Clock's ticking : The 2010 deadline is fast approaching

By PAMELA WOOD, Staff Writer
Published February 16, 2008

Capital file photo by Joshua McKerrow
Sediment flows down Saltworks Creek, a tributary of the Severn River and the Chesapeake Bay near Annapolis. Dirt-laden runoff is one of the many problems that’s keeping the Chesapeake Bay on the nation’s list of dirty waters.

Time and again, leaders in the effort to restore the Chesapeake Bay talk about the year 2010. Nearly every press conference and meeting is focused with an eye toward 2010. Even the latest General Assembly bill to funnel money to bay cleanup is called the "Chesapeake Bay 2010 Trust Fund."

But what exactly happens when the calendar flips to 2010?

The answer is complex and involves plenty of government-speak and acronyms.

The short answer is that if enough progress isn't being made, the federal government can step in and could take stronger actions to reduce pollution.

Though the federal government and the states have been trying to restore the bay for 25 years, the effort was voluntary for much of that time.

Then in the 1990s, nonprofit groups started suing the federal government, saying it wasn't doing a good enough job protecting the health of the bay and was in violation of the Clean Water Act.

The key lawsuit came from the American Canoe Association and the American Littoral Society, a New Jersey-based group that works on coastal issues.

The lawsuit, filed in Virginia, was settled in 1999 with an agreement that the Chesapeake Bay would be put on the list of the nation's "impaired waters" or "dirty waters." This list is part of the Clean Water Act, which regulates water pollution, and also is called the "303(d)" list, for the section of law that spells it out.

Here's how Bob Koroncai, a top water quality official with the EPA regional office in Philadelphia, explains the settlement:

The feds and the bay states "agreed to try to clean up the bay by 2010. Under that agreement, and under the Clean Water Act, if we do not clean up the bay by 2010, we have to do something called a Total Maximum Daily Load." This baywide Total Maximum Daily Load - also called a TMDL - would set a "pollution budget" for the entire watershed.

The pollution budget will say how much pollution is allowed to flow into the bay. The amount of pollution would be parceled out to different sources, such as sewage plants.

To avoid the EPA action in 2010, the bay state governors and federal officials signed the Chesapeake 2000 agreement. Chesapeake 2000 laid out more than 100 goals that, if completed, would have been enough to get the bay off the dirty waters list.

But bay leaders have been candid in saying the restoration effort has fallen short and most of the goals won't be met.

Mr. Koroncai said events this spring will go a long way toward officially determining if the bay is cleaned up enough.

In April, the states will submit their own lists of impaired rivers and creeks, as they do every two years. What's on those lists will lead officials to decide whether the bay is cleaned up enough or not.

"The bay partners will look at it and say, 'Is the bay impaired?'" Mr. Koroncai said. "If it is, we're thinking about a public announcement that the list is showing the bay is impaired and we need to do a TMDL. We are starting the process."

He shied away from predicting what will happen, but it's a safe bet that each of the bay-area states will have dozens of problem waterways on its list.

Maryland's 2006 report, for example, had 145 listings. Most of Anne Arundel's waterways were on the list for having high levels of pollutants such as bacteria, sediment or chemicals.

As things stand now, the Chesapeake Bay already is receiving too much of the big three pollutants: nitrogen, phosphorus and sediment, Mr. Koroncai said.

Nitrogen and phosphorus drive the algae growth that chokes oxygen from the water. And sediment clouds the water and smothers oysters and clams on the bay bottom.

So come 2010, the TMDL likely would mandate no new "loadings" of those pollutants that come from sources that hold discharge permits: sewage plants, industrial plants and stormwater.

That means new sources of discharge - expanded sewage plants that are accommodating new subdivisions, for example - would either have to find a way to have zero pollution or they'd have to buy pollution credits from a source that's performing better than their permits, Mr. Koroncai said.

Such nutrient trading is just getting off the ground in Pennsylvania and Virginia. It doesn't yet exist in Maryland.

Dr. Rich Eskin, the head of science services for the Maryland Department of the Environment, doesn't expect many problems for Maryland. That's because sewage plant upgrades are in the works, the handful of industrial plants are making reductions and even stormwater pollution is seeing some improvement.

"To a large extent, we are already doing what will be required by the bay TMDL," Dr. Eskin said.

The bay TMDL could provide "more impetus" for stormwater controls, which have been slow to be put into place because they are expensive and sometimes difficult, he said.

Counties hold permits for their stormwater discharge, and the baywide TMDL could nudge them to do more, Dr. Eskin said.

The bigger effects, however, will be likely in the states upstream from the bay - New York, Pennsylvania, West Virginia. They'll have stricter pollution limits put into their permits and EPA will have the regulatory muscle to enforce them.

"EPA has the position, and rightly so, that upstream states need to act to protect downstream water quality," he said.

Will Baker, president of the nonprofit Chesapeake Bay Foundation, said it's disappointing that there hasn't been more progress made toward cleaning up the bay.

He said it would be better for government and businesses to act now and invest in cleanup programs at the state level - help for farmers, sewage plant upgrades, stormwater controls - rather than wait and see what the EPA will do in 2010.

Mr. Baker said several generations of political leaders have come and gone with little progress on the bay. But the current governors of Maryland, Pennsylvania and Virginia all will be in office in 2010. And the U.S. president elected this fall also will be on the hook in 2010.

"If our elected officials ignore this, eventually they do so at their peril," he said, adding that citizens should demand action from their elected leaders.

Despite the doom-and-gloom nature of the lack of progress, Mr. Baker thinks it's still possible to make strides in bay cleanup. The bay foundation is pushing for hundreds of millions of dollars more for bay restoration programs in the states of Maryland, Pennsylvania and Virginia, as well as through the next version of the federal Farm Bill.

"This is not a problem looking for a solution," he said. "It's a solution looking for funding."

(Revised Feb 2008)