This article is Part 1 in the Bay Journal’s 4-part special report, The Bay’s Pollution Diet: Is it Working?
By Karl Blankenship
As the Chesapeake Bay region enters what was supposed to be the final stretch of a decades-long effort to clean up the nation’s largest estuary, it — once again — faces a cleanup goal it appears likely to be missed.
Progress has been made — and Bay water quality has improved — but the region is significantly off track to meet its 2025 cleanup goals. In fact, updated pollution control targets approved by the state-federal Bay Program in July show that the shortfall is greater than previously thought.
That wasn’t supposed to happen after the U.S. Environmental Protection Agency adopted a new, more regulatory cleanup plan eight years ago.
Not only did the new “pollution diet” include oversight provisions that were supposed to keep cleanup efforts on track, work was supposed to be front-loaded so that 60% of the needed actions would be implemented by the end of 2017 and put the region on a glide path to meet the 2025 goal.
Nitrogen cleanup still most difficult
While the region did meet goals for two targeted pollutants, phosphorus and sediment, it achieved only 30% of the goal for nitrogen, which has long been the most difficult to control and is the most harmful pollutant in much of the Bay.
More worrisome is that the new cleanup program doesn’t seem to have accelerated the rate of nitrogen reduction. Since 2010, the amount of nitrogen reaching the Bay has decreased at an average annual rate of 2.6 million pounds — or less than 1% per year — according to figures from computer models used by the state-federal Bay Program.
That’s essentially the same pace as the previous 25 years — and a rate at which it would take another quarter century to meet the Bay’s clean water goals.
“It didn’t create this monumental acceleration in implementation that we would have liked to have seen,” said Beth McGee, senior water quality scientist with the Chesapeake Bay Foundation. She added that progress would likely have been even less without the new cleanup plan.
The vast majority of nitrogen reductions have come from sources that are the easiest to control: wastewater treatment plants. Those plants have nearly all been upgraded, though, so most of the remaining nutrient reductions will have to come from the agricultural and stormwater sectors, where getting significant reductions has been difficult.
“In the next couple of years, progress is really going to start to slip unless there are some big changes in funding levels and improvements in programs,” said Jeff Corbin, the EPA’s former “Bay czar” who is now with an environmental restoration firm. “It gets harder and harder every day that we get closer to 2025.”
Some, including Corbin, even worry that the 35-year-old state-federal Bay Program partnership could disintegrate into lawsuits that pit states against one another if progress continues to falter.
So as the region reaches what was supposed to be the halfway point to its ultimate cleanup goal, has the latest cleanup plan — the Chesapeake Bay Total Maximum Daily Load — worked?
A historic moment
In December 2010, the EPA called it a “historic moment” as it unveiled the Bay TMDL, which it had spent years crafting in collaboration with states in the watershed. Unlike earlier voluntary commitments that failed to meet goals, the “pollution diet,” as it became known, required states to write more detailed plans than ever before and to face potential consequences if they fell short.
Then-EPA Regional Administrator Shawn Garvin called it “by far the most comprehensive and rigorous road map to restoration we’ve ever had. Not just in the Chesapeake Bay, but nationally.”
In fact, fearing the Bay TMDL would force more action by agricultural interests — and inspire similar plans elsewhere — the American Farm Bureau Federation immediately sued to block it, an effort that failed in federal court.
The TMDL is not unique to the Bay. It is a federal requirement for any waterbody that falls short of water quality standards and is aimed at making rivers, lakes, streams and coastal waters fishable and swimmable. A TMDL sets the maximum amount of a pollutant that a waterway can receive and still meet those standards.
But the Bay TMDL was by far the largest — covering a 64,000-square-mile watershed — and the most complex ever written. It defined the maximum amount of water-fouling nitrogen, phosphorus and sediment that the Chesapeake could handle while meeting measurable goals to improve water clarity and largely eliminate oxygen-starved summertime dead zones.
Those “maximum loads” were then allocated to states and major rivers. Mindful that past Bay cleanup efforts had missed earlier goals set for 2000 and 2010, the EPA required states to write detailed plans showing how their portion of the goals would be met. The state plans also set reduction goals for different sources of pollution, called sectors, such as wastewater, developed lands and agriculture, to provide better accountability.
To keep efforts on track, the EPA also required states to set interim two-year cleanup goals, which are evaluated by the agency. Collectively, the states were charged with implementing 60% of the needed cleanup actions by the end of 2017, roughly halfway to the ultimate 2025 cleanup goal.
If states fell short, the agency could take a variety of actions, such as forcing even greater — and more costly — reductions from wastewater plants than states had planned; regulating smaller animal operations than normally covered by federal programs; withholding water grants; or other actions.
In theory, the threat of those consequences would spur states to create new programs, provide more funding or establish new regulations to rein in pollution. That was particularly important for agriculture, an area over which the EPA has limited regulatory oversight.
“This was markedly different from the majority of other TMDLs,” said Jon Capacasa, who is now retired but oversaw the development of the TMDL as the former head of EPA Region III’s water protection division. “We gave it a running chance at success by paying attention to detailed implementation strategies and the accountability framework that became part and parcel of the TMDL package.”
Questions remain about the ability of the TMDL to push the region to the finish line, though, as well as its effectiveness at getting needed pollution reductions from hard-to-control sources.
Since the pollution diet was adopted, Bay Program figures show that 87% of the nitrogen reductions have come from upgrading wastewater treatment plants, which are subject to strict regulatory oversight, although they are not the largest source of nitrogen pollution.
Chris Pomeroy, an attorney with the firm AquaLaw, which has represented wastewater treatment plants on Bay issues over the years, said it’s not surprising that entities with permits would bear the brunt of the cleanup effort early on.
“Generally speaking, it probably is working about the way you would expect,” he said. Pomeroy added that the long-term regulatory certainty provided for dischargers by the TMDL fended off any potential litigation by wastewater treatment plant operators against the cleanup plan.
In fact, wastewater treatment plant operators in Virginia and Maryland even joined the EPA in defense of the TMDL when it was unsuccessfully challenged by farming interests and homebuilders. Wastewater plant operators, in their filings, said the cleanup plan provided a “holistic watershed approach” that was needed to prevent excessive reliance on dischargers that would be “inequitable and insufficient” to restore water quality.
But their support could change, Pomeroy said, if other sectors don’t do their share, and states seek another round of costly wastewater plant upgrades.
“I can assure you there would be no patience in the wastewater sector for any sort of, ‘What have you done for us lately’ approach,” Pomeroy said. “We are looking for a stable regulatory climate extending well into the future now that we have done our part.”
Taken as a whole, the wastewater sector has already reached its 2025 goal, and their discharges will further decline in the next few years as upgrades at a handful of additional plants come online. Their overachievement will help cover some of the shortfalls in other sectors. But that benefit will only be temporary as the population they serve increases.
Virginia, for instance, overachieved its 2017 goals largely because discharges from its wastewater treatment plants were nearly cut in half. But, cautioned James Davis-Martin, Chesapeake Bay program manager with the Virginia Department of Environmental Quality, “Those loads are going to start climbing back up with continued growth through 2025.”
Meanwhile, stormwater runoff in the state has increased, and the nitrogen load from agriculture has decreased only about 3.5% since the TMDL took effect. “This next period, even though we hit those 60% targets, is going to be very difficult for us,” Davis-Martin said.
Controlling nutrients from stormwater is a costly and evolving challenge, especially for older urban areas that were developed before stormwater controls became required in recent decades. Under the TMDL, permits for stormwater systems — which historically had been more focused on managing water flows — are starting to include quantifiable nitrogen and phosphorus reduction goals. But meeting nutrient reduction goals — especially as the acreage of developed lands continues to increase — will be difficult.
Among the jurisdictions affected by the TMDL, only the District of Columbia, where a huge underground tunnel is now capturing and storing much of its stormwater, has seen a decrease in the amount of nitrogen runoff from developed lands.
Rich Batiuk, the recently retired associate director for science with the EPA Bay Program Office, said states are starting to make progress with stormwater, but “they are probably going to need another five to 10 years beyond 2025 to fully put their programs in place.”
Even that may not fully meet water quality goals for the stormwater sector. About 40% of developed lands in the Bay watershed lie outside areas covered by stormwater permits and their regulatory requirements. “That is something that states have no idea how to get their hands around,” Batiuk said.
Farming still the biggest source
Across the Bay watershed, agriculture remains the largest source of nutrients and is responsible for about 48% of the nitrogen reaching the Bay. Since the TMDL was established, many states have ramped up their oversight of agricultural programs and even provided additional funding.
At the same time, though, federal assistance for agricultural conservation practices has decreased after a Bay-specific funding program in the federal Farm Bill ended in 2014.
The net result is that nitrogen from agriculture has decreased 2.5 million pounds since 2009 — the baseline for measuring TMDL progress. That’s about a quarter of 1% per year. And that reduction was driven in large part by the loss of farmland across the region.
In parts of the watershed, farm operations have intensified in recent years. Crop production is increasing and, in some cases, low-intensity lands, such as pastures, were converted to crop lands. Also, data collected by the Bay Program show that more fertilizer is going onto more fields than previously thought. In some areas, a growth in farm animal populations is generating more manure.
Put another way: In many areas of the watershed, nutrient control best management practices — or BMPs — have done little more than hold the line on active farmland since the TMDL was enacted. Existing programs would need to be greatly ramped up to achieve the needed goals of the pollution diet.
“It has not conquered the agricultural problem,” said Roy Hoagland, who was a vice president at the Chesapeake Bay Foundation when the TMDL was being written. “And I don’t think the TMDL alone ever could conquer the agricultural problem. I think we have an overall flaw in the Clean Water Act when it comes to agriculture.”
A boost for programs
Nonetheless, Hoagland and many others involved with the cleanup effort say that the TMDL has not failed, even as they acknowledge that it is unlikely to achieve its goal on schedule. Without it, they say, the Bay’s restoration would be even further off track.
Leaders and advocates for the cleanup effort said the TMDL deserves credit for prompting policy changes throughout the region that could produce improved results in coming years. Many states, for instance, have ramped up their support for farmers and launched new programs, such as a state-funded stream bank fencing initiative in Virginia.
Some have enacted new rules or regulations. Maryland, for instance, has taken action to prevent farm animals from entering streams and enacted new rules to limit phosphorus applications on farmland.
Recognizing that agricultural efforts need to be ramped up, the Chesapeake Bay Executive Council — a panel that includes state governors and the EPA administrator — in August pledged to increase the amount of technical support available to help farmers install nutrient control practices.
Under the TMDL, states for the first time are starting to incorporate nutrient reduction goals into stormwater permits. As a result, many local governments are starting to charge stormwater fees to help meet Bay goals. And many places are testing new “green infrastructure” techniques to treat urban runoff that they hope will become more widely adopted in coming years.
In Pennsylvania, which has the greatest shortfall in nutrient reductions, the General Assembly is debating legislation that could charge large water uses a fee that would be used to help fund the state’s faltering cleanup efforts.
“People are no longer debating the need for reducing nitrogen, phosphorus and sediment,” Hoagland said. “One of the strongest things [the TMDL] has done is it has made water quality improvement in the Bay watershed, and the needs for these reductions, a routine consideration. It has helped drive conversations. It has helped drive changes.”
Now that the region has reached the midpoint to its 2025 goal, states are required to update their cleanup plans and describe how they intend to reach the remaining portion of their nutrient reduction obligations. As part of that process, the EPA is requiring states to develop more localized subgoals and better incorporate local officials in the planning process to help drive further progress.
“We are poised to do the right things if we go to the local scale,” Batiuk said.
More oversight needed?
At the same time, there is growing pressure for the EPA to more aggressively use its oversight to accelerate progress than it has thus far. Most point their fingers to Pennsylvania as the biggest laggard — measured in sheer pounds, it accounts for about half of the region’s shortfall in nitrogen reductions, and was the only state to miss goals for phosphorus and sediment.
Like the region as a whole, Pennsylania’s nitrogen reductions have come almost entirely from wastewater treatment plant upgrades. Runoff from developed lands and 33,000 farms in its portion of the Bay watershed have both increased since the TMDL was enacted.
Past reports lay out a host of woes facing the state. It lacks the staffing to oversee its programs or enforce regulations, faces an overall shortage of funding for conservation programs, and has done a poor job of managing the federal grants it received to help the state address its problems.
But there are other problems as well. New York has also shown little overall progress with nitrogen and is the one place where wastewater discharges are increasing. Nor did Delaware or Maryland meet nitrogen goals. Stormwater runoff is increasing everywhere except the District of Columbia.
When the TMDL was enacted, the EPA had insisted that it would use its oversight to keep states — and sectors — on track. It reiterated that pledge in a June letter to the states, saying it would take “appropriate federal actions … if there is a lack of adequate progress” toward meeting 2025 goals.
So far, the agency has been reluctant to impose the consequences it had originally outlined in 2009, although it twice temporarily withheld grant funding from Pennsylvania to force it to take certain steps.
“EPA has a role under the TMDL now to take backstop actions, and it is going to get harder and harder and harder to not take some sort of action unless some of the states that are lagging make progress, and some of the sectors that are lagging make progress,” said Corbin, the EPA’s former Bay czar.
If that doesn’t happen, he said, “my nightmare scenario is that states are going to end up challenging, legally or otherwise, the ones that aren’t making progress.”
Earlier this year, some Maryland lawmakers already engaged in saber-rattling about taking Pennsylvania to court for lack of adequate progress. Maryland Gov. Larry Hogan has been increasingly critical in his comments about his state’s northern neighbor.
Maryland Environment Secretary Ben Grumbles, who chairs a Bay Program committee of senior state and federal agency officials, cautioned that “adding courts and litigation into the mix can be a challenge” but added that “the patience grows thinner as 2025 gets nearer. So there is a sense of urgency.”
“There is a point where the EPA has to provide less discretion and more backstop authority and accountability and step in and impose different types of consequences,” he said. “We need a strong and fair EPA to hold each state accountable — and keep our feet to the fire.”
Slow, but steady, progress
Ultimately, the success of the TMDL may be determined by patience. Reaching the 2025 goals is unlikely and would require a level of implementation — and funding — significantly beyond what is occurring, or has ever occurred, in the stormwater and agricultural sectors.
Reaching those goals got even harder in recent months, when the Bay Program updated its computer models to incorporate new science and better data and found that there was even less progress in those sectors than previously thought. Older models estimated that the region had achieved 36% of its nitrogen goal; the new models revised that down to 30%.
And those figures do not factor in the substantial reductions that will be needed to offset the impacts of climate change and the filling of the Conowingo Dam reservoir.
Climate change is projected to increase precipitation to the region and supercharge the impact of stormwater and agricultural runoff.
The Conowingo reservoir, now filled to capacity with a backlog of sediment, is sending more nutrients and sediments downstream instead of trapping them in the Susquehanna River. At recent rates of progress, it would take six years of work just to offset those factors.
That said, nitrogen pollution does continue to be on a downward trend — at least for the moment — despite increased development and a growing population. Phosphorus reductions are on track — though the Bay will never meet its water quality goals without dealing with nitrogen.
“Overall, the TMDL has done, and continues to do the job of driving progress forward,” Hoagland said. “It is a question of how fast it will move forward.”
“It’s easy for us to say we haven’t made our goals and we haven’t achieved the reductions that we committed to,” he added. “On the other hand, you’ve made the reductions in spite of continuing healthy economic progress and the unavoidable increases in pollution that comes with that.”