Pennsylvania's waterways are likely to become more polluted soon-at least on paper. And Pennsylvania is not unique; the other Bay states may soon be in the same boat.
To resolve a citizen lawsuit, Pennsylvania recently signed an agreement with the EPA that will require it to monitor all its unassessed rivers, lakes and streams, and to do something it was legally required to do for the last two decades-write cleanup plans for polluted waters. Because about half of the state's waters have either never been monitored or not been examined in a long time, many expect the process to reveal new "impaired" waterways.
Environmental groups are preparing to sue over the same issue in Maryland. Similar action is considered possible in Virginia. Nationwide, more than two dozen suits have been filed in recent years over a paperwork requirement known as a TMDL.
TMDL stands for Total Maximum Daily Load, which is an estimate of the maximum amount of pollution that a body of water can receive and still meet water quality standards.
The original 1972 Clean Water Act required states to develop TMDLs for all impaired water bodies by 1979. If the states failed to do so, the EPA was supposed to withhold money from the offenders and write the TMDLs itself.
Despite the law, environmental groups contend that TMDLs, for the most part, have never been developed. They consider the documents critical plans that will help to guide cleanup efforts on the two-fifths of the nation's waterways that still fail to meet the Clean Water Act goal of being "fishable and swimmable."
"It sounds like a rather innocuous phrase with benign consequences, but TMDLs are the backbone of the Clean Water Act," said James May, director of the Environmental Law Clinic at the Widener University School of Law. May has worked on TMDL suits for years, including both the Pennsylvania and Maryland cases.
State and federal officials often dispute that they have failed to carry out the law, saying that they have conducted watershed planning and other activities that were essentially the same as TMDLs. But the spate of suits against the EPA since the late 1980s are resulting in settlements that require actual TMDLs to be completed within set periods of time and that water quality monitoring programs be beefed up.
In the Pennsylvania case, for instance, the state signed an agreement with the EPA in April that committed it to evaluate all unassessed streams-roughly half the 54,000 miles of Pennsylvania waterways-in the next 10 years. The state will also write about 600 TMDLs in the next decade. After that, it has an additional three years to complete TMDLs for impaired waterways that turn up in the new stream assessment effort.
The agreement between the state and the EPA settled a suit brought by the American Littoral Society and the Public Interest Research Group of Pennsylvania against the EPA. The agreement states that neither the EPA nor the state Department of Environmental Protection admit to failing to implement the Clean Water Act.
Nonetheless, Stuart Gansell, director of DEP's Bureau of Watershed Conservation, said the new emphasis on TMDLs "will probably be a driving force in changing the focus of water management in Pennsylvania."
Specifically, he said, TMDLs will force the department to focus more on nonpoint pollution-runoff from farms, suburbs and city streets- than on the point source discharges from industry and wastewater treatment plants, which have historically received the most attention.
TMDLs are getting new attention in other states, too. In Virginia, the General Assembly this year passed legislation expanding the state's water monitoring network and specifically directing the state to identify and rank impaired waters, and then write and implement TMDLs for them.
Environmental groups, in turn, are monitoring the state's efforts. "We've done quite a bit of investigation on where Virginia stands on the TMDL process, and we still have a huge number of concerns," said Roy Hoagland, an attorney with the Chesapeake Bay Foundation's Virginia office.
In Maryland, where the state has yet to complete 300 TMDLs for the impaired waters it has identified, the Chesapeake Bay Foundation, the Sierra Club and the American Littoral Society on June 12 gave the EPA 60 days' notice of their intent to sue. "In our review of the program, we saw a lot of the typical inadequacies that we have seen in other states," said George Chmael, an attorney with CBF's Maryland office. "Generally speaking, most states have fallen down on their duties."
The groups claim that not only has the state missed the deadline for completing TMDLs by 18 years, but that the majority of its waters-including at least 65 percent of its rivers and streams-have not been adequately assessed to determine whether they meet water quality standards.
Proponents see TMDLs as a way to more holistically approach watershed pollution problems because it forces managers to look at all pollution sources-and their cumulative effects on resources-instead of individual problems.
It helps quantify-though not necessarily clean up-pollution stemming from suburban areas and farmland. Some see it as a tool to help restore habitat in watersheds, or as a means to control air pollution that impacts waterways.
Whatever the case, it's apparent that large amounts of time and money will be spent writing plans to clean up areas that are now polluted-or are found to be polluted in the expanded monitoring programs. Ultimately, environmentalists and government officials hope this will lead to cleaner water.
But that is not always guaranteed by the TMDL program.
TMDLs have their roots in the original 1972 Clean Water Act. That law required certain pollution-control technologies to be installed on all industries and wastewater treatment plants that discharge into public waterways.
In many areas, those basic controls were enough to meet water quality standards. For portions of lakes, rivers and streams that still fell short of the standards, the act required states to develop TMDLs. They were, in a sense, a backup device to help ensure water quality standards were met.
"It is a technical progression they envisioned under the act," Chmael said. "The technology standards were an initial step to address the pollution, and the TMDLs are the next step to address the condition of the water."
To meet the requirement, a state has to calculate the maximum amount of a pollutant that a segment of water could receive and still meet the water quality standard. The TMDL is supposed to factor in all sources of pollution-both point source discharges from industries and nonpoint runoff from farms and other lands. In addition, the TMDL must account for any natural "background" pollution. TMDLs are also supposed to include a margin of safety in the calculations, and to allow for future growth in the area.
Instead of looking at a specific discharge pipe, the TMDL, in effect, requires that agencies take a broad look at everything affecting a given body of water. With that information, a state can seek pollution reductions beyond those achieved by basic control technologies required under the Clean Water Act. Information in a TMDL also allows state officials to allocate pollution loads among the different sources in a way that ensures water quality objectives will be met.
"You figure out the maximum diet for that particular segment of whatever chemical is impairing its designated use, and you make sure that no more than that amount comes in from all sources," said Mike Haire, head of the Maryland Department of the Environment's Chesapeake Bay and Watershed Management Administration. "It really doesn't matter to a fish what the source of pollution is."
A TMDL is chemical specific: One is developed for each substance that causes a water body not to meet its water quality standard. In a heavily polluted area such as Baltimore Harbor, for example, many TMDLs may be developed. Nor are TMDLS limited to toxics. They can also be written for nutrients, sediment or other substances that degrade water quality.
TMDLs can be complex. They have to protect water quality both when water flows are low and point source discharges may overwhelm a stream-and when water flows are high, after heavy rains may have washed large amounts of nutrients and sediment off the land.
The EPA has estimated that the development of a simple TMDL that involves a single point source may cost about $4,000. But complex TMDLs in a river with large flow fluctuations and multiple pollution sources may cost hundreds of thousands of dollars and require full-time commitment from several workers to produce.
In the Christina River, which straddles the Pennsylvania-Delaware border, there are about 100 point sources, hazardous waste sites and multiple land uses generating nonpoint source pollution. State and federal agencies and local governments thus far have spent $600,000 just to do the computer modeling necessary to complete TMDLs.
"Obviously, it could be a big problem for states, not only in terms of money, but in terms of manpower," said Thomas Henry, who oversees state TMDL development for EPA Region III, which includes all the Bay states.
Such arguments are not always persuasive with environmental groups, which view TMDLs as a responsibility the states and the EPA have neglected for two decades. "This program is not newly developed," said Kim Coble, a CBF staff scientist. "What we are saying is, 'meet the law.'"
If states were just now implementing the permit system that regulates point source discharges, Coble said, it would look complex and expensive. But because the states have 20 years of experience, that program is now routine.
"I think the more TMDLs you do, the better you get at them, the more efficient you become," Coble said. "Just because it is difficult doesn't mean it shouldn't be done."
Though required under the original Clean Water Act, the program outlined by the law is vague. States are required to monitor their waters, but it's unclear what constitutes an adequate water quality monitoring program. The EPA must approve the monitoring programs, but-judging from some of the lawsuits that have been settled-those programs are not adequate. Likewise, TMDLs are supposed to include margins of safety in load calculations, but it's unclear how that should be figured.
TMDLs have to be developed for any impaired water "segment," but what constitutes a segment has never been defined. "It could be a pond the size of my office, or a watershed as large as the Patuxent," said MDE's Haire, who is participating in an EPA-organized committee of state officials that is trying to develop consistent guidance for TMDL programs among the states.
Such guidance is critical, Haire said, to level the playing field among states. Otherwise, states with more comprehensive monitoring programs and tougher water quality standards will have to put more resources into TMDL development than others.
And there are many other uncertainties. It's unclear whether a state can issue new permits in an area not meeting designated standards, especially if it doesn't have a TMDL developed for that location. "How can we, in good faith, give a permit to put even one more source in?" Haire asked.
But if the state were to stop issuing permits in places like Baltimore Harbor-where it it trying to concentrate new industrial development-would new development be pushed into cleaner, undeveloped areas? "That's a predicament that has not been ironed out yet," Haire said. "What are the implications of being listed?"
It is even unclear whether a site can be removed from the TMDL list once water quality standards are met, Haire said. Some advocate that such sites should remain in a "threatened" category because they may be so borderline in meeting water quality standards that they continue to warrant special attention.
Will industry, if faced with such uncertainties-and possibly smaller discharge allocations because of TMDL restraints-opt to move to other water bodies where they may be given a higher load allocation? "Those are the kinds of issues that have to be dealt with," Haire said.
How those issues play out is also of keen interest to environmental groups.
"Clearly, what we don't what to happen is to have TMDLs be implemented and have businesses race to the greenfields of the state to avoid the load limitation in the more developed areas," said CBF's Chmael.
"But the solution is not to relax regulatory controls regarding pollution entering the harbor," Chmael said. "The answer is to provide other incentives to attract businesses into that area. It doesn't make any sense to essentially give over a particular resource because you want to bring business in there."
The biggest question about TMDLs, though, is not how to develop them, but what to do with them after they are written.
"If you look at the letter of the law, there is nothing there at all about implementing a TMDL, it's all about developing a TMDL," said DEP's Gansell. "We, along with everyone else, don't want to end up at the end of all this time and money with a bunch of paper and have no good result from it on the ground."
In fact, a TMDL itself is not enforceable. The EPA requires states to achieve water quality standards in waterways, so the TMDL can serve as a guide to how those standards can be met if waste loads are allocated a certain way. That works for point sources that have discharges that can be ratcheted down in enforceable permits.
But if the pollution is coming from nonpoint sources, such as suburban yards, crop lands and most stormwater systems-sources for which there are typically no discharge permits-there is no way to guarantee that the TMDL can be implemented. "It's unclear how we can actually do this with nonpoint sources when they are the significant cause of the pollution," said the EPA's Henry.
When the original Clean Water Act was written, pipes from industry were viewed as the major threat to water quality, and enforceable programs were never developed for nonpoint sources. But 25 years later, the EPA blames nonpoint sources for most of the problems that keep water bodies from being "fishable and swimmable." States have some regulatory programs, but rely primarily on voluntary efforts, such as educational programs aimed at homeowners and cost-share and incentive programs that encourage farmers to implement various strategies to reduce runoff.
As a result, a TMDL written for nonpoint sources is a piece of paper with no power. The EPA is reviewing, internally, options for adding more teeth to nonpoint source control programs, something many environmental groups have urged. "There may be some need for additional enforceability with respect to TMDLs applied to nonpoint sources," said CBF's Chmael. "Certainly we would look at that and likely support it if necessary."
Nonpoint source controls, TMDL proponents say, are also needed out of fairness. Otherwise, they say, point sources could be forced to make even steeper discharge reductions to "make up" for uncontrolled nonpoint source pollution in order for a water body to attain water quality standards.
This has raised concerns in the agricultural community, which worries that it could be targeted for regulatory controls. Some draft ideas floated within the EPA, such as requiring enforceable discharge permits for all livestock operations regardless of size, could be "very threatening" to agriculture, said Emily Wilson, of the Maryland Farm Bureau. She noted that many programs for nonpoint sources are relatively new, and need time to be adopted by farmers.
"We want to give the voluntary, incentive-based programs a chance to work and let the progress from that speak for itself," Wilson said. "We feel we've taken some pretty big strides in the past few years when it comes to improving water quality."
Attorney May, who has been working on the issue for a decade, said TMDLs are "on the road to meeting the fishable and swimmable standards" but are not capable of fulfilling the goal. "There will be no silver bullet," he said. "Congress didn't write the law strong enough, and it needs to be, in my mind, revisited."
But in some cases, many agree that TMDLs can be creatively used to remedy problems. The EPA suggests, for example, that TMDLs can result in states dealing with pollutants for which they have no standards, if that is what is keeping them from achieving clean water.
Some people, including Bob Perciasepe, the EPA's assistant administrator for water, have suggested that TMDLs may be the tool that allows air pollution to be controlled to benefit water quality-something that is increasingly seen as a major problem for the Bay and other water bodies.
Because much of the air pollution stems from regulated sources with enforceable permits, Henry said it was conceivable that TMDLs could be used to seek reduced air emissions if problems could be traced back to particular sources. "There may be avenues in the permitting process" to deal with air pollution, Henry said, though he cautioned that estimating the amount of pollution affecting a waterway from a smokestack that may be in another state could be "an administrative nightmare."
TMDLs may provide a mechanism to meld water quality with habitat improvement and restoration in a watershed. In agricultural or developed areas, for example, a TMDL could recommend that forest buffers be planted along streams to reduce water temperature or control sediment and nutrient runoff. "If people allow it to do what it can, you can do a lot of neat things with it," Henry said.
Whatever the outcome of the whole TMDL process, the one certainty is that increased monitoring will result in far better information about the water quality of rivers.
And one of the best things about the effort, said Jolene Chinchilli, director of CBF's Pennsylvania office, is that the new monitoring information can help state agencies and citizens target for protection the streams that are in good quality and don't need TMDLs.
"Philosophically," she said, "I think TMDLs are an after-the-fact approach. It doesn't kick in until waters are already impaired. I think that goes against the whole idea of prevention-that preventing water quality degradation in the first place is not only the best environmental approach, it is also the best economic approach. I hope that we are not going to wait for TMDLs to protect watersheds."