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 Resources: Water - General
December 12, 2012
Enforcement in the Chesapeake Bay

EPA follows through on strategy

In a May 2010 document, the EPA committed itself to a “focused and aggressive” plan to take enforcement actions against entities that worsen the already degraded water quality of Chesapeake Bay.  At least as characterized by the Agency, that commitment has been honored and is alive and working 2 1/2 years after it was announced.  Even with important legal questions still open, any business or property owner engaged in any activity that may impact the Bay or its tributaries should be ready to defend the legality of the action should the EPA decide to exercise its enforcement discretion.

Some EPA enforcement affecting the Bay is controversial and contested as it involves the Agency’s interpretations of its concentrated animal feeding operations (CAFOs) rules, which industry claims are legally dubious.   Actions taken against those who fill in wetlands in the massive Chesapeake Bay watershed without permits from the Army Corps of Engineers have also resulted in disagreements, since federal law today is imprecise about which wetlands are in fact protected under the Clean Water Act (CWA). 

Despite the legal grey areas, in 2009, the EPA established a Chesapeake Bay enforcement database in which the Agency has been diligently reporting actions it has taken against alleged violators of federal regulations intended to protect the Bay.  According to the database, between 2009 and 2011, the EPA entered into 16 civil judicial settlements and issued 146 administrative orders covering nine states and the District of Columbia.  The database does not contain all actions taken so far in 2012.  But EPA’s public affairs offices have reported several major actions that indicate that compliance and enforcement in the Chesapeake Bay remain high priorities. 

Endangered “national treasure”

Chesapeake Bay is North America’s largest and most biologically diverse estuary.  It is approximately 200 miles long, contains more than 11,000 miles of tidal shoreline, and is fed by more than 100,000 creeks, streams, and rivers.  The watershed occupies over 64,000 square miles and includes all of the District of Columbia and parts of Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia.  According to the EPA, the Bay provides significant economic and recreational benefits, estimated to exceed $33 billion nationwide. 

But many decades of development and population growth have had environmental consequences.  In a May 2009 Executive Order (EO), President Obama recognized that Chesapeake Bay is a “national treasure” and that pollution from “many sources” is preventing the Bay from achieving the fishable and swimmable goals of the CWA.   The EO named the pollutants of top concern as nitrogen and phosphorus from agricultural operations and wastewater treatment plants and sediment, also from agriculture as well as construction. 

The poor health of the Bay has not changed significantly in the last several years.  In its annual report card, the University of Maryland’s Center for Environmental Science rates overall Bay health at D+.  The report card covers 15 reporting regions in the Bay using six indicators (e.g., water clarity, dissolved oxygen, benthic community).  Two regions–Elizabeth River andPatuxent River–were rated F.  The majority of the other regions were rated D, and only three regions were rated as high as C.

Pollutant sources

The many restoration measures listed in the EO include specific directions that the EPA implement a compliance and enforcement strategy for Chesapeake Bay.  One year to the day after the White House published the EO, the EPA issued the strategy.  In the document, the Agency identified agriculture as the major source of nutrient and sediment pollution in the watershed, accounting for approximately 38 percent of nitrogen loading, 45 percent of phosphorus loading, and 60 percent of sediment loading.  About one-half of the nitrogen from agriculture is from animal manure.  Municipal and industrial wastewater treatment facilities account for approximately 20 percent of nutrient loading.  Urban and suburban stormwater runoff accounts for approximately 10 percent of nitrogen loading, 31 percent of phosphorus loading, and 19 percent of sediment loading.  Deposition from air pollution contributes approximately 34 percent of nitrogen loading.  Other pollutants of concern include hazardous wastes such as PCBs, polycyclic aromatic hydrocarbons, and metals.

The EPA states right off the bat that the federal government is limited in its ability to cure the Bay.  For example, the Agency’s Chesapeake Bay Program Office estimates that only about 49 percent of total nitrogen, 35 percent of total phosphorus, and 4 percent of total sediment are subject to federal regulation.  The best modeling indicates that nitrogen pollution to the Bay must be reduced by 30 percent, and phosphorus pollution must be reduced by 8 percent to meet water quality standards.  The EPA regulates pollution discharges from some of these sources, including CAFOs and municipal separate storm sewer systems (MS4s) through CWA’s National Pollutant Discharge Elimination System (NPDES) permitting program and regulates air emissions through the Clean Air Act.  But many sources are not subject to federal environmental regulations, including row crop agricultural operations and suburban stormwater runoff outside specific municipal stormwater sewersheds.   The EPA concludes that “even full compliance with existing regulations will not result in the necessary pollution reductions to restore the health of the Bay.”

“All available enforcement”

Despite or because of its limited enforcement powers, the Agency pledged to “use all available enforcement mechanisms to address significant violations and ensure permanent, consistent compliance with federal environmental laws.”  While acknowledging that the states are “the critical cops on the beat,” the Agency added that it would exercise its enforcement authority and use compliance programs where the states have either failed to act or impede action.  The Agency said it would identify where permit program improvements are needed to further ensure effective compliance and environmental protection.  For example, MS4s are not typical end-of-pipe permits with clearly defined numeric effluent limits.  Instead, permit conditions often emphasize actions that should be taken to achieve certain outcomes and are frequently written with imprecise provisions.  Without expanded regulatory coverage and stronger permit requirements, compliance and enforcement cannot remedy the Bay’s pollution problems.

The magnitude of resources and effort needed to improve Bay water quality is significant, says the EPA, and requires a new generation of federal and state regulatory actions.  These include:

  • Finalizing total maximum daily loads (TMDLs) throughout the Bay watershed;
  • Expanding the CAFO definition to encompass smaller animal feeding operations (AFOs);
  • Defining more stringent permit conditions related to the land application of animal manure;
  • Expanding NPDES stormwater regulations to apply to high-growth, urban/suburban areas;
  • Creating more stringent permit conditions including standards for discharges of stormwater from new/redevelopment projects and retrofit criteria for large facilities with impervious surfaces such as shopping malls, roads, and parking lots; and
  • Ensuring adequate, enforceable NPDES permits for MS4s.

Specific measures

The eight major tasks the EPA assigns itself in the strategy are:

  1. Identify nutrient- and sediment-impaired sub-watersheds. 
  2. Identify the key regulated sectors that, when in noncompliance, contribute to pollution in the sub-watersheds.  As noted, these sectors are CAFOs; municipal and industrial wastewater facilities; stormwater NPDES point sources, including MS4s and stormwater dischargers from construction sites and other regulated industrial facilities; and air deposition sources of nitrogen regulated under the CAA, including power plants.
  3. Analyze the compliance records of facilities in the key regulated sectors, including the pattern and seriousness of noncompliance, occurrence of unpermitted discharges; ownership status/relationships and location; and volume and nature of the facility’s discharges.
  4. Investigate and inspect facilities in the key regulated sectors, pursue appropriate enforcement actions to ensure compliance, and estimate pollutant-loading reductions for nitrogen, phosphorus, and sediment related to those completed actions.  Investigations and inspections of the highest priority include:
    • CAFO operations in the Delmarva Peninsula, South-Central Pennsylvania, and Shenandoah Valley.
    • Significant wastewater treatment plants, as designated by Bay states based on design flow or nitrogen and phosphorus loading, that are in noncompliance with nutrient-related requirements.
    • Geographic areas with high nitrogen and phosphorus loadings and counties with high rates of growth and development for stormwater NPDES point sources.
    • Large sources of nitrogen oxide and ammonia emissions located within the Bay air shed.
  5. Identify appropriate opportunities for compliance and enforcement activities related to other sources of pollution, including wetland activities, federal facilities, Superfund sites, and RCRA corrective action facilities.
  6. Explore opportunities to use imminent and substantial endangerment authorities under the CWA, Safe Drinking Water Act, RCRA, Superfund, and CAA to address significant pollution problems affecting the Bay.
  7. Engage in a continuous and comprehensive review of ongoing water and air protection work impacting the Bay, much of which addresses some of the most significant discharges of pollutants, to ensure a constant focus on sources that have not yet been addressed.
  8. Leverage EPA and states’ limited compliance and enforcement resources through close coordination with the states on targeting strategies to pursue the most serious contributors to Bay impairment.

The document includes sub-strategies that are specific to the sectors of concern.  For example, in its approach to municipal and industrial wastewater, the EPA intends to continue its oversight of NPDES enforcement conducted by the states, particularly by ensuring that timely and appropriate enforcement is initiated in response to identified violations of compliance schedules and permit limits.  For CAFOs, the Agency’s initial goal was to focus compliance and enforcement activities on facilities in three key areas–the Delmarva Peninsula, South-Central Pennsylvania, and the Shenandoah Valley.  The Agency stated that it would maximize the extent to which current state CAFO programs are achieving their intended water quality benefits by working with the states to expand the permitted facility universe and issue sufficiently stringent permits.

Will compliance pressure stay high?

While the strategy is 2 years old and the EPA and its state partners have notched a significant number of enforcement actions, correcting the health of the Bay is a long-term goal.  The current best and highly optimistic estimate is that with all elements working as planned, the water quality of the Bay will be restored by 2025.  Major actions that have occurred since the strategy was released include establishment of the Chesapeake Bay TMDL and state submission of Phase II TMDL implementation plans, as well as a first set of 2-year milestones outlining near-term restoration commitments.

In addition, enforcement continues.  Among the more publicized actions that occurred in 2012 are a $270,000 penalty against a construction company for alleged stormwater violations at 17 construction sites (15 in the Chesapeake Bay watershed) in Maryland, Virginia, Pennsylvania, and Washington, D.C.; a $210,000 penalty against an oil company for alleged failure to conduct required response drills at Curtis Bay Terminal in Maryland, which is located less than a quarter mile from a Bay tributary; and a $100,000 penalty against a developer for failing to obtain a CWA Section 404 permit from the Army Corps of Engineers before excavating a ditch that impacted 56 acres of Maryland wetland adjacent to another tributary to the Bay.

Restoring water quality to the Chesapeake Bay is arguably the largest clean water undertaking the federal government is now shouldering.  The economic importance of clean water in the area should not be underestimated, and businesses and municipalities should not anticipate any reduction in enforcement by either federal or state authorities, particularly under the re-elected Democratic administration.

Click here to read President Obama’s EO.

Click here for EPA’s enforcement strategy for the Bay.

William C. Schillaci
BSchillaci@blr.com