EPA’s Chesapeake Bay Reports: A First Look

Today at 12:30pm the Federal Leadership Committee released, pursuant to President Obama’s Chesapeake Bay Protection and Restoration Executive Order, seven draft reports to improve Bay restoration. Each report is about 50 pages, so there’s a lot of information to take in – from strengthening water quality to strengthening storm water management to assessing the impacts of climate change. After a quick look, here are my initial thoughts:

1. EPA Special Advisor Chuck Fox’s diligence and energy is impressive. Not only did he have to navigate EPA’s many layers of bureaucracy, he also coordinated representatives from the departments of Agriculture, Commerce, Defense, Homeland Security, Interior, Transportation and others to make sure these reports made the Executive Order deadline. He has been – and I think will continue to be – remarkably effective.

2. In contrast to the previous administration, the Obama EPA seems to be serious about using existing authority to the fullest. For example,

• Concentrated Animal Feeding Operations. States in the Chesapeake Bay have relatively little information or regulatory control over animal feeding operations. The draft report aims to remedy this situation by proposing to designate more operations as Concentrated Animal Feeding Operations (CAFOs), which are subject to pollution discharge permits under the Clean water Act. In addition, EPA would revise regulations so that more animal operations qualify. EPA would also require permitted CAFOs to supply more information about manure transfer and how it is applied.
• Air deposition. About 19 percent of the nitrogen pollution in the Bay comes via the air. In the draft report, EPA proposes to mitigate this by establishing air deposition allocations as part of the load allocations for the Bay TMDL
• Stormwater. Stormwater runoff from urban and suburban areas is the only growing source of pollution in the Bay watershed. An estimated 10 percent of the total nitrogen, 31 percent of the total phosphorous, and 19 percent of the total sediment load that enters the Bay comes from urban and suburban stormwater runoff. To address these problems, EPA proposes implementing a retrofit requirement for stormwater treatment and expanding the areas subject to stormwater permits.
• Baywide TMDL. EPA recommends that, as part of its work to establish a “Total Maximum Daily Load” or pollution budget for the Bay, it would issue new guidance outlining its expectations for states and consequences for their inaction on controlling nonpoint sources such as storm water and agriculture. New guidance with teeth is much-needed if the TMDL is going to make a difference in the Bay.

With all the above said, the devil is, of course, in the details. For example, the draft report’s recommendations on the Bay-wide TMDL, while a step in the right direction, are still vague. A crucial part of ensuring that nonpoint sources meet their pollution budgets under the TMDL will depend on how stringently “reasonable assurance” or “reasonable progress” will be defined in the guidance – and the current definition in the report leaves much to be desired. In July 2000, the EPA proposed a definition of “reasonable assurance” that was later jettisoned. But that definition was far more stringent than the definition in today’s draft report. The 2000 definition required a state to demonstrate reliable delivery mechanisms and adequate funding to ensure load allocation reductions. The draft report definition refers vaguely and more generally to identifying the capacity to meet load allocations and commitments, omitting the stronger, mandatory language of the 2000 definition. In November, the reports will be finalized and open to public comment. We’ll be posting more detailed analyses on the draft reports in the coming days.

For the moment, it's fair to say the EPA's efforts here are impressive. The proposals today are some of the kinds of steps that could really make a tremendous difference in saving the Chesapeake Bay.