One might call it the “less than zero rule.” For at least the next decade, it may be impossible to open a new — or significantly expand an existing — wastewater treatment plant anywhere in the Bay watershed unless the owners can find a way to totally offset all new nutrient discharges.
And then, the owners will likely have to cut nutrient discharges another 50 percent beyond that.
The same is true for animal feedlots, industries or any other activity requiring a discharge permit under the Clean Water Act.
It is all part of a new rule proposed by the EPA in August aimed at forcing the cleanup of “impaired” waterways around the country, including the Bay, which is listed because of nutrients.P>Under the proposal, dischargers would have to “offset” new releases of any pollutant contributing to the impairment of a waterbody — such as nutrients entering the Bay — by 150 percent before they could get a discharge permit to begin operation.
The proposed rule appears to extend to its entire 64,000-square-mile watershed, and would affect new wastewater treatment plants that are owned by any municipality with a population of 50,000 or more.
Besides new operations, the proposal would require the offset for wastewater treatment plants, feedlots or other large operations that planned to increase pollutant discharges by 20 percent or more.
In some cases, the offset could be achieved by using new pollution control technologies. For example, an enlarging facility may be able to improve their treatment process so their total discharges — from both the existing facility and the expansion — achieved the 150 percent offset. If that’s not possible, it might have to offset its increase by paying for additional pollution reductions to take place somewhere else on that waterbody.
The EPA proposal was part of a package of rules unveiled in August to govern the development of cleanup plans known as “Total Maximum Daily Loads.” TMDLs are required for any impaired waterway, or waterbody “segment.”
TMDLs are calculations of the maximum amount of a pollutant that a waterbody can receive and still achieve its water quality standard with a “margin of safety.” Under the proposed rules, states have to write TMDLs for all impaired waterbodies, develop timetables for them to be put into place, and develop programs that provide “reasonable assurance” that the plan will be implemented and the waterbody cleaned up. [See “New TMDL rules seek proof that cleanups will take place,” Bay Journal, September 1999.]
The EPA has said that a TMDL will have to be written, and enforced, for the Chesapeake watershed unless the Bay is cleaned up by 2011.
Excess amounts of the nutrients phosphorus and nitrogen degrade water quality in the Bay by spurring the growth of algae blooms. When the algae die, they decompose and sink to the bottom in a process that depletes the water of oxygen. Also, algae blooms block sunlight to beds of underwater grasses which provide important food and habitat for waterfowl, juvenile crabs and fish.
The new offset rule is intended to help impaired waterbodies from getting worse, while still allowing growth, until a TMDL is written.
“This is to prevent the further degradation of that water pending the development of a TMDL and, in turn, to try to create some net environmental improvement, perhaps to the point that the waterbody gets taken off the [TMDL] list,” said Kim Kramer, of the EPA’s Office of Wastewater Management.
She and other officials emphasized that the proposals are not final. “There are lots of options that are being wrestled with right now,” said Mike Haire, of the EPA’s Office of Water, Oceans and Watersheds.
The EPA is taking comments on the proposed rules until Oct. 22.
Officials said the rules in some respects are more flexible than existing TMDL regulations, which indicate that no new discharges are allowed in impaired waterways. “The idea is to accommodate growth and expansion while moving in a direction that you will ultimately have to move in once the TMDL is completed,” Haire said.
No one knows the full impact of the plan for the entire Bay watershed.
David Evans, an attorney representing the Virginia Association of Municipal Wastewater Agencies, said most plants in Southeastern Virginia have enough excess capacity to handle growth, but the rule would likely affect a number of treatment facilities in the rapidly growing areas around Richmond and in the Northern Virginia regions.
“Certainly, in the next 10 years, we are looking at significant population growth and a need to expand those plants,” he said.
Plants in Maryland and Pennsylvania would also be affected. So would those in portions of New York, Delaware and West Virginia that drain into the Bay, even though those three states are not part of the Bay Program.
The proposed rule would not affect existing animal feedlots that need permits because of new regulations put in place last year by the EPA and the U.S. Department of Agriculture, which require operations with more than 1,000 cows or 100,000 chickens to have permits.
But new, large feedlots, or feedlots that expand by 20 percent after getting a permit, would also be affected by the offset requirement.
To achieve “less than zero” results from dischargers, the proposed rules for the first time under the Clean Water Act clearly sanction the “trading” of effluent between sources. Although trading has taken place in the past, it has generally been limited to small-scale pilot projects. Under such a system, a facility that has reached the limit of its technological ability to reduce pollution could still expand by paying another plant to reduce its pollution.
Or, according to the proposal, they could pay an unregulated “nonpoint” — or runoff — pollution source to curtail pollution. For example, a wastewater treatment plant that wants to discharge more nutrients could pay a farmer to plant buffers or undertake other practices that would remove nitrogen and phosphorus.
Those reductions would be written into the permit of the discharging facility, making it liable for hefty Clean Water Act fines if the reductions did not take place. In that case, the rules say, the facility could sue whoever it paid for reductions to recover damages.
Allison Wiedeman, point source coordinator with the EPA’s Bay Program Office, said trading is a way to engage nonpoint sources in reduction actions they might not have otherwise taken and to possibly achieve more reductions than without trading. “There may be opportunities for nonpoint sources to generate credits which would be of economical benefit to them.”
Environmental groups have long been concerned about trading pollution between “point sources” like wastewater treatment plants and nonpoint sources such as agriculture. While technologies employed at wastewater treatment plants can ensure pollution reductions take place, nonpoint controls are far less predictable.
Because of the uncertainties involved, the rules say that in some cases, offsets of 2-to-1 may be required in some trades involving runoff sources.
Mike Hirshfield, vice president for resource protection with the Chesapeake Bay Foundation, said the proposal was too vague about how pollution reductions for nonpoint sources would be measured and monitored.
“My reading of this is that it is a back door way of establishing trading programs without really talking through and addressing all of the issues that people who have spent a lot of their time seriously thinking about trading have focused on,” Hirshfield said.
“There is nothing in here that addresses the issue of ensuring that the reductions that are supposed to be achieved from nonpoint sources are real, and measurable and enforceable,” he said. “It undercuts a lot of the value that is the result of requiring offsets.”
Until more specific trading program is developed, with better safeguards, Hirshfield said offsets should only be allowed from other point sources, and only under very strict conditions.
Anticipating that a trading program will be needed to achieve — and maintain — further nutrient reductions, the Bay Program has established a special workgroup involving environmentalists, including the CBF, wastewater treatment plant operators, scientists, economists and others to work out how such a program would work within the watershed.
The EPA’s proposed rule raises some concerns about that process because it would take precedent over anything agreed upon by the trading group.
“It’s been difficult enough for these various interests to work through trading within the Chesapeake Bay Program without having federal rules and regulations layered on top of it,” Evans said.
Most treatment plant owners support the concept of trading as a cost-effective way of achieving offsets, Evans said, but are concerned about the EPA’s proposal.
For example, the potential of treatment plant owners being held criminally and civilly liable for nonpoint source reductions — as proposed in the rule — is, he said, “a frightening prospect, quite frankly.”
And, for a farmer or someone else to put themselves in a position where they could be sued, the trade “has got to be pretty lucrative,” Evans added.
Cy Jones, chair the Nutrient Committee of the Maryland Association of Municipal Wastewater Agencies, said he was concerned about the scope of the offset program. “It’s applied in a universal way, regardless of whether the point source is making any contribution to the impairment or not,” he said.
“If the treatment plant is the major source of the impairment, some offset is probably justified,” he said. But the rule requires offsets from discharges even if they produce only 1 percent of the targeted pollutant in a watershed, Jones said.
But in some cases, Hirshfield, of the CBF, said the proposed rules are not restrictive enough. For example, he said that offsets should be required for expansions of 5–10 percent, not 20 percent. He noted that the rules affect the largest wastewater treatment plants, and that an increase of less than 20 percent from some of them — such as the District of Columbia’s massive Blue Plains plant — “would be huge.”
“You’re talking about big sources that are going to be pretty substantial contributors already,” he said.
While the main concern in the Bay is nutrients, the proposal would also affect toxics and other pollutants in some Bay tributaries. Dealing with toxics may be more difficult, because there may be fewer sources from which offsets may be achieved.
“For toxics, it’s a whole new ball game,” said Robert Summers, director of the Chesapeake Bay & Watershed Management Administration of the Maryland Department of the Environment, and chair of the Bay Program’s Toxics Subcommittee. “There are a lot of issues to work out. It’s not going to be easy.”
TMDLs mark a fundamental shift in clean water policy. In the past, permits issued to discharges were generally based on the available technology. With TMDLs, water quality standards must be met regardless of whether the technology is available.
A TMDL recently written by Delaware for Indian River, Indian River Bay and Rehoboth Bay calls for all wastewater treatment plant and industrial discharges to be “eliminated systematically,” and nutrient runoff to be reduced 85 percent in some places to meet water quality objectives of reducing algae growth and encouraging the growth of underwater grasses.
The public has until Oct. 22 to comment on the rules. Details about proposals, and information about how to comment, is available on the Internet at: www.epa.gov/owow/tmdl/