If the Bay states do not write, fund and implement adequate Bay cleanup plans in coming months and years, the EPA is ready to crack down on air and water permits, make new development meet tougher requirements, and further ratchet down on water dischargers.
The EPA, in a Dec. 29 letter to state environmental agencies, spelled out those and other "consequences" that states will face if they miss deadlines for writing adequate cleanup plans or miss pollution reduction goals.
"EPA sees these potential actions as necessary for ensuring accountability but intends that they be viewed as a 'backstop,' with successful and timely state and district implementation the much preferred alternative," EPA Region III Administrator Shawn Garvin stated in the letter.
Garvin said laying out potential federal actions was necessary to "strengthen our individual and collective resolve to make the difficult choices and decisions" needed to restore the Bay.
Less than two weeks later, the EPA also announced it was preparing new regulations for stormwater and animal feedlots that would rein in some of the most problematic sources of pollution to the Bay and its tributaries.
Further highlighting its growing oversight role, EPA Administrator Lisa Jackson in January became chair of the Chesapeake Executive Council, the top policy-making body for Bay restoration. Besides Jackson, the council includes the governors of Maryland, Virginia and Pennsylvania; the mayor of the District of Columbia; and the chairman of the Chesapeake Bay Commission, which represents state legislatures.
The Executive Council oversees the state-federal Chesapeake Bay Program, which was created in 1983 to restore the nation's largest estuary. But its failure to accomplish that goal has fueled public frustration as cleanup deadlines set in 1987 and 2000 passed with little evidence of Baywide improvement.
Fueled in part by an executive order from President Barack Obama's in May that directed the federal government to show greater leadership in Bay restoration, the EPA has ramped up its tough talk to convince people that its new cleanup plan, known as a Total Maximum Daily Load, will finally achieve the clean Bay goal, albeit not until 2025. A TMDL is a regulatory cleanup plan that sets an absolute limit on the amount of pollution that can enter a water body.
That talk has caused growing concern among developers, farmers and others, who fear they will be required to take additional, and perhaps more expensive, steps to reduce pollution.8
"The management practices that will be required to achieve the load reductions called for in the Bay Total Maximum Daily Loads will have a high cost and will only take away from the farm's already-thin bottom line," Virginia Farm Bureau President Wilmer Stoneman warned in recent testimony to a Congressional committee.
But many cleanup advocates say the EPA still has not flexed enough regulatory muscle to stem the flow of nutrients and sediment into the Bay, which foul its water quality.
The day after the EPA released its "consequences" letter, a group of 38 Bay advocates, including former governors and state natural resource secretaries, environmental organizations, scientists and others signed a statement spelling out two dozen additional measures they said were needed.
Garvin, at a news conference announcing the release of the consequences letter, insisted the agency is prepared to follow its words with action.
"I think they (people) should take this very seriously, I know the states are taking it very seriously," he said. "We're not looking to rattle a saber just to rattle a saber."
As part of the Bay TMDL, the EPA is requiring states to write plans that describe how they will achieve their nutrient and sediment allocations in each watershed in the Bay's 64,000 square-mile drainage basin. As part of those plans, called watershed implementation plans, states must identify the amount by which they will reduce pollution from each main source, including wastewater treatment plants, farms, animal feedlots, stormwater, septic systems, air deposition, eroding stream banks and tidal shorelines, and other sources.
The plans must also demonstrate that states have the necessary regulations, permits or other enforceable agreements to reach the goals. If state programs do not have the necessary funding, laws or regulations, the implementation plans must commit to dates by which those program "gaps" will be closed.
To ensure that programs stay on track, states must also set two-year milestones detailing the amount of nutrient and sediment reductions that will be achieved during that time, as well as program changes (such as more funding or regulations) needed to achieve those goals. The plans and milestones must be approved by the EPA.
Those "expectations" were laid out to state officials in a letter Nov. 4.
If states fail to establish watershed implementation plans by set deadlines, develop two-year milestones, achieve target nutrient reductions set in the two year milestones, issue "sufficiently protective" discharge permits or develop "appropriate mechanisms" to control runoff pollution, the EPA could apply the consequences spelled out in the December letter. The EPA could:
- Require permits for more animal feedlots and stormwater systems than are currently regulated.
- Object to discharge permits issued by the states that it considers to be inadequate to meet Bay water quality goals. In addition, it could call for states to issue individual permits for facilities now covered by less specific general permits that only set broad guidelines for activities.
- Require "net improvement" offsets for new or expanding discharges. Such offsets would require nutrient reductions from other sources that would more than offset the new discharges, so an overall improvement to water quality is achieved.
- Require greater nutrient reductions from wastewater treatment plants and other dischargers if reductions from programs controlling runoff, or nonpoint sources, are not realized.
- Step up enforcement and compliance reviews for stormwater dischargers, animal feedlots, wastewater treatment plants, and regulated air pollution sources.
- Direct that water-related grants from the EPA be targeted to programs and efforts that help meet nutrient and sediment reduction goals.
- Issue more restrictive water quality standards for local freshwater rivers and stream to protect both local and downstream water quality.
The EPA said the list could be "updated at any time based on upon new legislative, regulatory and/or program policy developments related to carrying out Chesapeake Bay restoration efforts."
Many of those actions are ones the agency has suggested for months that it could take under its Clean Water Act authority. But some, such as setting water quality standards in tributary rivers and streams, are new and could have far-reaching ramifications.
Yet it also backed off some actions it had earlier suggested. In a November report, the agency said it could "limit or prohibit" new or expanded wastewater discharges, something that could halt new development. Instead, the letter said the EPA would allow new discharges as long as they arrange for other pollution reductions that result in a "net improvement."
That raised some concerns among environmentalists.
"Many of these actions, if actually taken, could send the right signal to the states that the EPA means business," said Tommy Landers, policy advocate for Environment Maryland. "But I'm disappointed that the EPA has pulled back on restricting or prohibiting new or expanded discharges."
The letter also did not say exactly when the EPA would act or which actions it would take. If a goal is missed, the letter sets a 120-day period during which the EPA and state would try to resolve the issue. But the letter did not spell out which consequence "if any" the EPA may impose for any particular missed target.
"We can't necessarily say hypothetically what we are going to use and when we are going to use it," Garvin said.
Beth McGee, senior water quality scientist with the Chesapeake Bay Foundation, said that while the letter "lists a series of actions the EPA may take, it lacks specifics about when the EPA will impose those consequences. The letter lacks concrete standards that will ensure when the EPA will act. By what margin must a jurisdiction miss its goals before the EPA takes action, for example?"
The first opportunity for EPA action would come in November, when it must make the final sign-off on watershed implementation plans that states are to submit this summer. The first milestones, set last May, will come due at the end of 2011.
In addition to sending the letter, the EPA also announced in January that it was launching the process to write new federal rules to regulate large animal feedlots and stormwater to "backstop" state programs if they prove ineffective.
The stormwater rules may expand the areas subject to federal stormwater regulations and establish new requirements to control stormwater runoff from new development and redevelopment. It will also set new runoff control requirements for areas already subject to regulation and require stormwater control retrofits on areas developed before regulatory programs existed.
The EPA will also propose new regulations for concentrated animal feeding operations, or CAFOs. The process will consider expanding the number of feedlots subject to federal regulation, and making more stringent requirements to control pollution. As part of that, the EPA may consider more tightly regulating how manure is used or when it is hauled from a feedlot for use on another farm.
The stormwater rule is not expected to be final until 2012, and the CAFO rule is not expected until 2013.
The EPA has indicated that states in the Bay watershed may avoid further federal stormwater and CAFO regulations if they establish their own programs to meet Chesapeake Bay objectives.
In addition, EPA officials said they would develop a policy regarding offsets to achieve "net improvements" in permits for new dischargers. Although the EPA already requires offsets for new discharges into polluted waterways, it does not have one to achieve net improvements, as called for in the consequences letter.