos and briefings in which he told Muskie and other senators what he knew and didn’t know, the strengths and weaknesses of various arguments, and the likely consequences of available options. Candor created credibility and invited reliance, by Muskie and others, Democrat and Republican.

Leon understood legislative politics and was committed to problem-solving through civil and rational communication to reach consensus. He arranged hearings to educate all members. “Leon wanted all of the senators to be engaged and to learn. He wanted every member to be on board,” recalls fellow staffer and long-time friend Eliot Cutler. He appreciated political communication as a two-way street and spent time anticipating and resolving issues, often before members raised them. To Leon, “there wasn’t a barrier that couldn’t be solved,” says Jorling. “There was a way to address it, to resolve it. Leon was very skilled at addressing issues.” Like Muskie, Leon worked to make the air and water legislation appeal to an overwhelming bipartisan consensus, notwithstanding their novelty and strength.

Finally, Leon understood that governance required continuing engagement. Leon helped create the legislative history, remembered it and invoked it to remind others why the environmental laws were crafted as they were. Laws needed to be implemented and revised to reflect experience. That required ongoing legislative oversight, especially in a novel area like the environment. And achievements needed protection from counter assaults. Upon receiving an award in March 1981, Leon admonished that environmental values “are not always shared values and they cannot be taken for granted. So we must restate our objectives. We must reprove our case. But most of all, we must regenerate political support for these values.” Leon was a democrat as well as a Democrat.

With Muskie, Leon left the Senate for the Department of State in May 1980, and then, as he sometimes put it, was privatized by Ronald Reagan’s 1980 election. Leon remained in the political arena. He became executive director of the Democratic Senatorial Campaign Committee (1982-83), advised the Mondale presidential campaign, and unsuccessfully sought the Democratic nomination for an open seat in the House of Representatives in 1986.

Leon was appointed to his wife, Pat’s, seat in the Maryland House of Delegates in January 1991 after her death from cancer. Her pro-choice position had been central to her 1990 campaign, and Leon’s support for abortion rights legislation addressed that commitment. He served in the state legislature until 2003. Always the environmental entrepreneur, he leveraged his green credentials and state legislative service to found the National Caucus of Environmental Legislators in the mid-1990s.

Leon continued to write about the environment and good political and legislative practice, served on various boards to honor Muskie, protect the environment, and advance other causes dear to him, advised officeholders, and remained civically active. And a man who once met with presidents and travelled the world with Muskie found fulfillment in teaching the next generation, with Jorling, about “The Origins of Environmental Law” at Columbia, Yale, University of Maine Law School, and Arizona State and lecturing elsewhere.

Leon’s death came one week after the 2016 presidential election while he and his wife of 21 years, Cherry, visited a grandson near Nashville.

Twenty years earlier, Leon had accepted an honorary degree awarded Muskie posthumously. Leon told the graduates that when young, Muskie had been advised that “if you are going to be in this life, be a part of it.” Muskie regarded public service as “a calling, not a job,” grew uniquely as he aged, asked Americans “to trust each other,” believed “the art of politics” was “to attract people by the quality of ideas” not by money, regarded the environment as a “public resource” and was an environmentalist because it was “right” not “expedient,” and believed “government has an activist, affirmative role in the lives of our citizens.” Muskie, Leon said, would counsel, “Commit yourself to principles and fight for them. And leave this life with your integrity intact.” Muskie had done so, Leon said, and “was a giant for our times.”

In recounting Muskie’s values, Leon revealed his own, and Leon’s descriptions of Muskie captured some of his own qualities and accomplishments. Leon, too, was a great public servant and democratic citizen, as well as a wonderful, big-hearted and generous guy. It’s our challenge to, as he said of Muskie, “live to his standard and to maintain his stewardship.” TEF

TESTAMENT Fifty years ago, it took not only great politicians like Democrat Edmund Muskie and Republican Howard Baker to get the signal pollution statutes passed by huge, bipartisan majorities, it took superb staff work. Leon G. Billings ensured the laws were powerful, implementable, enforceable — and able to adapt to new challenges.

Muddy Waters: Critics Decry Weak Scientific Basis of WOTUS Proposal
David P. Clarke - Writer and Editor
Writer and Editor
Current Issue
David P. Clarke

The Clean Water Act is facing unprecedented threats. That’s the clear message from a breadth of water policy scientists, activists, and other professionals concerned about the Trump administration’s proposal to replace a 2015 Obama-era rule defining the Waters of the United States that must receive federal protections under the act. If adopted, according to numerous critics bracing for anticipated legal battles, the Trump proposal would ignore extensive scientific research and significantly reduce the scope of protected streams and wetlands in the most drastic weakening of the nation’s water law since its passage in 1972.

Farm community concerns about the 2015 rule’s “overreach” have largely driven the administration’s momentum to overturn it. But, says Kyla Bennett, science policy advisor for Public Employees for Environmental Responsibility, agriculture’s concerns about the 2015 rule were overblown. Fears were aggravated by then EPA administrator Scott Pruitt who, during farmland visits, claimed that under the 2015 rule the agency would regulate “puddles.” In reality, the CWA provides large agricultural exemptions, Bennett notes.

Farmers also complained that under the 2015 rule, they would need costly outside expertise to identify wetlands and waters requiring permits. The proposed replacement promises greater regulatory clarity and certainty. But it would actually create a much more complex process than under the Obama-era rule, Bennett says.

Central to the proposal’s complexity is an untested new concept of a “typical year,” says James Hague, senior water policy advisor for The Nature Conservancy. To establish whether a wetland or other water has a hydrological connection to a WOTUS, thus making it a jurisdictional U.S. water, would require 30 years of past rainfall data. The new concept is indefensible given that precipitation is increasingly variable, not “typical,” and would likely face implementation difficulties, Hague says. It would require extensive field testing.

A core concern is that the proposal lacks the scientific basis necessary to achieve the CWA’s objective of restoring and maintaining “the chemical, physical, and biological integrity of the nation’s waters,” says Hague. Regarding stream protection, the proposal is especially unscientific in excluding ephemeral streams from jurisdictional waters. Eighteen percent of streams are ephemeral nationwide, and twice that amount in the West. The proposal also contemplates excluding intermittent waters from CWA jurisdiction. A 2008 study published by EPA and the Department of Agriculture estimated that nearly 60 percent of continental U.S. streams are ephemeral and intermittent.

The 2015 rule has robust scientific foundations — specifically, EPA’s “Connectivity Report,” based on more than 1,200 peer-reviewed scientific studies. The report emphasizes that upstream ephemeral and intermittent streams significantly influence downstream water quality, a finding EPA’s Science Advisory Board strongly supported. The science has held up well, says Hague, including in a peer-reviewed update published in 2018 in the Journal of the American Water Resources Association.

Concerns about the proposal’s lack of scientific grounding are shared by the Chesapeake Bay Foundation’s federal legislative and policy manager, Denise Stranko. Furthermore, in adopting “the narrowest definition of WOTUS ever applied,” the proposal goes beyond just repealing the 2015 rule and overall weakens the CWA — the basis for the entire bay restoration effort, says Stranko. A weaker CWA compromises EPA’s leadership role in the law’s Chesapeake Bay Program covering 111,000 miles of creeks, streams, and rivers and 1.7 million acres of wetlands. According to CBF, an estimated 18 percent of streams and 51 percent of wetlands nationwide would lose their protected status under the proposal.

While the proposal relies on states to step up to the protective function, many will not backfill the federal retrenchment because they have limited budgets and face “real capacity constraints,” in Hague’s wording. Moreover, even if a state has an active wetlands protection program, downstream states could still see increased pollution and added costs. CBF notes that the Virginia and Pennsylvania state legislatures have recently made many attempts to weaken their wetlands programs.

“Of all the administration’s horrific environmental actions, this is by far the worst,” PEER’s Bennett says. Water issues caused by climate change will worsen, resulting in extensive adverse impacts to drinking water and on human health, flood protection, and fish and wildlife species, she adds.

When the inevitable lawsuits occur, it is hard to imagine a court will give the agencies deference because the proposal is so scientifically and legally indefensible, says Bennett.

Muddy waters: Critics decry weak scientific basis of WOTUS proposal.

Plain Meaning, Precedent, and Metaphysics: Interpreting the Elements of the Clean Water Act Offense

This book provides definitive and comprehensive analyses and understandings of each of the first four elements of a Clean Water Act offense: addition, pollutant, navigable waters, and point source. Disputes over the interpretations of these statutory terms have produced a steady stream of reported decisions since the initial implementation of the statute.