Maryland is close to adopting water quality standards which, on paper, appear less stringent in their protection for deep water areas of the Chesapeake Bay. Ironically, officials say that action will lead to the stepped-up enforcement of clean water laws throughout the watershed, which may be the biggest step toward a cleaner Bay since restoration efforts were launched 21 years ago.
The new standards, under development since 1999, will quickly become the legal foundation upon which almost the entire Chesapeake nutrient and sediment reduction program will be built for years to come.
The standards were to be released for public comment in two batches in late December and early January. Unless those comments spur significant changes, the standards are expected to be finalized by the Maryland Department of the Environment in late winter or early spring, and approved by the EPA shortly thereafter.
It will literally be a watershed event. Meeting the standards—more than any other activity—will trigger the legal need to spend billions of dollars in coming years throughout Bay watershed.
Unlike most past cleanup efforts, the new standards will be backed with regulatory teeth everywhere from the headwaters of the Rappahannock River at the foot of Virginia’s Blue Ridge Mountains to the head of the Susquehanna in Cooperstown, NY.
“This is a big step forward,” said Rich Eskin, MDE’s director of technical and regulatory services. “The promulgation of these standards is going to formally initiate the need for having nitrogen limits in permits.”
The EPA was expected to release in late December a final policy detailing exactly how the standards should be translated into permit limits throughout almost all of the watershed. The policy would take effect as soon as the agency signs off on the new Maryland standards.
It’s a sharp change of direction for the Bay Program, which was founded in 1983 as a state-federal partnership based largely on voluntary efforts to control nutrients that foul the Chesapeake’s water quality. Past goals, such as a 1987 agreement to reduce the amount of nitrogen and phosphorus entering the Bay by 40 percent, were subject to interpretation and revision—and carried no penalty if ignored. “If someone disagreed with something, actions would not go forward,” said Rich Batiuk, associate director for science with the EPA’s Bay Program Office.
Further, those actions never described exactly what a cleaned-up Bay should look like. The new standards, by contrast, say exactly how much oxygen should be in the water at different depths and at different places to support fish and shellfish, and how much light must be able to reach the bottom at various locations to allow underwater grasses to thrive. “This action defines in very clear, specific and regulatory language what the endpoint is for clean Chesapeake Bay waters,” Batiuk said.
Initially, the vast majority of wastewater treatment plants and industrial discharges will be required to have enforceable permits with limits on their nutrient discharges—and face fines if they fail to meet them. Eventually, water quality standards could impact other permits—such as those for stormwater systems in cities and large animal feedlots in rural areas.
Phosphorus has long been regulated in most areas because of its impact on fresh water. But the standards will require nitrogen controls in a broader geographic region than any previous regulatory action taken in the nation.
As concerns are raised about the failing health of the nation’s coastal waterways because of nutrient pollution, the actions being taken by Maryland and the rest of the watershed may foreshadow how nitrogen pollution is addressed in other large watersheds, such as the 37-state Mississippi River drainage, which contributes to a massive oxygen-depleted “dead zone” in the northern Gulf of Mexico each summer.
“We are dealing with long-distance interstate effects on a waterbody, which is is difficult and rarely done,” said Jon Capacasa, water division director for EPA Region III. “This is an unprecedented step in such a large watershed and may set the standard for other systems such as the Gulf of Mexico. We are customizing the Clean Water Act tools of standards and permitting to meet the specific goals of the Bay and its watershed. This is a forerunner of watershed work nationwide.”
So how does that flow from “less stringent” water quality standards?
The answer lies in a series of legal and regulatory issues that have played out over a period of years. But the primary factor, officials say, is that the old standards simply were not enforceable because they were not based on science.
Under the Clean Water Act, states are required to set—and enforce—measurable water quality standards for all of their water bodies to ensure that they are, at a minimum, “fishable and swimmable.” States set specific standards for a host of toxics and other pollutants.
Historically, the standard most related to nutrient pollution in the Bay is the one governing the amount of dissolved oxygen that should be in the water.
Maryland, for decades, has had water quality standards—based on recommendations from the EPA—that called for maintaining 5 milligrams of oxygen per liter of water throughout the Bay. That standard was intended to protect fish, shellfish and other aquatic life in the estuary.
In reality, only the surface water of the Bay, where oxygen is exchanged with the atmosphere, typically has that amount of oxygen during the summer. Differences in salinity and temperature create a barrier, known as the pycnocline, that limits the mixing of surface and bottom water.
Along the bottom, bacteria and other organisms gradually use up the oxygen during the summer when warm temperatures keep their metabolisms racing, and mixing between surface and bottom layers is most restricted. The situation is worsened when increased amounts of nutrients spur algae growth, which fuels even more bacteria activity and oxygen consumption.
Studies of sediment cores drawn from the Bay show that before the first European settlers arrived, bottom waters of the Bay typically had less than 5 mg/l of oxygen.
For years, the state never considered the dissolved oxygen standard to apply to bottom areas for enforcement purposes—it relied only on the surface oxygen levels. “We thought it was obvious that 5 mg/l in the deep trough couldn’t be met,” Eskin said.
But court rulings and changing interpretations of the Clean Water Act made it clear that complying with the standard meant attaining 5 mg/l everywhere. Maryland was not alone with the problem—other areas of the Bay with tidal waters, including Virginia, the District of Columbia and Delaware, faced the same issue.
Officials say that created a paradox. The Clean Water Act requires that dischargers not be allowed to contribute to pollution problems in any area that fails to meet its water quality standard. But because the old standard was unattainable, no permit limit would achieve it.
Any permit issued to meet an unattainable standard would almost certainly be challenged in court. “Permits are appealed all the time by the permittees,” Capacasa said. “If you do not have a sound scientific basis, and a defensible rationale, you lose.”
The issue came to a head in the late 1990s. Environmental groups sued the EPA for not requiring Virginia to write cleanup plans for its rivers, and the Bay, so they would meet water quality standards. In a decision with ramifications for other states bordering the Bay, a court-approved agreement required that plans to meet the water quality standards had to be completed by 2011.
But that didn’t change the fact that the Bay standards used by the states could not be met. In late 1999, the states and the EPA decided upon a plan to comprehensively rewrite water quality standards for the Bay.
In its Chesapeake 2000 agreement, the Bay Program committed to completing that rewrite by 2001. The date was missed—work continued into the spring of 2003. But when guidelines for the new standards were completed, the Baywide 5 mg/l dissolved oxygen standard was replaced by an inch-thick book spelling out new water quality criteria.
The criteria, based on years of research by scientists around the Bay, divides the Chesapeake and its tidal tributaries into hundreds of segments, and sets out an array of water quality conditions that must be met in each at different times of the year to protect the “living resources” that live in different places.
Surface waters need 5 mg/l to support finfish, but in shallow spawning and nursery areas, the standard was raised to 6 mg/l for the spring and early summer. To support bottom-dwelling fish and shellfish, which tend to be more tolerant, most deep waters need to maintain 3 mg/l of oxygen over a 30-day average, during which it can never drop below 1.7 mg/l.
Besides addressing oxygen, the standards include the Bay’s first-ever requirements for water clarity. Exact light levels are prescribed for individual near-shore areas to support the amount of underwater grasses that are known to have historically existed in each location.
Attaining those standards will require, according to Bay Program computer model estimates, all jurisdictions to limit the amount of nitrogen entering the Bay to an annual average of 175 million pounds. That is a 48 percent reduction from the mid-1980s, when Chesapeake conditions were considered to be at their worst. They also agreed to limit phosphorus to 12.8 million pounds a year, a 53 percent reduction from the mid-1980s.
Maryland is not alone in adopting the new standards. In December, Delaware’s became the first to be approved by the EPA, and updated standards for Virginia and the District of Columbia’s are in the works.
But Maryland’s action drives most of the nutrient reductions because its part of the Chesapeake includes what’s known as “CB4.”
For modeling and monitoring purposes, the Bay is divided into a scores of individual segments. Of those, CB4—a segment between the Bay Bridge and the mouth of the Patuxent River that contains some of the deepest water of the Bay—is where it’s toughest to meet the new dissolved oxygen standards. All of the nutrient sources from Virginia’s Eastern Shore to the Rappahannock River on the west side of the Bay, all the way north to New York are important contributors to the summertime dissolved oxygen problems in CB4.
(Discharges south of the Rappahannock River have less influence on the Bay’s dissolved oxygen. Permit limits for those areas will be required when Virginia adapts new water quality standards in 2005.)
“Maryland standards, especially for CB4, are critically important,” said Bob Koroncai, with EPA Region III. “When those standards are in place, we believe that the Clean Water Act tells us we have an obligation in the entire watershed to achieve that standard.”
Nonetheless, the five-year development process for the standards has tried the patience of environmental groups, who say cleanup progress has lagged. The Chesapeake Bay Foundation has sued the EPA for not requiring nitrogen limits in discharge permits.
Officials say that is finally about to happen. And when it does—likely by this summer—they believe the steps they’ve taken ensures the standards, and the permits based upon them, will hold up in court.
“The argument from a scientific and regulatory basis is sound,” Koroncai said. “We can start issuing permits and, more importantly, defend those permits when they get challenged.”
Enforcing nutrient reduction in permits alone will not clean up the Bay. Most of the nutrients entering the Bay will continue to come from largely unregulated sources, such as agricultural runoff. But states are now able to set nutrient limits for dischargers which, in tandem with further runoff controls, can meet the standards.
Further bolstering the case, they say, is that all of the states in the watershed—which actually write discharge permits—have bought into the process. That’s significant because regulating nitrogen has long been problematic. Unlike most other pollutants, where impacts are often felt near the point of discharge, excess nitrogen generally does not become a problem until it reaches salt water, where it triggers algal blooms that cloud the water and contribute to oxygen depletion. That means pollution sources are often separated, sometimes by hundreds of miles, from the problem.
“Interstate issues like this have been very difficult to deal with over time,” Capacasa said. “It’s easier when you have a shared waterbody where it’s clear you are discharging directly into an interstate water.”
In the case of the Bay, only four of seven jurisdictions contributing to the problem actually border tidal waters—Virginia, Maryland, Delaware and the District of Columbia. Three states: Pennsylvania, West Virginia and New York, do not.
“There has been nowhere else in the country where four separate jurisdictions have worked so closely together with three upstream states and with the EPA to do what we did,” Batiuk said. The agreement was possible, he said, because of the strength of the science underlying the new standards which clearly established the water quality conditions needed by the Bay’s aquatic life, and the strength of the monitoring and modeling programs that linked those conditions to pollution from distant sources.
“As a result of the science, states are taking actions above and beyond what they need to do for their own river systems,” Batiuk said. “You typically don’t get states, out of the goodness of their hearts, agreeing to do those kinds of things.”
New Chesapeake Water Quality Criteria for Dissolved Oxygen
In Migratory Fish Spawning & Nursery Use Areas
6 mg/l averaged over 7 days with a 5 mg/l 1-day minimum from February through May. From June through January, the shallow-water/open-water use criteria apply. This is intended to protect larval and early juvenile stages of freshwater species in upper tributaries and the Upper Chesapeake Bay. The early life stages are often more sensitive to low oxygen levels than adult fish
In Shallow Water Bay Grass & Open Water Fish & Shellfish Uses Areas
5 mg/l as a 30-day average in tidal habitats with greater than 0.5 parts per thousand salinity or 5.5 mg/l as a 30-day average in tidal habitats with 0-0.5 parts per thousand salinity, with a 7-day average of 4 mg/l and an instantaneous minimum of 3.2 mg/l. This provides enough oxygen for the survival of larval and juvenile fish found in these areas. The minimum level is enough to prevent lethal effects for the Atlantic and shortnose sturgeon, the latter of which is listed as an endangered species.
In Deep Water Seasonal Fish & Shellfish Use Areas
3 mg/l as a 30-day average, with a 1-day mean of 2.3 mg/l and an instantaneous minimum of 1.7 mg/l from June through September. From October through May, the shallow water and open water use criteria apply. During the summer, these oxygen levels would protect eggs and larvae of bay anchovy, one of the most abundant fish in the Chesapeake and a critical link in the food chain, as well as crabs, oysters and bottom-feeding fish like spot and flounder.
In Deep Channel Seasonal Refuge Use Areas
An instantaneous minimum of 1 mg/l from June through September. From October through May, the shallow water/open water use criteria would apply. These levels are intended to protect worms, clams and other bottom dwellers that can tolerate low oxygen levels during the summer and provide food for crabs and bottom-feeding fish. In winter, these same areas are important foraging areas for blue crabs and finfish (striped bass, white perch, sturgeon) that seek refuge in these deeper, warmer waters.