The EPA gave failing grades to most draft Bay cleanup plans submitted by states in September, and threatened to require more costly backup measures unless jurisdictions provide satisfactory rewrites by the end of November.
Two of the Watershed Implementation Plans submitted - those for Maryland and the District of Columbia - had only minor deficiencies, according to the EPA.
But officials said the other five had serous shortcomings. Their problems included a failure to achieve the needed nutrient and sediment reductions, and a failure to demonstrate that state programs would effectively control nutrient pollution.
In those cases, EPA officials said the agency would flex its regulatory muscle and require further - and costly - nutrient reductions at wastewater treatment plants, municipal stormwater systems and animal feedlots unless states show they have adequate programs to rein in other sources of nutrient pollution and prove their programs can achieve those goals.
The evaluation of the state plans came in the first draft of the Chesapeake Bay Total Maximum Daily Load, a regulatory plan the agency will finalize by the end of the year.
The EPA's actions were cheered by environmental groups, who said its actions were overdue, but were panned by several state officials, who warned the required plans were overly burdensome, cost too much and risked a political backlash.
"Everyone recognizes and is sensitive to the economic times and the fact that this is not going to be easy, cheap or quick," said Shawn Garvin, administrator of EPA Region III, which covers most of the Chesapeake watershed. "But that should not be the reason that we don't set out the road map for how we are going to get there. We are not looking at having all of these practices in place by next year."
A TMDL sets the maximum amount of pollution that a water body may receive and still meet its water quality standards. Overall, the TMDL would require that the amount of nitrogen and phosphorus reaching the Bay each be reduced by about 23 percent, and the amount of sediment by about 22 percent. Nutrient and sediment loads would have to remain at those reduced levels in the future despite population growth and further development.
If fully implemented, most people in the watershed would feel the TMDL's effect in some way, such as increased sewer or stormwater fees for urban residents. Farms would come under more scrutiny, and some could see increased regulations. Homeowners may find their choices for lawn fertilizer reduced as more states look at switching to phosphate-free fertilizer. Septic owners, at least in some areas, may find themselves switched to sewer systems, or be required to install nitrogen-removing systems if they upgrade.
In return, the public would get a cleaner Bay and - in many cases - healthier streams, although the exact benefits to local waterways would hinge on what types of pollution control measures were used on the land.
The TMDL is designed to ensure that all of the practices needed to achieve water quality standards are in place by 2025, with 60 percent in place by 2017. Because it takes a number of years for some practices, such as stream buffers or cover crops to result in changes in local streams, actual water quality goals may not be met until sometime after 2025.
Achieving goals has proven elusive since states and the EPA agreed in 1983 to restore the health of the nation's largest estuary. Under terms set in a consent decree settling a 1999 lawsuit, the EPA was required to write a TMDL for the Bay unless it met water quality goals by May 2011. More recently, EPA officials promised to complete the plan by the end of this year.
About 40,000 TMDLs have been written for polluted waterways nationwide, but the Bay plan is the largest, most complex one ever attempted. In light of failures to meet previous cleanup deadlines, the EPA is requiring levels of detail in the Bay TMDL that go far beyond what is normally required for such a plan.
Among those elements are the watershed implementation plans. TMDLs not only establish maximum loads, but also divide those loads between "waste load allocations," reductions that will come from regulated sources, and "load allocations," those from unregulated sources, such as most types of runoff. Waste load allocations are achieved by incorporating the goals into discharge permits for municipal wastewater treatment plants, regulated stormwater systems and concentrated animal feeding lots.
For unregulated load allocations, states have to provide "reasonable assurance" that the goals will be met. As part of that reasonable assurance, the EPA, in the watershed plans, required a great amount of detail from states, such as identifying gaps in state authority, staff or funding that might prevent those goals from being met, and how the states planned to fill those gaps.
"Essential to this plan is asking the states to identify not only the targets that they want to get to in terms of pollution reduction, but credible and enforceable strategies to get there," said Jon Capacasa, director of water protection for EPA Region III.
The figures in the EPA's draft TMDL were little changed from those proposed July 1 for nutrients and in mid-August for sediment. But the draft TMDL found extensive problems in the draft watershed implementation plans submitted by states at the beginning of September.
When they reviewed the state plans, EPA officials found "serious deficiencies" in those submitted by Delaware, New York, Pennsylvania, Virginia and West Virginia.
Most missed at least some of their nutrient goals: Delaware missed its nitrogen goal by 17 percent, and New York missed its phosphorus goal by 14 percent.
None of the seven plans fully demonstrated "reasonable assurance" that they would successfully control runoff pollution. The deficiencies, EPA said, included vague or no strategies for filling resource gaps in programs; few enforceable or binding commitments in programs; reliance on inadequate nutrient trading programs; and a lack of specific dates or milestones to improve programs.
To address the inadequacies, the draft TMDL established "backstop" nutrient and sediment waste load allocations for states that did not meet nutrient and sediment goals, or for plans that failed to provide adequate reasonable assurance they could be carried out. The size of the backstop - in other words, the amount of pollution reductions that would be required from point sources that the EPA can regulate - was based on the EPA's assessment of the seriousness of the plans' deficiencies. Agency officials said those backstops would be incorporated in the final TMDL at the end of this year unless states fix problems in their final watershed plans. Those are due Nov. 29.
Because the Clean Water Act limits the EPA's authority to regulate runoff from fields, lawns and other areas, the backstops would impose tighter controls on sectors where the agency has regulatory clout.
They would require more stringent nitrogen and phosphorus controls at wastewater treatment plants, and require significant additional actions by stormwater systems and animal feedlots. In addition, regulatory programs may be extended to cover currently unregulated smaller stormwater systems and smaller agricultural animal operations under the proposed backstops.
Chesapeake Bay Foundation President William Baker hailed the EPA's approach. "Today, 30 years of failed, voluntary programs to save the Bay may be coming to an end." The TMDL, he said, "if fully implemented, will hold the states accountable to reduce pollution to scientifically defensible levels."
Tommy Landers, policy advocate for Environment Maryland, praised the EPA for "beginning to use the enforcement tools at their disposal,' he said, adding, "I hope to see that these kinds of enforcement activities continue and expand as needed."
But the TMDL also moves the EPA and states closer to a potential showdown. Many states have expressed frustration with the EPA's more forceful approach.
John Hanger, Pennsylvania's secretary for environmental protection, called the EPA's plans "pie in the sky, super prescriptive regulatory measures that are not going to happen because it will create a huge political backlash that will stop them."
Pennsylvania, which does not touch the Bay, has in recent years required upgrades to wastewater treatment plants to benefit the Chesapeake. Those upgrades are expected to cost communities across the watershed, many in poor regions, a billion dollars or more. They were not popular, and the state was sued for requiring the reductions. It prevailed.
Now, the EPA's backstops would require those recently upgraded facilities to cut their discharges even more. Hanger said the EPA's stormwater backstops, which include requirements for retrofitting stormwater controls on half of urban lands, would be even more expensive.
"They would be delivering bills to local municipalities to the tune of hundreds of millions of dollars, if not billions of dollars," he said. "There are better ways to deal with this issue than that."
He suggested that state and federal agencies should instead pool their resources and invest in proven, innovative nutrient control programs, such as a new generation of manure digesters that turn animal waste into energy. The state had proposed such a fund in its watershed implementation plan.
Virginia Secretary of Natural Resources Douglas Domenech said in a statement that he was disappointed by the EPA's "intention to implement costly federal mandates that will likely cause economic harm to our citizens and lead to delays in achieving our clean water goals."
Not all states were critical. In Maryland, Gov. Martin O'Malley sounded a positive note about the EPA's review. "Their response demonstrates that hard work over the past four years has laid the groundwork for moving forward our efforts to restore our cherished Chesapeake Bay. The plan represents the best science from the region's best experts to move the Bay off life support, and off of the nation's dirty waters list."
No one knows how much the TMDL would cost to implement. Past estimates, now years old, have put the costs between $15 billion and $30 billion.
The backstop measures that the EPA has proposed would certainly push the cost to the high endâ€”if not over the topâ€”of that scale.
Some local government officials, whose communities might bear the brunt of such costs, and their attorneys, have suggested that they may seek to require the EPA to conduct a detailed technical review, which would include their social and economic impact. Such a review, called a Use Attainability Analysis, could lead to changes in the Bay cleanup goal.
At a press briefing, EPA officials emphasized collaboration as a way to resolve the problems, saying they planned to work with states to help them submit adequate plans by Nov. 29. They said states could avoid the costly federal backstops by improving their programs to manage runoff.
"The best opportunity to keep costs under control is to have highly effective state plans which are tailored to the local realities, and this process is designed to give the states the primary role there," Capacasa said. "The use attainability analysis is not in our lingo right now. I think the job is getting standards met throughout the Bay and building off effective state plans."
The draft TMDL is open for public comment until Nov. 8. The EPA is also conducting a series of 18 public meetings throughout the watershed on the TMDL. To review the TMDL, make a comment, or see the meeting schedule, visit www.epa.gov/chesapeakebaytmdl/
Interpreting These Charts
These tables present the draft total maximum daily load numbers for states and the portions of tributaries within state boundaries, for nitrogen, phosphorus and sediment. For comparison, model estimates for nutrient and sediment loads are also presented for 1985, the baseline year from which reductions are measured, and 2009.
The EPA is requiring that nutrient and sediment controls sufficient to meet the TMDL be in place by 2025. In addition, 60 percent of the reductions are to be achieved by 2017.
TMDLs are required for "impaired" water bodies - those that fail to meet water quality standards. The Bay is listed as impaired because of nutrient and sediment pollution.
Nutrients spur algae blooms, which block sunlight needed by underwater plants that provide important habitat for juvenile crabs, fish and waterfowl. When the algae die, they sink to the bottom and are decomposed in a process that removes oxygen from the water, creating so-called "dead zones." Sediment also blocks sunlight from reaching underwater grasses. It also smothers bottom habitats, such as oyster reefs.
Computer models suggest that if TMDL levels are reached for nitrogen, phosphorus and sediment, the Bay could be removed from the impaired waters list.
Agriculture is the leading source of nitrogen, phosphorus and sediment pollution, but wastewater treatment plants and urban runoff are also significant sources. Air pollution is also a major source of nitrogen.
Air figures presented for nitrogen are for the amount of deposition that lands directly on the Bay and its tidal tributaries. Airborne nitrogen largely stems from fossil fuel combustion which generates nitrogen oxides, and animal feedlots and manure, which generate ammonia.
Phosphorus and sediment are not airborne pollutants.
States, By Numbers
Here's how the states stacked up in their watershed implementation plans, according to the EPA. Figures "over" the TMDL mean that the nutrients or sediments goals are not met in the plans. Figures "under" the goal mean that plans would control more than what is required.
- District of Columbia: 5 percent under for nitrogen, 3 percent under for phosphorus, 25 percent over for sediment.
- Delaware: 17 percent over for nitrogen, 8 percent over for phosphorus, 20 percent under for sediment.
- Maryland: Met overall nitrogen, phosphorus and sediment goals, although some individual river basins did not meet TMDL limits.
- New York: 15 percent over for nitrogen, 14 percent over for phosphorus, 17 percent under for sediment.
- Pennsylvania: Met nitrogen goal, 11 percent over for phosphorus, 1 percent over for sediment.
- Virginia: 6 percent over for nitrogen; 7 percent over for phosphorus, 12 percent under for sediment.
- West Virginia: 18 percent over for nitrogen, 6 percent under for phosphorus, 38 percent over for sediment.