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New Hope for Chesapeake Bay

New York Law Journal

June 24, 2010

On a recent drive from New York City to Rochester, one of the authors was awakened from the scenic monotony of Route 17 by a seemingly anomalous road sign southeast of Binghamton: “Entering Chesapeake Bay Watershed.” Although the Chesapeake is located in Maryland and Virginia, it turns out that the bay’s massive watershed extends all the way up to southern and central New York State, encompassing 6,250 square miles of 19 counties with a population of well over half a million New Yorkers.[1]

The Chesapeake Bay is the largest estuary in the United States, and is an incredibly diverse ecosystem. The bay has 3,600 species of plant and animal life, many of which are economically and ecologically important. However, the bay’s natural resources are continuously threatened by pollution. Nutrient and sediment runoff from within the watershed have led to low oxygen levels and algae blooms which have harmed many of the plants and animals that used to flourish in the bay. The bay is particularly susceptible to pollution problems because it is relatively shallow and has the largest land-to-water ratio of any coastal body of water in the world.[2]

Efforts have been underway for many decades to clean the bay, but these efforts have so far proven to be unsuccessful. Because the bay has such an extensive watershed, covering 64,000 square miles, any successful solution will require participation from many different government entities. The bay’s watershed extends across six states: Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia, as well as the District of Columbia.

In order to reduce the pollution from the watershed, the U.S. Environmental Protection Agency (EPA) has announced plans to implement a Total Maximum Daily Load, or TMDL, by Dec. 31, 2010, pursuant to §303(d) of the Clean Water Act.[3] The Chesapeake Bay TMDL is the largest ever created, and will comprise 92 smaller TMDLs for individual Bay tidal segments.

The current plans to clean the bay represent a more widespread and better coordinated approach than past efforts and will have ramifications as far away as New York. New York State drains into the Chesapeake Bay by the Susquehanna River, the North Branch of which begins at Otsego Lake in Cooperstown. Several other rivers, including the Unadilla in Sidney and the Chemung in Binghamton, join the North Branch of the Susquehanna as it flows through New York, and the watershed extends as far north as Onondaga, Madison, Oneida, and Herkimer counties in Central New York. Sediment and runoff from New York farms, cities, water treatment plants, and industrial areas pollute these rivers and will be affected by the implementation of the Chesapeake Bay TMDL.

The EPA’s actions in creating a TMDL were partially in response to an executive order that President Barack Obama issued on May 12, 2009, in which he declared that the Chesapeake Bay is a “national treasure.” Mr. Obama acknowledged that, despite past efforts to restore the bay, restoration was not expected to be achieved for many years, if not decades, and called on the federal government to lead a renewed effort to clean up the bay. The executive order established a Federal Leadership Committee which was to include senior representatives from several federal agencies.[4] In addition to the executive order, the EPA is now bound by the settlement of a lawsuit, Fowler v. EPA, in which it promised to implement the TMDL by Dec. 31, 2010.[5]

On May 12, 2010, the Leadership Committee issued its Strategy for Protecting and Restoring the Chesapeake Bay Watershed, which outlines broad goals related to four key areas: restore clean water, restore habitat, sustain fish and wildlife, and conserve land and increase public access.[6] Many of the goals are dependent on the TMDL’s success, as the current sediment and nutrient loads in the bay are responsible for most of the problems in these areas because they create conditions that are inhospitable to native plant and animal life. The Leadership Committee has a goal of 60 percent of the tidal segments reaching water quality standards for dissolved oxygen, clarity/underwater grasses and chlorophyll-a by 2025; currently 89 of the 90 segments are impaired. Additionally, the committee wants to raise the number of streams that rate fair, good, or excellent as measured by the Index of Biotic Integrity from the current level of 45 percent to 70 percent by 2025.[7]

Interim Deadlines

In preparation for the implementation of the TMDL, the EPA has established several interim deadlines. By July 1, 2010, the EPA will use existing models to create the state and basin allowable loads for the nutrients nitrogen and phosphorus, with the same being done for sediments by Aug. 15. Currently the EPA has proposed a Nitrogen Target Load of 200 million pounds per year, and a Phosphorus Target Load of 15 million pounds per year. New York’s portion of the Susquehanna has been allocated a load of 10.54 million pounds of nitrogen and 0.56 million pounds of phosphorus. In 2008, New York contributed 16.71 million pounds of nitrogen and 0.83 million pounds of phosphorus to the Susquehanna.[8] Thus, New York is currently expected to cut its nitrogen load by almost 37 percent and its phosphorus load by 32.5 percent. Sixty percent of the total reductions would need to be completed by 2017.

The EPA expects the loads to change as models are revised, so New York may need to reduce sediment and nutrient runoff more than currently projected. Most notably, the current models fail to accurately measure the impact from low density urban lands, and, once these areas are better understood, the models might need to be adjusted. Further, the EPA is expecting some areas to fail to meet standards under the current target loads and thus expects to have to impose more stringent controls in parts of the watershed to successfully meet its overall goals.[9]

Although the EPA will establish the allowable loads, and divide these by basin, most of the details will be left to the various states. States are required to submit draft Phase I Watershed Implementation Plans by Sept. 1, 2010. Final Phase I Watershed Implementation Plans are due by Nov. 29 to allow for the establishment of the Bay TMDL by Dec. 31. These plans must provide loads for individual point sources as well as loads for nonpoint sectors. Runoff from agriculture is one of the primary causes of pollution in the Chesapeake Bay watershed, so developing goals and verification in this sector will be especially important in achieving the overall goals of the TMDL. In addition to allocating loads, the Phase I Watershed Implementation plans need to specify what actions and specific controls will be undertaken to achieve these results.

New York State Efforts

In New York State, the efforts to comply with the TMDL will be spearheaded by the Upper Susquehanna Coalition (USC), a network of Soil and Water Conservation Districts in Pennsylvania and New York. The USC has a three-prong plan focusing on Stream Corridor Rehabilitation, Environmentally and Economically Sustainable Agriculture, and Wetland Restoration.[10] The largest amount of nutrient pollution in New York State is from agriculture, which is responsible for approximately 10 million pounds of nitrogen and almost 0.4 million pounds of phosphorus in 2008, and thus any plan is highly contingent on success in this sector.[11]

The USC plans to combat pollution caused by farms by focusing on creating riparian and forest buffers, controlling runoff, and avoiding erosion. Additionally, the USC supports a grazing initiative that it hopes will help with stream sediment and water quality issues.[12] Undoubtedly, any new restrictions in New York will be met with local resistance. Also, much of the Chesapeake watershed in New York happens to correspond with the underlying Marcellus Shale formation. It remains to be seen how the TMDL will be coordinated with any potential drilling for natural gas in the area.[13]

The states will be responsible for creating plans to meet the requirements; however, the EPA will supervise the process and will implement sanctions if necessary. In addition to the overarching goal of restoring the bay and removing it from the federal “dirty waters” list, the EPA will also establish two-year milestone goals to ensure that states remain on target. Should states fail to achieve these milestone goals, the EPA retains several options: use its National Pollutant Discharge Elimination System (NPDES) permit power to object to permits that do not meet requirements, require net improvement offsets for new or increased point source discharges, establish more specific allocations in the final bay TMDL, require additional reductions of loadings from point sources, increase and target federal enforcement in the watershed, condition or redirect EPA grants, or promulgate federal standards if the state standards do not contain certain protective criteria.[14]

The goal is for the states to successfully implement the program with minimal involvement from the EPA beyond coordination and supervision. However, there are some areas where the EPA appears to be reserving a more active role for itself, notably in regulating concentrated animal feeding operations (CAFOs) and municipal separate storm sewer systems (MS4s). For both CAFOs and MS4s, the EPA is considering strengthening current regulations or broadening the definitions so that more entities are subject to regulations.[15]

The current plan presented by the Federal Leadership Committee for the Chesapeake Bay is very ambitious and if successful would mark a drastic turning point for the bay. However, very few details currently exist as to how the TMDL will be implemented, and what states are going to do to achieve the necessary results. Therefore, it remains to be seen whether the TMDL represents a lofty aspiration, or will achieve much needed results within the Chesapeake Bay.


Christine A. Fazio is a partner and Ethan I. Strell an associate in the environmental practice group at Carter Ledyard & Milburn. Madelyn K. White, a student at New York University Law School, assisted in the preparation of this column.

Reprinted with permission from the June 24, 2010 edition of the New York Law Journal © 2010 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited. Reprint information for the legal properties relative to content searches and copyright clearance is available at www.imreprints.com. For questions contact, reprintscustomerservice@incisivemedia.com or 347-227-3382.

 

Endnotes


[1] N.Y. State Dept. of Envtl. Conservation, Chesapeake Bay Tributary Strategy, http://www.dec.ny.gov/lands/33279.html (last visited June 11, 2010).

[2] Chesapeake Bay Program, Watersheds, http://www.chesapeakebay.net/watersheds.aspx?menuitem=14603 (last visited June 11, 2010).

[3] Preliminary Notice of Total Maximum Daily Load (TMDL) Development for the Chesapeake Bay, 74 Fed. Reg. 47, 792 (Sept. 17, 2009).

[4] Exec. Order No. 13,508, 74 Fed. Reg. 23,099 (May 15, 2009). Currently the committee is comprised of the EPA, and the Departments of Transportation, Commerce, Homeland Security, the Interior, and Agriculture, as well as the Navy.

[5] Settlement Agreement, available at http://www.cbf.org/Document.Doc?id=512.

[6] Federal Leadership Committee for the Chesapeake Bay, “Strategy for Protecting and Restoring the Chesapeake Bay Watershed,” May 12, 2010 available at http://executiveorder.chesapeakebay.net/default.aspx.

[7] Id. at 22. The Index of Biotic Integrity is a multi-metric index which was first developed by Dr. James Karr for use in small warm water streams in Illinois and Indiana. The original version had 12 metrics that reflected the overall health of the fish in the water. New versions have been developed for different regions and ecosystems; the modified indices generally retained most of the original metrics but modified them to suit a particular geographic area or type of stream. U.S. Envtl. Prot. Agency, an Introduction to the Index of Biotic Integrity, http://www.epa.gov/bioiweb1/html/ibi_history.html (last visited June 11, 2010).

[8] Suzanne Hall and Bob Koroncai, Chesapeake Bay TMDL: Development and Implementation, http://files.dep.state.pa.us/Water/Chesapeake Bay Program/ChesapeakePortalFiles/WIPs/Pa WIP-3-31-10_SHALL-rak1.pdf (last visited June 11, 2010).

[9] Chesapeake Bay TMDL: Restoring Local Waters and the Chesapeake Bay, Webinar No. 4 (June 7, 2010), available at http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/TMDLWebinar_060710_Update4_final.pdf.

[10] Upper Susquehanna Coalition, About the Upper Susquehanna Coalition, http://www.u-s-c.org/html/Aboutus.htm (last visited June 11, 2010).

[11] Binghamton, NY Chesapeake Bay TMDL Public Meeting Summary (Dec. 1, 2009), available at http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/2009mtgsummaries/Binghamton.pdf.

[12] Upper Susquehanna Coalition, USC Grazing Initiative, http://www.u-s-c.org/html/Agteam.htm (last visited June 11, 2010).

[13] See Christine A. Fazio and Ethan I. Strell, “Proposed ‘Unconventional’ Natural Gas Drilling in New York,” New York Law Journal, Oct. 23, 2009.

[14] Letter from Shawn M. Garvin, EPA Reg’l Adm’r, to L. Preston Bryant, Va. Sec’y of Natural Res. (Dec. 29, 2009), available at http://www.epa.gov/region03/chesapeake/bay_letter_1209.pdf.

[15] Federal Leadership Committee at 26-27.


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