EPA Finalizes Landmark “Pollution Diet” for the Chesapeake Bay

January 2011Newsletters In the Zone

On December 29, 2010, the U.S. Environmental Protection Agency (EPA) established a landmark “pollution diet” to restore clean water in Chesapeake Bay and the region’s streams, creeks and rivers. This pollution diet is driven primarily by jurisdictions’ plans to put all needed pollution controls in place by 2025, and the EPA will hold jurisdictions accountable for results along the way.

The pollution diet, formally known as the Chesapeake Bay Total Maximum Daily Load (TMDL) , identifies the necessary reductions of nitrogen, phosphorus and sediment from Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia. The TMDL is shaped by an extensive public and stakeholder involvement effort during the past two years, coupled with detailed plans by jurisdictions for how they will achieve pollution reductions.

To address deficiencies in draft plans submitted by jurisdictions in September 2010, the EPA worked closely with the jurisdictions during the past several months. As a result of this cooperative work and through strong state leadership, the final plans were significantly improved. The EPA was able to reduce and remove most federal backstop measures in the draft TMDL while still maintaining rigorous accountability through enhanced oversight and the availability of contingency actions. The result is a TMDL primarily shaped by the jurisdictions’ plans to reduce pollution, which has been the EPA’s goal from the outset.

The EPA posted separate comments on each state’s Watershed Implementation Plan (WIP), including Pennsylvania’s. The EPA’s comments on the DEP’s plan note that Pennsylvania meets its nutrient and sediment allocations for each basin in the final TMDL. After adjusting for EPA-approved nitrogen and phosphorus exchanges, Pennsylvania’s WIP input deck resulted in statewide loads that are two percent over for nitrogen and phosphorus and five percent under for sediment allocations. The EPA and the Commonwealth have reached agreement on further nonpoint source reductions in order to achieve allocations both statewide and in each basin, as documented in the final TMDL. The further reductions are supported by contingencies included in the WIP and EPA’s commitment to track progress and take any necessary federal actions to ensure these reductions are achieved and maintained.

Among the significant improvements in jurisdiction plans are:

  • Committing to more stringent nitrogen and phosphorus limits at wastewater treatment plants, including on the James River in Virginia. (Virginia, New York, Delaware).
  • Pursuing state legislation to fund wastewater treatment plant upgrades, urban stormwater management and agricultural programs. (Maryland, Virginia, West Virginia).
  • Implementing a progressive stormwater permit to reduce pollution. (District of Columbia).
  • Dramatically increasing enforcement and compliance of state requirements for agriculture. (Pennsylvania).
  • Committing state funding to develop and implement state-of-the-art-technologies for converting animal manure to energy for farms. (Pennsylvania).
  • Considering implementation of mandatory programs for agriculture by 2013 if pollution reductions fall behind schedule. (Delaware, Maryland, Virginia, New York).

The TMDL still includes targeted backstops for those jurisdictions that did not meet all of their target allocations or did not meet the EPA’s expectations for providing reasonable assurance that they will achieve the necessary pollution reductions. These included backstop allocations and adjustments for the wastewater sector in New York, the urban stormwater sector in Pennsylvania and the agriculture sector in West Virginia.

In addition, the EPA will provide enhanced oversight of Pennsylvania agriculture, Virginia and West Virginia urban stormwater, and Pennsylvania and West Virginia wastewater. If the jurisdictions do not make sufficient progress, the EPA may utilize contingencies that include additional controls on permitted sources of pollution, such as wastewater treatment plants, large animal feeding operations and municipal stormwater systems.

The EPA will also regularly oversee each jurisdiction’s programs to make sure they implement the pollution control plans, remain on schedule for meeting water quality goals and achieve their two-year milestones. This oversight will include program review, objecting to permits and targeting compliance and enforcement actions as necessary to meet water quality goals.

The pollution diet calls for a 25 percent reduction in nitrogen, 24 percent reduction in phosphorus and 20 percent reduction in sediment. The TMDL, which sets Bay watershed limits of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year, is designed to ensure all pollution control measures to fully restore the Bay and its tidal rivers are in place by 2025, with at least 60 percent of the actions completed by 2017.

Despite all the extensive restoration efforts during the last 25 years, the TMDL was prompted by insufficient progress in restoring the Bay. The TMDL is required under federal law and responds to consent decrees in Virginia and the District of Columbia dating back to the late 1990s.

For more information, please contact M. Joel Bolstein at 215.918.3555 or [email protected].