Holding the Line on New Pollution While We Clean Up the Chesapeake Bay

by Evan Isaacson

March 21, 2018

This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort. 

A few weeks ago, I discussed why the periodic written "expectations" from the Environmental Protection Agency (EPA) are critically important to the Chesapeake Bay's restoration. These expectations communicate to the state and federal partners in the Chesapeake cleanup effort what they need to do and when in order to implement the coordinated plan of action necessary to reach the cleanup plan's interim and final reduction targets. This includes the fundamental expectation that states account for future pollution growth as they work to reduce existing pollution under the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) cleanup plan. 

It doesn't take any special knowledge of TMDL policy or practice to understand why it is imperative to deal with new pollution while simultaneously addressing ongoing pollution. If you don't account for and offset new and increasing sources of pollution at the same time you're reducing pollutant loads from current sources, then it's a bit like trying to bail out a sinking ship without first plugging the holes. 

Those crafting the Bay TMDL certainly understood how important developing a policy to offset growth would be to the overall cleanup plan. The TMDL authors included growth offsets as one of eight essential elements for states to include in their watershed implementation plans (WIPs), developed an appendix in the TMDL to govern how to account for growth, and issued many guidance documents and other educational materials to help states understand what they need to do. 

Unfortunately, we are now more than halfway through the TMDL and the states are nowhere close to remaining on track with their interim or final pollution reduction targets (a conclusion that will be confirmed in a few weeks when EPA releases its much-anticipated assessment of the states' progress in meeting the 2017 interim targets). Many factors have contributed to this significant failure, one of which was the unwillingness of the states to follow EPA's clear instructions on offsetting new and increased pollution from growth in human and farm animal populations and industrial development. 

What Was Supposed to Happen 

The notion that states need to account for growth to meet Clean Water Act goals is simultaneously bold and reflective of common sense. Anything that sounds like federal interference or regulation of local land use planning or economic growth through the use of Clean Water Act tools is certain to engender a swift and severe response from state and local officials and any number of industries. It is no wonder that the National Association of Home Builders and others sued EPA before the ink was even dry on the TMDL. And yet it would be irrational to omit plans to deal with pollution growth in any pollution reduction effort like a TMDL. Without a requirement that states hold the line on new pollution, the Bay partners would have a moving target as each year piles new pollution onto the existing cap; it's obviously tough to set a reliable budget if the top-line numbers change day by day. 

Ultimately, EPA's preferred approach to proceeding on an issue as politically fraught as addressing pollution associated with growing populations and industries was to maximize flexibility for the states while standing firm on the need to hold the line on new pollution sources. This, EPA hoped, would ameliorate reasonable concerns from reasonable parties while putting the Bay TMDL on a path to success – that is, if the states adhered to EPA expectations and their own commitments. 

But even as EPA was treading carefully in devising a thoughtful and subtle plan to nudge states to deal with their growing pollution, it did not shy away from firmly communicating its expectations. When EPA released guidance for the states in developing their WIPs, it demanded "an explanation of how Bay jurisdictions will track and verify practices to … offset future loads," as well as a detailed numeric demonstration of "how they intend to account for any increases in loads from point and nonpoint sources of nitrogen, phosphorus, and sediment." 

Importantly, EPA clarified the bold scope of its expectation by affirming that "nonpoint" sources, which aren't traditionally regulated under the Clean Water Act's permitting scheme, were also subject to growth offset requirements. The source of the pollution, EPA declared, did not matter. 

Equally striking was the stated expectation that states develop "net improvement offsets" for jurisdictions falling behind on progress toward the 2017 and 2025 reduction targets. Such offsets would require "any new or increased nutrient and sediment loads to be compensated for" by an even larger amount than necessary to merely offset the increased pollution load in a way that "quickens the pace of implementing controls" in those lagging jurisdictions. This particularly creative solution would not only require new sources to clean up after themselves but also, in a sense, let new economic growth help pay to restore water quality in areas that weren't successfully able to do that with current efforts or resources. In that sense, growth would be part of the environmental solution, not part of the problem. 

EPA laid out two basic options for the states. They could either develop programs or policies to control new sources of pollution as they arise, or they could carve out and set aside some of the pollution loads assigned to them to be used by sources of new or increasing pollution. The first option would allow a state to devise innovative and elegant policies individually tailored to addressing pollution from the unique forms of economic or population growth within its jurisdiction. The second option was a simple but blunt zero-sum approach under which a state would take from the pollution budget for existing sources and set an amount aside for new sources. 

While EPA never endorsed one approach over the other, it seems clear that the experts within the Chesapeake Bay Program (CBP) believed that states had enough tools and incentives at their disposal to create policies that maximize benefits and minimize costs from offsetting the growth of human and farm animal populations. As one senior CBP official noted in 2011, "We have the tools to evaluate the effect of policies, plans, and strategies that concentrate growth in areas with adequate supporting infrastructure, minimize future increases in impervious surfaces, lawns, and wastewater loads associated with population growth… let's just do it!" 

After several years under the Bay TMDL, and without much traction on the issue of accounting for growth, EPA issued a technical memorandum to give clear instructions to the Bay jurisdictions about how to project where pollution will come from and to nudge them to acknowledge such growth and take action. States were to undertake "sector load growth demonstrations" and, unless a jurisdiction could numerically prove that growth would not occur, the jurisdiction was expected to "develop an offset program" or handle offsets on a "case-by-case basis." 

Thus, as late as 2013, EPA appeared quite serious about holding states accountable for their pollution growth for the sake of the Bay. Not only were states supposed to provide the agency with a mathematical analysis to demonstrate growth projections for each sector, in each major river basin, and in each state, the states were also expected to account for everything from land conversion from sprawl development to ammonia air pollution resulting from increasing farm animal populations. 

And what was supposed to happen if a state failed to do any work to document where growth was occurring or to actually develop credible means to offset its impacts? According to EPA, "If a Bay jurisdiction has not chosen to explicitly reserve pollutant loading for new or increased point or nonpoint sources of nitrogen, phosphorus and sediment in their WIP, does not provide a credible strategy to offset new or increased point or nonpoint loads, or fails to offset new or increased loads, EPA may take actions as described in the EPA letter of December 29, 2009." 

What Really Happened 

Fast forward a few years and it is clear that states, by and large, have called EPA's bluff. The agency acted boldly, buoyed in part by Obama's executive order on "Federal Leadership in Chesapeake Bay Protection and Restoration," and called for states to do something about pollution growth. EPA gave the states maximum flexibility, but the agency made clear, at least early on, that the failure to act would carry sanctions. But action never came, nor did sanctions. 

None of the seven Bay jurisdictions chose to set aside a separate pollution budget to account for projected growth in their initial watershed implementation plans. And while many of the jurisdictions indicated that they were either developing or considering new offset programs or regulations, we are still waiting for a comprehensive program to materialize. The District of Columbia's plan is the closest any jurisdiction has come to comprehensively offsetting growth, but only because the vast majority of land in the District is already developed and covered by impervious surfaces, making any new development an opportunity to retrofit an existing and highly polluted landscape. 

Consequently, as EPA noted in many of its recent evaluations of the states' progress under the Bay TMDL, growth is occurring virtually unchecked and unaccounted for throughout the watershed. In most urban areas, jurisdictions have made no progress in reducing overall nutrient and sediment pollution running off of impervious surfaces and into storm drains. In fact, this pollution increased during the first phase of the Bay TMDL in every jurisdiction but the District of Columbia. Similarly, in suburban areas, pollution from septic systems has grown significantly across the watershed as sprawl continues to put new houses outside the reach of much cleaner sewage treatment plants. And in Delaware, Maryland, Pennsylvania, and Virginia, EPA noted that animal populations – particularly poultry – are growing at a rapid pace – without credible plans to offset the new pollution coming from a greater number of larger birds confined in feeding operations throughout the Chesapeake Bay watershed. 

The result of all this is millions of pounds of nitrogen that were never offset and are added to the ledger each year. Taxpayers in states already struggling to keep pace under the Bay TMDL are forced to live with increased pollution because their state leaders are not curbing the sources of that pollution growth. 

It is hard to quantify just how big a role growth has played in causing the Chesapeake Bay jurisdictions to fall behind in meeting their long-term cleanup and pollution reduction goals. But we know, for example, that despite legitimate efforts to control current sources of polluted urban runoff, the urban stormwater sector continues to see pollution loads increase year after year, thanks to the paving over of natural areas to create new urban areas. We also know that farmers in many portions of the Chesapeake watershed lead the nation in a number of key conservation practices, but much of this progress is negated by the surge in new industrial-scale feeding operations that generate millions of pounds of nitrogen and phosphorus each year from manure. And thanks to a state-of-the-art land cover database developed under the leadership of the Chesapeake Bay Program, we will be able to precisely measure how many thousands of acres of forest, wetland, and other sensitive but incredibly valuable landscapes are destroyed each year to make way for development. Each time valuable ecosystems are lost, nearby waters face not only pollution from the new development, but the loss of pollution-trapping and filtering capacity. 

Where to Go from Here

The approach that Chesapeake Bay states are taking to addressing new and increasing sources of pollution is clearly unworkable. In upcoming posts, I'll provide case studies and explore potential solutions and concrete actions that states can take now to get back on track – or as close to it as possible – in meeting their long-term Chesapeake Bay cleanup goals.

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Also from Evan Isaacson

Evan Isaacson, J.D., is a CPR Policy Analyst. He joined the organization in 2015 to work on its Chesapeake Bay program, having previously worked as a policy analyst at the Maryland Department of Legislative Services.

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