EPA Letter to Chesapeake Bay States Spells Out Cleanup Expectations

The U.S. Environmental Protection Agency has high expectations for Bay cleanup efforts in the coming years. Earlier this year it sent states a 10-page letter outlining what agency officials believe must happen to deliver on the decades-old promise of bringing back clear, healthy Chesapeake Bay water—in which underwater plants thrive, fish and shellfish have plenty of oxygen, and waterfowl can graze on abundant food.

The “expectations letter,” as officials call it, outlines what assurances the District of Columbia and six watershed states need to provide in their next-generation cleanup plans to demonstrate they have enough funding and adequate programs to reduce farm and stormwater runoff and do everything else that needs to be in place by 2025 to restore the Bay’s health.

Chesapeake watershed residents have gotten a glimpse in recent years of what a restored Bay would look like; some areas have seen the clearest water in decades, underwater grass beds have expanded, and oxygen-starved “dead zones” have been nearly nonexistent. Those gains stemmed at least in part from drier-than-normal weather, which flushed fewer water-fouling nutrients and sediment off the land and into the Bay. Nonetheless, it was, officials say, real-world evidence that reaching nutrient reduction goals will produce the greatly improved water quality they’ve promised since cleanup work began in 1983.

To maintain those conditions over time, the EPA letter emphasizes the need for ramped-up efforts to engage local officials in the cleanup and to establish quantifiable “local area goals” that support nutrient and sediment control efforts. It also says states will need to offset impacts of growth, as well as the potential negative impacts of climate change and the nutrient and sediment buildup behind Conowingo Dam, which could make cleanup efforts more difficult.

But the letter leaves the door open for states to adjust planned pollution reductions from various sources, and even watersheds, if it accomplishes local and Bay water quality goals more effectively — and potentially more rapidly as well.

Accountability framework

The expectations letter is part of what the EPA and the watershed states had agreed to in the “accountability framework” of the Chesapeake Bay Total Maximum Daily Load (TDML), the cleanup plan that was approved in December 2010.

Nutrients and sediment — the “daily load” in question” — have long been recognized as pollutants that foul the Bay’s water, but past cleanup goals, set for 2000 and 2010, were missed by a wide mark.

The TDML, or Bay pollution diet, was intended to keep that from happening again. Like earlier plans, it set pollution limits for states and major river basins aimed at reducing nitrogen, phosphorus and sediment pollution to levels that would bring back a healthy Bay.

Unlike earlier efforts, though, the pollution diet includes safeguards intended to keep the cleanup effort on target. First, the states must write detailed watershed implementation plans, or WIPs, that outline the actions and policies needed to reach goals. Then states set two-year “milestones” so progress in following the WIPs can be incrementally tracked and publicly reported.

The Bay TMDL also included a “midpoint assessment” to be completed by the end of this year. At that point, states are to have taken actions sufficient to get 60 percent of the nutrient pollution reductions needed by 2025.

The results to date are mixed: Based on progress through 2015, the EPA has said it expects that Delaware, the District of Columbia, Maryland, Virginia and West Virginia would meet their interim goals for nitrogen, phosphorus and sediment reductions. Meanwhile, New York was expected to miss some goals for all three pollutants, and Pennsylvania, while meeting its phosphorus goal, will miss its sediment and its nitrogen goals, the latter by a huge margin.

Under the accountability framework, if states are falling well short of their cleanup goals and not building the programs necessary to achieve them, the EPA can withhold federal grant funding, prescribe how that money is used or take other measures. In the past, for instance, it has temporarily withheld grants from Pennsylvania because of poor performance.

But even those states on pace to meet their goals are not necessarily on track to meet goals from all pollution sources; stormwater reductions, for example, were falling short almost everywhere. Nor were the states on track to meet cleanup goals for all major river basins.

Drawing on new information from updated computer models and new science developed for the midpoint assessment, the states next year must craft new “Phase III Watershed Implementation Plans” describing how they will reach the 2025 finish line.

According to the EPA’s expectations letter, states must not only show where pollution reductions will come from, but also demonstrate that they have programs adequate to achieve those goals, and on time.

The types of specific issues states need to address include: Are the regulatory programs robust enough, with enough staff and oversight, to ensure regulated dischargers will meet goals? Do unregulated pollution sources have adequate incentive funding to persuade landowners to install pollution controls, and is there enough technical assistance available to help them?

If the EPA isn’t convinced that the strategies will do the job when they review the WIPs late next year, the agency has the authority under the Clean Water Act to step in and demand additional actions, such as requiring greater reductions from regulated sources — wastewater treatment plants, for instance — to make up for cleanup shortfalls from largely unregulated sources.

Local goals & involvement

This time around, the EPA is stressing the need to involve local decision makers — whether they be local governments, soil and water conservation districts, regional planning districts, nonprofit groups or others — in the development and execution of the watershed implementation plans.

The “local buy-in” concept has long been seen as critical to Bay nutrient and sediment reduction efforts, since decisions about land use and stormwater management, as well as the promotion of farm runoff control practices, are typically made at the local level.

Local goals have been tried before. After the Bay TMDL was rolled out, the states developed Phase II WIPs in 2011 that were intended to establish local nutrient reduction targets throughout the watershed. That effort was ultimately walked back, though, as projections from the Bay Program’s computer models failed to match what was actually happening on the ground locally.

Now, EPA officials are confident that revised models with dramatically overhauled information — based on aerial photography, with 1-meter resolution across the entire six-state, 64,000-square-mile watershed — will produce much sharper estimates of local land uses.

Still, when the EPA released a draft of its expectations letter a year ago calling for “local area targets,” it was met by a firestorm of criticism from many local and state officials who feared it would lead to new, enforceable requirements on local governments. The National Association of Counties even approved a resolution opposing any effort by the EPA to set local numeric targets in the Bay watershed.

“There was this perception that because of the word target, the idea was that the EPA was going to tell local governments — or have the states tell local governments — that you must achieve this local allocation, which was not the intent,” says Lisa Schaefer, director of government relations for the County Commissioners Association of Pennsylvania.
During much of last year, Schaefer co-chaired a task force aimed at working with state, local and federal officials to resolve the issue.

Their recommendations, which were incorporated into a revised expectations letter, call for “local planning goals” but leave it up to the states to determine the size of the areas that would be expected to meet them. They only have to be smaller than a major river basin within a state.

While the EPA letter says goals do not “establish any new requirements or rights for those local and regional partners,” the goals nevertheless have to be measurable in some way. They could involve setting numeric targets for nitrogen, phosphorus and sediment, or thresholds for installing best management practices on specific land uses. Or, they could aim for retaining a certain amount of runoff on the landscape, among other measurable options.

EPA officials say the local goals are not intended as a regulatory tool, but rather a set of quantifiable objectives to work toward, which could help promote local planning and implementation. The ultimate accountability, they say, rests on states.

“We don’t have the authority to take a federal action against a local government or another local partner, nor do we have the desire to do so,” says Lucinda Power, an EPA representative on the task force.

Even though the new WIPs won’t be completed until late next year, the EPA wants local engagement efforts to start now. The agency’s letter calls for states to explain in their plans how local and regional “partners” will remain involved through 2025.

Officials in the states say they have either begun, or will soon begin, initial meetings with local governments and organizations. But most say they are still months away from deciding what the appropriate scale should be for local goals in their states, and want to get local input first.

Beth McGee, senior water quality scientist with the Chesapeake Bay Foundation, says having some type of measurable goal is critical for meaningful participation at local levels. “How can you lose weight if you don’t know how much weight you have to lose?” she asks.

While McGee said she would like to have seen more detail in EPA’s letter about how local goals will be tied to meaningful actions, she added that simply including the local element in the correspondence “was a good marker to get out there.”

Refining river basin caps

The Bay and its tidal tributaries are divided into 92 separate segments spread across Maryland, Virginia, Delaware and the District of Columbia. The goal of the Bay TMDL is to achieve water quality standards in each of those segments. To get there, the Bay TMDL set pollution limits for each major tributary, which, in turn, were divided among the states along each river. Those goals were further subdivided by the source of pollution, such as wastewater, agriculture and stormwater.

While most states are on track to meet overall 2017 goals, they are not necessarily on track in all river basins or with all types of pollution, which could affect their ability to meet water quality goals everywhere.

“Where you make the reductions does matter, particularly in Maryland and Virginia,” says Rich Batiuk, associate director for science with the EPA Bay Program Office. “Whether you are taking pollution load-reducing actions on the Eastern Shore or the Western Shore, for example, makes a big difference in cleaning up local tidal waters, as well as the Bay itself.”

Overall, pollution reductions from wastewater treatment plants or from power plants and other sources of air emissions have accounted for the majority of the nitrogen reductions. But hitting cleanup goals in all of the Bay segments will require more progress from areas, and sources, that have underperformed so far, Batiuk says.

The EPA is offering states flexibility using new computer models developed by the Bay Program to shift prescribed pollution reductions from one source to another, and even to another river basin, as long as overall water quality goals are met both in the Bay and the tidal portions of its rivers. In some cases, states may be able to reduce more of one nutrient, such as nitrogen, and less of another, such as phosphorus, if overall goals are met.

Likewise, states may want to make greater reductions from certain sources — such as wastewater — because they are more easily or cheaply attained. Or, they may want to promote additional management actions in places where they would provide additional local benefits, such as flood control or habitat improvement. Those, and other, considerations may contribute to states wanting to shift where they’re targeting cleanup actions, Batiuk says.

Accounting for growth

The Bay TMDL not only requires pollution reductions to meet nutrient and sediment goals, it also requires additional reductions to offset population growth and development, which increase runoff and discharges. Pollution could increase from more people, more farm animals, more cropland, more development, lost forests or other changes in the watershed.

States have tried to account for population growth and make adjustments in the past, but there is no set methodology about how that should be done. In recent years, using methods agreed upon by the states, the Bay Program has provided them with short-term growth projections that include population, cropland and farm animals, as well as changes in land use.

As states have set new two-year cleanup milestones, they have sought to offset any increases in pollution from growth while progressing toward their overall nutrient and sediment reduction goals.

The region could stay with that incremental approach to adjusting for growth. But in its expectations letter, the EPA said it would prefer to project land and population changes through 2025, giving the states an upfront estimate about how much increased nutrient and sediment pollution would need to be offset, and where it is likely to originate. New WIPs would have to aim for those offsets, though every two years the projections would be adjusted — either up or down — as new information becomes available at the local and state scales.

“This gives all of our partners a reasonable target to shoot for to offset growth,” says Matt Johnston, a data analyst with the University of Maryland who works at the Bay Program Office.

The EPA’s proposal not only gives states a fuller picture of what needs to be offset, it could also provide a new incentive for conserving ecologically valuable lands. That is, states could get credit by protecting land from development, thereby preventing the predicted increase in nutrient runoff. “This is the best way to incentivize protection of existing natural lands,” Johnston says.

The Bay Program partnership is expected to make a decision about how to account for growth in Phase III WIPs later this year.

Conowingo & climate change

The expectations letter also says that the WIPs will have to address impacts from climate change and additional pollution stemming from the filling of the Conowingo Dam reservoir on the Susquehanna River with nutrient-laden sediment.

The filling of the Conowingo reservoir has meant that more nutrients and sediment are flowing into the Bay than previously thought. And preliminary computer modeling suggests that climate change is also sending slightly more nutrients into the Bay than previously realized, especially via altered precipitation patterns.

Addressing those issues will likely mean more pollution reduction actions are needed, but the exact impacts may vary from place to place.

The letter does not say how the impacts will be dealt with. The state-federal Bay Program partnership doesn’t expect to make final decisions on them until later this year, when it has updated computer modeling available. The expectations letter will be updated at that time, after state and federal officials reach agreement on how each of these issues should be addressed in Phase III WIPs.

The full text of the interim expectations letter is on the EPA’s Chesapeake Bay TMDL website: epa.gov/chesapeake-bay-tmdl.

By Karl Blankenship

Karl Blankenship is editor of the Bay Journal and executive director of Chesapeake Media Service. He has served as editor of the Bay Journal since its inception in 1991.