Making Regional and Local TMDLs Work: The Chesapeake Bay TMDL and Lessons from the Lynnhaven River

This Article will first provide an overview of how restoration developed in the Bay in order to provide a regional context for the Lynnhaven River “total maximum daily load[s]” or TMDL. The Article will then explain the 2011 Chesapeake Bay TMDL and how it potentially foreshadows “next generation” cooperative federalism and watershed restoration because it is generating increased engagement from local government, private citizens, and non-profit restoration efforts. This Article will then tighten its focus to the Lynnhaven River, a local tributary within the Chesapeake Bay watershed, and will examine the local government’s success in implementing measures to meet a local TMDL, as well as how this success spurred a neighboring jurisdiction to support a local TMDL. Finally, the Article will conclude with a discussion of how both the Bay TMDL and the Lynnhaven River TMDL provide important lessons for regional and local watershed restoration efforts more generally

Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise

Coastal communities are becoming increasingly aware of the risks to local infrastructure from more frequent and severe flooding, more extreme storm surges, and sea-level rise. As local governments are responsible for the lion’s share of land use decision-making and infrastructure development in coastal communities in the United States, local governments in the coastal zone will play a key role in adapting to the changing climate. Local decision-makers are facing hard questions about whether to build new infrastructure, adapt existing infrastructure to new standards, continue maintaining existing infrastructure as is, or abandon infrastructure altogether. Monroe County, Florida, for example, has begun to factor sea-level rise considerations into decisions related to road improvement projects, creating specific design standards addressing elevation and working to weigh the benefits and costs of different adaptation options such as elevating roads. Local governments are making these decisions in the context of increasingly unreliable and aging road systems, all while meeting current stormwater criteria which may require drainage improvements. Local decision-makers also are recognizing that crucial infrastructure decisions that directly affect their adaptation success are sometimes out of their control. In the case of the City of Tybee Island, Georgia, for example, tidal flooding restricts access to U.S. Highway 80 on an ever-increasing basis—yet the highway, the only road leading to the island, is not under the city’s jurisdiction but that of the Georgia Department of Transportation. To further complicate matters for local governments, both taking action and failing to act could result in either tort or “takings” liability in cases where a poorly maintained road results in harm to life or loss of property value from diminished access. Using the duty of state and local governments to maintain roads as a focus, this Article explores the complexity of adaptation at the local level as the impacts of climate change become more pronounced. Specifically, this Article presents an analysis of coastal communities in four South Atlantic states—Florida, Georgia, South Carolina, and North Carolina—that are currently facing questions about how to protect property and infrastructure as sea levels rise and flooding increases. This Article distills the findings of an interdisciplinary research project funded by the National Oceanic and Atmospheric Administration (“NOAA”), Florida Sea Grant, Georgia Sea Grant, South Carolina Sea Grant Consortium, and North Carolina Sea Grant. It also consists of a regional analysis comparing how tort and local government law can both further and hinder climate change resilience planning and climate adaptation efforts across these four states. Given that the federal government has offered little in terms of legislation, policy, or funding to direct or support climate adaptation activities, local efforts—and the litigation that inevitably results—are on the forefront of establishing the framework for defining adaptation policy more broadly and influencing the contours of tort and land use law. This Article, therefore, fills an important research gap in existing climate change literature, as it discusses how increased flooding at the local level is putting pressure on traditional conceptions of government duties, immunities, and authorities. This Article also uses roads as a case study to explore how sea-level rise is altering planning, maintenance, and funding for public infrastructure. This discussion focuses on local duties and responsibilities to build, rebuild, modify, or maintain existing roads for two primary reasons: (1) it is a widely shared function among jurisdictions and is the most obvious and visible type of infrastructure to the public, and (2) roads and highways, which are crucial to trade, defense, and nation-building, have long been under the purview of government regulation and funding in the United States.  Recently, roads have also become a focal point in local government efforts to address rising sea levels and increased flooding.  While sea-level rise may seem like a distant threat, many of its effects are being felt now, as low-lying coastal areas such as Norfolk, Virginia; Brunswick, Georgia; and Monroe County, Florida are experiencing increased nuisance or “sunny day” flooding occurring during seasonal or average high tides. Such flooding typically affects roads, temporarily closing them and increasing maintenance and repair costs. Residents who rely on these roads, often find themselves cut off from their homes, businesses, workplaces, schools, and local hospitals. In this way, sea-level rise and the flooding associated with it have become increasingly familiar and imminent, making roads the “climate change canary in the coal mine” for local governments. Part I of this Article briefly discusses recent sea-level rise issues and coastal science most relevant to the South Atlantic states—North Carolina, South Carolina, Georgia, and Florida. Part II analyzes and compares each state’s road ownership and maintenance duties, first by addressing the threshold question of ownership and jurisdiction, and then by explaining the multi-step analysis that governments must take to evaluate their duties to maintain roads in order to avoid liability. Part II also outlines the wide differences among the four states in our study area and observes a common thread, namely, that in almost each instance, local governments are faced with conflicting pressures that are likely to reward inaction over action and favor short-term political compromises over strategic investments in adaptation. This Part then details how counties and municipalities can discontinue their duties to maintain roads through the process of abandonment and how abandonment can lead to takings liability. Part III offers three proposals for encouraging coordinated adaptation action and protecting local governments that take action to address climate impacts: (1) redefining the scope of the duties that define reasonable conduct for governments in making decisions about public infrastructure in an era of rising sea levels; (2) defining the scope of sovereign immunity protections in a way that encourages innovative and creative decision-making in an era of climate uncertainty; and (3) calling for consistent adaptation duties and authorities at the state level as a crucial first step in mending the regulatory patchwork that currently exists at the state, county, and city levels in our four-state study area. Part IV concludes with a summary of observations and recommended next steps

Accountability: Water Quality Trading in the Chesapeake Bay

The purpose of this paper is to identify critical elements of an effective trading program. Even if a substantial number of trades are made, the silver bullet will miss its target by a wide margin unless trading programs satisfy these minimal requirements. An equally likely and unfortunate scenario is that agricultural operators will decline the invitation to participate in trading programs, preferring to go about business as usual without sanctioning what they perceive to be quasi-regulation. Under either scenario, implementing unworkable and ineffective trading regimes will only serve to distract policymakers from making the hard choices necessary to ensure real and lasting gains. Trading is a means, not an end. If it fails, it should go. Bay states should be prepared with contingency plans should trading markets fail to perform as expected, including plans to implement mandatory programs for agricultural reductions to achieve the Bay TMDL if pollution reductions fall behind schedule

Water Quality Trading in the Chesapeake Bay

In May 2009, President Obama issued an Executive Order on Chesapeake Bay Protection and Restoration, declaring the Bay a national treasure and signaling that EPA will play a strong role in leading Bay cleanup. The order marked a dramatic departure, offering the promise of federal leadership on Bay cleanup. The following year, EPA issued a Chesapeake Total Maximum Daily Load (TMDL), a pollution budget for Bay states. Faced with a federal commitment, the states have begun work on complying with the TMDL. One Bay-wide approach under consideration is a market-based initiative, water quality trading, that would allow polluters to trade pollution credits. In this white paper, CPR\u27s Chesapeake Bay experts warn that such an approach has largely failed elsewhere, and that the success or failure of a Bay trading regime rests on whether Bay states can meet a number of several threshold criteria, including: Broad participation in the program, including from nonpoint pollution sources; Genuine accountability, so that credit trades actual translate into pollution reductions, not simply paper savings; Resources from the states sufficient to operate an accountable trading regime in all its complexity; Rules that avoid pollution hot spots; A continuation of traditional regulatory controls that would create an incentive for participation in the program; Transparency from EPA and the Bay states, so that compliance can be monitored by all

The Case for Grassroots Collaboration: Social Capital and Ecosystem Restoration at the Local Level

The nation’s approach to managing environmental policy and protecting natural resources has shifted from the national government’s top down, command and control, regulatory approach, used almost exclusively in the 1970s, to collaborative, multi-sector approaches used in recent decades to manage problems that are generally too complex, too expensive,, and too politically divisive for one agency to manage or resolve on its own. Governments have organized multi-sector collaborations as a way to achieve better results for the past two decades. We know much about why collaboration occurs. We know a good deal about how collaborative processes work. Collaborations organized, led, and managed by grassroots organizations are rarer, though becoming more common. We do not as yet have a clear understanding of how they might differ from government led collaborations…. [From Amazon.com]https://digitalcommons.odu.edu/publicservice_books/1001/thumbnail.jp

Missing the Mark in the Chesapeake Bay: a Report Card for the Phase I Watershed Implementation Plans

Momentum for Chesapeake Bay restoration has advanced significantly in the past two years, shaped by the combination of President Obama’s Chesapeake Bay Protection and Restoration Executive Order and the EPA’s Bay-wide Total Maximum Daily Load (TMDL) process. These federal initiatives, taken in partnership with the Bay states, required the Bay states and the District of Columbia to submit Watershed Implementation Plans (WIPs) to demonstrate how they will meet the pollution targets in the applicable TMDLs. In August, the Center for Progressive Reform sent the Chesapeake Bay watershed jurisdictions (Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia) metrics by which our panel of water quality experts would judge the strength of the plans; we also submitted comments to the states in November on their draft plans. The states’ final plans were submitted to EPA in November and December. The state plans fail to provide a specific roadmap for restoring the Bay, CPR says today in Missing the Mark in the Chesapeake Bay: A Report Card for the Phase I Watershed Implementation Plans (press release). The report was written by CPR Member Scholars William Andreen, Robert Glicksman, and Rena Steinzor, and CPR executive director Shana Jones and policy analyst Yee Huang. Our report found that the state plans all underperformed, to varying degrees, on the two primary areas for evaluation: transparency of information and strength of program design. While improvements from the drafts, the final plans were light on providing specific commitments for actions needed to achieve the required pollution reductions, and generally did not pledge dedicated funding for the proposed programs. The plans generally did not establish a baseline for existing programs’ effectiveness to allow the public to monitor future performance in implementing the pollution reduction controls

Making Good Use of Adaptive Management

Over the last two decades natural resource scientists managers and policymakers have increasingly endorsed adaptive management of land and natural resources Indeed this approach based on adaptive implementation of resource management and pollution control laws is now mandated in a variety of contexts at the federal and state level Yet confusion remains over the meaning of adaptive management and disagreement persists over its usefulness or feasibility in specific contexts This white paper is intended to help legislators agency personnel and the public better understand and use adaptive management Adaptive management is not a panacea for the problems that plague natural resource management woes It is appropriate in some contexts but not in others Drawing on key literature as well as case studies we offer an explanation of adaptive management including a discussion of its benefits and challenges a roadmap for deciding whether or not to use it in a particular context and best practices for obtaining its benefits while avoiding its potential pitfalls Following these recommendations should simultaneously improve the ability of resource managers to achieve management goals determined by society and the ability of citizens to hold managers accountable to those goal