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Phosphorus in the Chesapeake:An Overview on Nutrient Pollution in the Chesapeake Bay and Efforts to Limit Phosphorus Runoff in the Watershed

Kathleen DaleyNeil Saunders

1 May 2015

Copyright 2015 G2 Associates, Inc., Great Falls, Virginia, All Rights Reserved.

G2 Associates hereby authorizes you to copy this document for non-commercial uses within your organization only. In consideration of this authorization, you agree that any copy of these documents that you make shall retain all copyright and other proprietary notices contained herein. IV. History of Chesapeake Bay Clean-Up EffortsIntroductionEfforts to address the declining water quality of the Chesapeake Bay date back over 30 years. In the late-1970s, U.S. Senator Charles Mac Mathias (R. Md.), noticing a rapid loss of wildlife and aquatic life in and around the Chesapeake Bay, sponsored a $27 million five-year study to analyze why this was happening; the study found the main cause to be excess nutrient pollution- nitrogen and phosphorus- and sediment flowing into the Bay watershed. The results of the study sparked an increased focus on the declining water quality of the Bay and its tributaries, involving huge levels of commitment and resources to research and address where and how pollution was entering the Bay. The Chesapeake Bay Program (CBP) was established in 1983 to oversee the cleanup of the Bay along with the Environmental Protection Agency (EPA). Over the next two decades, a series of voluntary agreements, known as the Chesapeake Bay Agreements, were signed by the CBP along with the EPA and several of the Bay States (also referred to as Bay Jurisdictions) to commit to restoring the Bay and its tributaries. Despite the laudable goals established in these agreements, they achieved very little in terms of tangible improvements to the Bay. As a result, lawsuits compelling the Environmental Protection Agency (EPA) to take action, along with a 2009 presidential Executive Order compelling additional federal agencies to do the same, have led to the EPA issuing a regulatory document, called a Total Maximum Daily Load (TMDL) to initiate a federally-led, watershed-wide effort to restore the Bay. Relying on authority established under the Clean Water Act, the leading federal environmental statute to regulate water pollution, the EPA is currently working in union with all seven Bay Jurisdictions to coordinate the largest effort to date through the TMDL and individual state Watershed Implementation Plans (WIP), with the goal to have all the necessary practices in place by the year 2025 to restore the Bay.

2. Chesapeake Bay AgreementsBeginning in 1983, as a result of the congressional study undertaken by Senator Mathias, several of the Bay states (Maryland, Virginia, Pennsylvania, and the District of Columbia) along with the Environmental Protection Agency and the Chesapeake Bay Commission[footnoteRef:-1] collaborated to write a series of agreements, known as the Chesapeake Bay Agreements, to improve the water quality of the Bay. Their purpose was to acknowledge the deteriorating water quality of the Bay and to signal a serious commitment to properly address the issue. [-1: The Chesapeake Bay Commission was formed in 1980 by Maryland and Virginia to coordinate interstate Bay restoration efforts. Pennsylvania joined the Commission in 1983.]

The first of these agreements was a modest two-page document, which established the Chesapeake Executive Council to assess and oversee the implementation of coordinated plans to improve and protect the water quality and living resources of the Chesapeake Bay estuarine systems.[endnoteRef:-1] The Council was charged with creating an implementation committee of agency representatives which would meet as needed to coordinate the development and evaluation of management plans. In 1987, a second agreement[endnoteRef:0] was signed to expand and refine the goals of the original agreement. Far more specific than the first Bay agreement, the new agreement identified a number of goals and objectives, as well as the commitments necessary to achieve them. The following goals were listed in the 1987 Agreement: [-1: Chapter IV Endnotes CBP, 1983 Chesapeake Bay Agreement, http://www.chesapeakebay.net/content/publications/cbp_12512.pdf. ] [0: CBP, 1987 Chesapeake Bay Agreement, http://www.chesapeakebay.net/content/publications/cbp_12510.pdf. ]

to provide for the restoration and protection of the living resources in the Bay; to reduce and control point and nonpoint sources of pollution; to plan for and manage the adverse environmental effects of human population growth and land development; to promote greater public understanding of the Chesapeake Bay system and increase public participation in decision-making; to increase public appreciation and enjoyment of the Bay; to support and enhance the coordinated approach toward management of the Bay; and to provide for continual and perpetual management of the Bay watershed.[endnoteRef:1] [1: CBP, 1987 Chesapeake Bay Agreement. ]

The 1987 agreement also established, for the first time, a number of bay-wide policies and strategies to meet the listed goals. This expanded scope reflected the Councils recognition that the Bays importance transcends regional and state boundaries, and the need to adopt a more harmonized policy framework. The most notable commitment to emerge from this agreement was the commitment to reduce by 40% the amount of nitrogen and phosphorus entering the Bay by the year 2000. Despite these efforts, and despite marginal reductions in pollution entering the Bay, it became clear that the target reductions would not be met on time. Thus, in 2000, a third Chesapeake Bay Agreement was signed to recommit to the goals previously established. Maintaining a similar structure to the 1987 Agreement, the 2000 version included a new list of objectives and commitments to improve the water quality of the Bay. Again, the most significant of these commitments was the commitment to maintain the 40% reduction goal from the 1987 Agreement, and the new commitment to improve the water quality of the Bay and its tributaries so that by the year 2010 they could be removed from the list of impaired water bodies[endnoteRef:2] under the Clean Water Act. By 2007, however, it became clear that these goals again would not be achieved. [2: Under the Clean Water Act, if a water body fails to meet its water quality standard, it must be added to the list of impaired waters. ]

3. Shortcomings of the Agreements After nearly 30 years and three multi-state agreements, the water quality of the Chesapeake Bay remains destitute. For a number of reasons, the efforts behind the Chesapeake Bay Agreements have failed to achieve the tangible results necessary to undue the harm caused from decades of pollution. First, these agreements were a set of nonbinding, unenforceable goals, and not laws. However sincere or noble the signatories to the agreements were, without a set of enforceable laws or regulations, the commitments made in the Bay Agreements could easily be delayed or ignored, as they have been. And without adequate accountability it is possible for problems or shortcomings to be put aside. For example, the Chesapeake Bay Program (CBP), which was formed in 1983, played a major role in creating and implementing the programs and goals established in the Bay Agreements. Yet in 2005 a General Accounting Office (GAO) report harshly criticized the CBP for its information gathering and reporting methods, finding that the CBP downplayed negative trends in Bay water quality and created confusion as to the actual health of the Bay. Subsequent reports revealed that the CBP had not only fallen significantly short of its goals, but that program officials had also concealed these failures in order to continue to receive federal and state funding.[endnoteRef:3] [3: David H. Fahrenthold, Broken Promises on the Bay, Washington Post, December 27, 2008. http://www.washingtonpost.com/wp-dyn/content/article/2008/12/26/AR2008122601712.html.]

Second, scientific research over the years has shown that the challenges facing the Bay are more complex than initially envisioned. Independent efforts to address pollution reduction at the local level failed to result in improvements to the watershed as a whole. Even efforts made at the major-basin level have fallen short. While much of this can be contributed to a lack of sufficient resources and funding, it is clear that too many parts moving independently of one another can often be counterproductive. Given the size of the Bay watershed, and its transcendence of state lines, it is necessary to have an adequate, centralized effort that takes into account all sources of pollution. Third, the lack of sufficient political will makes it difficult to commit the resources needed to achieve the desired results. The Bay watershed extends into six states and the District of Columbia, but in four of those states (New York, Pennsylvania, Delaware, West Virginia) less than half of the state sits on land that contributes to the watershed. This makes it difficult for state officials to explain to their constituents the need to commit state funds to address Bay pollution when many of those constituents live outside the Bay watershed. Also, these states, while contributing significantly to the pollution of the Bay, do not reap much in terms of its benefits, economic or otherwise. Furthermore, many of the goals created through these voluntary agreements require years-long commitments in order to see them through. This often leads to state officials committing to projects that will not be completed until long after their terms have ended, thereby allowing them to avoid public accountability during their time in office. The recent events in Maryland surrounding the Phosphorus Management Tool are a telling example.

4. Recent DevelopmentsFinally, after over twenty years of ineffective action, changes have begun that signal an opportunity for real results. In 2009, President Obama signed Executive Order on Chesapeake Bay Protection and Restoration to address the perpetual inability to improve the water quality of the Bay. Declaring the Bay to be a national treasure, the Executive Order required the EPA and a number of other federal agencies to submit draft reports to identify the recurring issues facing the Bay and to make recommendations on how to effectively address those issues. Also in 2009, former Maryland State Senator Bernard Fowler, the Chesapeake Bay Foundation, Maryland and Virginia watermens associations, and others filed a lawsuit to compel[endnoteRef:4] the EPA to write a TMDL for the Bay (explained below), which was settled.[endnoteRef:5] In December 2010, the EPA responded to the Executive Order and lawsuit by issuing the Chesapeake Bay Total Maximum Daily Load (Bay TMDL), a massive regulatory framework of unprecedented scale to achieve improved water quality of the Bay. Working with all six Bay States, the Bay TMDL represents the most detailed and comprehensive effort, using the fullest extent of legal authority, to clean up the Bay. [4: Several environmental statutes, including the CWA, include citizen-suit provisions, which allow the public to sue the administrating government agency when it fails to perform a legal duty to which it is obligated under the statute. Such duties are called nondiscretionary.] [5: Beveridge & Diamond, P.C. EPA Announces Federal Strategy for Chesapeake Bay and Related Settlement Agreement in Fowler v. EPA. May 14, 2010. http://www.bdlaw.com/news-874.html; CBF, Settlement Agreement, May 5, 2010, http://www.cbf.org/Document.Doc?id=512. ]

0. Clean Water Act: Total Maximum Daily Loads and the Bay TMDLOverview of CWA TMDL RequirementsSimilar to the Chesapeake Bay Agreements, the Bay TMDL sets goals to be achieved by a specific date. By 2025 it is expected that all practices necessary to fully restore the Bay and its tidal waters are in place, with at least 60 percent of the actions taken by 2017.[endnoteRef:6] The Bay TMDL also requires the Bay States to create Watershed Implementation Plans (WIPs) to detail specific strategies and programs that each state will adopt to meet their pollution reduction targets, as well as to submit two-year milestone updates to provide reasonable assurances that the states are on pace to reach the 2017 and 2025 benchmarks. It is important to understand that the goal of the Bay TMDL is not restore the Bay to a clean or healthy state by 2025, but to have the technological methods and proper regulatory requirements in place to ensure that the Bay will eventually be restored. As explained elsewhere in this writing, it may take years, decades, or even longer to remedy some of the damage caused by excessive pollutants. Despite some similarities to past methods to address water quality in the Bay, the Bay TMDL differs from former efforts in its legal enforcement and its size and scope. [6: EPA, Chesapeake Bay TMDL Executive Summary, December 29, 2010, http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/FinalBayTMDL/BayTMDLExecutiveSummaryFINAL122910_final.pdf (page ES-6).]

A TMDL is a calculation of the maximum amount of pollutants that a water body can receive and still safely meet its water quality standards.[endnoteRef:7] Informally known as a pollution diet, a TMDL works much like a human diet: instead of measuring calories and other food contents that a human body can healthily consume, a TMDL measures pollutants that a water body can absorb without becoming polluted. Using scientific modeling, the TMDL measures the amount of pollutants entering the water body from all contributing sources (both point sources, such as industrial sites and wastewater treatment facilities, and nonpoint sources, such as runoff from farms, and urban and suburban municipalities) and assigns limits (waste-load allocations for point sources and load allocations for nonpoint sources) to each of the sources so that the aggregate amount of pollutants, or loads, entering the water body does not exceed the maximum amount allowed, and also includes a margin of safety. TMDLs can be written for individual streams or rivers, or for entire watersheds, as in the case of the Bay TMDL. [7: EPA, What is a TMDL? Last modified September 11, 2013, http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/overviewoftmdl.cfm#tmdlrequired. ]

The EPAs legal authority to issue a TMDL exists under the Clean Water Act. Originally enacted in 1948 as the Federal Water Pollution Control Act, the Clean Water Act, as it is known today, is the principal environmental statute to regulate water in the United States. The goal of the Act is to restore and maintain the chemical, physical, and biological integrity of the Nations waters. The Acts main characteristic is its bifurcated administrative framework, which treats pollution separately depending on the pollutions source. An extremely significant distinction is made between point source and non-point source pollution. Point source pollution is pollution from any discernible source, such as sewage treatment plants, or industrial facilities, and is defined under the Clean Water Act as including, but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft from which pollutants are or may be discharged. Non-point source pollution, although not explicitly defined under the Act, includes pollution from all other sources, including agricultural run-off, and other natural sources. While the Clean Water Act grants the Environmental Protection Agency authority to regulate point source pollution through a permitting program, it grants no such authority over nonpoint source pollution. Instead, regulation over nonpoint source pollution is mostly reserved for the states. This is not to say that the CWA is unconcerned with nonpoint source pollution. Indeed, the text of the CWA states it is the national policy that programsbe developed and implemented in an expeditious manner so as to enable the goals of [the CWA] to be met through the control of both point source and nonpoint source pollution. This division is primarily out of concerns for federalism i.e. the balance of power created in the U.S. Constitution between federal and state governments, but also reflects the strong lobbying efforts of farmers and the agriculture industry. From an environmentalist perspective, this legal distinction is far from ideal: the results of the Clean Water Act have had serious consequences because of this important distinction. Regulation of point source pollution has been largely successful since the Clean Water Act, especially when compared to nonpoint source pollution.[endnoteRef:8] This is because the Act expressly prohibits the discharge of any pollutant from a point source. The only way to lawfully add pollutants to a water body is to obtain a permit through one of the Acts permitting programs. Conversely, the Clean Water Act contains no such absolute prohibition on pollution from nonpoint sources. Instead, the Act relies on a series of voluntary mechanisms to entice state and local governments to take steps to reduce nonpoint source pollution. The first two programs are largely grant programs, which offer federal funding to states that adopt nonpoint source pollution management programs. The third is the TMDL program. [8: William L. Andreen, Water Quality Today- Has the Clean Water Act Been a Success? Alabama Law Review 538 (2003-2004), http://www.law.ua.edu/pubs/lrarticles/Volume%2055/Issue%203/Andreen.pdf; Kyle W. Robisch, Getting to the (Non)Point: Private Governance as a Solution Nonpoint Source Pollution, Vanderbilt Law Review 67 (2014): 539- 568, http://www.vanderbiltlawreview.org/content/articles/2014/03/5-Robisch_67_Vand_L_Rev_539.pdf. ]

The trigger requirement for the Total Maximum Daily Load exists under section 303(d) of the Clean Water Act.[endnoteRef:9] One of the features of the Clean Water Act is that, while the Act grants authority to the federal government to regulate the Nations waters[endnoteRef:10], the states may perform many of the requirements for their waters at their own initiative, subject to federal (i.e. Environmental Protection Agency) approval. Section 303(d) requires that the states assign for each of its waters a designated use. Once a section of water is assigned a designated use, the states must develop a water quality standard (WQS) that is necessary to support it. That is, the Clean Water Act does not require that the Nations waters be clean or pure; rather it merely requires that the water quality achieve the water quality standards that conform to the designated use of the water. [9: The Clean Water Act was passed in 1972. The goal of the statute is to restore and maintain the chemical, physical and biological integrity of the Nations waters.] [10: ]

Virginia, for example, designates its uses for all state waters and wetlands as recreational uses, e.g., swimming and boating; the propagation and growth of a balanced, indigenous population of aquatic life, including game fish, which might reasonably be expected to inhabit them; wildlife; and the production of edible and marketable natural resources, e.g., fish and shellfish.[endnoteRef:11] Similarly, Marylands designated water use for the Bay is defined as TBD. If the current water quality is insufficient to support that use, and effluent technology limitations are insufficient, (that is, current technologies are incapable of attaining the requisite water quality), the TMDL requirement is triggered. Again, each of these requirements are subject to Environmental Protection Agency approval. Thus, if the EPA finds that the states have failed to adequately write a TMDL, or fail to write one altogether, the EPA may step in and enforce those requirements, as it has done in this case with the Bay TMDL. [11: Virginia Law, 9VAC25-260-10. Designation of Uses, Accessed 2015, http://law.lis.virginia.gov/admincode/title9/agency25/chapter260/section10/.]

The Bay TMDL is the largest that the EPA has issued.[endnoteRef:12] The TMDL, which actually represents 92 smaller TMDLs, sets pollution limits for each of the Bay States throughout the 64,000 sq. mi. watershed, and is supported by an accountability framework to ensure that cleanup measures are enforced. The Bay TMDL requires reasonable assurances that the nonpoint source pollution reductions (known as load allocations in the TMDL) will be met. [12: The EPA has issued over 40,000 TMDLs across the United States under the CWA.]

A major component of the Bay TMDL accountability framework is the state Watershed Implementation Plans (WIP). As part of the TMDL writing process, the EPA worked with the Bay States to write draft WIPs to help formulate the allocations that would eventually make up the Bay TMDL and provide an overarching roadmap for each of the Bay States to achieve its pollutant reductions. The WIPs, which are to be submitted in three phases over the course of the fifteen-year Bay TMDL process, outline the Bay States strategies and short-term target goals and provide the reasonable assurances required by the EPA that the states are doing all that is necessary to meet those goals. Phase I and Phase II WIPs were submitted in 2010 and 2014, respectively; Phase III WIPs are due in 2017 when the final phase of implementation will take effect and at least 60 percent of the reduction methods must be in place. The state WIPs are further supplemented by two-year milestone updates to highlight the successes and failures of the states in each of the main pollutant reduction categories. The EPA collects and evaluates these two-year milestone updates and provides feedback to the states, emphasizing highlights achieved and shortcomings that must be addressed in future updates. The EPA has provided a list of potential actions it may take as part of its accountability framework should the Bay States fail to develop or implement appropriate WIPs: First, the EPA may expand coverage of its National Pollutant Discharge Elimination System (NPDES) permitting program, including expanding federal overview of reviews of draft permits; Second, the EPA may require stricter offset requirements wherever new loadings are increased. Presently, the CWA requires increased discharges to be offset elsewhere so that the net discharge is unchanged; Third, the EPA may establish finer-scale allocations in its TMDL should the Bay States fail to adequately write them in the Phase I WIPs; Fourth, the EPA may require greater reductions in pollution from point sources, including increased federal enforcement in the watershed; Fifth, the EPA may withhold federal funding or condition it based on meeting WIP load reductions; Finally, the EPA may initiate federal water quality standards where the state water quality standards do not contain criteria that protect designated uses locally or downstream.[endnoteRef:13] [13: http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/FinalBayTMDL/CBayFinalTMDLSection7_final.pdf (page 7-12). ]

The TMDL program is not without it shortcomings, however. Importantly, the TMDL is not a means by which the EPA can enforce regulation over non-point source pollution. A TMDL, rather, serves as an informational tool for the state governments to follow. The EPA can choose to withhold federal funding or enforce stricter standards in its permitting program for point source pollution, but has limited options for compelling states to adopt federal standards over nonpoint source pollution. The TMDL program thus requires a great deal of cooperation between federal and state governments if the TMDL is to be successful.