The Bay Program is in a race to meet a new goal: Clean the Chesapeake by the end of the next decade. Unlike past goals, the new one has a potentially harsh backup. If the Bay Program doesn’t succeed, the EPA could force far more prescriptive — and potentially costly — nutrient reductions, especially from regulated sources such as wastewater treatment plants, city stormwater systems and animal feedlots.
Those approaches could replace the traditional Bay Program approach to nutrient control which has relied largely on voluntary measures and cost-sharing grants, with modest regulatory controls.
But the new “clean Bay” goal will likely mean far greater nutrient cutbacks than are being sought today. And nutrient control efforts will likely reach far up the watershed: For the first time, West Virginia, Delaware and New York will be asked to control nitrogen and phosphorus to benefit the Bay.
These changes are being driven by four letters: TMDL. That stands for “Total Maximum Daily Load,” a program that forces detailed plans to be spelled out and implemented to clean up waterways.
The EPA has indicated that it will require a TMDL for the Bay if it is not cleaned up by 2011. To head that off, the Bay states are likely to agree in their “Chesapeake 2000” agreement to finish the job by 2010.
“It’s going to provide us with the backbone that we need to make the cooperative effort work,” said Bill Matuszeski, director of the EPA’s Bay Program Office. “And I think that we’re going to find it relatively straightforward to set a goal in the context of the new Bay Agreement to eliminate our nutrient problems by 2010.”
But apart from trying to clean the Bay before 2011, the road ahead is far from clear. For example, before the Bay can be cleaned, people have to answer a key question: What is a clean Chesapeake?
The road is also filled with potential potholes. The TMDL process opens the Bay goals to more public scrutiny — including lawsuits that could speed or slow the cleanup — than in the past. Both environmentalists and those who face potential regulation will be watching the process carefully. Here’s the story so far:
In the Beginning:
The Clean Water Act requires states to survey all lakes, rivers, reservoirs and streams and report to the EPA every two years any water “segments” that fail to meet water quality standards.
For each segment listed on the 303(d) list — sometimes known as the “dirty waters list” — states are to identify the pollutant (or pollutants) causing the impairment and develop a TMDL. Simply put, a TMDL is a calculation of the total load a water body can receive and still attain the water quality standard along with a “margin of safety.”
A TMDL identifies all sources that contribute to the impairment, whether located in the segment with the problem or farther upstream, and allocates reductions from those sources so water quality standards can be achieved.
Though on the books for decades, the TMDL requirement was largely neglected until recently. In the past few years, environmental groups — seeking to force watershed cleanups — began suing the EPA for not forcing states to complete TMDLs.
About 40 suits have been filed nationwide. Settlements typically result in timetables, usually about 12 years, for states to complete all their TMDLs. Sometimes, that means hundreds of cleanup plans. Negotiated court settlements have resulted in TMDL timetables for Virginia and Pennsylvania. A suit concerning Maryland is ongoing.
TMDL For the Bay
This spring, EPA Region III reviewed Virginia’s 303(d) list and concluded that its portion of the Bay needed to be added to the state’s “dirty waters list” for failing to meet Virginia standards for dissolved oxygen and aquatic life, because it received too many nutrients.
Maryland had already listed the Bay as impaired on its 303(d) list for failing to meet the state standard for dissolved oxygen in the water. It also cited nutrients as the cause.
“It’s kind of common knowledge that the Chesapeake Bay is over-enriched by nutrients, so we listed it,” said Jim George, who oversees the Maryland Department of the Environment’s TMDL program.
Those listings triggered the EPA’s decision to start a TMDL development process for the Chesapeake. That means all sources of nutrient pollution that contribute to the water quality impairment must be identified, and a strategy written to control all sources of pollution contributing to the problem — wastewater treatment plants, agricultural runoff, urban runoff, air pollution and so forth.
Action by Virginia or Maryland alone would not remove the water quality problem because of upstream pollution. So the TMDL would affect all six states, and the District of Columbia, which drain into the Bay. Representatives from all those jurisdictions began meeting with the EPA on the issue in July.
The settlement of the court case set a 12-year time frame for the development of TMDLs for Virginia’s impaired waterways. That means that the latest a TMDL could be completed for the Bay is May 2011.
Current Efforts Don't Cut It
The TMDL was triggered because of a specific water quality impairment — low dissolved oxygen in deep parts of the Bay which, in turn, restricts habitat.
While natural conditions contribute to low dissolved oxygen, conditions in the Bay are worsened because of nutrient pollution, which spurs algae blooms. When the algae die, sink to the bottom and decompose, they deplete the water of oxygen, creating huge “dead zones” that cannot be used by most Bay dwellers.
That impairment must be eliminated for the Bay to be removed from the dirty waters list.
While the Bay states have worked to control nitrogen and phosphorus for years, their present commitments would not remove the impairments. In part, that’s because Bay Program reductions are intended to generally improve water quality in the Chesapeake but are not tied to any particular “outcome” such as attaining a specific dissolved oxygen concentration in the Bay.
That is supposed to change. In 1997, the Chesapeake Executive Council — consisting of the EPA administrator, the mayor of the District of Columbia, the governors of Mary-land, Virginia and Pennsylvania, and the chairman of the Chesapeake Bay Commission (which represents state legislatures) — moved toward outcome-based goals.
They directed the Bay Program to review whether current nutrient reduction goals were adequate to meet “living resource” needs, or whether further reductions are needed. That work is under way.
An Unachievable Goal
Still, no level of nutrient reduction would likely meet Virginia’s water quality standard of 5 milligrams per liter of oxygen in the Bay. Even prior to colonial settlement, deep portions of the Chesapeake, under natural conditions, had less oxygen than that during parts of the year.
Virginia officials say their standard was never meant for all parts of the Bay, but EPA officials say that was never clearly stated. That means there is no hope of removing the “impairment” unless a new goal is chosen and Virginia changes its standard.
Pick Your Impairment
The EPA has agreed to allow the Bay Program to, in effect, work toward identifying what a “clean Bay” should be.
That could translate into water clarity goals that would allow Bay grasses to return to certain depths, and dissolved oxygen goals that would turn deep parts of the Bay into suitable habitat for clams, oysters and other bottom-dwelling organisms.
This TMDL-driven requirement to identify and remove an impairment represents a key change for the Chesapeake. Instead of “success” being measured by a certain amount of nutrient reductions, success would be measured by attaining a specific “endpoint” in the Bay. Nutrient reductions, in effect, become the means to achieve an end, not an end unto themselves.
“It gets to the issue of what is a restored Chesapeake Bay?” said Rich Batiuk, associate director for science with the EPA Bay Program Office. “What is the Bay we want?”
Substantial new reductions could be needed. Bay Program modeling suggests that nutrient reductions far beyond present goals would be needed to eliminate anoxic (lack of oxygen) conditions in most, but not all, of the Bay.
In the past, the Bay goals were simply agreed to by the Bay Program participants. But that will change. The new goal will be essentially the same as the TMDL goal and TMDLs, especially under new rules proposed by the EPA in August, will require more public participation than Bay Program goals.
“One of the big pluses of the TMDL process is the enhanced role for the public in setting the vision for the Bay cleanup,” said Mike Hirshfield, vice president for resource protection with the Chesapeake Bay Foundation.
The goals, and the scientific basis behind them, will be open to scrutiny from both Bay advocates and members of the regulated community. Scrutiny will also come because Virginia will have to adopt a new water quality standard to remove the agreed-upon impairment. Because its current standard is viewed as unachievable, any new standard will be weaker. To avoid charges of backsliding, endpoints will have to be scientifically defensible to a range of observers.
“It’ll be easy to issue press releases that jump all over Virginia for daring to think about lowering the standards,” said Alan Pollock, Chesapeake Bay Program manager for the Virginia Department of Environmental Quality. “We’d like an agreement up front that the current standards are not applicable and a change is needed.”
Beat the TMDL Clock
Removing the impairment can be reached through one of two means.
If it is done through a TMDL, a regulatory process would kick in. Strict new nutrient reduction requirements would be written into permits for wastewater treatment plants, large animal feedlots, stormwater systems and other regulated nutrient sources.
If, however, the endpoint is achieved by the Bay Program by 2010, the TMDL would not have to go into effect. That could allow more flexibility and — proponents say — accomplish the goal more cost effectively. For example, permits under a TMDL would set daily discharge limits, whereas in the case of the Bay, it is the total loads received over a period of weeks that is more important for water quality.
But if federal regulatory requirements kick in under a TMDL, the level of expenditure needed by a treatment plant to avoid violations on a daily basis — rather than on a monthly or seasonal basis — could be significantly more. Because the federal permit requirement would expose facilities to $25,000-a-day fines and lawsuits from third parties for violations, facilities are often “overdesigned.”
“You lose all the flexibility of the Chesapeake Bay Program,” said David Evans, an attorney for the Virginia Association of Municipal Wastewater Agencies. “Flexibility and cost-effectiveness go hand-in-hand. It would be very difficult to relate the huge cost of a federal mandate to any particular water quality benefit.”
Evans has an added concern: Even TMDLs do not change the fact that many sources of nutrient runoff, such as farms and subdivisions, are largely unregulated. That means with TMDLs, facilities that have permits — such as wastewater treatment plants — could be harder hit because they can be forced to act.
“It’s the nonpoint sources, the unregulated sources, that have not achieved meaningful reductions, and we question whether the EPA and the states are going to get control of those sources through a TMDL any better than they are being controlled under the Chesapeake Bay Program,” Evans said. “So our concern is that all a TMDL will do is ratchet down on the sources that are already doing a good job, without controlling the more significant unregulated sources, which is not cost effective.”
Looming in the background, is yet another compounding factor. The EPA is in the process of developing its first-ever water quality criteria for nitrogen and phosphorus. When completed in the next few years, states are expected to adopt their own nutrient standards.
From the Bay Program perspective, it is hoped that those standards will be tied to the endpoints that remove impairments to the Bay. But it is still early in the nutrient criteria development process, and it’s too early to say whether that will happen.
Conceivably, the standards could end up requiring different nutrient reductions than the TMDL. The prospect of different standards in the future could make some people reluctant to invest in nutrient controls. “They want to know, before they take the next step, where are we going and how far do they have to go,” said DEQ’s Pollock.
Don't Stand in Place
Despite the uncertainty, the EPA has indicated it wants ongoing progress toward removing the impairment. EPA Region III officials have said they could initiate a TMDL before 2011 if there is insufficient progress.
The Road Ahead
While the Bay states will strike out toward their 2010 goal, it’s less clear how a TMDL would play out if they miss the deadline, because the TMDL issue is relatively new. Few have been written — let alone one for an area as big as the Bay watershed. Many doubt that one could be written for the entire basin by 2011.
“The TMDL process is not well-defined,” said Robert Yowell, acting deputy secretary for water management in Pennsylvania’s Department of Environmental Protection. “I wouldn’t call it experimental, but it’s certainly in the infancy of development.”
Unlike voluntary Bay Program goals of the past, a TMDL would be more open to court challenges. “If it ever results in a federal TMDL being done for nutrients in the Bay watershed, I can assure you that sources of nutrients within the Commonwealth [of Virginia] are going to be all over that TMDL if they don’t believe that it is equitable, that the other states are not doing their share,” Pollock said. “So there will be lawsuits flying all over if the TMDL doesn’t meet that test.”
On the other hand, because the law requires a TMDL — and the EPA is operating under a court order to develop one for the Bay if the impairment is not removed — the agency could face suits for failing to produce the cleanup plan. That’s a level of enforceability not present in the Bay Program.
“It’s required, it’s real, and it’s not subject to a change of administration in the executive branch of state government,” said CBF’s Hirshfield. “Ultimately, the accountability is litigation.”
No one, of course, knows how a spate of lawsuits would play out; whether they would speed or hinder the cleanup effort.
That, said EPA’s Matuszeski, is another reason to push for a cleanup before the TMDL would take effect: “We need to get ourselves in a position where we don’t have to worry about what some judge is going to say to us.”
Are We There Yet?
Will the Bay be “clean” in 2010? Even if all adequate nutrient reductions are made, the desired resource objectives in the water may not be met by the end of the next decade, for reasons that are fairly well understood.
The effects of some nutrient control efforts take years to be felt. Many of the nutrients from farmland enter streams not through runoff, but through groundwater, and it can take years — even decades — before nutrients that predate control efforts are flushed through the system.
“The Bay can only respond once it actually sees a lower level of nutrients entering it,” Pollock said.
Also, conditions in the Bay are highly susceptible to natural events, such as the amount of rainfall received. Wet years create powerful freshwater flows into the Bay which “stratify” the top freshwater layer from bottom saltwater. That prevents the mixing of the top and bottom layers, which makes it easier to deplete bottom water of oxygen.
More rainfall also washes more nutrients off the land than during dry years. Also, biological goals, such as restoring grasses to certain depths, may not be met because it can take grasses years to colonize new areas.
As a result, in 2011, it may be difficult to know whether the impairment has been eliminated. Would that trigger a TMDL?