January 01, 2018

The Chesapeake Bay TMDL seven years out: Status, lessons, and the future

Jon A. Mueller

For the last seven years, the federal government, six states (Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia), the District of Columbia, hundreds of local governments, and 18 million people have been on a weight loss plan. The objective of that plan, over 15 years, is to reduce the amounts of nitrogen, phosphorous, and sediment killing the “immense protein factory” known as the Chesapeake Bay. Mencken, H.L. Happy Days, 1880–92.

The plan is working and evolving as we learn more. While success is uncertain, the plan provides a valid framework for action in other interstate waterbodies suffering from nutrient pollution.

The plan

On December 29, 2010, after decades of failed voluntary efforts, the U.S. Environmental Protection Agency (EPA) published the Chesapeake Bay Total Maximum Daily Load (Bay TMDL), the largest multipollutant TMDL in the nation. The TMDL set caps on the amounts of the three pollutants that each of the Bay jurisdictions could discharge to the Bay and its tributaries. It also limited the amount of nitrogen that could deposit on Bay waters from air pollution. Water pollution goals are a shared federal/state responsibility. However, EPA assumed responsibility for meeting the air pollution goal by way of Clean Air Act regulations.

To meet the goals, the Bay jurisdictions developed Watershed Implementation Plans (WIPs). Pursuant to Executive Order 13508, the federal government developed pollution reduction strategies. Two-year milestones were set to meet the 2025 deadline for full implementation. Together, the federal and state governments created an ambitious “Partnership” to restore a national treasure.

Although the validity of the TMDL was challenged, it was upheld by the district and circuit courts as adhering to principles of cooperative federalism envisioned in the Clean Water Act. American Farm Bureau Federation v. EPA, 984 F. Supp. 2d 289 (M.D. Pa. 2013), aff’d, 792 F.3d 281 (3rd Cir. 2015), cert. denied, 136 S. Ct. 1246 (2016).

Status and lessons

Half-way through the TMDL period, we have seen progress. The latest Chesapeake Bay Program (federal and state agencies, state executives and legislators, and stakeholders) biennial report estimates that pollution controls installed between 2009 and 2015 lowered nitrogen loads to the Bay by 8 percent, phosphorous loads by 20 percent, and sediment loads by 7 percent. These reductions are largely due to nitrogen reducing air pollution controls on coal-fired utilities, improvements in agricultural management practices, and upgrades to wastewater treatment plants. In fact, the wastewater sector has already met its 2025 pollution reduction targets. While expensive, plant upgrades have played a large part in improving dissolved oxygen levels; this year, the Bay saw the smallest area of hypoxia (less than 2mg/l oxygen) than the average over the last 32 years. Moreover, the jurisdictions are over halfway to the underwater grasses goal of 185,000 acres.

Despite this progress, only 37 percent of Bay waters meet water quality standards. The Federal/State Bay TMDL Partnership has achieved limited progress on its natural resource goals: land protection—50 percent, underwater grasses—52 percent, wetlands protection–nine percent, and annual forested buffers–seven percent. To make matters worse, EPA recently determined that one million pounds more phosphorous than previously thought passes through the Conowingo Dam, a hydroelectric dam at the mouth of the Susquehanna River. This “new” amount of pollution must be allocated to the states and offset.

 
  2016–2017 Milestones – On or Off Track
 

Agriculture

Stormwater

Wastewater Plants

 

 N  P  Sed

 N  P  Sed

 N  P  Sed

DC

 NA NA NA

 Off On  Off

 On On On

DE

 Off On On

 Off Off On

 Off On On

MD

 Off On On

 Off Off Off

 On On On

NY

 Off On On

 Off Off On

 On Off Off

PA

 Off Off Off

 Off Off  Off

 On On On

VA

 Off On Off

 Off Off Off

 On On On

WVA

 On On On

 Off On+ On

 On On On

Below are some reasons why sectors and states are off track.

Forested Buffers: Farmers fear land production value loss, installation expense, land conversion to development, and insufficient outreach.

Agriculture: Insufficient funding for best management practices; regulation reaching only large animal feeding operations, not crop land where nutrients are applied and sediment is released; perpetuation of smaller polluting farms; and continuation of farming “as my grandfather did.”

Stormwater: An expensive and growing problem that needs new sources of funding (Environmental Investment Bonds), better permitting, and stronger enforcement.

Air pollution: Nitrogen oxides (NOx) emitted into the atmosphere from fossil fuel combustion are the largest source of nitrogen to the Chesapeake Bay. Bay TMDL section 6.4.1, Appendix L. In the Bay TMDL, EPA proposed meeting a 15.7 million-pound cap via several Clean Air Act regulations such as the Clean Air Interstate Rule (now the Cross-State Air Pollution Rule). Unfortunately, several of those rules are slated to be relaxed or eliminated by the new administration, e.g., Corporate Average Fuel Economy Standards.

New Loads: With an expanding population have come new houses, roads, and shopping centers leading to new impervious areas and increased stormwater runoff. Large ammonia emitting poultry houses have proliferated adding nitrogen. These new loads must be offset if the 2025 goal is to be met.

The future

Next spring, a midpoint assessment will be made of the Partnership’s progress towards achieving 60 percent of the Bay TMDL 2025 targets. In 2018, EPA will provide its “expectations” for the jurisdictions’ final, Phase III WIPs. EPA will explain how the jurisdictions will account for growth and additional nutrient loads from the Conowingo Dam and how and when to address climate change, adaptation, and resiliency.

Unresolved is whether EPA will enforce “backstop” measures against states that fail to meet midpoint goals. Despite EPA’s resolve, Congress may cut agency funding and eliminate its authority to enforce the TMDL goals.

Above all, the success of the Bay TMDL depends on the reduction of agricultural and stormwater runoff. The agricultural community must act to curb air (ammonia) and water pollution. Similarly, local governments and the building industry must address stormwater runoff. That these sectors have jointly agreed to implement the Lake Champlain TMDL offers hope.

Other areas suffer from similar ills. Lake Erie is continually fouled by excessive algae blooms cutting off drinking water to Toledo. This year, the anoxic zone in the Gulf of Mexico was the size of New Jersey. While the Bay plan cannot simply be adopted whole cloth, it can provide a template for cooperative efforts between governments and pollution source sectors to resolve these problems.

Jon A. Mueller

Jon A. Mueller, is the vice president for Litigation at the Chesapeake Bay Foundation. He develops, handles, and oversees environmental litigation on behalf CBF and assists in the management of the organization.