The Chesapeake Bay is the largest estuary in North America and the third largest in the world. Water quality problems are particularly challenging because it is relatively shallow compared with the land mass—64,000 square miles—which drains into it. EPA has called it a “world-class ecological treasure that is home to several thousand species of plants and animals,” including migratory birds. Its production of crabs, oysters and other seafood, plus recreational uses and shipping, “make the Chesapeake Bay a multi-billion dollar economic driver for the mid-Atlantic.”
Over a century of pollution from heavy industrial, commercial, agricultural and other uses has resulted in serious degradation. The principal pollutants are nitrogen, phosphorus and sediment, which have prevented attainment of water quality standards for dissolved oxygen, clarity/underwater grasses and chlorophyll-a (a measure of algae levels). In the summer large “dead zones” spread out across the Bay where fish cannot live because the oxygen is depleted by decaying algae which bloom as a result of excess nutrient discharges.
For the past 25 years, despite a series of cleanup agreements among federal agencies and the Chesapeake Bay states, with leadership from EPA’s Chesapeake Bay Program established under Section 117 of the Clean Water Act, efforts to stem the pollution have been unsuccessful. Regulation has been weak and enforcement has been lax. Currently 89 of the 92 tidal segments of the Bay fail to meet one or more water quality standards.
The Strategy For Restoration
On May 12, 2009, President Obama issued Executive Order 13508 in response to widespread calls from many of the Bay states and citizens groups for federal leadership. The Order required the seven federal agencies with responsibility for the Chesapeake, including EPA and the Departments of Agriculture, Interior, Commerce (including NOAA), Defense, Transportation and Homeland Security, to develop reports on environmental conditions throughout the watershed, identify tools and resources to protect and restore water quality, wildlife habitat and adjacent lands, and develop a schedule for restoration and protection of these resources by 2025, including measurable 2-year milestones.
EPA Administrator Lisa Jackson is committed to restoration of the Bay and appointed as her Senior Advisor on the Chesapeake Bay and Anacostia River Charles (“Chuck”) Fox. Fox, a Bay sailor who previously served as EPA’s Assistant Administrator for Water under President Clinton as well as Secretary of the Maryland Department of Natural Resources, has been a key player in the implementation of the Executive Order.
The Strategy document issued on May 12 lays out a series of measurable objectives designed to achieve, among other things, sustainable and healthy populations of blue crabs, oysters, fish and other wildlife; restoration of degraded wetlands and creation of new wetlands and forest buffers along the Bay and its tributaries; protection of forests, farms and land that is naturally or historically important; expanded public access, recognizing that people will work to protect the things they enjoy; and an enhanced public awareness of the importance of a healthy Bay and watershed to the enjoyment and economic well-being of its citizens.
At the heart of the Strategy is restoration of water quality, based on the establishment of a total maximum daily load (TMDL)—actually a large number of TMDLs—under Section 303 of the CWA which will cover all 92 segments of the Bay and its tidal tributaries. Based on decades of data gathering and modeling, the final TMDL will be the largest in history. It will include “waste load allocations” for point sources and “load allocations” for non-point sources addressing the three pollutants of major concern: nitrogen, phosphorus and sediment. EPA seeks to finalize it by year end.
The TMDL allocations will be applied to point sources through NPDES permits, and to non-point sources through various state regulatory programs, all of which will be collectively embodied in Watershed Implementation Plans (WIPs) which each Bay state and the District of Columbia are already developing. The WIPs will be evolving documents, updated as experience is gained with their initial application. If states fail to adopt timely WIPs, or the WIPs are not adequate to achieve reasonable progress at two-year milestone intervals, EPA will write the WIP itself, and provide backup enforcement wherever state enforcement is lax.
Compliance challenges may be especially great for non-point sources. For example, EPA currently estimates that approximately 42% of nitrogen, 46% of phosphorus and 72% of sediment discharged to the Bay come from agricultural activities, most of which involve non-point sources such as farms. States currently require nutrient management plans and best management practices for most farms, but the enforcement tools are weak. Legislation is pending before the Senate and House to strengthen the Chesapeake Bay provision of the Clean Water Act, Section 117, but as of this writing the fate of that legislation is uncertain. Funding is available to assist farmers develop and implement improved practices through the U.S. Department of Agriculture and state agencies. Technical resources are available from those agencies and various NGOs and university programs. Given traditional suspicion of government programs, however, substantial community outreach and stakeholder involvement will be required to achieve the goals of the strategy.
EPA is also launching several related regulatory initiatives. These include more effective regulation of concentrated animal feeding operations (CAFOs) to reduce runoff from animal manure and process waste, expanded regulation of municipal separate storm sewer systems, supporting state and local regulation of septic systems, and developing nutrient trading programs and the use of offsets for new and expanded discharges. More rigorous regulation is being considered for stormwater runoff from impermeable surfaces and construction sites from which large quantities of sediment are washed into rivers and streams. To address air emissions of nitrogen which result in atmospheric deposition on the Bay, the Strategy proposes more stringent regulation of power plants and other sources of nitrogen to the air.
This brief summary does not address many elements of this massive Strategy. For more information, see the EPA Executive Order web site and EPA’s web site for the Chesapeake Bay TMDL. EPA and the Bay states are conducting public meetings and outreach efforts throughout the watershed.
The Chesapeake Bay Restoration Strategy will, among many other things, provide numerous opportunities for lawyers to provide counseling to those who will be subject to federal and state permitting and regulatory requirements driven by the TMDL and the related WIPs. The restoration effort provides many opportunities to find novel approaches outside the courtroom for resolving the problems and conflicts which will inevitably result during the course of implementation. Finally, much of this activity will provide models for addressing similar problems elsewhere around the country.