Over the last several years, EPA, states and environmental activists have focused their sights on stormwater and agricultural discharges as major contributors to water quality impairments. The increased regulatory scrutiny of these activities has led to stricter and more costly controls for the agricultural and construction sectors, and these requirements only promise to become even more restrictive in the future. The massive program to improve water quality in the Chesapeake Bay is a perfect microcosm of this activity and provides insight into what other areas of the country can expect.
The Obama Administration EPA has made improvement of water quality in the Chesapeake Bay a high priority and has taken a number of steps to achieve this goal. Chief among them is the issuance of a "Total Maximum Daily Load," or TMDL, for the Chesapeake watershed, issued in December 2010. The culmination of a multi-year process, the TMDL is intended to reduce the amount of nutrients -- primarily nitrogen and phosphorous -- and sediment that make their way into the Bay, as these pollutants are believed to cause the most significant impairments to the Bay's water quality. The TMDL works by establishing quotas for each of these pollutants in different parts of the Bay's watershed, identifying how much of these pollutants each area is permitted to contribute. The states within the watershed -- Pennsylvania, Maryland, Virginia, Washington, DC, New York, Delaware and West Virginia -- then must issue "watershed implementation plans" (WIPs) identifying what steps they will take to achieve these pollution quotas. The ultimate goal is to ensure that all measures needed to "restore" the Bay are in place by 2025, with at least 60 percent of them completed by 2017. Although the TMDL is subject to a pending legal challenge on the grounds that the Clean Water Act delegates to the states -- and not to EPA -- the authority to issue TMDLs, the states are busy issuing their Chesapeake WIPs. The effects of all this activity are already being felt.
To achieve the nutrient reductions needed to satisfy the TMDL, states have focused on discharges from agricultural operations, septic systems and wastewater treatment plants. For example, several states, including Maryland, Pennsylvania and Virginia, have taken or are planning to take action to require improved nutrient management programs (e.g., restrictions on how fertilizer and manure can be applied to land) and programs for managing animal waste from CAFOs and other agricultural sources. Improvements to wastewater treatment plants are also intended. Maryland and Virginia have also emphasized improvements to existing septic systems and restrictions on the use of new septic systems.
States are obtaining the required sediment reductions through a variety of measures aimed at agriculture (e.g., improved tilling practices) and from imposing increasingly stringent requirements on stormwater runoff and discharges from urban areas and new construction. These requirements and the accompanying programs are typically more stringent and restrictive than similar programs in other parts of the country.
At the same time, the construction industry has challenged EPA's 2009 effluent limitation guidelines for the construction sector, and reports have surfaced of an impending settlement that will remove the numerical turbidity requirements and other potential revisions to the rule, including the best management practice requirements to address stormwater discharges from construction sites.
EPA, for its part, not only has to approve the states' WIPs, the Agency has identified the Chesapeake Bay as one of its enforcement priorities. Indeed, EPA has issued a Bay-specific enforcement strategy, identifying stormwater and animal feedlots as among its enforcement priorities. Since 2009, EPA has entered into 16 civil judicial settlements and issued 146 administrative orders in the Chesapeake watershed, many of which involved agricultural/concentrated animal feedlot operation (CAFO) and construction stormwater discharges. EPA's enforcement is particularly focused on CAFOs in the Delmarva Peninsula, south-central Pennsylvania and the Shenandoah Valley in Virginia and West Virginia. As for stormwater, the Agency intends to focus on high-growth areas within the watershed that have significant construction activity (primarily in areas surrounding the large urban centers, such as Baltimore, Washington, D.C., Richmond, and Wilmington) and on municipal separate storm sewers and other urban discharges.
Actions to implement the Chesapeake Bay TMDL are generally in their infancy. Given the aggressive and significant pollution reduction goals that the TMDL seeks to achieve, additional and even more stringent requirements for all industrial, agricultural, construction and transportation activities within the watershed states can be expected. Agricultural and construction businesses with activities in the Bay Watershed would be wise to spend time learning more about how these programs currently affect their business and new requirements in the works.
It also is clear that the requirements now in place and being developed for the Bay TMDL are likely to be copied elsewhere. EPA and others have concluded that the activities that have led to impairment of the Chesapeake -- nutrient and sediment discharges -- are also the sources of impairments in other waterbodies throughout the United States. Industrial discharges have been subject to controls for years, so states will likely to be turning to other contributors, including agriculture, urban runoff, and construction, to obtain further reductions. This development bears watching.