Faced with drafting their third major Bay cleanup plan in 21 years, regional leaders face an issue they've not had to confront in the past: convincing the public they mean it this time.
The 1987 Chesapeake Bay Agreement committed to achieving nutrient reductions that would clean the Bay by 2000. In the Chesapeake 2000 agreement, a new set of leaders promised to clean the Bay by 2010-a deadline they now admit will be missed.
At the current rate, cleanup goals won't be achieved across the entire Bay for another 30 years. And those estimates don't account for population growth and land development in the watershed.
The reputation of the Bay cleanup as a national model has become tarnished as deadlines are set, and missed, with little overall improvement in Bay water quality. The state-federal Bay Program has been the subject of a series of reviews and congressional hearings, as lawmakers have become more critical.
Virginia Natural Resources Secretary Preston Bryant acknowledged at one meeting this summer that the public had become "justifiably skeptical" about the region's commitment to clean up the Bay.
At another meeting, Maryland Natural Resources Secretary John Griffin lamented, "We've got to be able to start showing results better."
Now, regional leaders say they want their third cleanup plan to again make the Bay a national model for restoration.
They envision a new plan that will provide more detail than before about how cleanup actions will take place and be funded, and will spell out specific actions that must be taken over two-year increments. If cleanup efforts fall short, states could suffer consequences.
The framework for the plan was spelled out in a September letter from EPA Region III Administrator Donald Welsh, who said the agency is developing the new plan with "heightened expectations for its level of scientific rigor and its ability to demonstrate that nutrient and sediment allocations can and will be met."
The requirements being established for the Bay plan go far beyond those typically required by the EPA. Because of the "significant knowledge" about the Chesapeake and cleanup mechanisms, Welsh said the new plan, called a Total Maximum Daily Load, will contain expectations "not applicable to the TMDL program in general."
In documents accompanying the letter, the EPA outlined six elements to be part of the Bay TMDL process:
- Each state must identify the actions needed to achieve their nutrient and sediment reduction goals by revising their river-specific cleanup plans, known as tributary strategies.
- The states must identify the current state and local government capacity to achieve needed controls. For example, are the funding and programs in place to control runoff from farms and streets as well as regulated discharges from treatment plants and stormwater systems?
- Where programs or funding are not adequate to achieve the goals, the states must identify measures needed to fill those gaps. Those could be further incentives, additional regulatory programs, technical assistance, changes in laws or other actions.
- Once the gaps are identified, the states must make commitments to fill them. As part of that, the states need to agree to specific time frames, including short-term milestones, to ensure increased levels of implementation are taking place.
- States must continue or expand programs to monitor and assess the effectiveness of their actions and use that information to make changes where needed.
- If the jurisdictions do not meet these commitments, the EPA said "additional measures" would be necessary.
The letter represents a departure from the past.
Previous tributary strategies sometimes identified shortfalls in funding, but they have never been required to say how they would cover the shortfalls nor did they contain interim goals to measure progress. And, there was no consequence for failing to meet goals.
That is changing with the Bay TMDL, which is a legally required pollution cleanup plan for water bodies that fail to achieve their water quality standards.
It is the EPA's responsibility to write the Bay TMDL, which means, unlike past cleanup plans, it has new authority for setting requirements, as those spelled out in the letter. But that is a regulatory club that some Bay partners say is needed.
"We are sort of in the unenviable position of perhaps setting aside our objectivity in our role as state officials and almost begging the EPA to scare us," Bryant said at the Chesapeake Bay Commission meeting in September. "Scare me EPA. Threaten me sufficiently so that I can then turn around to our state budget writers and scare them. We are almost in that position."
At the same meeting, Griffin agreed that "we need the EPA to press us."
The major tool that will be used to ensure progress is called "reasonable assurance."
According to the EPA's guidance for writing TMDLs, pollution reductions needed to meet water quality standards must be included in the permits of "point sources" such as industries, wastewater treatment plants and other regulated dischargers.
If reductions are also required from "nonpoint sources," which do not have enforceable Clean Water Act permits such as farms, small stormwater systems or suburban runoff, the guidance says the TMDLs must contain "reasonable assurance" that those reductions will be achieved.
It does not say what constitutes reasonable assurance.
"This whole concept about reasonable assurance has been more talked about than included in TMDLs," said Richard Parrish, an attorney with the Southern Environmental Law Center who has long experience working with TMDLs.
The intent, Parrish said, is to provide some guarantee to regulated dischargers that once they've done their part, the largely unregulated nonpoint sources will also achieve their goals. Otherwise, further-and probably more expensive-reductions could be required for regulated point sources.
"That's why you have this whole concept of reasonable assurance-to try to avoid the more draconian measures that you would have to take against point sources," Parrish said. "That whole concept was created for the benefit of point sources because everyone recognizes that the law is not fair or balanced in its treatment of point versus nonpoint sources."
Still, the concept of how to enforce a TMDL through reasonable assurance is "vague" at best, Parrish said.
To address that shortcoming, the Chesapeake Bay Foundation challenged the region to make the new Bay TMDL a model for the nation, largely by spelling out its reasonable assurance provisions.
As a result, a workgroup was established this summer to make reasonable assurance recommendations. But the group quickly mired in disagreements, causing Griffin to write to the EPA asking for clarification at to what it would expect in the TMDL.
The framework in the EPA letter "describes a level of accountability that we've never had for the entire partnership," said Rich Batiuk, associate director for science with the EPA Bay Program Office.
"Expectations are high for the Chesapeake region," he said, because it has more than two decades of focused pollution reduction implementation actions backed by an in- depth scientific understanding of the Bay. As a result, he said, the requirements the EPA places in the Bay TMDL won't apply to other TMDLs accross the country.
"We all agree that this has to be a pretty unique TMDL," he said. "At the same time, we are not rewriting EPA guidance."
Some of the specific details of how the reasonable assurance will be demonstrated remain to be spelled out, such as the level of detail states must provide about gaps, and how they would fill them.
At a recent meeting of the Chesapeake Bay Program's Principals' Staff Committee, which includes state agency heads and senior federal officials involved in the Bay cleanup, members generally supported the idea of setting specific two-year milestones for accountability.
"In two-year increments, you can be pretty specific and pretty accountable in how you are going to advance the program," said Cathy Meyers, deputy secretary for water with the Pennsylvania Department of Environmental Protection. "It cuts this elephant down into reasonable chunks that we can possibly chew."
Further, she said, it could push states toward using adaptive management in cleanup efforts. The consequence of not making enough progress, she said, could be a requirement that a state must make up for its shortfall in the next two-year cycle and try techniques or programs that may be more effective.
"We promise to do something else that gets the same number of pounds out," Meyers said. "We have to submit an alternate plan for the next two years that has more chance of success. That should be the consequence. It is forcing us to do that adaptive management."
If the states continually fail to demonstrate reductions from nonpoint sources, the consequences could be more severe.
In response to a question from Griffin about potential consequences, the EPA stated it could require further nutrient reductions from point source dischargers as a "last resort."
It noted that upgrade costs throughout the watershed would already cost more than $4 billion, and requiring point sources to make further reductions could be disproportionately expensive.
But the agency may have more sticks in its bag of consequences, according to a letter from the CBF to the Chesapeake Bay Program partners. Among the actions that may be open to the EPA, it said, would be a moratorium on issuing water discharge permits for new or expanding facilities and stormwater systems.
EPA could also take over individual state water quality programs, or withhold Clean Water Act grants to the states.
"What would make it different from any other plan to date would be consequences for not meeting the deadline," said Beth McGee, CBF senior scientist. "They need to spell those consequences out. It would really make a difference between this and other commitments we've made over the last 25 years of Bay restoration."
While the notion of withholding any new discharge permits has been described as the "nuclear option," it may be the kind of threat that gains attention from lawmakers and others.
"We're stuck in this position where we are trying to come up with how bad do we want to punish ourselves if we don't meet these milestones that we put in place," said Jeff Corbin, Virginia assistant secretary of natural resources, who chaired the work group dealing with reasonable assurance.
But, he said, it may be what it takes to restore confidence in the cleanup effort. "We haven't met our deadlines, and what we said we would do by those deadlines, so what are we going to do this time to show people that we are serious?" he asked.
The issue of establishing consequences is expected to be debated over the next year.
But if the new approach to providing reasonable assurance in a TMDL works, it would go a long way toward making the Bay cleanup a model for others. After all, a TMDL by itself doesn't necessarily guarantee any better results than past cleanup promises.
"A TMDL that is done along the standard lines of the thousands of TMDLs we've seen across the country is not the least bit likely to succeed," Parrish said. "We have to do something better."
TMDLS at a Glance
The Clean Water Act requires states to survey waterways every two years and report those that fail to meet water quality standards to the EPA. This is known variously as the 303(d) list, the impaired waters list or the dirty waters list.
The act requires states to develop cleanup plans, known as Total Maximum Daily Loads, for those waterways. Key parts of a TMDL include the establishment of the maximum amount of pollution that a body of water may receive and still meet its standards, with a margin of error. That "load" is then "allocated" to sources contributing to the problem, essentially setting a pollution limit for each source. When a source has a permit, the allocation is typically a required part of the permit.
While not required by law, EPA guidance calls for TMDLs to offer some type of "reasonable assurance" that those allocations will be met. Nonetheless, a TMDL does not set a time frame for achieving water quality standards, nor does it guarantee implementation by non- regulated sources.
Bay partners deadlocked on deadline for goal, lean toward milestones
Bay Program partners are divided over when they should set a new deadline for cleaning up the Bay, and what should be the ultimate cleanup date.
The EPA, in a recent letter, spelled out specific elements that must be contained in the plan, known as a Total Maximum Daily Load, including the establishment of short-term milestones that must be achieved every one or two years.
But the letter did not set a deadline for achieving the pollution reductions needed to clean up the Chesapeake.
In part, officials say, that reflects uncertainty over whether the agency has authority to set a deadline for achieving a TMDL. Neither the law, nor EPA's regulations calls for such a deadline. When the agency approved new rules in 2000 that would have required a deadline and other strengthening elements for TMDLs, they were blocked by Congress.
The Chesapeake Bay Foundation had called for a 2015 deadline, with 80 percent of the implementation to take place by 2012. On its current trajectory, the states would not meet existing cleanup goals for at least 30 years, the foundation said in a letter to the Bay Program's Principals Staff Committee, which includes state agency heads and senior federal officials.
At its Sept. 22 meeting, members agreed that short-term deadlines for specific actions should be set every two years. A motion was made to recommend a 2020 deadline for completing the cleanup, but the committee was divided on the issue.
Virginia Natural Resources Secretary Preston Bryant said Gov. Tim Kaine would want a cleanup goal. "I'm not going to go back and suggest we have a non-deadline," he said.
Ann Swanson, executive director of the Chesapeake Bay Commission, which represents state legislatures, said a deadline was needed to accelerate action so the cleanup does not drag on for decades.
"We have to send a signal at the highest level of leadership that we have to change that direction," she said. "The current trajectory is not going to get us there."
Others said it was premature to set a deadline before the Bay Program completes new computer modeling efforts next spring that could revise the amount of nutrient and sediment reductions each state must achieve.
"I can't support setting a deadline when we don't have a number and we don't know how we are going to do it," said Cathy Meyers, assistant secretary for water with the Pennsylvania Department of Environmental Protection.
"I think we have a responsibility to the public to be honest with them and to promote reasonable expectations on their part, and to have an honest dialogue about it," she said. "Just because we wish we could do it really soon, we shouldn't just put a date out there based on nothing in particular."
At the same time, she said two-year milestones were appropriate because state agencies can predict their level of resources over shorter time periods.
Likewise, James Tierney, assistant commissioner for water resources of the New York Department of Environmental Conservation, said he could not commit to a cleanup goal without knowing what the goal would be. "I want to know what we're getting into," he said. But he also supported setting specific shorter term milestones. "That's the only way you are going to drive some implementation."
The ultimate decision will be up to the Chesapeake Executive Council, which is scheduled to meet Nov. 20. The Executive Council is the top policy-making body for the Bay cleanup effort, and 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.