Among the many ambitious goals on President Obama’s environmental agenda, clean-up of the Chesapeake Bay (the Bay) is near the top of the list. On May 12, 2009, the President issued Executive Order 13508—Chesapeake Bay Protection and Restoration (the Order), which calls on various federal agencies, under the leadership of the U.S. Environmental Protection Agency (EPA), to coordinate efforts to develop a Bay protection and restoration strategy.

In announcing the President’s Order at the May 12 Chesapeake Executive Council meeting, EPA Administrator Lisa Jackson suggested that prior restoration approaches have been unsuccessful, noting that “[p]utting more money into the same infrastructure and the same programs is not going to getus where we need to be.” Indeed, earlier this year, a leading Chesapeake Bay advocate, the Chesapeake Bay Foundation (CBF), filed suit against EPA in federal district court to enforce federal compliance with the Clean Water Act and prior federal commitments related to Chesapeake Bay restoration. See Fowler v. EPA, No. 09-cv-00005 (D.D.C.).

Although EPA has not yet responded to CBF’s lawsuit, on August 12, 2009, the agency filed its third unopposed motion for an extension of time until September 30, 2009, to respond to the plaintiffs’ Complaint. In its motion, EPA indicated thatpursuantto the President’s Order, by September 9, EPA will prepare a draft report recommending actions to protect and restore the Bay. EPA has suggested that its draft report recommendations may assist the parties in determining whether settlement of CBF’s lawsuit is possible.

As any EPA-driven clean-up strategy arising out of the President’s Order (and based on additional pressure from CBF’s lawsuit) will inevitably impact a variety of business interests and operational practices in the Chesapeake Bay Region, it is critically important for stakeholders to understand the federal organizational framework contemplated by the President’s Order, the timetable for achieving the President’s goals, the likely regulatory measures to achieve the President’s objectives, and the role that stakeholders can and should play in shaping any federal protection and restoration strategies moving forward.

Organizational Framework

The President’s Order establishes a Federal Leadership Committee (Committee), to be chaired by the EPA Administrator or the Administrator’s designee. The Committee will include senior representatives from the Departments of Agriculture (USDA), Commerce (DOC), Defense (DOD), Homeland Security (DHS), the Interior (DOI), Transportation (DOT), and others which may be invited by the Committee to participate.

The Committee will oversee the development and coordination of programs and activities of participating federal agencies, and ultimate implementation of strategies and program plans for enhancement of environmental quality within the Bay watershed and ecosystem. It is widely anticipated that the Committee will be responsible for the development of strengthened federal regulations with measureable objectives.

The Committee must also consult extensively with the six states located in the Bay watershed— Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia—and the District of Columbia, in its development of a coordinated Bay strategy.

Timetable and Process for Achieving Protection and Restoration Goals

As a first step, EPA, USDA, DOD, DOI, and DOC must prepare and submit draft reports to the Committee within 120 days of the Order (i.e., by September 9, 2009). These reports will address topics related to responsibilities of the participating agencies. At a minimum, these reports will include recommendations for accomplishing the following seven goals:

  • defining the next generation of tools and actions to restore water quality, and describingchanges to regulations, programs, and policies to implement these actions (EPA);
  • targeting available resources to better protect the Bay and its tributaries (USDA);
  • strengthening stormwater management practices at federal facilities and on federal landswithin the Bay watershed, and developing a guide for stormwater best practices (EPA & DOD);
  • assessing climate change impacts on the Bay, and developing a climate changeadaptation strategy (DOI & DOC);
  • expanding public access to Bay resources from federal lands (DOI);
  • strengthening scientific support for Bay restoration decision-making, and expanding research, monitoring, and observation (DOI & DOC); and
  • developing coordinated habitat protection and research activities (DOI & DOC).

The Committee must review the draft reports and consult with the relevant state agencies to consider appropriate revisions. Within 180 days of the Order (i.e., by November 8, 2009), the lead agencies shall submit their final reports to the Committee. The Committee must then integrate all of the reports into a coordinated federal Bay strategy, and publish the Committee's draft strategy and final agency reports for public review and comment within 180 days of the Order (i.e., by November 8, 2009). Specifically, the Committee must develop a strategy that:

  • defines environmental goals for the Bay and describes milestones to attain such goals;
  • identifies key measureable indicators of environmental conditions and changes that are critical to effective federal leadership;
  • describes specific strategies and programs for implementation, including those described in the various agency reports;
  • identifies mechanisms to ensure that governmental data collection and distribution activities are coordinated and effective; and
  • describes a process to implement adaptive management principles with regard to Bay resources.

After receiving and considering public comments, the Committee must publish a final Bay protection and restoration strategy within one year of the Order’s issuance (i.e., by May 12, 2010).

In addition to publishing a final strategy, beginning in 2010, the Committee must prepare, in consultation with stakeholders and relevant state agencies, an annual Chesapeake Bay Action Plan that describes how federal funds will be used for Bay protection and restoration activities in the upcoming year. The Committee must also, in consultation with stakeholders and relevant state agencies, prepare an Annual Progress Report that reviews environmental indicators in the Bay, assesses implementation of the Action Plan, and recommends steps for improving the progress of Bay protection and restoration activities.

Implications of the Executive Order and Opportunity for Public Participation

The ambitious goals and timetables set forth in the President’s Order are expected to have far reaching consequences for all stakeholders in the Chesapeake Bay Region. Although the President’s Order suggests that nutrients (nitrogen and phosphorous) and sediment are largely responsible for the decline in Bay health, the Order specifically recognizes that pollution comes from many sources, including sewage treatment plants, city streets, development sites, agricultural operations, and air deposition. Thus, all businesses, both large and small, could be impacted by any federal Bay strategy that includes additional or more stringent regulatory or permitting requirements to ameliorate point and non-point sources of pollution in the Bay Region. Accordingly, it is essential that all affected stakeholders, both individually and through various trade associations, participate in commenting on and assisting in the development of the final federal strategy to protect and restore the Bay.

There will be at least two official opportunities for public participation. First, the Committee's draft strategy and final agency reports will be published no later than November 8, 2009 for public comment. Second, the Committee must consult with stakeholders in developing and preparing the Action Plan and Annual Progress Report that are to be published beginning in 2010. In addition, each of the identified federal and state participants on the Committee may look for stakeholder input to assist in developing the Committee’s draft strategy.

As the President’s Order highlights, in addition to the resources and expertise of the federal government, “[p]rogress in restoring the Chesapeake Bay also will depend on the support of state and local governments, the enterprise of the private sector, and the stewardship provided to the Chesapeake Bay by all the people who make this region their home.” Thus, active and ongoing stakeholder participation will be critical to ensure that the Committee considers and reflects all interests in any final Bay protection and restoration strategy.