Reasonably Assured? The Chesapeake Bay and Reasonable Assurances

This post is part of CPR’s ongoing analysis of the draft reports on protecting and restoring the Chesapeake Bay. See Shana Jones' earlier "EPA's Chesapeake Bay Reports: A First Look"

One of the continuing obstacles to cleaning up the nation’s waterways, including the Chesapeake Bay, is the pollution caused by non-point sources (NPS). In the recently released draft reports on protecting and restoring the Chesapeake Bay, the EPA attempts to address NPS in part by reinvigorating the “reasonable assurance” standard, and on this specific issue, the reports need improvement. Under the language in the draft report, EPA would fall short, as it has in the past, of fulfilling the promise of the standard. While an improvement on past efforts, EPA’s new definition of “reasonable assurance” provides only modest assurance that pollution from NPS will abate.

Unlike point sources (PS) of pollution that originate from discernible, confined, and discrete conveyances, nonpoint sources of pollution are diverse and discharge into water through runoff. While point sources require federal permits to discharge pollution, nonpoint sources have managed to continue unpermitted and unregulated, to the detriment of water quality across the country. To help manage NPS pollution, section 303(d) of the Clean Water Act requires states or the EPA to formulate Total Daily Maximum Load for impaired waters. A TMDL for a pollutant is set at a level to meet applicable water quality standards for a particular waterway, regardless of the source of the pollution. A point source must comply with a TMDL through mandatory permit limitations, while a NPS generally slides under the radar.

One way that the EPA has attempted to regulate nonpoint sources is through the standard of “reasonable assurance.” First introduced to the EPA vernacular in 1991, this promising standard to help control nonpoint source pollution has not fulfilled its potential. In the first attempt, EPA required states to provide it reasonable assurance that “nonpoint source controls will be implemented and maintained or that nonpoint source reductions are demonstrated through an effective monitoring program” in waters impaired by a combination of PS and NPS. However, if a state failed to provide reasonable assurance that the pollution load from NPS would be reduced, then the burden of pollution reduction fell onto point sources—effectively creating an escape hatch for NPS polluters. To seal the escape hatch, in 1997 the EPA reissued guidance that clarified the application of reasonable assurance to waters impaired primarily by NPS.

In a July 2000 rulemaking, the EPA moved the “reasonable assurance” standard forward into meaningful regulation of nonpoint source pollution. According to the EPA, “the reasonable assurance demonstration is a ‘snapshot-in-time’ identification of those voluntary and regulatory actions that the State, Territory, authorized Tribe, or EPA intends to take to ensure that the nonpoint source load allocations assigned in the TMDL will be realized.” 65 Fed. Reg. 43586 (July 13, 2000). EPA gave four specific parameters for those actions:

1. They must be specific to the pollutant and the waterbody for which the TMDL is established. The state or implementing authority knows of and can point to information that shows a particular management measure used to reduce the pollution load can in fact reduce the pollutant.
2. They must be implemented as expeditiously as practicable, meaning as quickly as a state reasonably can. The EPA expected states to prioritize water bodies that are polluted primarily by nonpoint sources.
3. They must be supported by adequate funding, either actual funds that have already been allocated or an explanation and, generally, a five-year schedule for obtaining funds.
4. Overall, the load allocation must be accomplished through reliable delivery mechanisms, both voluntary and mandatory. Mechanisms include regulations, local ordinances, performance bonds, trading programs, voluntary best management plans, and monitoring programs.

This proposed rule was a marked shift forward in regulating NPS pollution and met fiery opposition, leading first to its delay and eventual withdrawal in 2003. The “reasonable assurance” standard in place today is relatively toothless.

The Administration released seven draft reports on Chesapeake Bay actions earlier this month, and the report on water quality, written by the EPA, has revived the reasonable assurance standard to ensure that NPS loadings will be reduced to meet in part the Bay TMDL. In the water quality report, EPA says that reasonable assurance may include:

1. Identifying the reductions needed to achieve the allocations in the TMDL;
2. Identifying the state and local capacity and gaps in capacity to achieve the needed reductions;
3. Committing to “work to systematically fill the identified gaps to build on the program capacity needed to achieve the needed controls”
4. Committing to continued and expanded monitoring, tracking, and reporting directed toward assessing the effectiveness of implementation actions, and using these lessons to drive accountability, adaptive decision-making, and management actions; and
5. Agreeing that if commitments are not met additional measures will be necessary.

While the EPA, and Chesapeake Bay Senior Advisor Chuck Fox, should be commended for their efforts in moving Bay restoration forward with new vigor, this standard of reasonable assurance, which is meant to address a serious and largely unregulated contributor of pollution loadings, is far from vigorous. The standard adds little new to what states were already on track to do under past commitments and agreements. For example, identifying the reductions needed to achieve allocations in the TMDL would already be necessary for point source compliance. The EPA’s goal of working systematically to fill the gaps tracks the 2-year milestones already agreed on by Bay jurisdictions and omits the urgency expressed in the July 2000 rule. And point source polluters should be concerned about this lack of vigor, too: according to the EPA, if nonpoint sources do not accomplish the loading reductions identified by the Bay TMDL, “more stringent effluent limits in CWA permits for point sources may be necessary.”

It’s not difficult to imagine that the opposition that brought down the July 2000 rule will also strongly oppose any effort to shore up a revived reasonable assurance standard. But it is difficult to imagine a healthy and restored Chesapeake Bay without one.