Calling it a "historic moment" for the Bay, EPA officials on Dec. 29 unveiled a new Chesapeake cleanup plan that emphasizes regulation and accountability, a forceful approach that they said will finally deliver the elusive goal of a clean Bay.
The plan would affect almost everyone in the Bay's 64,000-square-mile watershed. It will impact how much fertilizer homeowners put on their yards and how farmers manage chickens and cows. In many areas, people will face new fees to upgrade sewage treatment plants or stormwater systems.
The plan, known as a total maximum daily load, drew its first lawsuit within two weeks and will likely face other legal challenges. Some believe Congress will review it.
Nonetheless, EPA Region III Administrator Shawn Garvin said the "pollution diet"-as the plan has been called-provides the best hope for cleaning up a Bay clouded by sediment and filled with algae blooms fueled by excess nutrients.
The diet limits annual nitrogen loads to 185.9 million pounds, phosphorus loads to 12.5 million pounds and sediment to 6.45 billion pounds. That's roughly a 25 percent reduction in nitrogen, 24 percent reduction in phosphorus and 20 percent reduction in sediment from current levels.
The TMDL is "by far the most comprehensive and rigorous road map to restoration we've ever had," Garvin said. "Not just in the Chesapeake Bay, but nationally."
It is massive. It provides the framework for ongoing activities that will guide an evolving cleanup effort the next 15 years. All this is encompassed in 14 sections that include more than 200 pages. It has two dozen appendices that fill hundreds more pages. More than 3,000 pages are devoted to responding to 14,000 public comments.
Twice before, in 1987 and 2000, the EPA and states touted "historic" Bay cleanup agreements. Although the Chesapeake shows some improvement, both agreements fell far short. The new plan is significantly different. Instead of a voluntary agreement signed by the EPA and state governors, it is highly regulatory. States were required to submit detailed watershed implementation plans showing how they would implement, staff and fund pollution control programs. They had to develop backup strategies in case their programs fall short.
The EPA was tough. The agency deemed portions of West Virginia's, New York's and Pennsylvania's final plans to be insufficient and required actions beyond those proposed by the states. In all states, the agency promised to ramp up oversight to make sure promises are kept.
"EPA can and will take action anytime if it becomes necessary to ensure timely progress toward restoring the Bay," Garvin said.
In some cases, the EPA backed down a bit. New York blasted the methodology the EPA used to assign nutrient loads among states as unfair to New York, and questioned the validity of computer models used to estimate state nutrient contributions to the Bay. After negotiations that ran far past the Dec. 1 deadline to submit a final state plan, the EPA finally raised the state's nitrogen allocations by 1 million pounds, and its phosphorus allocations by 100,000 pounds. New York still missed its goal.
If states backslide in the future, the TMDL document warns that the EPA may require more nutrient reductions from wastewater treatment plans-a hugely expensive action-increase enforcement and compliance in the watershed or redirect how the EPA grants to states may be spent. It even invoked what some have dubbed the "nuclear option"-the potential to prohibit new or expanded discharges, something that would effectively close down development in some areas.
Rick Parrish, an attorney with the Southern Environmental Law Center, said that is "the ultimate threat" in the EPA's toolbox. "I have a hard time imagining the EPA ever actually imposing it," he added. "But they want to remind everyone, not just the states, but trade associations and others, that if worse comes to worse, this is what we are going to have to do."
Some substantial differences of opinion remain. Virginia and the EPA disagree over whether a measure of the amount of algae in the water-the chlorophyll a standard-for the James River is correct. While it agreed to go along with the EPA for now, Virginia is reviewing those standards with an eye toward adjusting them in 2017. Pennsylvania and the EPA disagree over exactly what is covered by stormwater permits, with the state using a much narrower interpretation than that held by the federal agency.
The EPA made no attempt to calculate the costs of the plan, a sore point with many critics. Garvin said the cleanup would take place over 15 years and during that time the EPA and the states would discover new technologies, and find more cost-effective ways to implement pollution controls.
Protecting the Bay is worth the investment, he said, because it generates $1 trillion in economic activity. "Restoration activities will help protect the economic value of the Bay and local waterways and be a driver for local economies," he said.
But its cost will be felt. Maryland's plan could cost $10 billion through 2017. Virginia said its state plan could cost $7 billion. Those costs will trickle down to the local level. In December, Lynchburg, VA, officials said they expected stormwater improvements needed to comply with the TMDL would cost $120 million. Altoona, PA, is considering a 58 percent sewer rate increase to pay for a $70 million wastewater treatment plant upgrade, mainly needed to meet Bay goals. West Virginia officials say it could cost $240 million to upgrade 10 wastewater treatment plants in its portion of the watershed.
State officials generally offered guarded support. Virginia Gov. Bob McDonnell said, "While we maintain our concern about aspects of the EPA watershed model and enforcement authority, as well as the significant additional public and private sector costs associated with plan implementation, we believe Virginia's plan will make a significant contribution to improving water quality in the Bay."
Maryland Gov. Martin O'Malley said, "Bay restoration is within our reach. This plan provides the road map to get us thereâ€¦While Maryland has long been a leader in Bay restoration, it is now critical that all jurisdictions in the Bay watershed contribute equally to this effort. We greatly appreciate the EPA's efforts in helping to clean up the Chesapeake Bay and are counting on continuing federal financial and technical support."
Chesapeake Bay Foundation President William Baker praised the TMDL, saying it would protect hundreds of thousands of jobs that depend on clean water. But, he added, "The hardest work is still to come. The states and the District of Columbia must implement the plans through new laws, regulations, funding and enforcement, and the EPA must hold all jurisdictions accountable. As we saw in the development of the watershed implementation plans, the EPA's threat of serious consequences resulted in significant improvements to the state plans."
While environmental groups largely praised the TMDL, it was hammered by the American Farm Bureau Federation. "EPA likes to call the new regulations a pollution diet, but this diet threatens to starve agriculture out of the entire 64,000-square-mile Chesapeake Bay watershed, and this new approach will not end with the Bay," said Bob Stallman, president of the federation. "EPA has already revealed its plan to take similar action in other watersheds across the nation, including the Mississippi River watershed."
The federation filed suit Jan. 10. It contended that the EPA had overstepped its authority in establishing the TMDL by forcing on agriculture actions that it said are state responsibilities under the Clean Water Act. It also charged that the computer models used to develop the TMDL are "fatally flawed," and that the 45 days allowed for public comment was inadequate.
The organization went further after President Obama issued an executive order Jan. 18 calling for a review of federal regulations that are outdated and damaging to the economy. "If the new executive order is to have any meaning, we expect it will result in the reconsideration of EPA's Chesapeake Bay TMDL," Stallman said.
Such complaints have gotten the ear of some in Congress, and the House Transportation and Infrastructure Subcommittee which has oversight of water issues has signaled it may review the Bay TMDL issue.
Besides the Farm Bureau suit, the Virginia Municipal Stormwater Association has filed a notice with state agencies that it intends to challenge the Virginia Watershed Implementation Plan.
Nonetheless, EPA officials said they were surprised the TMDL had not generated more suits. So was Parrish, of the SELC. "I've been surprised that there haven't been multiple lawsuits filed already," he said.
Like all diets, the Bay diet will work only if states stick to it. In that regard, the EPA vows to act as their personal trainer.
While EPA set the nutrient reduction goals, it left it to states to craft WIPs showing how they would achieve those reductions. Most of the initial plans, submitted in September, fell short of providing adequate assurance that goals would be met. The EPA responded with a threat of "backstop" measures. It said it would require more reductions from regulated sources, such as wastewater treatment plants, unless states could better ensure reductions from unregulated sources, such as agriculture.
Under the Clean Water Act, the EPA has clear authority to regulate end-of-pipe discharges (or point sources), but little power to control runoff (or nonpoint sources). The act specifically prohibits it from regulating "agricultural stormwater," although it does have regulatory authority over large animal feedlots.
"We sent a clear signal across the bowâ€¦with a tremendous number of backstops across all seven jurisdictions," said Rich Batiuk, associate director for science with the EPA's Bay Program Office.
The states responded with stronger plans in December.
For instance, Maryland, Virginia and West Virginia all committed to pursue state legislation to fund wastewater treatment plant upgrades, urban stormwater management improvement and agricultural programs. Pennsylvania committed to dramatically increase the enforcement and compliance of state agricultural requirements. Pennsylvania also committed state funding to develop state-of-the-art technologies for converting animal manure to energy.
The Maryland strategy said the state would seek legislation requiring a statewide system of fees to develop local stormwater utilities if local utilities or other systems of charges are not under way by 2012.
States also provided "contingencies"-fallback actions if their proposed measures come up short. For instance, Delaware, Maryland and Virginia all said they would consider mandatory programs for agriculture by 2013 if reductions outlined in the WIPs fall behind schedule.
While the EPA approved plans from Maryland, Delaware and the District of Columbia, it included some backup measures in the final TMDL for other jurisdictions.
For New York, the EPA required further reductions from wastewater treatment plants to make up for program shortfalls. Most plants in New York recently got new permits, so that would not have an impact until the permits come up for renewal, typically every five years.
In Pennsylvania and West Virginia, it signaled that it may in the future require permits for some currently unregulated pollution sources. It did so with a most technocratic tactic: It shifted half of Pennsylvania's stormwater pollution loads from what's known as the "load allocation" to the "waste load allocation." Similarly, it moved 75 percent of West Virginia's animal feeding operations from the load allocation to waste load allocation.
Here's what that means: A TMDL not only establishes maximum pollution loads, but also divides those loads into categories-load allocations and waste load allocations. Waste load allocations generally include pollution sources that are covered by enforceable permits; load allocations include pollution from unregulated sources of runoff.
The EPA's action signals that it may require permits for those areas in the future-but not necessarily. In either case, the switch makes the state responsible for achieving a greater level of nutrient reduction from those areas.
"We are applying a higher performance expectation for that sector, equivalent to what they would have seen if they were regulated sources," said Jon Capacasa, water division director for EPA Region III.
EPA also committed to "enhanced oversight" of several areas if states don't show progress in the Phase II WIPs being developed this year. Those include Virginia's urban stormwater, Pennsylvania's agriculture and wastewater, and West Virginia's urban stormwater and wastewater sectors.
In those cases, the EPA could also chose to move a portion of nutrient and sediment loads from load allocations to the more enforceable waste load allocation category, signaling a move to new permits and regulatory oversight. Other actions are also possible, such as giving more scrutiny to permits and stepping up enforcement.
For all states, the EPA committed to "ongoing oversight," which means a continual review of programs and permits to ensure they are adequate to meet TMDL goals. The EPA, for example, plans a nationwide review of all state Concentrated Animal Feeding Operation permits this year to ensure they are consistent with EPA regulations. In the Bay watershed, the EPA will use that review to ensure state programs are adequate to meet TMDL goals.
Part of that review will examine whether state guidelines for managing animal wastes are adequate to address phosphorus imbalances in soils that exist in areas with large farm animal populations.
The EPA has already ramped up farm inspections in Lancaster County, PA, the Delmarva Peninsula and Shenandoah Valley-the three hotbeds for livestock production in the watershed.
There are more checkpoints ahead. States this year are to write Phase II Watershed Implementation Plans that will set nutrient and sediment targets for counties or local watersheds.
Unlike the state goals, those targets are not intended to be enforceable. Rather, they are intended to spur more detailed plans showing how goals will be met.
"We want people to start to think about how we live under a nutrient and sediment cap," Batiuk said. "If they are not successful at the local scale-conservation district, municipality or county-how in the heck is the state going to be successful at its major river basin scales?"
For areas of Pennsylvania, Virginia and West Virginia where the EPA said it was doing "enhanced oversight" because of weaknesses in plans, more backstops could be imposed if final plans, expected in early 2012, are not adequate.
Parrish, of the SELC, said the Phase II WIPs are critical because the current WIPs, while improved, lacked critical details. "We really do need to see what comes next," he said.
By Dec. 31, states will also submit the first two-year milestone under the timetable. Those will detail specific actions states will take during 2012 and 2013, the amount of nutrient and sediment reductions they will achieve, and backup actions, or contingencies, they will make in their programs if they fall short.
The TMDL requires that milestones achieve 60 percent of the needed nutrient and sediment control actions be in place by 2017.
At that point, a final Phase III watershed plan-updated with information gleaned in ensuing years that will more directly tackle vexing issues such as growth and climate change-will be developed to guide cleanup efforts through 2025.
Maryland has established a more aggressive objective than the other states; it seeks to achieve 70 percent of its reductions by 2017 and 100 percent by 2020.
Those actions are voluntary: EPA officials say the TMDL only requires Maryland to achieve the same pace of reductions as is required for other jurisdictions. However, the state would be bound to accelerated implementation rates if they are included in two-year milestone plans, according to EPA officials.
If all of the plans are successfully implemented, then all of the actions needed to clean up the Bay would be in place by 2025.
Because there are significant delays between the time such practices are installed and when they are fully effective, and in the length of time it takes for nutrients to reach the Bay, the clean Bay goal likely wouldn't be reached for years, perhaps decades, after that.
TMDLs dominate discussion at Choose Clean Water conference
Those in attendance wanted to know how the EPA will handle anticipated legal challenges.