Citing a lack of progress in reducing nutrient pollution to the Bay, the Chesapeake Bay Foundation has taken legal action seeking to force dramatic changes in the way the Chesapeake cleanup program is conducted.
The group filed a petition with the EPA, charging that the agency has failed to enforce the Clean Water Act by not requiring nutrient limits on wastewater treatment plants within the Bay watershed.
The group also said the EPA is required by law to develop a regulatory document, known as a Total Maximum Daily Load, that would set legally enforceable limits on the amount of nutrient pollution entering the Bay.
“The Chesapeake Bay is critically ill, and the Clean Water Act clearly requires the EPA and the states to reduce nitrogen pollution to restore it,” said CBF President Will Baker. “The Bay must not continue to be a dumping ground for nitrogen pollution, which contributes to ‘dead zones,’ harmful algal blooms and fish kills.”
The petition, which the EPA is expected to respond to within six months, represents an escalation in a long-running dispute between the foundation and the state-federal Bay Program over how the Chesapeake cleanup should be done.
CBF officials have contended for years that under the Clean Water Act, states must write TMDLs for any “impaired” waterbody—those that fail to meet their water quality standards. That would include much of the Bay and its tidal tributaries.
A TMDL is a pollution budget that establishes the maximum amount of a particular pollutant that a waterway can receive and still meet its water quality standards.
As part of the calculation, pollution loads are assigned to all sources that contribute to the problem. If those sources have a discharge permit, those limits are supposed to be included in the permits.
But instead of requiring a TMDL for the Bay, the EPA has allowed the Bay Program to pursue a voluntary nutrient reduction program. The Bay Program last year set maximum loads for the amount of nitrogen, phosphorus and sediment that can enter the Bay from each major river.
States are writing strategies for each river to meet those new goals. The strategies are to be completed by the end of April. Although the strategies are similar to TMDLs, they do not have regulatory authority.
Bay region officials have long said they could clean up the Bay more quickly, and cheaply, through a mix of voluntary, incentive and regulatory programs without doing a strict TMDL. The EPA has indicated that a TMDL would be required in 2011 if the Bay Program fails to meet its 2010 goal for meeting water quality standards.
In its petition, the foundation called that timeframe “unreasonable.” It contends that little progress has been made in the past few years, and the states are far from being on track to meet the 2010 goal.
The petition calls for the EPA to require a TMDL for the Bay by June 15, and said that until one is completed, no new or expanded discharges should be allowed in the watershed.
“How in the world can any one of the Bay state partners justify a new nutrient loading, or an increased nutrient loading, in light of our commitments to achieve reductions?” asked Roy Hoagland, director of CBF’s Virginia Office. “It simply makes no sense for them to allow any kind of increase from permitted Clean Water Act sources.”
The petition also called for the EPA to establish technology-based standards for wastewater treatment plants and industrial discharges that reflect up-to-date, affordable techniques to control nutrients.
The group also wants the EPA to steer at least 25 percent of federal water grants to the states toward reducing nitrogen and phosphorus pollution from wastewater plants.
Rebecca Hanmer, director of the EPA’s Bay Program Office, defended the Bay Program approach.
She acknowledged the rate of nutrient reductions was not yet great enough to meet the 2010 goal, but said that is largely because of the time it took to develop new water quality criteria for the Bay, which establish the water conditions necessary to protect aquatic life in the estuary.
That process took three and a half years to complete instead of the planned two, but provided the basis for the nutrient reduction goals approved by the Bay Program last year.
Hanmer said the wait was worthwhile because the criteria, which will be adopted as legally enforceable state water quality standards, set the necessary legal and scientific basis for the Bay cleanup.
“We haven’t had the proper water quality standards, so we therefore have not had the proper regulatory base,” she said.
Because the old standards were considered to be scientifically unattainable in some parts of the Bay, Hanmer said any attempt to use them as the basis for regulations would almost certainly face legal challenges.
“The water quality standards are the basis for the whole Clean Water Act mechanism to work,” she said. “A TMDL set on the basis of an unattainable standard, or an inadequate standard, is an unattainable or an inadequate TMDL. It is a calculation, but you can’t implement it. And the whole point of a TMDL is to be able to implement a meaningful cleanup program.”
She also said it was unlikely that the EPA would be able to establish technology-based limits for nutrient discharges anytime soon. Such limits would require an analysis of impacts across the nation, and typically require eight years to complete. The Bay Program is developing a new, more flexible permitting approach that she said could be in place much sooner.
“A national technology-based standard is going to be evaluated by the EPA, but it would be a very long-term proposition and would not help us meet the 2010 deadline,” she said.
Hoagland disputed the need for further delays. He said the new criteria will not result in different water quality standards for many areas, yet the states have failed to regulate discharges in those locations.
“What happens for those waters where the new standards are identical to the old standards?” he asked. “What is going to be different in the permitting scheme that is going to make the new standard work when the old standard didn’t?”
He contended that the EPA could establish regional technology-based nutrient limits more quickly than eight years, just as it established special water quality criteria for the Bay, which differs from criteria used in other parts of the country.
Hoagland also questioned arguments that enforcing existing standards would lead to lawsuits. He said it’s likely the new standards will be challenged as well if they are aggressively implemented, noting that representatives of wastewater treatment plants had challenged some key aspects of the criteria during their development.
“Then we’re off another couple of years again,” he said.
The bottom line, Hoagland said, is that time has run out for the Bay Program to show it can accomplish results through means other than those set out in the Clean Water Act. “The fundamental premise of the petition is that the states are not properly implementing the act, and that the Bay is demanding more aggressive action if that resource is to be protected,” he said.
Hanmer contended that with defensible water quality standards coming on line, the stage is set for more aggressive action. She said the pace of nutrient reduction efforts will accelerate after tributary strategies are completed in April. “How to get on track is what the tributary strategies are all about,” she said. “We are really talking about a matter of months, not years and years, before these policies become clearer.”
Hanmer said EPA has assigned a team to review and respond to the petition over the next several months.