Pennsylvania’s failure to live up to its Chesapeake Bay cleanup obligations means farmers, wastewater plant operators and industries are more likely to get knock on their door from the U.S. Environmental Protection Agency.
The ramped-up inspections and enforcement of clean water regulations are intended to spur more action — and funding — from the state. The EPA announced the measures April 18 as it released its review of Pennsylvania’s latest Bay plan which, the agency said, still falls short of meeting the Keystone state’s goals.
Pennsylvania sends more water-fouling nutrients (nitrogen and phosphorus) to the Bay than any other state. It has been far behind in taking cleanup actions for nearly a decade, and the EPA’s previous failure to press the state to do more has drawn criticism and lawsuits.
The EPA’s decision to increase inspections and enforcement is the strongest action the agency has taken. And the EPA said it could take additional measures unless state officials fix shortcomings in their Bay cleanup plan within 90 days.
Among other things, the agency said the state’s latest plan, submitted at the end of December, achieves only 70% of its nitrogen reduction goal. It did achieve 99% of its phosphorus goal, though.
“We’re sending a very real message,” said Adam Ortiz, administrator of the EPA’s mid-Atlantic region, which includes most of the Bay watershed. “We’re not rubber stamping something that doesn’t add up.”
Ortiz said the state lacks adequate programs and policies to keep manure from farmlands out of streams and, ultimately, the Bay. And, unlike most other states in the watershed, Pennsylvania lacks dedicated programs to help farmers fund and install conservation practices that can help reduce nutrient-laden runoff, such as streamside buffers, fall cover crops and manure storage facilities.
State officials disagree that the plan fails to add up. But along with farm groups, environmentalists and others, they believe that the prospect is better than ever for increased funding to help improve the state’s streams, 25,000 miles of which fail to meet water quality standards.
“I haven’t been as cautiously optimistic as I am right now for a very long time,” said Harry Campbell, Pennsylvania science, policy and advocacy director for the Chesapeake Bay Foundation.
“Having EPA play that role they are intended to be, the ultimate enforcer of our clean water laws across the nation and in Pennsylvania, can in many ways be an important motivator,” Campbell said.
Long running shortfalls
Under a 2010 cleanup plan, formally known as the Bay’s total maximum daily load, the EPA assigned all six states in the Chesapeake watershed, along with the District of Columbia, specific goals for reducing nitrogen and phosphorus, the two nutrients largely responsible for the Bay’s poor water quality and oxygen-starved “dead zones.” The hope was to have all of the necessary practices in place by 2025 to meet those goals.
Pennsylvania was tasked with reducing the amount of nitrogen it sends to the Bay each year by 39.7 million pounds — a majority of the 71.5-million-pound annual load reduction sought from the entire watershed.
But the state’s progress, as measured by computer models, immediately fell behind. Through 2020, its annual nitrogen load was reduced by just 7.2 million pounds. The EPA has previously expressed concern about the state’s lack of progress but until now had done little to address the shortfall beyond temporarily withholding and redirecting some Bay-related grant money.
The issue reached a boiling point when the state submitted an updated cleanup plan in 2019 that fell 9.8 million pounds short of meeting its nitrogen goal and identified an annual $324 million funding shortfall. Maryland, Virginia and Delaware, along with the District of Columbia, Chesapeake Bay Foundation and others, filed suit against the EPA for failing to press the state to make greater progress. That suit is still pending.
Pennsylvania, which does not border the Bay, has had a particularly difficult job reducing nutrient pollution because the vast majority comes from farms and stormwater, sources that all of the states have struggled to control.
Roughly 90% of nutrient reductions in the Bay watershed since 2010 have come from wastewater treatment plant upgrades. Those upgrades account for most of the nutrient reduction progress in Maryland, Virginia and the District of Columbia. But wastewater accounts for less than 10% of the nutrients that originate in Pennsylvania.
At the end of December, Pennsylvania officials submitted a revised plan that they insisted met the goals. But most of the gap was filled by counting agricultural runoff control practices installed years ago, which the EPA says have exceeded their expected lifespan and are no longer effective. When those practices are removed from Pennsylvania’s plan, the EPA said it comes up 9.7 million pounds short in reducing nutrients.
The state-federal Chesapeake Bay Program tracks cleanup progress by incorporating data from states about the amount of conservation practices installed by farmers and others, then estimating the impact those actions have on water quality. But under policies adopted by the Bay Program, those practices are removed from the model after they reach their expected lifespans.
Jill Whitcomb, director of the Pennsylvania Department of Environmental Protection’s Bay office, said that is shortchanging Pennsylvania. She said information collected by the department suggests “a very high percentage” of streamside buffers, manure storage facilities and barnyard controls last longer than the time frame assumed by the Bay Program.
“We continue to lose historically implemented practices that should still be credited,” Whitcomb said. The net result, she said, is that model estimates are subtracting runoff control practices faster than new ones are put in place.
The EPA contends that the state needs to do a better job documenting “expired” practices and should work with other Bay Program states to develop a new policy for counting them toward cleanup goals. Such an effort is under way, but the states have yet to agree on changes.
While other states have voiced similar concerns, the problem is most acute in Pennsylvania because it has more farms in the Bay watershed — about 30,000 — making the job of inspecting old runoff control practices cost-prohibitive, Whitcomb said.
“Do I want to spend time on implementing new practices where we can see viable improvements to local water quality, or should we spend our time going out and looking at practices that we already know exist and are functioning?” she asked. “We have to have a balance there.”
Whitcomb also said that the Bay Program needs to do a better job articulating “uncertainties in the model” used to evaluate state progress. She noted that water quality monitoring has shown improving trends in the Susquehanna River, which drains most of Pennsylvania’s portion of the Bay watershed.
Hope for new funding
No one disputes that Pennsylvania is the only major state in the watershed that lacks a dedicated program to help farmers fund and install conservation practices.
The lack of state funding has been exacerbated by continued budget tightening by the legislature for more than a decade. As a result, environmental agencies are severely understaffed and unable to enforce regulations already on the books.
Politically, it’s been difficult for advocates to secure support for Bay-related efforts. Half of the state drains into the Chesapeake, primarily through the Susquehanna River, but that portion of the state contains less than a third of the population.
The EPA’s new action changes that equation. Its increased inspections and enforcement cover the entire state, not just the portion that drains to the Bay.
“EPA’s intent to apply consequences statewide for the Chesapeake Bay shortfall, instead of just in the Bay watershed, recognizes that we need to take a hard look at how Pennsylvania prioritizes our own water resources,” said state Sen. Gene Yaw, a Republican from northern Pennsylvania who chairs the Environmental Resources and Energy Committee. He called it “disappointing that Pennsylvania continues to fall short of its obligations to our downstream neighbors.”
Yaw, who is also a member of the Chesapeake Bay Commission, an advisory panel that includes lawmakers from the Bay states, has co-sponsored legislation that would use federal COVID relief funding to provide $250 million for a Clean Streams Fund. The money would be available for a variety of water quality improvements statewide. Half of the money would go toward a new Agricultural Conservation Assistance Program that would support farmers through county conservation districts.
The legislation would also allocate money to address acid mine drainage, municipal stormwater runoff, implementation of nutrient management plans, and other water quality programs. The federal money needs to be spent by the end of next year, though, and it’s not clear whether the state would pick up the tab after that.
“The intent is, let’s get it established and prove that the programs work and have the impact that we think they’re going to have,” said Marel King, Pennsylvania director of the Bay Commission. “That will make people want to fund it in the future.”
Indeed, regardless of a long-term commitment, advocates say the fund is a good first step toward increasing Pennsylvania’s efforts to protect its waterways and the Chesapeake.
Justin Clapper, manager of government affairs and communications with the Pennsylvania Farm Bureau, said he “absolutely” thinks the EPA’s action will help spur the General Assembly to pass the measures. “Quite honestly, it underscores the need for the program in general.”
Because of the shortfall in Pennsylvania’s plan, the EPA’s Ortiz said the agency will increase inspections and enforcement for water discharges throughout the state from farms, stormwater systems, industries, municipalities and wastewater plants.
In some cases, small farms that are currently exempt from EPA oversight could be brought under its permit programs if the agency deems they have “a substantial likelihood of discharging into local streams,” Ortiz said.
Typically, the EPA has little authority to regulate farms except for the largest concentrated animal feeding operations, or CAFOs. But the agency can extend its regulatory reach over smaller animal operations if it can show they are having a direct impact on water quality.
Clapper said the Farm Bureau has received little detail about the EPA’s plans but the potential for increased farm inspections “is concerning for us. We’re waiting to see how this unfolds.”
In addition to showing how its updated plan will be paid for, the EPA wants the state to provide greater levels of detail about how it would be enacted. For instance, it calls for increasing the implementation rate for some runoff control practices by more than tenfold — a move that would require state agencies to greatly increase oversight.
If the state does not submit an adequate plan within 90 days, Ortiz said the EPA could take further actions.
Those could include requiring Pennsylvania wastewater treatment plants, which have already achieved their share of Bay goals, to do even more, and that could be extremely expensive. The agency could also put forth water quality standards that are stricter than the state’s, or it could object to any new requests for discharge permits within the state’s portion of the Bay watershed.
The EPA could also require all new permitted facilities to not only offset new pollution but achieve “net improvements” by paying others to reduce pollution beyond what is created by the new operation. That’s likely to discourage new development.
“Enforcement is part of what we do here at EPA,” Ortiz said. “It’s not always our first choice. It rarely is our first choice. But we’re at a point now where we have to step up and do our part.”