The EPA Should Update
Its Strategy, Goals,
Deadlines, and
Accountability
Framework to Better
Lead Chesapeake Bay
Restoration Efforts
July 18,2023 | Report No. 23-E-0023
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Report Contributors: Bao Chuong
Gabby Fekete
Steve Hanna
Lauretta Joseph
Valerie Madas
Thane Thompson
Abbreviations:
CWA
EPA
NPDES
OIG
TMDL
WIP
Clean Water Act
U.S. Environmental Protection Agency
National Pollutant Discharge Elimination System
Office of Inspector General
Total Maximum Daily Load
Watershed Implementation Plan
Key Definitions:
Accountability
Framework
Nonpoint Source
Pollution
Point Source
Pollution
Total Maximum
Daily Load
Watershed
Implementation
Plan
The framework for holding Chesapeake Bay Program
partners accountable for achieving Total Maximum
Daily Load pollutant-reduction goals.
Pollution caused by rainfall or snowmelt moving over or
through the ground. As the runoff moves, it picks up
and carries away pollutants, depositing them into
rivers, lakes, wetlands, coastal waters, and
groundwaters.
Pollution that comes from a single place, such as a
wastewater treatment plant, and is easy to identify.
A planning tool that provides the maximum amount of
a particular pollutant that a waterway can receive and
still meet applicable water quality standards.
A plan that details how a jurisdiction, in partnership
with federal and local governments, will achieve
Total Maximum Daily Load allocations.
Cover Image:
Algae near the shore of Poplar Island on the Chesapeake Bay. (U.S. Fish
and Wildlife Service photo)
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Office of Inspector General
M U.S. Environmental Protection Agency
w At a Glance
23-E-0023
July 18, 2023
The EPA Should Update Its Strategy, Goals, Deadlines, and Accountability
Framework to Better Lead Chesapeake Bay Restoration Efforts
Why We Did This Evaluation
To accomplish this objective:
The U.S. Environmental Protection
Agency Office of Inspector General
conducted this evaluation to determine
whether the EPA effectively uses its
Accountability Framework for overseeing
Chesapeake Bay Total Maximum Daily
Load pollution-reduction goals.
The Chesapeake Bay is North America's
largest and most biologically diverse
estuary. Delaware, Maryland, New York,
Pennsylvania, Virginia, West Virginia,
and the District of Columbia are the
seven government jurisdictions that
participate in the Chesapeake Bay
Program and are responsible for
implementing programs to achieve the
Chesapeake Bay Total Maximum Daily
Load pollutant-reduction goals. The EPA
is also a part of the partnership and
oversees these efforts through the
Accountability Framework.
The EPA needs to shift
its focus from point
sources to nonpoint
sources to achieve the
necessary Chesapeake
Bay TMDL
pollutant-reduction
goals.
To support these EPA mission-related
efforts:
• Ensuring clean and safe water.
• Compliance with the law.
• Partnering with states and other
stakeholders.
To address this top EPA management
challenge:
• Enforcing compliance with
environmental laws and regulations.
Address inquiries to our public affairs
office at (202) 566-2391 or
OIG.PublicAffairs@epa.gov.
List of OIG reports.
What We Found
The Chesapeake Bay Program is not on track to have
all controls and practices in place by 2025 to meet its
Total Maximum Daily Load, or TMDL, for excess
nutrients. Limitations in the EPA's regulatory authority
under the Clean Water Act prevent the Agency from
using federal actions to fully achieve TMDL
pollutant-reduction goals. However, the EPA has not
updated its pollution-reduction strategy or led the
Chesapeake Bay jurisdictions in updating the 2025 goals and pollutant-reduction
deadlines. While the EPA has assisted the program in achieving reductions for the
portion of pollution covered by the TMDL that falls under the Clean Water Act
regulatory authority, the EPA has not fully embraced its leadership role to steer the
partnership toward addressing the most significant sources of remaining pollution
covered by the TMDL, namely nonpoint source pollution like excess nutrients.
The EPA has not yet led Chesapeake Bay Program partners to adopt new goals or
update deadlines that will more accurately reflect the time necessary to address
the remaining sources of pollution covered by the TMDL. The Accountability
Framework is reaching its capacity to reduce pollution covered by the TMDL
through enforcement and compliance, and the EPA lacks a mechanism to hold
jurisdictions accountable for achieving the nonpoint source pollution reductions
necessary to meet the overall watershed TMDL because the Clean Water Act
provides the EPA limited authority to regulate nonpoint source pollution. Wthout
EPA assistance to address the remaining nonpoint source pollution, Agency
leadership to develop new goals and deadlines, and implementation of a process
to hold jurisdictions accountable for achieving nonpoint source pollution reductions,
the EPA and Chesapeake Bay jurisdictions will not meet TMDL pollutant-reduction
goals.
Recommendations and Planned Agency Corrective Actions
We recommend that the regional administrator for Region 3:
1. Lead the Chesapeake Bay Program in developing a new approach to
specifically address nonpoint source pollution.
2. Work with Chesapeake Bay Program partners to set new jurisdictional goals
and a new deadline to have all pollution controls and practices in place to
meet TMDL pollutant-reduction goals.
3. Work with Chesapeake Bay Program partners to develop an assurance
mechanism to hold jurisdictions accountable for achieving nonpoint source
pollution reductions.
The Agency did not concur with Recommendations 1 and 3 and provided
suggested edits to these recommendations, which we did not accept. Therefore,
Recommendations 1 and 3 are unresolved. The Agency concurred with
Recommendation 2 and provided an estimated completion date of January 15,
2026. Recommendation 2 is resolved with corrective actions pending.
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OFFICE OF INSPECTOR GENERAL
U.S. ENVIRONMENTAL PROTECTION AGENCY
July 18, 2023
MEMORANDUM
SUBJECT: The EPA Should Update Its Strategy, Goals, Deadlines, and Accountability Framework
to Better Lead Chesapeake Bay Restoration Efforts
Report No. 23-E-0023
This is our report on the subject evaluation conducted by the U.S. Environmental Protection Agency
Office of Inspector General. The project number for this evaluation was OSRE-FY22-Q139. This report
contains findings that describe the problems the OIG has identified and corrective actions the OIG
recommends. Final determinations on matters in this report will be made by EPA managers in accordance
with established audit resolution procedures.
Region 3 is primarily responsible for the issues discussed in this report.
In accordance with EPA Manual 2750, your office provided an acceptable planned corrective action and
estimated milestone date for Recommendation 2. This recommendation is resolved with corrective actions
pending. A final response to this recommendation is not required; however, if you submit a response, it
will be posted on the OIG's website, along with our memorandum commenting on your response.
Action Required
Recommendations 1 and 3 are unresolved. EPA Manual 2750 requires that recommendations be resolved
promptly. Therefore, we request that the EPA provide us within 60 days its responses concerning specific
actions in process or alternative corrective actions proposed on the recommendations. Your response will
be posted on the OIG's website, along with our memorandum commenting on your response. Your
response should be provided as an Adobe PDF file that complies with the accessibility requirements of
section 508 of the Rehabilitation Act of 1973, as amended. The final response should not contain data that
you do not want to be released to the public; if your response contains such data, you should identify the
data for redaction or removal along with corresponding justification.
FROM: Sean W. O'Donnell, Inspector General
TO: Adam Ortiz, Regional Administrator
Region 3
We will post this report to our website at www.epa.gov/oig.
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The EPA Should Update Its Strategy, Goals,
Deadlines, and Accountability Framework to
Better Lead Chesapeake Bay Restoration Efforts
23-E-0023
Table of C
Purpose 1
Background 1
Pollution Sources and Impacts 1
Stakeholders in Chesapeake Bay Restoration 1
Using Regulatory Authority to Address Nutrient and Sediment Pollution 3
Chesapeake Bay Restoration Approach Through a TMDL 4
Responsible Offices 8
Scope and Methodology 9
Results 9
The EPA's Limited CWA Authority Prevents the Use of Federal Actions to Fully Achieve
TMDL Pollutant-Reduction Goals 10
Chesapeake Bay Program Is Not on Track to Meet the 2025 Goal for Nutrients and Needs
a New Strategy 12
The EPA Lacks an Effective Assurance Mechanism for Achieving Nonpoint Source Pollution
Reductions and Needs New Goals and a New Deadline for Meeting the TMDL 13
Recommendations 15
Agency Response and OIG Assessment 15
Status of Recommendations 16
Appendixes
A Description of Nutrient and Sediment Pollution 17
B WIP and Midpoint Evaluations 18
C Agency Response to Draft Report 20
D Distribution 25
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Purpose
The U.S. Environmental Protection Agency Office of Inspector General initiated this evaluation to
determine whether the EPA effectively uses its Accountability Framework for overseeing Chesapeake
Bay Total Maximum Daily Load, orTMDL, pollution-reduction goals.
Top Management Challenge Addressed
This evaluation addresses the following top management challenge for the Agency, as identified in the OIG's
U.S. Environmental Protection Agency Fiscal Year 2023 Top Management Challenges report, issued October 28,
2022:
Background
The Chesapeake Bay is North America's largest and most biologically diverse estuary and provides the
region with economic and recreational benefits. Home to more than 18 million people and 3,600 species
of plants and animals, the Chesapeake Bay watershed covers about 64,000 square miles and includes
parts of six states—Delaware, Maryland, New York, Pennsylvania,
Virginia, and West Virginia—and the entire District of Columbia, as
shown in Figure 1. A watershed is a geographic area in which water
drains to a common outlet.
Pollution Sources and Impacts
The economic and recreational benefits of the Chesapeake Bay are at
risk because most of the bay's waters are degraded by excess
nutrients and sediments entering the bay. Appendix A explains how
excess nutrients and sediments degrade the bay.
The EPA has two broad categories for sources of water pollution:
point source and nonpoint source. Point source pollution comes from
a single place, such as a wastewater treatment plant, and is easy to
identify. Nonpoint source pollution is harder to identify and address,
as it comes from many places all at once. Nonpoint source pollution is
caused by rainfall or snowmelt moving over or through the ground. As
the runoff moves, it picks up and carries natural and human-made
pollutants, such as fertilizer, pet waste, and chemical contaminants,
and deposits them into rivers, lakes, wetlands, coastal waters, and groundwaters.
Stakeholders in Chesapeake Bay Restoration
The Chesapeake Bay Program is a regional partnership of federal and state agencies, local governments,
nonprofit organizations, and academic institutions. The Chesapeake Bay Program has coordinated the
restoration of the Chesapeake Bay and its watershed since 1983.
Figure 1: Chesapeake Bay
watershed
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As shown in Table 1, the principal program partners include:
• The states of Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia.
• The District of Columbia.
• The Chesapeake Bay Commission. Established in the early 1980s, the commission serves as a
state and federal congressional legislative voice for the Chesapeake Bay Program.
• The EPA, representing the federal government.
Table 1: Chesapeake Bay Program principal partners*
Jurisdictions
Chesapeake Bay Commission
The EPA
Delaware,
District of
Columbia,
Maryland,
New York,
Pennsylvania,
Virginia, and West
Virginia
Tri-state legislative body that .
serves as the legislative voice for
the Chesapeake Bay Program.
tt
Manages the Chesapeake Bay
Program Office and provides
additional oversight and support
through Region 3's Enforcement
and Compliance Assurance
Division, Water Division, Office
of Regional Counsel, and Office
of the Regional Administrator.
Source: OIG summary of EPA information. (EPA OIG image)
* Principal partners are the signatories of the 2014 Chesapeake Bay Watershed Agreement, the accord that
outlines the framework by which the Chesapeake Bay Program operates. The Chesapeake Bay Program Office
partners with other federal agencies, state agencies, local governments, academic institutions, and
nongovernmental organizations.
The EPA manages some of its Chesapeake Bay Program actions through the Region 3 Chesapeake Bay
Program Office. In addition to the EPA staff that work there, representatives of the other principal
partners are collocated with EPA staff to engage in the work of the committees, goal implementation
teams, workgroups, and action teams that comprise the entire Chesapeake Bay Program's effort. These
committees, workgroups, and teams work under the Chesapeake Executive Council, which establishes
policies for Chesapeake Bay restoration and protection. The Chesapeake Executive Council consists of
the governors of the six watershed states, the mayor of the District of Columbia, the chair of the
Chesapeake Bay Commission, and the EPA administrator. The EPA serves as the chair of both the
Chesapeake Executive Council and its Principals' Staff Committee. According to the Chesapeake Bay
Program, the Principals' Staff Committee works on behalf of the Chesapeake Executive Council to
"translate the restoration vision into policy and implementation actions: accepting items for Council
consideration and approval, setting agendas for Council meetings, providing briefings to the Watershed
Agreement signatories and providing policy and program direction to the Management Board."
Executive Order for Chesapeake Bay Protection and Restoration
On May 12, 2009, President Barack Obama signed Executive Order 13508, Chesapeake Bay Protection
and Restoration, directing multiple federal agencies, including the EPA, the U.S. Department of
Agriculture, and the U.S. Department of the Interior, to work together to reduce pollution in the
Chesapeake Bay. The executive order outlined an expectation of shared leadership, planning, and
accountability, and it anticipated an active and ongoing leadership role for the EPA. According to the
executive order, part of the EPA's responsibilities as chair of the Federal Leadership Committee was to
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"manage the development of strategies and program plans
for the watershed and ecosystem of the Chesapeake Bay and
oversee their implementation."
The executive order charged the Federal Leadership
Committee to prepare recommendations that "[d]efine the
next generation of tools and actions to restore water quality
in the Chesapeake Bay and describe the changes to be made
to regulations, programs, and policies to implement these
actions." The executive order further directed the EPA and
the Federal Leadership Committee to prepare a strategy to
guide efforts to protect and restore the Chesapeake Bay. Specifically, the strategy was to:
• Define environmental goals and describe milestones for making progress toward goals.
• Identify key measurable indicators of environmental conditions that are critical to effective
federal leadership.
• Describe the specific programs and strategies to be implemented.
• Identify the mechanisms that will assure that governmental and other activities, including data
collection and distribution, are coordinated and effective.
• Describe a process for the implementation of adaptive management principles, including a
periodic evaluation of protection and restoration activities.
The executive order outlines the federal government's leadership role overall, specifically the EPA's
expected role as the leader of the effort to protect and restore the Chesapeake Bay watershed. The
executive order also required that, beginning in 2010, the Federal Leadership Committee publish an
annual Chesapeake Bay action plan and an annual progress report that includes a review of current
environmental indicators, an assessment of the actions of the preceding year, and recommendations to
improve progress in restoring and protecting the bay. The executive order expected that the strategies
developed would also be flexible enough to respond to shifting environmental conditions and when
progress was made toward restoration. The executive order also directed the EPA to identify the most
cost-effective, sound, science-based pollution-reduction actions that provide measurable reductions and
use innovative approaches, as well as actions that could be replicated to protect other bodies of water
across the country.
Using Regulatory Authority to Address Nutrient and Sediment Pollution
The Agency and the Chesapeake Bay watershed region have used regulatory means to reduce nutrient
and sediment pollution to the greatest extent practicable. From 2009 through 2021, about 79 percent of
the nitrogen load reduction, 73 percent of the phosphorus load reduction, and 2 percent of the
sediment load reduction came from point sources. The majority of the remaining nutrient load
reductions came from nonpoint sources. While sediments come from both point and nonpoint sources,
the majority of sediment pollution in the Chesapeake Bay comes from nonpoint sources.
The Clean Water Act, or CWA, amendments in 1987 added section 319 to explicitly address nonpoint
source pollution through a cooperative, grant-based program with states. Among other provisions, the
nonpoint source program was enacted to fund a variety of voluntary projects aimed at reducing
Federal Leadership Committee Under
Executive Order 13508
The committee was established to oversee the
development and coordination of programs
and activities of agencies participating in the
protection and restoration of the Chesapeake
Bay. The committee is chaired by the EPA
administrator and includes senior
representatives of the Departments of
Agriculture, Commerce, Defense, Homeland
Security, the Interior, and Transportation.
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nonpoint source pollution. The U.S. Government Accountability Office outlined the need for nonpoint
source load reduction in the nation's waters in a series of reports. In a December 2013 report,1 the
Government Accountability Office recommended that the EPA develop and issue new regulations to
require that TMDLs include additional elements and consider requiring elements that were optional to
improve TMDLs' efficacy. As of July 2022,2 the EPA had not fully implemented that recommendation.
Much of the nutrient load reductions in the Chesapeake Bay watershed have come from point sources
because the cause of the pollution is easier to identify, and potential solutions are typically more
straightforward to address than nonpoint sources. The EPA estimated that 20 percent of the total
nitrogen load, 24 percent of total phosphorus, and 4 percent of total sediment are attributable to point
sources and are therefore subject to federal regulation.
Chesapeake Bay Restoration Approach Through a TMDL
As a part of the EPA's role to lead bay restoration efforts, on December 29, 2010, the EPA established
the Chesapeake Bay Total Maximum Daily Load to restore clean water in the bay and the watershed's
rivers, streams, and creeks. A TMDL is a planning tool that provides the maximum amount of a particular
pollutant that a waterway can receive and still meet applicable water
quality standards. Reducing water pollution under a TMDL is one of many
goals that the Chesapeake Bay Commission and the Chesapeake Bay
Program agreed to work together to achieve. Table 2 shows the amount of
nitrogen, phosphorus, and sediment that must be reduced from 2009
levels to achieve the TMDL. The EPA expected the jurisdictions to put
controls and practices in place by 2017 to achieve 60 percent of the
necessary TMDL pollutant reductions in Table 2. The overall TMDL
pollutant-reduction goal is to ensure that all pollution control measures needed to fully restore the
water quality in the Chesapeake Bay and its tidal rivers are in place by 2025. For the purposes of this
report, we refer to this goal to as the 2025 goal.
Table 2: Amount of nitrogen, phosphorus, and sediment that must be reduced
from 2009 levels to achieve the TMDL (million pounds per year)
Jurisdiction 1
1 Nitrogena 1
I Phosphorus I
I Sediment
Delaware
2.30
0.024
24
District of Columbia
0.34
0
2
Maryland
11.78
0.474
0
New York
2.62
0.264
166
Pennsylvania
39.73
1.556
1,138
Virginia
14.96
1.402
0
West Virginia
0
0.198
0
Source: OIG summary of EPA information. (EPA OIG table)
a In addition to the listed amount of nitrogen that must be reduced by each jurisdiction,
atmospheric deposition of nitrogen to the watershed and the tidal water is expected to be
reduced by 7.18 and 4.20 million pounds per year, respectively, under the Clean Air Act.
1 GAP, Clean Water Act: Changes Needed If Key EPA Program Is to Help Fulfill the Nation's Water Quality Goals,
GAP-14-80. December 2013.
2 GAP, Priority Open Recommendations: Environmental Protection Agency, July 1, 2022.
Pollutant Load
The amount of a pollutant
that is carried by a
waterbody within a
particular time frame, such
as 200 million pounds of
nitrogen per year.
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The EPA established the TMDL within existing authorities and requirements, including:
• The CWA and its implementing regulations.
• Judicial consent decrees requiring the EPA to address certain impaired Chesapeake Bay
tributaries and waters.
• A settlement agreement that resolved litigation brought by an independent conservation
organization dedicated to saving the Chesapeake Bay.
• The 2000 Chesapeake Agreement, which is an agreement among Maryland, Virginia,
Pennsylvania, the District of Columbia, the EPA, and the Chesapeake Bay Commission, to meet
the goal of "achieving and maintaining the water quality necessary to support the aquatic living
resources of the Bay and its tributaries and to protect human health."
• Executive Order 13508.
A restored Chesapeake Bay would ensure sustained economic benefits, including revenue generated
from water recreation activities, national and international tourism, and seafood sales, all of which
produce jobs and boost state and local economies. According to a peer-reviewed economic report
issued by an independent conservation organization, the economic benefits of a fully restored
Chesapeake Bay that meets TMDL pollutant-reduction goals are estimated to be $129.7 billion annually.
Chesapeake Bay Program Accountability Framework
The Chesapeake Bay TMDL is implemented in part via an Accountability Framework designed to hold
Chesapeake Bay Program partners accountable for achieving Chesapeake Bay TMDL pollutant-reduction
goals. The EPA developed the TMDL Accountability Framework to "[ijmplement the reasonable
assurance provisions of the Chesapeake Bay TMDL and pursuant to Section 117(g)(1) of the CWA, which
directs the EPA administrator to 'ensure that management plans are developed and implementation is
begun.'"
The framework guides restoration efforts using four elements:
• Watershed Implementation Plans. Known as WIPs, these plans detail how the bay jurisdictions,
in partnership with federal and local governments, will achieve the Chesapeake Bay TMDL
allocations. TMDL wasteload allocations, which are pollutant allocations assigned to point
sources, are generally implemented through the EPA's National Pollutant Discharge Elimination
System, or NPDES, permits under the CWA.3 Nonpoint source load reduction actions under a
TMDL are implemented through a variety of state, local, and federal programs. Each bay
jurisdiction committed to develop and implement a WIP. There were three phases of WIPs
developed by the bay jurisdictions and submitted to the EPA for review. According to the EPA,
the Phase I WIPs described how each bay jurisdiction would achieve the target allocations for
nitrogen, phosphorus, and sediment by 2025, and these formed the majority of the basis for the
allocations in the bay TMDL. The Phase II WIPs described the actions and controls to be
implemented by 2017 to achieve water quality standards. The Phase III WIPs were developed
3 The NPDES permit program addresses water pollution by regulating point sources that discharge pollutants to
waters of the United States. Created in 1972 by the CWA, the EPA authorizes state governments to perform many
permitting, administrative, and enforcement aspects of the program.
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based on a midpoint assessment that covered 2010-2017 and described the actions and
controls to be implemented by 2025.
• Two-year milestones to demonstrate restoration progress. The EPA and bay jurisdictions
agreed to develop two-year short-term goals, or milestones, to increase restoration work and
ensure progress. The two-year milestones under the Chesapeake Bay TMDL began in 2012 and
are expected to continue until the 2025 goal is met. By 2017, pollutant-reduction measures
were expected to be in place to achieve 60 percent of the necessary pollutant reductions
outlined in Table 2, but the Chesapeake Bay Program did not meet this goal for nitrogen. The
program exceeded the goals for phosphorus and sediment.
• EPA tracking and assessment of restoration progress. The EPA tracks annual progress and
publicly releases evaluations of each jurisdiction's progress every two years.
• Federal actions if jurisdictions do not meet milestones or goals. If appropriate, the EPA has the
authority under the CWA to take any of the following actions to ensure that jurisdictions meet
milestones and goals:
o Expand coverage of NPDES permits to unregulated resources.
o Expand EPA oversight of state-issued NPDES permits and object to inadequate permits.
o Require net improvement offsets for new or increasing pollutant loadings.
o Establish finer scale wasteload and load allocations in the bay TMDL. The TMDL
established a target for total load of a pollutant that the bay can assimilate and
allocated the load to point sources, called the wasteload allocation, and nonpoint
sources, called the load allocation.
o Require additional load reductions from point sources.
o Increase and target EPA enforcement and compliance assurance, including both air and
water sources of nitrogen, phosphorus, and sediment.
o Condition or redirect EPA grants based on demonstrated progress in meeting WIP
nutrient or sediment load reductions.
o Promulgate local nutrient water quality standards.
Figure 2 shows how the Accountability Framework process works to help the Chesapeake Bay Program
achieve TMDL pollutant reductions.
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Figure 2: Accountability Framework process
7
Source: The EPA. (EPA image)
Each time the EPA assessed the Phase I and Phase II WIPs, it determined whether the jurisdiction would
achieve its goals on its own or whether the EPA needed to take additional actions to assist the
jurisdiction in meeting its goals using three levels of increasing action. Under the lowest level, Ongoing
Oversight, the EPA continues to monitor the jurisdiction's progress. Under next level, Enhanced
Oversight, the EPA has identified specific concerns with meeting the 2025 goals and may identify one or
more federal actions it may use to keep the jurisdiction on track. The highest level, Backstop Actions,
indicates that the EPA has identified substantial concerns with a jurisdiction's implementation and that
the Agency has taken federal actions to ensure the WIP stays on track. Appendix B provides more detail
on WIP and midpoint evaluations.
Challenges to Achieving TMDL Pollutant Reductions
According to the EPA, the voluntary nature of the Chesapeake Bay Program, as weli as the lack of
meaningful authority over nonpoint sources in the CWA, are challenges to achieving the 2025 goals.
While the EPA can use its authority under the CWA to apply the federal actions outlined in the
Accountability Framework, the goals that are set by the Chesapeake Bay Program are not legally
enforceable. EPA managers believe that the Agency must balance and judiciously apply its enforcement
authority in tandem with technical assistance and program support, as well as identify opportunities to
leverage federal partner resources. The EPA stated that its goal is to work in a way that helps each
jurisdiction most effectively reduce the overall volume of TMDL nutrient and sediment pollution flowing
into the Chesapeake Bay.
Further, each jurisdiction in the Chesapeake Bay watershed faces unique challenges to achieving TMDL
pollutant reductions. The District of Columbia has no identifiable agriculture but is still required to
address pollution from point sources and stormwater management under the TMDL. Delaware, New
York, and West Virginia have smaller geographical areas that fall within the watershed, but they must
still engage in planning, WIP submission and implementation, and milestone tracking with the same
effort and attention as the jurisdictions with much larger areas.
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Maryland, Pennsylvania, and Virginia are required to manage significant areas of the watershed, which
include hundreds of concentrated animal feeding operations, thousands of commercial farms, and tens
of thousands of small holdings and animal feeding operations that fall below the regulatory threshold of
the CWA. Pennsylvania alone has more than 30,000 small, mostly nonfederally regulated farms and
dairies that produce a majority of the state's pollution that enters the bay. According to the EPA, animal
feeding operations are agricultural operations where animals are
kept and raised in confined situations. Animal feeding operations
that meet the regulatory definition of a concentrated animal
feeding operation are regulated under the NPDES permitting
program. The NPDES program regulates the discharge of
pollutants from point sources to waters of the United States.
Concentrated animal feeding operations are point sources, as
defined by the CWA.
Nutrients and sediments trapped by the Conowingo Dam in
Maryland represent a significant challenge for the jurisdictions.
This potential pollution will impact the overall Chesapeake Bay
Watershed TMDL pollutant-reduction goals as the dam fails to
trap additional nutrients and sediment. New York, Pennsylvania,
and Maryland are responsible for managing the Conowingo Dam
watershed and have submitted a WIP for it, but the EPA was not
confident that the jurisdictions will achieve the WIP's goals
because of a lack of dedicated funding and firm commitments to su
necessary practices and controls by 2025.
Responsible Offices
The Chesapeake Bay Program is supported by the EPA through the Region 3 Chesapeake Bay Program
Office. The Chesapeake Bay Program Office, Region 3's Water Division and Enforcement and Compliance
Assurance Division, and Region 2 are responsible for reviewing WIPs and two-year milestone
commitments for the Chesapeake Bay, as well as overseeing progress on WIP and two-year milestone
implementation. The Office of Regional Counsel in Regions 2 and 3 review the EPA's evaluations to
ensure any statements made are in line with relevant legal authorities. The Chesapeake Bay Program
Office and Region 3's Water Division, Office of Regional Counsel, and Enforcement and Compliance
Assurance Division collectively decide whether to take federal actions when a jurisdiction does not meet
milestones or goals. Region 2 is the lead for matters related to New York, and the Chesapeake Bay
Program Office provides technical support to Region 2.
The EPA headquarters' Office of Water provides grant money to states, territories, and tribes for
nonpoint source implementation projects, under CWA section 319 grants, and ongoing water pollution
control programs, under CWA section 106 grants. The Office of Water also provides states, territories,
and tribes with loans to fund water quality infrastructure projects, including nonpoint source pollution
control.
The EPA's annual enacted budget for fiscal year 2022 was about $9.5 billion. The fiscal year 2022
budgets for the Region 3 Chesapeake Bay Program Office, which includes allocations for the Water
Division and Enforcement and Compliance Assurance Division, and the Office of Water for the
The Conowingo Dam
In Maryland, the Conowingo Dam has
acted as a trap for nutrients and
sediments flowing downstream to the
Chesapeake Bay. When the Chesapeake
Bay TMDL was established in 2010, it
was thought that the dam's reservoir
would not be filled until after 2025
when the watershed should have
already met the TMDL
pollutant-reduction goals. Since 2010,
research has shown that the dam was
losing its capacity to trap nutrients and
sediments and greater amounts were
flowing into the Chesapeake Bay,
compounding the challenges the
jurisdiction must address to meet the
2025 goal.
pport implementation of the
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partnership jurisdictions were $135.6 million and $252.4 million respectively, for a combined total of
$388 million or 4.1 percent of the EPA's total budget.
Scope and Methodology
We conducted this evaluation from June 2022 to March 2023 in accordance with the Quality Standards
for Inspection and Evaluation published in December 2020 by the Council of the Inspectors General on
Integrity and Efficiency. Those standards require that we perform the evaluation to obtain sufficient and
appropriate evidence to support our findings.
To understand the EPA's approach to restoring the Chesapeake Bay's water quality, we reviewed:
• Executive Order 13508.
• Chesapeake Bay TMDL.
• Chesapeake Bay Watershed Agreement 2014, amended January 24, 2020.
• CWA, as amended.
We reviewed the EPA's evaluations of each jurisdiction's WIPs and two-year milestone commitments
and progress from 2009 through 2022 and the EPA's evaluations of each jurisdiction's submissions to
assess implementation. To understand how the EPA evaluates WIPs, two-year milestone commitments,
and progress, we reviewed the Accountability Framework and evaluation procedures, including
elements that must be addressed in the jurisdiction's WIPs. We interviewed managers and staff in the
Chesapeake Bay Program Office and Region 3's Water Division, Enforcement and Compliance Assurance
Division, and Office of Regional Counsel to learn how they evaluate WIPs, two-year milestone
commitments, and progress. We reviewed the federal actions that the EPA has taken or not taken when
a jurisdiction fails to meet milestones or goals. We also followed up with managers and staff in the
Chesapeake Bay Program Office; Region 3's Water Division, Enforcement and Compliance Assurance
Division, and Office of Regional Counsel; and Region 2's Water Division and Office of Regional Counsel to
better understand why the EPA has taken or not taken certain federal actions.
We assessed whether the EPA effectively used the Accountability Framework by determining whether
the Agency used two of the four elements for which it has responsibility and all eight federal actions,
considering their feasibility. We also communicated with an independent conservation organization to
gather its perspective on how the EPA uses the Accountability Framework to ensure jurisdictions
implement their WIPs and two-year milestone commitments.
Results
The Chesapeake Bay Program is not on track to reach the 2025 goals for nitrogen and phosphorus.
Limitations in the EPA's regulatory authority under the CWA prevent the Agency from using federal
actions to fully achieve the Chesapeake Bay TMDL pollutant-reduction goals, but the EPA has not
updated its pollution-reduction strategy or led the Chesapeake Bay jurisdictions in updating the TMDL
pollutant-reduction goals and deadlines. While the EPA has assisted the partnership in achieving
reductions for the portion of pollution covered by the TMDL that falls under CWA regulatory authority,
which is point source pollution, the EPA has not fully embraced its leadership role to steer the
partnership toward addressing the most significant sources of remaining pollution covered by the TMDL,
namely nonpoint source pollution. The EPA has also not led Chesapeake Bay Program partners in
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developing new goals and deadlines that will more accurately reflect the time necessary to address the
remaining sources of pollution covered by the TMDL. In addition, because the Accountability Framework
is reaching its capacity to reduce point source pollution through enforcement and compliance, the EPA
lacks an assurance mechanism that will hold jurisdictions accountable for achieving the nonpoint source
pollution reductions necessary to meet the overall watershed TMDL Without EPA assistance to address
the remaining nonpoint source pollution, Agency leadership in developing new goals and deadlines, and
a process to hold jurisdictions accountable for achieving nonpoint source pollution reductions, the EPA
and Chesapeake Bay jurisdictions will not meet TMDL pollutant-reduction goals.
The EPA's Limited CWA Authority Prevents the Use of Federal Actions to Fully
Achieve TMDL Pollutant-Reduction Goals
Limitations in the EPA's CWA regulatory authority prevent the Agency from fully achieving the TMDL
pollutant-reduction goals through federal regulatory actions alone. Section 319 of the CWA is the main
mechanism by which the Act directly addresses nonpoint source pollution, and it primarily assigns to
states the authority to identify and regulate nonpoint source pollution. The EPA's role under section 319
is generally limited to approving or disapproving states' nonpoint source assessment reports and
management plans, providing technical assistance, and awarding grant funds. While the EPA can use
CWA authority to address point source pollution, the CWA does not give the EPA significant authority to
take federal actions when jurisdictions do not meet the nonpoint source milestones or TMDL
pollutant-reduction goals. Nonpoint sources also encompass a majority of the remaining TMDL pollutant
sources in the Chesapeake Bay. For example, water runoff that drains from a farm and carries TMDL
pollutants into rivers and other waterbodies is not federally regulated. Similarly, urban and suburban
stormwater runoff that flows over land and deposits TMDL pollutants directly into local waterbodies
without passing through a municipal storm sewer system is also unregulated by the EPA. As a result,
most of the remaining TMDL pollutant reductions in the watershed must be achieved through additional
nonpoint source reductions efforts that are incorporated into each jurisdiction's WIP.
Because the EPA is limited in its authority to regulate nonpoint sources of pollution by the CWA, the
Agency cannot use federal actions beyond those in the Accountability Framework. However, the EPA
chose not to use four of the eight federal actions available to it under the Accountability Framework.
Table 3 describes the four federal actions not used by the EPA.
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Table 3: The four federal actions not used under the Accountability Framework
Federal actions not used by the
EPA
Description of federal action
Require net improvement offsets
for new or increasing pollutant
loadings.
Provides a permittee the ability to offset any new or increased nutrient
loading by more than its anticipated load. The bay TMDL states that new or
increased sources may be offset in the future through a trading program that
jurisdictions establish. Not all jurisdictions' trading programs require net
improvement offsets.
Establish finer-scale wasteload and
load allocations than in the
December 2010 Chesapeake Bay
TMDL.
Review the wasteload allocations of nutrients given to point sources and the
load allocations to nonpoint sources in the bay TMDL and establish more
specific allocations than those set out in the bay TMDL.
Require additional reductions of
loadings from point sources.
Revising the final December 2010
Chesapeake Bay TMDL to
reallocate additional load
reductions from nonpoint to point
sources.
Review the wasteload allocations of nutrients given to point sources and the
load allocations to nonpoint sources in the TMDL and reallocate required
reductions from nonpoint sources to point sources.
Federal promulgation of local Require the EPA to gather data to analyze whether a jurisdiction's narrative
nutrient water quality standards. water quality criteria are consistent with the CWA. If the data supports it, the
EPA could decide that a revised standard is necessary to meet the
requirements of the CWA, which would allow the EPA to promulgate federal
numeric nutrient water quality standards for the jurisdiction.
Source: OIG summary of EPA information. (EPA OIG table)
The EPA identified the eight federal actions specified in the CWA and included them in the
Accountability Framework in response to the Chesapeake Bay Program partners asking what
consequences the EPA may impose if jurisdictions were not effectively implementing their WIPs. The
EPA said that it chose not to use four of those federal actions because it determined from its analysis
that, in some cases, taking these actions would require significant resources but would not produce
significant TMDL reductions. Based on our review of that analysis and our discussions with the EPA, we
agree with the Agency's assessment. Other challenges identified by the EPA's analysis showed that some
of the actions could take decades to fully implement or risk setting national regulatory precedents that
could increase the likelihood of litigation.
When appropriate, the EPA has used four of the eight federal actions when regulated point sources
within a jurisdiction were not on track to meet milestones, including:
• Expanding coverage of NPDES permits to unregulated sources.
• Expanding EPA oversight review of state-issued NPDES permits and objection to inadequate
permits.
• Increasing and targeting EPA enforcement and compliance assurance, including both air and
water sources of nitrogen, phosphorus, and sediment.
• Conditioning or redirecting EPA grants based on demonstrated progress in meeting WIP nutrient
or sediment load reductions.
The seven jurisdictions have each submitted their Phase I, Phase II, and Phase III WIPs; two-year
milestone commitments; and annual load reduction progress information to the EPA. The EPA evaluated
the WIPs and publicly released its evaluations. In addition, the EPA tracked annual progress and publicly
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released its evaluations of each jurisdiction's progress biannually, including their two-year milestone
commitments.
Chesapeake Bay Program Is Not on Track to Meet the 2025 Goal for Nutrients and
Needs a New Strategy
According to the EPA, not all jurisdictions have consistently achieved the TMDL pollution controls and
practices outlined in the WIPs and two-year milestone commitments. From 2010 through 2017, at least
four of the seven jurisdictions in the Chesapeake Bay Program had one or more source sectors or
programs where the EPA needed to implement Enhanced Oversight or take Backstop Actions. As
outlined above, Enhanced Oversight occurs if the EPA has identified specific concerns with a
jurisdiction's implementation of strategies to meet the TMDL pollutant-reduction goals. The EPA may
then take additional federal actions to ensure that the jurisdiction stays on track. Backstop Actions occur
if the EPA has identified substantial concerns with a jurisdiction's actions to meet the TMDL
pollutant-reduction goals. The EPA then takes federal actions to help the jurisdiction get back on track.
Pennsylvania was identified as needing consistent Backstop Actions or Enhanced Oversight in the
agriculture and urban/suburban stormwater source sectors based on the EPA's evaluation of the state's
initial WIP submission in 2010 and two-year milestone commitments and progress from 2013 through
2018.
Despite the federal actions taken under the Accountability Framework to address point sources,
according to Chesapeake Bay Program Office data, the Chesapeake Bay Program as a whole is not on
track to meet the 2025 goal for nutrients. To be on track, pollution controls and practices should have
been in place to achieve 80 percent of the needed nutrient and sediment load reductions by 2021. As of
2021, the EPA estimated that the Chesapeake Bay Program had reduced nitrogen by 49 percent,
phosphorous by 64 percent, and sediment by 100 percent of the TMDL pollutant-reduction goals. Some
jurisdictions reduced sediment more than required, which led to the Chesapeake Bay Program as a
whole to achieve the sediment reduction goal. Best management practices are in place to achieve
sediment load reductions but not to achieve nitrogen and phosphorus load reductions.
Among the seven jurisdictions, Pennsylvania is the furthest from reaching the TMDL pollutant-reduction
goals, meeting less than 50 percent of the TMDL reduction goals for all three pollutants. As of 2021, the
District of Columbia achieved the TMDL reduction goals as shown in Table 4, the only jurisdiction to
have done so. West Virginia has already achieved its 2025 goals for nitrogen and sediment and is
estimated to achieve its goal for phosphorus by 2025. The remaining five jurisdictions are not on track to
meet the 2025 goals.
Table 4: Percent of TMDL pollutant-reduction goals achieved in 2021
Jurisdiction I
I Nitrogen I
I Phosphorus I
I Sediment
Delaware
20%
52%
63%
District of Columbia
100%
100%
100%
Maryland
58%
74%
100%
New York
69%
76%
21%
Pennsylvania
22%
48%
45%
Virginia
75%
68%
100%
West Virginia
100%
97%
100%
Source: OIG summary of EPA information. (EPA OIG table)
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Given that five of the seven jurisdictions are not on track to meet the TMDL pollutant-reduction goals,
the EPA needs to lead the Chesapeake Bay Program in developing a new strategy to address:
• Nonpoint sources, which are the largest sources of nutrient pollution to the Chesapeake Bay
that remain, given that load reductions have come mostly from point sources. Based on EPA
estimates, about 80 percent of the nitrogen load, 76 percent of phosphorus load, and
96 percent of sediment load are attributable to nonpoint sources. Despite the large share of
nutrient pollution attributed to nonpoint sources, just 18 percent of the nitrogen load reduction
and 27 percent of the phosphorus load reduction have come from nonpoint sources from 2009
through 2021.
• Nutrients and sediments trapped by the Conowingo Dam.
• The slowdown in achieving the 2025 goals due to various factors, including growth and
development; land use changes; increases in agricultural activity, such as more crops and
animals; and higher rainfall because of climate change leading to increased runoff.
Executive Order 13508 provided the EPA with a leadership role in Chesapeake Bay restoration, stating
that the federal government leads the restoration efforts. Section 201 of the executive order appointed
the EPA to lead the Federal Leadership Committee for the Chesapeake Bay.
As part of the leadership role outlined for the EPA under the executive order and the subsequent
Chesapeake Bay TMDL, the EPA developed the Accountability Framework shown in Figure 2 to provide
"reasonable assurance" that the TMDL's intended pollution reductions will be achieved. Furthermore,
according to Executive Order 13508 section 301, the original strategy that the EPA was responsible for
developing expected the EPA administrator to apply "adaptive management principles" and adopt
"innovative and cost-effective pollution control measures" that can be "replicated in efforts to protect
other bodies of water" and that "build on the strengths and expertise of Federal, State, and local
governments, the private sector, and citizen organizations."
The Chesapeake Bay Program has not adopted a new strategy to address the most significant sources of
pollution covered by the TMDL that remain in the watershed or to address the slowdown in TMDL
pollutant reductions that have occurred because of various factors, including climate change. The EPA
has had data since 2018 indicating that the Chesapeake Bay Program was not on track to have all
controls and practices in place by 2025, but the EPA has not yet convinced the jurisdictions to shift their
TMDL reduction priorities from point to nonpoint sources. Without actively leading the Chesapeake Bay
Program towards developing strategies and plans that adequately address nonpoint sources, the EPA
will not fulfill its expected leadership role and risks not meeting TMDL pollutant-reduction goals to
restore the Chesapeake Bay.
The EPA Lacks an Effective Assurance Mechanism for Achieving Nonpoint
Source Pollution Reductions and Needs New Goals and a New Deadline for
Meeting the TMDL
Nearly 40 years after the Chesapeake Bay Program was established, the bay's water quality remains
degraded. Missing the 2025 goal to have all controls and practices in place will delay meeting water
quality standards. A significant cause of missing this goal is that the EPA lacks an effective assurance
mechanism to hold jurisdictions accountable for achieving the nonpoint source pollution reductions
necessary to meet the overall watershed TMDL. The EPA continues to rely on the strategy, processes,
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and assurance mechanisms that the Chesapeake Bay Program originally developed when TMDL
pollutant-reduction efforts began in 2009. That strategy and those policy mechanisms are less effective
now that the EPA has worked with jurisdictions to successfully reduce pollution from point sources
covered by the TMDL The EPA has not revised or updated the Accountability Framework since it was
originally implemented in 2010. This is partly because nonpoint sources remain the largest remaining
source of pollution covered by the TMDL and nonpoint source pollution is not regulated by the CWA.
Further, according to the EPA, continuing to focus on additional inspections of or enforcement against
point sources that are already permitted will not yield a lot of additional reductions.
However, section 7 of the Chesapeake Bay TMDL document discusses the methods and policies the EPA
has put in place to provide "reasonable assurance that the load allocations (LAs) will be achieved and
water quality standards (WQS) will be attained." Specifically, in section 7.1.1, the TMDL document
stated the following regarding reasonable assurance for nonpoint source load reductions:
For the Chesapeake Bay TMDL, reasonable assurance that nonpoint source load
reductions will be achieved is based, in large part, on the new accountability
framework EPA is developingforthisTMDL, including the Bay jurisdictions' watershed
implementation plans (WIPs). This framework incorporates an adaptive management
approach that documents implementation actions, assesses progress, and
determines the need for alternative management measures based on the feedback
of the accountability framework.
While section 7 specifically outlines the EPA's reliance on nonpoint source pollution reductions to
achieve the source load reductions necessary to reach the TMDL pollutant-reduction goals, the ongoing
challenges in reaching nonpoint source reduction milestones demonstrate the need for the EPA to
develop a more effective assurance mechanism for achieving these reductions.
The EPA has not used its leadership role under Executive Order 13508 to move the Chesapeake Bay
Program toward developing new goals and identifying a new deadline to have all controls and practices
in place to achieve water quality standards, even though five of the seven jurisdictions are not on track
to have all controls and practices in place by 2025. Although the Chesapeake Bay Program has initiated
discussions on a new deadline, the jurisdictions have not developed new goals or agreed to an updated
deadline. If the EPA does not use its leadership role in the Chesapeake Bay Program to set new goals and
a new deadline to meet the TMDL pollutant-reduction goals, the Chesapeake Bay Program will be
ill-prepared to continue pollution-reduction efforts beyond 2025.
Given its authority and as the chair of the Chesapeake Executive Council and its Principals' Staff
Committee, the EPA is expected to take a leadership role in helping Chesapeake Bay Program partners in
achieving their TMDL pollutant-reduction goals. In doing that, the EPA should consider:
• The challenges described above to using four of the eight federal actions if the EPA chooses to
make significant changes to the Accountability Framework.
• The absence of an effective assurance mechanism to hold jurisdictions accountable for
addressing nonpoint source pollution. Based on the authority provided to the EPA under the
CWA, the system currently relies entirely on voluntary actions.
• A way to guide the Chesapeake Bay Program in adopting an assurance mechanism for nonpoint
source reductions and the development of a new strategy with new goals and a new deadline.
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While the EPA has been aware as early as 2018 that the 2025 goals would likely not be met, the Agency
has not led the Chesapeake Bay Program to adopt revised TMDL pollutant-reduction goals or the
timeline for achieving those reductions. Without an updated and improved assurance mechanism for
increasing nonpoint source pollution reductions, the Chesapeake Bay Program will not meet its overall
TMDL pollutant-reduction goals and will not meet the accountability expectations of the 2010
Chesapeake Bay TMDL
Recommendations
We recommend that the regional administrator for Region 3:
1. Lead the Chesapeake Bay Program in developing a new strategy to specifically address nonpoint
source pollution.
2. Lead the Chesapeake Bay Program in setting new jurisdictional goals and a new deadline to have
all pollution controls and practices in place to meet Total Maximum Daily Load
pollutant-reduction goals.
3. Lead the Chesapeake Bay Program in developing an effective assurance mechanism to ensure
that nonpoint source load reductions will be achieved by jurisdictions under the Chesapeake Bay
Total Maximum Daily Load.
Agency Response and OIG Assessment
Appendix C contains the Agency's response to our draft report. The Agency also provided technical
comments, which we considered as we finalized this report.
The Agency did not concur with Recommendations 1 and 3 and offered edits to reflect the voluntary
nature of the Chesapeake Bay Program and the EPA's authority under the CWA for nonpoint sources of
pollution. We do not accept these edits because our recommendations specifically state that the
regional administrator should lead the Chesapeake Bay Program, a role that is consistent with both
Executive Order 13508 and the voluntary nature of the program. Furthermore, while we agree that the
partnership structure of the Chesapeake Bay Program necessitates coordination and agreement among
the parties, the suggested edits to Recommendation 3 did not meet our intent, since the edits did not
commit the program to developing an assurance mechanism. Therefore, Recommendations 1 and 3 are
unresolved. We have revised Recommendation 3 by adding clarifying language to describe what an
effective assurance mechanism means in response to a technical comment suggesting that the draft
recommendation was vague.
The Agency concurred with Recommendation 2. The Chesapeake Bay Program's Principals' Staff
Committee expects to deliver recommendations for potential changes, which could include a new target
date to have all controls and practices in place, to the Chesapeake Executive Council in late 2024. The
Chesapeake Bay Program is also working on the Phase 7 suite of modeling tools, which should be ready
in 2028 and will be used by the partnership to inform decisions related to nutrient and sediment
reduction goals outlined in the Chesapeake Bay Watershed Agreement. The Agency plans to report to
the OIG on the decisions of the Chesapeake Bay Program with respect to Recommendation 2 by January
15, 2026. As such, Recommendation 2 is resolved with corrective actions pending.
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Status of Recommendations
RECOMMENDATIONS
Planned
Rec.
Page
Completion
No.
No.
Subject
Status1
Action Official
Date
15 Lead the Chesapeake Bay Program in developing a new
strategy to specifically address nonpoint source pollution.
15 Lead the Chesapeake Bay Program in setting new jurisdictional
goals and a new deadline to have all pollution controls and
practices in place to meet Total Maximum Daily Load
pollutant-reduction goals.
15 Lead the Chesapeake Bay Program in developing an effective
assurance mechanism to ensure that nonpoint source load
reductions will be achieved by jurisdictions under the
Chesapeake Bay Total Maximum Daily Load.
U Regional Administrator for
Region 3
R Regional Administrator for 1/15/26
Region 3
U Regional Administrator for
Region 3
1 C = Corrective action completed.
R = Recommendation resolved with corrective action pending.
U = Recommendation unresolved with resolution efforts in progress.
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Appendix A
Description of Nutrient and Sediment Pollution
Excess nutrients and sediments are major contributors to the poor health of the Chesapeake Bay:
• Nutrients—primarily nitrogen and phosphorus—are needed Figure A-1: Algae in a pond
for the growth of all living organisms in the Chesapeake Bay.
However, excess nutrients fuel the growth of algal blooms.
Algal blooms, as shown in Figure A-1, block sunlight to
underwater grasses and create low-oxygen dead zones
when the algae die. Underwater grasses are a critical part of
the Chesapeake Bay ecosystem, as they provide food and
habitat to wildlife and add oxygen to the water. Most of the
excess nutrients come from agricultural fertilizer and animal
waste runoff, poorly managed wastewater and septic
systems, and overfertilization of urban and suburban lawns.
Air sources contribute about one-third of the total nitrogen
loads to the Chesapeake Bay by depositing nitrogen oxides
onto the tidal surface waters of the bay and watershed.
• Sediment refers to loose sand, clay, silt, and other soil
particles that settle at the bottom of a body of water.
According to the EPA, scientists estimate that most of the Source: The EPA (EPA image)
sediment that flows into the Chesapeake Bay comes from
land being cleared of vegetation to make way for agriculture and development. Excess
sediments in the bay turns the water cloudy, blocking sunlight from reaching underwater
grasses. Bottom-dwelling species, such as oysters, can be smothered when that sediment settles
at the bottom of the bay.
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Appendix B
WiP and Midpoint Evaluations
The EPA's evaluations of the Phase I WIPs, Phase II WIPs, two-year milestone commitments submitted
for 2012 through 2017, and milestone progress from 2009 through 2017 included an assessment of
three pollutant source sectors—agriculture, urban/suburban stormwater, and wastewater—as well as
the trading/offsets program, which allows one source to meet its regulatory obligations by using
pollutant reductions created by another source with lower pollution controls. Based on its evaluations,
the EPA rated each jurisdiction as either:
• Ongoing Oversight. The EPA will continue to monitor the jurisdiction's progress.
• Enhanced Oversight. Having identified specific concerns with a jurisdiction's implementation of
strategies to meet the TMDL pollutant-reduction goals, the EPA may take additional federal
actions to ensure the jurisdiction stays on track.
• Backstop Actions. Having identified substantial concerns with a jurisdiction's actions to meet
the TMDL pollutant-reduction goals, the EPA has taken federal actions to help the jurisdiction
get back on track.
In addition to reviewing each jurisdiction's progress in reaching the two-year milestones, the EPA
developed a midpoint assessment, finalized in 2018, to determine progress in meeting
pollution-reduction milestones. These data reflected the point between the implementation of the
TMDL in 2010 and the anticipated achievement of those TMDL pollutant-reduction goals in 2025. Figure
B-l shows the results of that midpoint assessment.
Figure B-1: The EPA's 2018 midpoint assessment of TMDL milestone achievements
2018 Oversight Status Ongoing Enhanced Backstop
Agriculture
Urban/Suburban
Wastewater
Trading/Offsets
Delaware
Enhanced Oversight
Ongoing Oversight
Ongoing Oversight
Ongoing Oversight
District of
Columbia
Not Applicable
Ongoing Oversight
Ongoing Oversight
Ongoing Oversight
Maryland
Ongoing Oversight
Enhanced Oversight
Ongoing Oversight
Ongoing Oversight
New York
Ongoing Oversight
Ongoing Oversight
Enhanced Oversight
Ongoing Oversight
Pennsylvania
Backstop Action
Levels
Backstop Action
Levels
Ongoing Oversight
Enhanced Oversight
Virginia
Ongoing Oversight
Ongoing Oversight
Ongoing Oversight
Ongoing Oversight
West Virginia
Ongoing Oversight
Ongoing Oversight
Ongoing Oversight
Ongoing Oversight
Source: 2018 Midpoint Assessment of the Chesapeake Bay Total Maximum Daily Load. (EPA image)
According to EPA personnel, the EPA revised the way it rated the pollutant source sectors or the
trading/offsets program for the Phase III WIP evaluations and subsequent evaluations of milestone
commitments and progress in 2017. However, the EPA provided a generic statement on the Agency's
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oversight and the types of assistance it could provide to support a jurisdiction's implementation of its
Phase III WIP. This statement in the evaluations did not list any of the eight actions under the
Accountability Framework that the EPA could take and noted that the evaluation is not enforceable by
law.
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Appendix C
Agency Response to Draft Report
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
Four Penn Center
1600 John F Kennedy Blvd.
Philadelphia, PA 19103-2852
May 15, 2023
MEMORANDUM
SUBJECT: EPA Comments to the Draft Report:
The EPA should Update its Strategy, Goals, Deadline and Accountability
Framework to Better Lead Chesapeake Bay Restoration Efforts
Project No. OSRE-FY22-0139
TO: Steve Hanna, Acting Director
Programs, Offices, and Centers Oversight Directorate
Office of Special Review and Evaluation
EPA Office of Inspector General
FROM: Adam Ortiz, Regional Administrator ^.aiiy signed byADAM ortiz
EPA MidAtlantic Region (Region 3) ADAM 0RTIZ ST""""
Thank you for the opportunity to review the Office of Inspector General (OIG) Draft Report,
"The EPA should Update its Strategy, Goals, Deadline and Accountability Framework to Better
Lead Chesapeake Bay Restoration Efforts." (Project No. OSRE-FY22-0139). The EPA
appreciates the interaction with OIG staff throughout this process, and we believe the Draft
Report reflects the challenges that the Chesapeake Bay Program partnership faces in meeting the
2025 water quality goals.
Proposed Corrections
Most of our proposed corrections address clarifications of the legal nuances of EPA's authority
within the Chesapeake Bay Program (CBP) partnership, as well as some factual corrections. The
corrections are intended to accurately characterize the partnership, the functions of the various
partners, and EPA's role in the partnership.
The CBP partnership is a complex program, which is built on voluntary participation by its
members and operates via a consensus-based decision-making structure. The EPA's roles in the
CBP partnership are described in Clean Water Act Section 117. This section calls for EPA to
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maintain an office to provide support to the Chesapeake Executive Council, which EPA does via
the Region 3 Chesapeake Bay Program Office (CBPO). EPA supports the CBP partnership
through various actions including funding, staffing, coordination, and leadership. As a member
of the CBP partnership, EPA is a partner, not a regulator.
We have identified a set of global issues with the report that we have set forth below for your
consideration. The identified items are inaccurate and/or have the potential to mislead or confuse
the public or other readers of the OIG report.
• The Draft Report references throughout "the 2025 TMDL pollution reduction goals." In
2010, EPA established the Total Maximum Daily Load (TMDL) for the Chesapeake Bay
("Bay TMDL"), which identified the necessary reductions of nitrogen, phosphorus and
sediment across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia
and the District of Columbia to meet applicable water quality standards in the Bay and its
tidal rivers and embayments. The CBP partnership established the goal of having all
practices in place by 2025 to improve water quality in the Bay prior to the establishment
of the Bay TMDL. The TMDL acknowledged the 2025 goal but the goal itself is not part
of the TMDL, so it is more appropriate to refer to the 2025 goal separately from the
TMDL allocations. Please make this correction throughout the document.
• We believe the characterization of the accountability framework in the Draft Report is
not entirely accurate and should be clarified. EPA developed the accountability
framework in collaboration with the state jurisdictions and larger partnership prior to the
establishment of the Bay TMDL. EPA did not develop the framework to provide
reasonable assurance as that term of art is used in Clean Water Act regulations regarding
TMDLs. The accountability framework supports the Bay TMDL versus the Bay TMDL
being "under" the accountability framework. Additionally, implementation of two of the
four elements under the accountability framework - the Watershed Implementation Plans
and the two-year milestones - are primarily the responsibilities of the state jurisdictions
and not EPA, though EPA does play a role in evaluating these WIPs and milestones and
providing feedback to the state jurisdictions.
• We recommend that the OIG acknowledge limitations in EPA's Clean Water Act
authority with respect to nonpoint sources. The Clean Water Act's system of cooperative
federalism gives states the primary authority over nonpoint sources. The Clean Water Act
does not give EPA significant authority over nonpoint sources. Because of these
limitations, the Chesapeake Bay jurisdictions have created and repeatedly updated
Watershed Implementation Plans, and they continue to develop two-year milestones to
evaluate and document project accomplishment. These Watershed Implementation Plans
include Best Management Practices (BMPs) for reductions of pollutants from nonpoint
sources and provide data on implementation of BMPs by point and nonpoint sources.
While EPA has limited authority to regulate these practices, the publicly available
evaluations add accountability and help EPA to determine appropriate responses.
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• The Draft Report references the overall EPA budget; however, we believe it is more
meaningful and germane to provide information regarding federal funds available
specifically to the CBP partnership. The Chesapeake Bay Restoration Spending Crosscut
Report to Congress, compiled annually by the Office of Management and Budget,
provides the most accurate EPA budget amounts since national program funding awarded
to Chesapeake Bay watershed states is pro-rated by the percent of the state within the
watershed.
o EPA's fiscal year 2022 budget for the Region 3 CBPO (which includes
allocations for the Water Division and the Enforcement and Compliance
Assurance Division), was $88,000,000, and Office of Water (OW) programs
(including Sec. 319, S. 106, and the State Revolving Funds) was $110,100,000 for
a combined total of $198,100,000.
o The fiscal year 2022 Infrastructure Investment and Jobs Act funding for CBPO
was $47,600,000 and the above-referenced OW programs was $142,300,000 for a
combined total of $189,900,000.
In addition, it should be recognized that the jurisdictions invest significant state resources
in non-point source programs to meet the goals and outcomes of the Chesapeake Bay
Watershed Agreement. In fiscal year 2022, jurisdictions reported investing an estimated
$1 billion in watershed restoration through state programs.
Response to Recommendations
EPA concurs with the three recommendations with suggested edits and have already begun
progress and actions on these recommendations. These edits are necessary to reflect the
voluntary nature of the CBP partnership and EPA's authority under the Clean Water Act for
nonpoint sources of pollution. As a program that continues to be voluntarily entered into by
signatories to a non-binding partnership agreement, EPA does not have full authority to enact
and require actions. By January 15, 2026, EPA Region 3 will report to the OIG on the three
actions below with a statement describing the CBP partnership's decisions on these issues.
1. Developing a new strategy to specifically address nonpoint source pollution.
Suggested revision: Leading the development of a new strategy to specifically address
nonpoint source pollution in coordination with the CBP partnership.
Response: EPA concurs with this recommendation with suggested edits. The Executive Council
charged the CBP partnership with evaluating what is needed to increase the pace of
implementation between now and 2025, and how existing and new challenges can be addressed
beyond 2025 - particularly in the agricultural sector. As part of this evaluation, the CBP
partnership will examine (re)prioritizing the goals and outcomes under the 2014 Chesapeake Bay
Watershed Agreement, including establishing new deadlines. EPA, as current chair of the
Executive Council and Principals' Staff Committee, will continue to engage the partnership in
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work to both address reaching goals by 2025 and planning a path forward beyond 2025. While
the CBP partnership has not decided whether to enter into a new Bay Watershed agreement, the
2014 Chesapeake Bay Watershed Agreement, as amended in 2020, continues to serve as the
guiding document for the partnership.
While EPA has limited Clean Water Act authorities in regulating or managing nonpoint sources,
EPA expects to continue providing significant technical and financial assistance to support the
jurisdictions' efforts (including specific programs, initiatives, and partnerships) in reducing
nonpoint sources of pollutants, particularly in the agricultural and urban/suburban stormwater
sectors. Most of the jurisdictions expect to achieve a significant portion of their respective
nutrient reductions from the agricultural sector and, as such, EPA, in collaboration with the
partnership, will continue to identify ways to accelerate progress in this sector.
2. Setting new jurisdictional goals and a new deadline to have all pollution controls and
practices in place to meet the Total Maximum Daily Load pollution reduction goals.
Response: EPA concurs with this recommendation, though it should be understood that EPA
alone does not have authority to simply "set" goals or target dates; as described above, this is
done by the CBP partnership overall. EPA will continue active engagement in the CBP
partnership's efforts to revisit the existing target date for achieving the water quality goals (as
well as other goals and outcomes under the 2014 Chesapeake Bay Watershed Agreement). The
CBP partnership's Principals' Staff Committee expects to deliver recommendations for potential
changes, which could include a new target date, to the Executive Council in late 2024.
The CBP partnership has taken an ongoing adaptive management approach to restoring Bay
water quality, by continually incorporating new information and the best available science into
its revised planning targets (done for Phase II and Phase III prior to the Bay jurisdictions
developing those Phases of WIPs) and updating its suite of modeling tools. To that end, the CBP
partnership is currently working on the Phase 7 suite of modeling tools, which should be ready in
2028.
3. Developing an effective assurance mechanism to hold jurisdictions accountable for
achieving nonpoint source pollution reductions.
Suggested revision: Leading, in collaboration with the seven Bay jurisdictions, an
exploration of potential different or additional accountability mechanisms that might be
available for achieving nonpoint source reductions.
Response: EPA concurs with this recommendation with suggested edits. The Clean Water Act's
system of cooperative federalism gives states the primary authority over nonpoint sources. The
Clean Water Act does not give EPA significant authority over nonpoint sources. The list of
potential federal actions in the accountability framework already includes actions regarding what
little authority over nonpoint sources that we do have, such as grants and funding, and potential
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designation as point sources. EPA can lead, in collaboration with the seven Bay jurisdictions, an
exploration of potential different or additional accountability mechanisms that might be available
beyond what is currently reflected in the Accountability Framework.
Thank you once again for the Draft Report and the Office of Special Review and Evaluation's
time and attention to this important program. We plan to incorporate the recommendations into
our future steps as we work within the CBP partnership toward reaching the partnership's 2025
goals and paving a meaningful path forward.
Attachments
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Distribution
The Administrator
Deputy Administrator
Chief of Staff, Office of the Administrator
Deputy Chief of Staff for Management, Office of the Administrator
Agency Follow-Up Official (the CFO)
Regional Administrator, Region 3
Deputy Regional Administrator, Region 3
Director, Office of Regional Operations
Agency Follow-Up Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for Public Affairs
Director, Office of Continuous Improvement, Office of the Chief Financial Officer
Director, Chesapeake Bay Program Office
Audit Follow-Up Coordinator, Office of the Administrator
Audit Follow-Up Coordinator, Region 3
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Whistleblower Protection
U.S. Environmental Protection Agency
The whistleblower protection coordinator's role is to
educate Agency employees about prohibitions on
retaliation and employees' rights and remedies in
cases of reprisal. For more information, please visit
the whistleblower protection coordinator webpage.
Contact us:
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