EPA Issues Precedent-Setting “Pollution Diet” for the Chesapeake Bay Watershed

On December 29, 2010, the U.S. Environmental Protection Agency (EPA) issued a final Total Maximum Daily Load (TMDL) for the Chesapeake Bay watershed. This “pollution diet” covers the largest area to date, encompassing a 64,000-square-mile watershed. The TMDL identifies the necessary pollution reductions from major sources of nitrogen, phosphorus and sediment across the District of Columbia, Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia. It also establishes pollution limits necessary to meet state-specific and federal water quality standards in the Bay and its tidal rivers. This comprehensive pollution diet incorporates thorough accountability measures and clearly identifies goals and appropriate timelines in the hopes of obtaining cleaner water in the Chesapeake Bay and the region’s streams, creeks and rivers by 2025. The Bay TMDL will have a national impact because EPA plans to use the Bay TMDL as a national model for cleaning up other large watersheds.

The TMDL is required under the federal Clean Water Act (CWA) and responds to consent decrees in Virginia in 1999 and the District of Columbia in 2005, and the Chesapeake Bay Foundation settlement agreement of 2010. It is also part of a strategy of 11 federal agencies to meet President Obama’s Executive Order 13508 issued on May 12, 2009. The Executive Order directed the federal government to lead a renewed effort to restore and protect the Chesapeake Bay and its watershed.

The final TMDL has been 10 years in the making, including a two-year public participation effort and the formulation of detailed Watershed Implementation Plans (WIPs) by each of the seven jurisdictions explaining how they will meet pollution allocations. The end result is a pollution diet that calls for reductions of 25 percent in nitrogen, 24 percent in phosphorus and 20 percent in sediment. The final TMDL sets annual watershed limits of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment. Ultimately, the TMDL is designed to ensure that, by 2025, all practices necessary to fully restore the Bay and its tidal waters are in place, with at least 60 percent of the actions completed by 2017.

Background

The intent of the CWA is to restore all waters in the United States so that they are “fishable” and “swimmable.” In particular, it requires the states and the District of Columbia to establish TMDLs for water bodies that are impaired. The District’s water bodies – the Anacostia and Potomac Rivers and Rock Creek – are considered impaired because they do not meet the designated uses for being “fishable” and “swimmable.” Other waters in neighboring states, such as the Susquehanna River and James River, are similarly impaired. Most of the Chesapeake Bay and its tidal waters are listed as impaired because of excess nitrogen, phosphorus and sediment which enter the water from agricultural operations, concentrated animal feeding operations (CAFOs), urban and suburban stormwater runoff, wastewater facilities, air pollution and other sources.

According to 2009 monitoring data and estimated modeling results, the proportions of nitrogen loads delivered to the Chesapeake Bay were as follows:

• Pennsylvania: 44 percent
• Virginia: 27 percent
• Maryland: 20 percent
• New York: 4 percent
• Delaware: 2 percent
• West Virginia: 2 percent
• District of Columbia: 1 percent

The model estimated the proportions of phosphorus loads delivered to the Bay as follows:

• Virginia: 43 percent
• Pennsylvania: 24 percent
• Maryland: 20 percent
• New York: 5 percent
• West Virginia: 5 percent
• Delaware: 2 percent
• District of Columbia: 1 percent

Similarly, the proportion of sediment loads delivered to the Bay are as follows:

• Virginia: 41 percent
• Pennsylvania: 32 percent
• Maryland: 17 percent
• West Virginia: 5 percent
• New York: 4 percent
• Delaware: 1 percent
• District of Columbia: < 1 percent¹

Since 2000, the seven jurisdictions in the Chesapeake Bay watershed, EPA and the Chesapeake Bay Commission have been planning for a Bay-wide TMDL. Since September 2005, the seven jurisdictions have been actively involved in decision-making to develop the TMDL. EPA has corresponded with these jurisdictions about allocations of nitrogen, phosphorus and sediment; timeframes for development of the TMDL; EPA’s expectations; and federal “backstop” actions that EPA could take to ensure further reductions.

Strategic Development of the TMDL

The Chesapeake Bay TMDL is actually a combination of 92 smaller TMDLs for individual Chesapeake Bay tidal segments. Development of the complex TMDL consisted of the following steps:

• EPA provided the jurisdictions with loading allocations for nitrogen, phosphorus and sediment for the major river basins by jurisdiction.
• Jurisdictions developed draft Phase I Watershed Implementation Plans (WIPs) to achieve basin-jurisdiction allocations. The WIPs were due to EPA in early September 2010.
• EPA evaluated the draft WIPs and, where deficiencies existed, EPA provided backstop allocations in the draft TMDL.
• The draft TMDL was published on September 24, 2010, for a 45-day public comment period, and EPA held 18 public meetings in all seven jurisdictions. Over 14,000 public comments were received, reviewed and considered in connection with the final TMDL.
• Jurisdictions worked alongside EPA to revise and strengthen Phase I WIPs and submitted final versions to EPA by the end of November 2010.
• EPA evaluated the final WIPs and used them, along with public comments, to develop the final TMDL.²

Two key elements in the development of the Bay TMDL were the jurisdictions’ development of WIPs and the highly transparent, two-year-long public participation process.

Watershed Implementation Plans

Each jurisdiction was charged with developing a WIP (as mentioned above), which would serve as a roadmap for how and when the jurisdiction planned to attain the basin-jurisdiction allocations for nitrogen, phosphorus and sediment provided by EPA. In their Phase I WIPs, the jurisdictions were expected to demonstrate how they would achieve the pollution targets and how they would provide reasonable assurances.

The draft Phase I WIPs were submitted in September 2010. The EPA concluded that the pollution controls identified in two of the seven jurisdictions – D.C. and Maryland – could meet nitrogen and phosphorus allocations, and that four of the seven jurisdictions – Maryland, Delaware, New York and Virginia – could meet sediment allocations. The EPA evaluation also concluded that none of the seven draft WIPs provided sufficient reasonable assurances that pollution controls identified could actually be implemented to achieve nitrogen, phosphorus and sediment reduction targets by 2017 or 2025.

In response, EPA developed minor, moderate and high backstops to meet the pollution allocations and provide a high level of assurance. These backstops focused on federal authority and included additional reductions from regulated point sources such as wastewater treatment plants, CAFOs and Municipal Separate Storm Sewer Systems (MS4s), as well as certain targeted allocations for headwater states (i.e., New York, West Virginia and Pennsylvania).

Jurisdictions were encouraged to improve upon their WIPs and resubmit them by November 29, 2010. EPA collaborated with the jurisdictions and strengthened the WIPs to be included in the final TMDL. Examples of specific improvements include:

• fully considering regulated point sources and non-regulated non-point sources of nitrogen, phosphorus, and sediment and evaluating them separately in terms of their relative contributions to water quality impairment of the Chesapeake Bay’s tidal waters
• committing to more stringent nitrogen and phosphorus limits at wastewater treatment plants in Virginia, New York and Delaware
• pursuing state legislation to fund wastewater treatment plant upgrades, urban stormwater management and agricultural programs in Maryland, Virginia and West Virginia
• dramatically increasing enforcement and compliance of state requirements for agriculture and committing state funding to develop and implement state of the art technologies at CAFOs in Pennsylvania
• implementing a progressive stormwater permit to reduce pollution in Washington, D.C.³; the District’s WIP focuses on building green infrastructure as a means of managing new and retrofit development, cooperating with federal agency partners and controlling urban polluted stormwater runoff

Transparency Through Public Participation

Over the past two years, there has been a significant outreach effort to ensure public participation in the development of the draft TMDL and eventually the final Bay TMDL. In the fall of 2009 and 2010, EPA held numerous public meetings and monthly interactive webinars in all seven jurisdictions. Following the release of the draft Chesapeake Bay TMDL on September 24, 2010, a 45-day public comment period ensued. During the comment period, EPA conducted 18 public meetings in the seven jurisdictions. More than 2,500 people participated in the public meetings and over 14,000 comments were received.

Accountability for Results

Besides the widespread geographical coverage of the Bay TMDL, what separates it from the other approximately 40,000 existing TMDLs across the U.S. are the extensive measures EPA and the jurisdictions have adopted to ensure accountability for reducing pollution and meeting deadlines for improvement. The TMDL will be implemented using an accountability framework that includes WIPs, two-year milestones, EPA’s tracking and assessment of restoration progress and, as necessary, specific federal contingency actions if the jurisdictions do not meet their commitments. Federal actions can be taken at any time, although EPA will engage particularly during two-year milestones and refining the TMDL in 2012 and 2017. Actions include:

• expanding coverage of NPDES permits to sources that are currently unregulated
• increasing oversight of state-issued NPDES permits
• requiring additional pollution reductions from federally-regulated sources
• increasing federal enforcement and compliance
• prohibiting new or expanded pollution discharges
• conditioning or redirecting EPA grants
• revising water quality standards to better protect local and downstream waters
• discounting nutrient and sediment reduction progress if a jurisdiction cannot verify proper installation and management of controls⁴

Jurisdictions are also expected to continually improve their WIPs. Phase II WIPs that provide local area pollution targets for implementation on a smaller scale (timing to be determined in early 2011) and Phase III WIPs in 2017 are expected to be designed to provide additional detail on restoration actions beyond 2017 and ensure that the 2025 goals will be met.

Costs

The costs of implementing the Bay TMDL will be high. For example:

• Maryland estimates that the costs for implementing stormwater controls to meet sediment reductions could be as high as $2.6 billion and the costs for upgrading major wastewater treatment plants could run up to $2.4 billion with an additional cost of $402 million for upgrading the Blue Plains facility.
• Virginia, a heavy contributor of nitrogen, phosphorous and sediment, expects to pay upwards of $7 billion over 15 years implementing the TMDL.
• At this time, the District of Columbia has not issued an overall estimate of the costs associated with implementation; however, DC Water’s long-term control plan is estimated to cost $ 2.2 billion to implement and DC Water’s enhanced nitrogen removal plan should cost approximately $ 1.2 billion. Additionally, the DDOE estimates that the District’s new rigorous stormwater program will cost $ 13.2 million annually. These are just some of the components of the District’s WIP so it is estimated that the total cost of implementation will exceed $ 3.5 billion.

Bay jurisdictions will be looking at adopting nutrient offset polices and programs to promote point source and agricultural nonpoint source trading along with other economic incentives. Further, federal facilities had refused to pay for the costs of treating stormwater claiming that local stormwater fees were a tax and were barred by the principle of sovereign immunity. However, during the lame duck session, Congress passed legislation (S. 3481) requiring federal facilities to pay local stormwater fees provided that such charges met certain criteria. President Obama signed that legislation into law on January 4, 2011. This legislation should help spread out the high costs of stormwater treatment more equitably, given the large number of federal facilities in the Chesapeake Bay region. Yet, the worst economic climate since the Great Depression will still present major challenges to pay for this expensive cleanup program.

Conclusion

The final Chesapeake Bay TMDL includes pollution limits sufficient to meet state water quality standards for dissolved oxygen, water clarity, underwater Bay grasses, and chlorophyll a, an indicator of algae levels, with the overall goal of improving the water quality in the Chesapeake Bay and its tributaries. As a result of the improved WIPs and the removal of most of the federal backstops, the final TMDL is shaped in large part by the jurisdictions’ plans to reduce pollution. In the District, a densely developed area, this will mean extremely stringent requirements for the developed community in particular. (See our May 21, 2010, alert: Chesapeake Bay Initiatives Driving Tighter Controls on Stormwater Runoff From Developed Sites.)

EPA will conduct oversight of WIP implementation and jurisdictions’ progress toward meeting two-year milestones. If progress is insufficient, EPA will place additional controls on federally-permitted sources of pollution such as municipal wastewater systems, as well as targeted compliance and enforcement activities, which could lead to even stricter directives in the coming years. The final TMDL will be undoubtedly very expensive and paying for the Bay cleanup will present major financial challenges. The Bay TMDL is the largest ever developed and EPA intends to use it as a model in developing TMDLs for other large polluted watersheds.

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¹ Chesapeake Bay TMDL, at 4-1 – 4-4 (December 29, 2010).

² Chesapeake Bay TMDL Executive Summary, at ES-5 (December 29, 2010).

³ Chesapeake Bay TMDL Executive Summary, at ES-10 (December 29, 2010).

⁴ Chesapeake Bay TMDL Executive Summary, at ES-13 (December 29, 2010).