Cleanup and Protection of Our Nations Waterways Through Regulation and Enforcement will Continue to be a Priority in 2011

The Chesapeake Bay

November 7, 2011
by BRYAN P. FRANEY
Client Alert Newsletter Forecast 2011

2011 will be a critical year for the implementation, refined planning, and even litigation over the Chesapeake Bay Total Maximum Daily Load ("TMDL"), which the U.S. Environmental Protection Agency ("EPA") refers to as a "historic and comprehensive pollution diet" potentially affecting numerous businesses, developers, farms, municipalities and individuals in the Chesapeake Bay watershed. At the end of 2010, EPA established the Chesapeake Bay TMDL to limit releases of nitrogen, phosphorus, and sediment to the Chesapeake Bay. According to EPA, these pollutants can "cause algae blooms that consume oxygen and create 'dead zones' where fish and shellfish cannot survive, block sunlight that is needed for underwater Bay grasses, and smother aquatic life at the bottom." The TMDL was prompted by the failure of multiple restoration efforts over the last 25 years and the continued poor water quality in the Chesapeake Bay and its tributaries.

The Chesapeake Bay TMDL covers a 64,000 square mile watershed, including seven different jurisdictions: Pennsylvania, Maryland, Virginia, West Virginia, Delaware, New York and the District of Columbia. The TMDL sets limits that reduce nitrogen by 25 percent, phosphorus by 24 percent and sediment by 20 percent. Each jurisdiction is responsible for a defined share of the pollution reductions and must ensure that all pollution measures necessary to meet these limits are in place by 2025, with at least 60 percent of the necessary measures in place by 2017.

To demonstrate how they intended to meet the pollution limits, the jurisdictions were required to develop a Phase I Watershed Implementation Plan ("WIP"). The Phase I WIPs subdivided the Chesapeake Bay TMDL allocations among point sources (e.g., wastewater treatment plants, stormwater discharges associated with construction activity, municipal stormwater separate sewers) and non-point sources (e.g., agriculture, unregulated stormwater) of nitrogen, phosphorus, and sediment. The Phase I WIPs were also required to include reasonable assurances that the jurisdiction could achieve and maintain the pollution reductions, particularly from unregulated non-point sources.

In 2011, each of the jurisdictions in the watershed will begin, or continue, efforts to implement the measures identified in the Phase I WIPs. The Phase I WIPs identify hundreds of potential measures that impact farming practices, construction activity, discharges from wastewater treatment plants, and management of stormwater. Also during 2011, the jurisdictions will begin developing Phase II WIPs. The Phase II WIPs will establish local pollution targets and provide further detail on how the jurisdiction intends to meet its TMDL allocation. As with the Phase I WIPs, the Phase II WIPs will be developed with public input and we encourage all potentially affected constituents to engage in the planning process.

Lastly, 2011 will be an important year for litigation related to the Chesapeake Bay TMDL. On January 10, 2011, the American Farm Bureau Federal filed a lawsuit against EPA challenging the EPA’s authority to implement the Chesapeake Bay TMDL. The suit argues, among other things, that EPA exceed its authority in establishing the TMDL (typically a state led process) and that EPA relied on flawed data and a flawed model in developing the TMDL allocations. Affected real estate developers, municipalities, and other agricultural interests have raised similar concerns and may also seek to challenge the TMDL in 2011. Nonetheless, EPA and the seven Chesapeake Bay jurisdictions intend to move forward with implementation of the TMDL and development of the Phase II WIPs.