After a quarter century of voluntary measures, most people who commented on the EPA's draft cleanup plan said they were ready for a tougher approach.
Of the 7,980 submitted comments, about 90 percent supported EPA plans that would cast a broader regulatory net over pollution sources and force states to establish stronger pollution control programs.
"People want clean water, they want strong accountability, they want the job done," said Jon Capacasa, director of water protection for EPA Region III, "That message was heard loud and clear."
But Capacasa cautioned that most of those comments came from letter-writing campaigns organized by environmental groups. Of the roughly 700 more detailed comments submitted to the agency, most either expressed opposition, or some level of reservation, about the draft plan, known as a Total Maximum Daily Load.
Environmental groups largely endorsed the draft that the EPA released Sept. 24. Their comments painted a picture of a failed voluntary cleanup effort that had dragged on for nearly three decades, necessitating the need for a change.
"We now have both a legal and moral imperative to move beyond 30 years of insufficient progress and unmet obligations to establish a new, enforceable blueprint for restoration," the Chesapeake Bay Foundation said in its comments.
Critics beg to differ. While many say cleaning up the Bay is a noble cause, they fault the EPA for failing to consider the costs of its plan, and dispute its legal authority to implement it. Many said the agency's goal of completing the cleanup by 2025 was too rushed, especially for expensive actions such as stormwater control.
Strong opposition came from local governments, wastewater management agencies, agricultural organizations and builders, all of whom could face increased regulations and costs. The extent of their concern was highlighted by the large number of national organizations that filed comments, fearing the Bay TMDL will serve as a precedent for plans elsewhere.
For instance, the U.S. Poultry & Egg Association, National Turkey Federation and the National Chicken Council jointly filed comments saying the TMDL could result in "costly and scientifically unsupportable" nutrient reduction mandates for thousands of farms and would set "important legal precedents for the use of the EPA's authority to other regions of the nation where family farms and processors are located."
Their concerns echoed those of dozens of farm organizations both within the Bay watershed, and across the nation, many of whom said the draft TMDL would put farmers out of business.
EPA's authority questioned
At issue in many comments is the EPA's broad interpretation of its authority to force the implementation of the TMDL. The 1972 Clean Water Act requires states to examine waterways and develop TMDLs for those that fail to meet water quality standards that protect fish and other aquatic life. A TMDL is a calculation of the maximum amount of pollution a waterbody can receive and still meet those water quality standards.
Only a few sentences of the act deal with TMDLs, and they are vague (The frequency with which states should assess water bodies, according to the act, is "from time to time.") The whole TMDL provision went largely overlooked for decades until the 1990s, when environmental groups began suing to force their development. Two of those suits resulted in requirements that a TMDL be developed for the Bay.
But TMDLs have typically not been effective at controlling runoff, which is largely unregulated, and is the source of most of the nutrient pollution flowing into the Bay and other water bodies. The Clean Water Act specifically prohibits the EPA from regulating runoff from farm fields.
In that respect, the Bay TMDL is considered a game changer by supporters. It not only establishes maximum loads for rivers and states, but also requires states to write implementation plans showing how they will achieve those reductions. For sources such as agricultural runoff, which elude direct EPA regulation, the agency requires states to provide "reasonable assurance" that they will achieve nutrient reductions by demonstrating that enough funding, regulatory programs, staffing and other measures are available to meet goals.
If states don't demonstrate they have adequate programs, the EPA plans to implement "backstop" measures that would require greater nutrient reductions from the sources it does regulate, such as wastewater treatment plants, large stormwater systems and animal feedlots. Those so-called "backstop" measures would be hugely expensive.
Supporters contend that the EPA is on solid legal footing. In the structure of the Clean Water Act, TMDLs are developed after other programs, such as restrictions on dischargers, have failed, making them "one of the very last lines of defense to improve water quality," the Chesapeake Bay Foundation said. "In order to meet water quality standards, there must be 'reasonable assurances' that TMDLs will be implemented both for point and nonpoint sources," the group added. "Otherwise, Congress' goals in the [Clean Water Act] will never be achieved and the Bay TMDL will be little more than a lengthy exercise in restating much of what we already know."
Critics say there is no legal basis for the EPA to require that states write implementation plans, to reject plans the states do write, or even to establish a 2025 deadline for implementing the TMDL. They dispute such plans were ever the intent of Congress, noting that Congress blocked TMDL regulations approved by the EPA in 2000 that contained such provisions. The EPA ultimately withdrew them.
"As a result, implementation plans, including their approval or disapproval, remain outside the bounds of the TMDL, and outside the authority of the EPA," the National Association of Home Builders said in its comments.
They and others say the concept of reasonable assurance, which does not exist in the Clean Water Act or EPA regulations, was created in 1997 agency guidance for writing TMDLs. They contend that the EPA has never set standards for what constitutes reasonable assurance and, in any event, has no authority to require it.
The EPA and environmental groups counter that the agency has added authority to address Bay issues under an amendment to the Clean Water Act that establishes the Chesapeake Bay Program, which states that the EPA "shall ensure that management plans are developed and implementation is begun" by states to achieve nutrient reduction goals. "Use of the word 'shall' makes the [EPA] administrator's obligation mandatory," the Choose Clean Water coalition and others contended.
Others, such as the National Association of Home Builders, noted that the same section of the act states that "Nothing in the Chesapeake Bay Restoration Act provides EPA with any additional regulatory authorities."
Whose interpretations are correct will most likely be decided by the courts.
Many criticized the EPA, which says the Bay plan is the largest, most complex TMDL ever written, because it allowed only 45 days for public comment, a period critics said was woefully inadequate for a document which, including its appendices, consisted of more than 2,000 pages, with more technical analyses and modeling referenced throughout. Many said federal guidelines typically call for comment periods of at least 60 days for major rules, and said rules of the magnitude of the Bay TMDL should have even longer comment periods.
The EPA counters that the TMDL development process was open to the public, and that it is obligated to meet an end-of-the-year deadline to complete the TMDL because of President Obama's Chesapeake Bay Executive Order and an agreement with the Chesapeake Bay Foundation to resolve a lawsuit. Critics said neither of those commitments were binding.
Costs worry local governments
The EPA was widely faulted for making no effort to calculate the cost of implementing the TMDL. Past estimates suggest the cost could be in the range of $15 billion to $30 billion, but several of those who commented said that the final tally could be substantially higher.
The Bay Program's Local Government Advisory Committee faulted the agency for not doing a better job to reach out to local governments for input on the TMDL's development and expressed concern about the lack of funding for local governments who will bear much of the financial burden for controlling nutrients to restore Bay water quality.
Those costs - and taxes on local communities - would increase further if the EPA implements its backstop actions and forces more reductions at wastewater treatment plants, it warned. "The political costs at the local level are real and could lead to a backlash against local officials who do support efforts to restore and protect the Chesapeake Bay," the committee said.
Dozens of local governments from around the watershed submitted comments citing the TMDL's cost to their communities. The Hampton Roads Planning District Commission in Virginia said the EPA's proposed backstop requirements would cost an average of $1,675 per household.
Environmental groups contended that money spent to control pollution, whether upgrading wastewater treatment plants or implementing runoff control measures on farms, would stimulate the economy. They said a cleaner Bay would boost fisheries, tourism and property values.
The Choose Clean Water Coalition, which represents several dozen environmental and community groups in the Bay watershed, called the Chesapeake a $1 trillion resource. "Failure to 'save the Bay' threatens this economic driver and, in fact, economic losses have already occurred due to water quality degradation throughout the watershed," it said.
Green groups split on trading
Another flash point in comments - and one that split environmental groups - was the future of nutrient trading, which would allow polluters to meet their nutrient reduction obligations by buying "credits" from those who do more than required. Trading advocates typically envision systems in which dischargers or stormwater system operators buy credits from farmers. Many farm groups, wastewater treatment plant operators and local governments called for broader use of trading to meet goals.
Environmental groups were split.
Earthjustice said trading was flatly illegal under the Clean Water Act. "There is no legal authority for such trading, and allowing it would undermine the enforceability and integrity of the entire Bay TMDL," it said. The groups said the act requires dischargers themselves to meet pollution reduction requirements, not through the actions of unverifiable and unenforceable reductions by other entities.
Riverkeepers were also skeptical of trading. They noted it is difficult to prove the effectiveness of nutrient reduction actions of unregulated entities, such as farms.
Others were more open to the idea. The Natural Resources Defense Council, while saying it "does not endorse trading wholesale," said that trading within the Bay TMDL framework "is a good opportunity to demonstrate that a nutrient trading program, subject to strict oversight and carefully crafted rules keyed to environmental performance targets, can help make a regulatory program function more economically efficiently."
Bay models assailed
Much of the criticism of the draft TMDL was focused on the computer models used to estimate the amount of nutrient reductions needed to clean up the Bay, determine where those nutrients originated, and set pollution limits for each state and tributary. Many questioned the accuracy of model estimates, and faulted the EPA for not making available enough information about the models. They said the agency allowed inadequate time to review what information it did present.
Further fueling criticism are ongoing controversies about the amount of impervious surfaces in urban and suburban areas that is used in the model, and the way it handles nutrient management plans for farms. Those issues are undergoing review and are expected to result in model changes next year which, in turn, could mean that the EPA, after completing the TMDL this year, will have to change it next year.
New York officials, who also contend the EPA has failed to demonstrate that it has legal authority to include their upstream state in the TMDL, were among the model's critics. They said the models were seriously flawed and resulted in goals that may put farms out of business - while providing little benefit to the Chesapeake Bay.
Three senior Bay scientists offered guarded endorsement of the EPA's Bay models, saying they were "both useful and adequate" for setting the direction, amount and distribution of nutrient and sediment reductions needed to achieve Chesapeake water quality goals.
Donald Boesch, president of the University of Maryland Center for Environment Science; John Wells, dean and director of the Virginia Institute of Marine Science; and Denice Wardrop, a scientist with the Pennsylvania State University who chairs the Bay Program's Scientific and Technical Advisory Committee, said the models "incorporate extensive monitoring data, research outcomes and alternate modeling approaches."
The Bay models are generally considered "state of the art" within the environmental engineering and management communities, they said, and past versions of the models have been subject to review by the Scientific and Technical Advisory Committee and others, some of which have been very critical.
"Nonetheless, we believe that the substantial majority of knowledgeable environmental scientists in the region agrees with the premise that the modeling framework used to develop the draft TMDL represents the best current incorporation of available science with which to set and allocate maximum loads within the watershed," they said.
Other scientists expressed concern about the EPA's approach to nutrient reduction. Clifford Randall and Thomas Grizzard are two Virginia Tech scientists with decades of experience working on Bay issues - Randall's research was pivotal in developing biological nutrient removal processes that are the primary technology used to control nitrogen discharges at wastewater treatment plants.
They agreed that "dramatic" nitrogen reductions were needed to meet Bay water quality goals, but said the EPA's proposal failed to recognize that not all river systems behave the same.
The two scientists advise the management of the Occoquan watershed and reservoir, which serves as drinking water supply for the Fairfax County Water Authority. There, the nitrogen discharge limits enforced for an upstream wastewater treatment plant disrupted the chemical balance within the reservoir and worsened water quality conditions by causing the release of ammonium nitrate and phosphorus previously locked in the sediment.
They said that result, which they had predicted, stemmed from well-known processes within lakes and reservoirs, and they warned that if the EPA forced the implementation of its backstop nutrient reductions on the upstream discharger, reservoir conditions would likely be further exacerbated, and nutrient exports from the watershed to the Bay would likely increase.
"The complete body of water quality evidence on the Occoquan Watershed-Reservoir system offers a compelling picture of the importance of examining the system, and not just its component parts, when crafting a water quality management strategy," they wrote. Randall and Grizzard called the assumption that further nitrogen wastewater reductions by the upstream plant would result in greater nitrogen reductions to the Bay was "fundamentally flawed."
If people of science had their differences, so did those of faith. "As persons of faith, we believe that all of creation is a gift, given to us to hold in sacred trust," the Pennsylvania Council of Churches wrote in endorsing the TMDL. "We use the term stewardship to describe our responsibility as humans to protect and preserve the environment for now and future generations - responsibility for environmental quality shared by all those whose actions affect the environment."
But Liberty University and the Thomas Road Baptist Church in Lynchburg, VA, which contend they would be subject to significant stormwater retrofit costs under the draft TMDL, said it should be withdrawn. They depicted a TMDL developed in haste, which was at odds with the Clean Water Act and subjected to inadequate public review that would likely to be rejected when challenged in court.
The expectation that the TMDL will end up in court, though, is one thing almost everyone agrees on. Although none of the comments explicitly threatened legal action, "certainly we have heard those verbal comments," said the EPA's Capacasa.
Selected TMDL Comments
"Climate change presents imminent challenges that are new and unprecedented. It means that past data on weather and climate events are no longer reliable indicators of what is to come. As such, the Draft TMDL must use modeling that looks forward and accounts for climate change. A failure to do this will mean that pollution limits in the TMDL will not be adequate to clean up the Bay, even if they would have been adequate under historic weather patterns."
- National Wildlife Federation
"In setting TMDL allocations for New York, it is crucial that EPA account for other unique impacts on the state's water quality, namely those posed by potential high-volume natural gas drilling on the Marcellus Shale. The level of nutrient reduction envisaged by EPA for New York will be impossible to achieve if natural gas drilling, currently subject to a New York State moratorium, begins in the area.
"Road damage created by gas drilling trucks, along with impacts from constructing extensive pipelines, will result in significant sediment and nutrient erosion."
- Cornell Law School Water Law Clinic
"Before establishing a final TMDL, the [EPA] should consider the economic and social impacts, providing transparent information regarding the cost of proposed water quality standards. The EPA should not move forward with a TMDL that is bound to fail due to unrealistic costs."
- National Association of Conservation Districts
"We have before us the opportunity of a lifetime - to not repeat the failings and broken promises of the past, but rather chart a new course for the Chesapeake Bay restoration. We encourage EPA to hold firm in the face of opposition - those who would prefer to see the status quo, rather than real progress. Those that would prefer to criticize, rather than work for solutions. Those that would prefer to leave a legacy of polluted waters for our children rather than have the courage to take action."
- Chesapeake Bay Foundation
"Poultry processors and farmers operate on thin margins, and cannot bear the burden of substantial new regulatory costs. Such costs could make the Bay region uncompetitive for poultry production. Jeopardizing the economic viability of the poultry industry will only lead to more impervious surfaces that will be counterproductive to Bay improvement goals.
- Virginia Poultry Federation
"The federal Clean Water Act expressly and extensively limits EPA's authority to directly regulate individual nonpoint source activities and EPA's authority to directly regulate individual nonpoint source control programs.
"More specifically, EPA's authority to establish a TMDL under the Clean Water Act does not give EPA authority to impose the type of pervasive regulatory oversight of Bay states in nonpoint source pollution control, as EPA is attempting to do through the draft TMDL, the President's Executive Order, or measures acquiesced by EPA in Consent Agreements."
- Pennsylvania Farm Bureau
"EPA's 'reasonable assurance' proposal and related backstops unreasonably shift responsibility of various nonpoint sources to different people who will then pay more to make up for the now-sanctioned inactivity of other sources. This is fundamentally unfair and unjustifiable."
- Virginia Association of Municipal Wastewater Agencies
"Despite past and continuing efforts, including financial incentives, technical assistance, education and voluntary programs, there is much more that agriculture can do throughout the watershed to reduce its impact on the Bay. In particular, we believe that improved management of the huge volumes of manure generated by large-scale operations would result in significant and cost-effective pollution reductions from agricultural sources, and we urge the Agency and the states to place a renewed focus on the management of manure from concentrated animal feeding operations in the context of this TMDL."
- PEW Environment Group