Virginia’s portion of the Chesapeake Bay is officially polluted, at least according to the EPA.

It’s not that the water is any dirtier than in past years, but the EPA’s Region III office in May determined that much of the Bay must be included on the state’s “dirty waters list” because it does not meet state water quality standards.

The decision could have far-reaching consequences for Virginia and other Bay states: It raises questions about the future of voluntary nutrient reduction efforts which have been the cornerstone of the Bay Program for more than a decade.

Virginia officials had resisted placing the Bay and several tidal tributaries on the dirty water list. They said those waterways would be cleaned up through the implementation of tributary strategies being written to meet Bay Program nutrient reduction goals.

But the EPA rejected that argument. In its written decision, the EPA said it “applauds” the tributary strategies, but even full implementation would likely fall short of meeting the state’s water quality standards. Further, the agency said the plans cannot ensure water quality goals are met because they are voluntary. “…There is no requirement associated with the Chesapeake Bay Program that would require point and nonpoint sources to participate at a level necessary to achieve the water quality standards,” it said.

The dispute stems from a provision of the Clean Water Act requiring that every two years states submit a list of all water bodies that fail to meet water quality standards. The states are supposed to develop cleanup strategies, known as Total Maximum Daily Loads, for each of these water bodies.

TMDLs identify all sources of the pollutant causing the problem and establish the maximum amount that can enter the water and still meet the water quality standard. The TMDL serves as a blueprint to set discharge limits from wastewater treatment plants and to take other actions that will result in the standard being met.

Virginia’s dirty water list— officially known as the 303(d) list — originally included more than 700 water “segments” that were impaired throughout the state because of various contaminants. The EPA’s action added 82 segments to the list, mostly in the Bay and portions of the tidal James, York and Rappahannock rivers, bringing the total to 810.

The reason for most of the additions was the failure to meet the state’s dissolved oxygen standard. That means nutrient reductions are needed because phosphorus and nitrogen fuel the growth of algae which eventually die, sink to the bottom and decompose in a process that depletes the water of oxygen.

Virginia had argued that the Bay and several other areas should not be included on the list — and therefore did not need TMDLs — because the nutrient problem was being addressed through the Bay Program.

State officials say the EPA’s action essentially replaces nutrient reduction agreements set by the Chesapeake Executive Council, which includes the governors of Maryland, Virginia and Pennsylvania, the mayor of the District of Columbia, the EPA administrator and the chairman of the Chesapeake Bay Commission, which represents the state legislatures.

“This raises questions about the whole character of the Bay Program, the role of the Executive Council,” said Alan Pollock, director of the Virginia Department of Environmental Quality’s Chesapeake Bay Office. “For over a decade, the Executive Council has set the nutrient reduction goals for the Bay. Now it appears the regulatory program sets the goals, with the EPA regional administrator, basically, who has the authority”

Ramifications could reach far beyond Virginia’s borders because computer modeling has shown that nutrient reductions by Virginia alone will not attain its water quality standards in the Bay, and even some of its tidal rivers.

“What we would like to try to do is develop a TMDL for the Bay, and not just Virginia’s portion,” said Tom Henry, who heads EPA Region III’s TMDL program.

As a result, EPA Region III is contemplating a regional summit that — unlike the Bay Program — would involve all six states that drain into the Bay: Virginia, Maryland, Pennsylvania, New York, Delaware, and West Virginia. The Bay Program includes only Maryland, Virginia, Pennsylvania and the District of Columbia. This could ultimately lead to new — and more enforceable — nutrient reductions.

But TMDLs and enforceable nutrient reductions won’t necessarily happen. The time frame for writing Bay TMDLs is likely to be a decade or more, giving existing voluntary Bay Program efforts — and potential additional nutrient reductions — time to work.

“It does not change the Chesapeake Bay Program,” said Bill Matuszeski, director of the EPA’s Bay Program Office. “It sets up a parallel track which is ultimately leading to regulation, but it is a much slower track. The Bay Program’s challenge is to keep the cooperative efforts moving so that we obviate the need to ever do a TMDL.”

On the surface, tributary strategies being developed to meet current Bay Program goals would seem to be similar to TMDLs, but in reality, they’re very different.

Nutrient reductions for the Bay Program date to 1987, when the Executive Council agreed to a 40 percent nutrient reduction, a figure based on computer modeling that showed such a cut would eliminate low oxygen conditions in the Bay.

That goal was later substantially revised, to a 40 percent reduction in “controllable” loads. Natural sources of nutrients, as well as those from air pollution, septic systems and certain other sources were considered “uncontrollable.” By ruling those nutrients off-limits, the 40 percent goal was substantially reduced, and later computer modeling showed it would result in less-than- hoped-for water quality improvements.

Essentially, the original goal — which was based on achieving a specific Bay response — was replaced over the years with a lesser goal that officials deemed more achievable, but was tied only to a general improvement rather than a specific water quality endpoint.

Later, that goal was divided into specific reduction goals for each major Bay river, with “tributary strategies” to be written to guide nutrient control efforts for each.

By contrast, TMDLs simply require states to meet water quality standards for whatever pollutant is causing the problem. In the Bay and some tributaries, that means nutrient inputs would have to be slashed until those goals are achieved, regardless how great the reduction.

“The 303(d) list and the TMDLs have a very different endpoint,” said Jeff Corbin, a staff scientist with the Chesapeake Bay Foundation which, along with many other environmental groups, supported the expanded list. “Instead of just a voluntary approach and saying ‘let’s get things as good as we can,’ this takes it to the next level of making certain that we will meet water quality standards.”

For Virginia, the problem is compounded because natural conditions — also influence oxygen levels in the water, making their minimum standards impossible to attain in places.

In its report, the EPA agreed that natural conditions complicate the issue, but said that much of the problem is still aggravated by pollution from human activities — a point raised by many people who commented on adding the new locations to the list.

One option could be for Virginia to change its water quality standards, but that would be viewed as a step back and would likely be greeted with strong criticism.

The EPA’s decision that tributary strategies do not satisfy TMDL requirements may ultimately affect Maryland as well. Maryland did list its portion of the Bay on its 303(d) list, which is still being reviewed by the EPA. Its standards for the Bay are also less stringent than Virginia’s, mainly because they more explicitly account for natural factors that influence water quality.

Nonetheless, Henry said, Maryland will have to show that its plans are adequate to meet not only its own standards, but also Virginia’s.

Pollock said that as other states are drawn into the development of TMDLs for the Bay, they will find themselves in the same situation as Virginia. “It will be “so long” to the cooperative nature of the tributary strategies. The regulatory approach will take the lead,” he said.

Already, the EPA’s action has had ramifications, Pollock said. Virginia has made millions of dollars for wastewater treatment plants upgrades. Now, he said, plants are concerned that planned upgrades will not meet future requirements. “We have heard concerns that owners who have already signed grant agreements might need to rethink their projects,” he said. “They are concerned with investing millions of dollars of local public monies for projects that might not meet environmental regulatory requirements when they are completed,”

Adding to the uncertainty is that the time frame for resolving the issue is not clear. The EPA set no deadline for writing a TMDL for the Bay.

Also unclear is what happens between now and the time a TMDL is written. According to the EPA’s rules, states cannot allow new sources of pollution in a listed area until a TMDL is completed. “What does that mean for expanded treatment plants or for new facilities?” Pollock asked. “How is that going to work in this interim period?”

For now, there is no answer. “Right now, we don’t see an impact on that, but that is a good question, and one I can’t really answer as this point,” Henry said.

Pollock said there are more questions than answers about the future. “The only certainty,” he said, “is the uncertainty they injected into the process. And, unfortunately, that could lead to a slowdown in the Bay cleanup that none of us want to see.”