10-Year-Old Chesapeake Bay Clean Water Settlements Activated

When completed, the Chesapeake Bay clean water plan will be the largest and most complex in the country, covering a 64,000 square mile area in six states and the District of Columbia.

The consent decree in the first lawsuit is more than 10 years old. In the case of American Canoe Association, Inc. and the American Littoral Society v. EPA, plaintiffs and the federal agency signed a consent decree which the district court entered on June 11, 1999.

This consent decree sets out a 11-year schedule for establishment of Total Maximum Daily Loads, TMDLs, for all water quality limited segments on Virginia's 1998 Clean Water Act Section 303(d) list as amended by EPA on May 10, 1999.

Portions of the Chesapeake Bay and its tidal tributaries were identified as impaired for aquatic life uses and exceedance of the numeric criteria for dissolved oxygen caused by nutrient and sediment pollutants on Virginia's 1998 section 303(d) list of impaired waters.

Runoff from farm fields pours excess nutrients into Pepper Creek, a tributary of Mobjack Bay, Virginia, part of the Chesapeake Bay watershed. (Photo by Jane Thomas courtesy UMCES)

Under the Virginia TMDL Consent Decree, EPA is obligated to establish a TMDL for the Bay's waters identified on the 1998 Virginia list including those aquatic life use impairments caused by the nutrient and sediment pollutants by no later than May 1, 2011, if those waters are not previously removed from the list or if Virginia has not already developed a TMDL for those waters.

Other Bay and tidal tributary segments impaired by nutrients and sediment have been identified on Maryland and the District of Columbia section 303(d) lists.

In addition to the Virginia segments identified as impaired, the Potomac River is listed on the District of Columbia's section 303(d) impaired waters list for low pH levels, which means the waters are too acidic.

"The water quality standards exceedances for pH in the Potomac River are the result of algal impacts from excess nutrients," the EPA said in a statement on the TMDL process in the Federal Register.

Establishment of a Potomac River pH TMDL is directly linked to the establishment of the Chesapeake Bay TMDL because of their common impairing pollutants, which are nutrients, and their hydrologic connection, the agency said.

The case of Kingman Park Civic Association et al. v. U.S. EPA et al. addresses the fact that when big storms hit Washington, DC, raw sewage pours into the Potomac and Anacostia Rivers and Rock Creek.

Five environmental and community groups joined in this lawsuit: Friends of the Earth, Sierra Club, Anacostia Watershed Society, Kingman Park Civic Association, and American Canoe Association.

In this case filed on March 25, 1998, plaintiffs sought an order vacating EPA's approval of the District of Columbia's 1996 list and compelling EPA to identify and establish priority rankings for all water quality limited segments in the District.

They also sought an order requiring EPA to monitor all unmonitored waters in the District, to establish TMDLs for all waters listed by EPA for all pollutants of concern, and to provide notice and comment on such agency actions.

Plaintiffs sought an order requiring that EPA ensure that TMDLs are implemented and that EPA report its progress to plaintiffs and the court.

In this case, EPA is under a consent decree obligation to establish a pH TMDL for the Potomac by May 1, 2011 if the District of Columbia does not develop that TMDL first.

Like Virginia, the District has asked EPA to establish the Potomac River pH TMDL.

Finally, Maryland has also requested that EPA develop TMDLs on the same schedule to address Maryland Bay and tidal tributary waters identified on its current section 303(d) list as impaired for aquatic life uses caused by nutrient and sediment pollutants.

The agency's TMDL commitment is in line with the Obama administration's newly energized attitude towards Chesapeake Bay water quality restoration. President Obama's May 12 Executive Order on the Chesapeake Bay required the EPA to issue seven draft reports on ways to reduce polluted runoff by increasing government accountability and public involvement. The draft reports were released earlier this month and are out for public comment.

In 2008, after 20 years of restoration efforts, Chesapeake Bay water quality was rated "very poor," with only 21 percent of the established goals met.

EPA officials estimate that the Bay TMDL will address up to 92 impaired Bay and tidal tributary segments, and therefore will consist of up to 92 TMDLs - one for each impaired segment - at levels necessary to ensure attainment of water quality standards in each of these impaired segments.

EPA also expects that the TMDL will identify the aggregate watershed pollutant loading cap for nitrogen, phosphorus and sediment necessary to achieve the Chesapeake Bay's water quality standards.

This aggregate watershed loading cap would be subdivided among the Bay States and major tributary basins.

In addition, individual and aggregate maximum daily allowable point source and nonpoint source loadings, called wasteload allocations and load allocations, respectively, would be identified across all jurisdictions within the Bay watershed.

With its modeling and water quality expertise, EPA Region III Water Protection Division has assumed primary responsibility for the establishment of the Bay TMDL, pursuant to the two consent decrees at the request of the six Chesapeake Bay watershed States - Virginia, Maryland, Delaware, West Virginia, Pennsylvania, and New York - and the District of Columbia.

EPA Region II is also providing guidance and technical support to Region III and will cosign the final TMDL because New York State is included in the Chesapeake Bay watershed, and sources in New York State, like the other states, contribute nutrients and sediment to the Bay.

The Chesapeake Bay Program committee structure is being used to engage the watershed States fully in the development of the TMDL.

EPA is working through the Chesapeake Bay Water Quality Goal Implementation Team, formerly the Water Quality Steering Committee and Nutrient Subcommittee, which includes all the states, the Chesapeake Bay Commission, and EPA Regions II and III. The team will attempt to reach consensus on the TMDL's targets and goals.

EPA is soliciting preliminary input from the public on its plans for developing this Chesapeake Bay TMDL under a public comment period that is open until December 18, 2009.

Comments must be submitted in writing to EPA on or before that date. EPA will review all data and information submitted during the public comment period and will consider them in the development of the TMDL, as appropriate.

To submit comments by email, send them to sincock.jennifer@epa.gov.

To submit comments by U.S. mail, mark them to the attention of Jennifer Sincock, Environmental Scientist, Water Protection Division, (3WP30), U.S. Environmental Protection Agency Region III, 1650 Arch Street, Philadelphia, PA 19103-2029. Contact Jennifer Sincock at 215-814-5766 or fax 215-814-2318.

Click here for more information on the development of the Chesapeake Bay TMDL.

Copyright Environment News Service, ENS, 2009. All rights reserved.