On December 29, 2010, EPA published the largest total maximum daily load (“TMDL”) ever issued under the Clean Water Act. It imposes maximum loadings for nitrogen, phosphorus and sediment for the Bay and its 92 tidal segments, including loading allocations for major river systems in six states and the District of Columbia which drain into the Chesapeake. This TMDL was required because of widespread non-attainment of water quality standards for dissolved oxygen, clarity/underwater grasses and chlorophyll-a (a measure of algae levels). This non-attainment is caused by excess discharges of nitrogen, phosphorus and sediment, largely from human activities.
For decades, water quality in the Chesapeake Bay and its tributaries has been poor, resulting in fish kills, large “dead zones” in the summer time where no oxygen exists (and no fish can survive) and significant decreases in the annual harvests of fish, crabs, oysters and other shellfish from historic levels. There has also been a serious decline in wildlife habitat, including wetlands.
On May 12, 2009, President Obama issued Executive Order 13508 entitled “Chesapeake Bay Protection and Restoration”. The Order recognized the Chesapeake Bay as a “national treasure” and directed federal and state agencies to work together to develop strategies and programs “to protect and restore the health, heritage, natural resources and social and economic value of the nation’s largest estuary and ecosystem.” Led by EPA, the agencies issued a Strategy For Protecting and Restoring the Chesapeake Bay Watershed, which I described in an ACOEL blog article entitled “EPA Announces Strategy for Chesapeake Bay Restoration” posted May 27, 2010.
The TMDL is the centerpiece of the water quality restoration strategy. The Chesapeake Bay watershed covers 64,000 square miles in Maryland, Virginia, Pennsylvania, Delaware, West Virginia, New York, and the District of Columbia. The population is 27 million and growing. Rising human demands on the Bay and its watershed have outstripped the modest gains of past efforts.
Because the water quality problems involve multiple states and are technically complex, the states and the District of Columbia in 2007 asked EPA to take the lead in developing a multi-state TMDL. EPA did so, in close consultation with the states as well as local government officials and members of the public and interested stakeholder groups. The resulting TMDL calls for reductions in 25% of the nitrogen, 24% of the phosphorus, and 20% in sediment loadings below current levels. The goal is to have all necessary programs in place to achieve these reductions by 2025, and 60% in place by 2017.
Because the TMDL will require reductions from substantial numbers of non-point sources (such as agriculture and stormwater runoff), which EPA has no direct authority to regulate under the Clean Water Act, states have developed “Watershed Implementation Plans”, or “WIPs”, which embody the measures which each state will employ to achieve the required pollutant reductions. The effect of the WIPs is to give the states the first cut in selecting the mix of controls on various point and non-point sources to achieve a cost-effective solution. If a state’s WIP does not provide reasonable assurance of achieving the desired goals, EPA is prepared to use “backstop” allocations, emphasizing increased point-source regulation over which EPA has clear regulatory authority.
The WIP is a brand new tool in the TMDL toolbox, and its use by the Chesapeake watershed states should prove instructive for other impaired water bodies. Work is in progress at the state, county and local levels to carry out the plans. Principles of adaptive management are built into the system with annual reviews and two-year milestones to ensure progress towards meeting water quality standards. Both the TMDL and the WIPs were subject to extensive public comment, public hearings and meetings with affected sectors.
The cost of the necessary reductions will not be cheap. Wastewater treatment plants and storm sewer systems will need to be upgraded. Buildings and shopping centers will need to be designed and managed to sharply reduce stormwater runoff. Non-point source runoff from farming operations will require nutrient management plans and other best management practices. Federal and state funding and technical assistance are available to help.
Most importantly, the TMDL challenges everyone in the Chesapeake Bay watershed to put aside past differences and indifferences, and put in place the necessary programs and practices. Extensive information is available on EPA’s Chesapeake Bay TMDL web site . This includes the state WIPs and links to each state program.
Ridge Hall serves on the Board of the Chesapeake Legal Alliance. He can be reached at firstname.lastname@example.org.