After two decades of reliance on non-regulatory efforts to control nitrogen discharges, the EPA and the states will begin requiring that enforceable limits be part of the permits for more than 350 of the largest wastewater dischargers in the Bay watershed.
At the end of December, the EPA’s mid-Atlantic Region unveiled a new strategy that would require large wastewater treatment plants and industries from the headwaters of the Susquehanna in New York to the tip of Virginia’s Eastern Shore to cap nitrogen and phosphorus discharges specifically to benefit the Bay.
“This is a major milestone, a clear turning point in point source nutrient controls for the Bay,” said Jon Capacasa, director of the EPA’s Water Protection Division. “While progress to date has yielded close to 100 wastewater facilities employing nutrient treatment in the watershed, this strategy will accelerate and expand the implementation of essential controls to significant dischargers throughout the basin, and provide enforceable limits for each of them.”
The permit limits would cut the amount of nitrogen reaching the Bay each year by at least 17.5 million pounds and phosphorus by about 1 million pounds. They were agreed upon by the EPA, all six states that drain into the Bay and the District of Columbia.
Under the plan, states will set limits on the amount of nitrogen and phosphorus that may be released each year from major facilities based on allocations set in tributary strategies developed by each state to guide nutrient reduction efforts.
Major facilities typically handle more than 500,000 gallons of wastewater a day, or are smaller plants located close to the Bay and its tidal tributaries. Combined, they handle about 95 percent of all wastewater discharged in the Bay drainage.
The limits will be incorporated as permits are issued for new facilities, and as permits for existing plants come up for renewal, typically every five years. When permits are renewed, plants may be given an enforceable compliance schedule for achieving their discharge limit. Once those limits are reached, the strategy says facilities will have to offset any additional nutrient loads with reductions through other means, such as nutrient trading programs.
The strategy becomes effective when Maryland approves new water quality standards for its portion of the Bay and its tidal tributaries, which is expected in late spring or early summer. That action is critical because Maryland’s standards, aimed at restoring water conditions needed to protect fish, shellfish and underwater grass beds, cannot be met without sharp nutrient reductions throughout most of the watershed.
While states have long regulated phosphorus discharges because of impacts to local water, nitrogen has gone largely unregulated because its impacts are usually felt downstream. Phosphorus tends to spur algae production in freshwater, while nitrogen does so in saltwater, including much of the Bay.
In the Bay, excess nutrients—particularly nitrogen—cause algae blooms that block light critical for underwater grass beds, which provide food and habitat for waterfowl, crabs, fish and other creatures. When the algae die, they deplete the water of oxygen, triggering huge oxygen-starved “dead zones” during summer months.
Until Maryland set new standards, and computer models estimated the amount of nitrogen reductions needed to meet those standards, officials said it was impossible to establish scientifically based permit limits for upstream nitrogen discharges.
Only facilities in the York and James rivers are initially exempt from the action because computer models indicate those rivers have little impact on water quality in Maryland. Facilities on those rivers are expected to need permit limits when Virginia finishes revisions to its own water quality standards later this year.
EPA officials said the strategy was significantly strengthened since a draft was released for public comment earlier last year. But the Chesapeake Bay Foundation, which has a lawsuit pending against the EPA contending that the Clean Water Act requires more strict regulatory limits now, not after new standards are finalized, characterized the strategy as too little, too late.
“As it’s written, it has a hole you can drive a truck through,” said Roy Hoagland, CBF’s vice president for environmental protection and restoration. “Its own provisions note that it is not binding on the states.”
The document issued by the EPA characterizes the strategy as “recommendations,” and that permits could be modified based on case-by-case considerations.
Hoagland also raised concerns that implementation would lag if Maryland falls behind in adopting new water quality standards. And, he noted that the EPA and the states have fallen behind in implementing, or failed to implement, many of their past agreements to control nutrients.
“How many times have there been commitments made and broken? The list is a long one,” Hoagland said. “Deadlines are not met, and processes are extended, and all the while, unregulated discharges of nitrogen continue to pollute the Bay.”
Bob Koroncai, a permitting official for EPA Region III who helped to write the strategy, said that although the document was not technically binding, it was agreed upon by all of the states in the watershed. That means it will be implemented faster than a new regulatory initiative, which would take years to develop and approve, delaying nutrient reductions, he said.
“This approach represents an agreement among the EPA and the states, who are charged with issuing the permits, on how we are going to apply the existing regulations in a consistent, expedient and effective manner for the protection of the Bay,” he said.
Koroncai said the strategy could allow for faster nutrient reductions if states choose to use a “watershed permit” approach. That approach, outlined in the strategy, would involve a multifacility nutrient permit being issued for a major watershed and assigning the cap limit to the entire group. Individual facility limits would be applied and enforced if the total load cap was exceeded.
Plants could meet the overall cap through trading programs where plants that exceed their requirements could “sell” credits to others. Such a program could establish limits for all facilities in a watershed within a year, Koroncai said, rather than waiting for up to five years for permits to come up for renewal.
“These ‘work smarter’ approaches included in the permitting strategy have helped us to secure the cooperation of the states and many wastewater utilities who believe this approach is a reasonable one that moves us forward on our mutual goals,” Capacasa said. “We are excited to get on with the job.”
In 1985, wastewater treatment plants and industries delivered 87.7 million pounds of nitrogen to the Chesapeake. That declined to 58.4 million pounds in 2002. Annual phosphorus discharges during the same period decreased from 9.2 million pounds to 4.3 million.