Virginia's Chesapeake Bay TMDL Report Card

The Chesapeake Bay and its tidal waters have been impaired by the release of excess nitrogen, phosphorus and sediment. These pollutants are released from waste water treatment plants, agricultural operations, urban and suburban runoff, wastewater facilities, septic systems, air pollution and other sources that enter the tributaries and Chesapeake Bay. These pollutants cause algae blooms that consume oxygen and create dead zones where fish and shellfish cannot survive, block sunlight that is needed for underwater grasses, and smother aquatic life on the bottom.

Since the 1980’s the six bay states- Virginia, Maryland, West Virginia, Delaware, Pennsylvania, New York-and Washington DC have been trying to clean up the Chesapeake Bay. Though the excess nutrient contamination to the Chesapeake Bay has decreased over the past thirty years, the Bay’s waters remain degraded. As a result, U.S. Environmental Protection Agency, EPA, has mandated a contamination limit called the TMDL (total maximum daily load for nutrient contamination and sediment) to restore the local waters. The TMDL sets a total Chesapeake Bay watershed limit for the six states and Washington DC of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year which is a 25% reduction in nitrogen, 24% reduction in phosphorus and 20 % reduction in sediment from the 2011 levels. The pollution limits were then partitioned to the various states and river basins based on the Chesapeake Bay computer modeling tools and monitoring data. The TMDL addresses only pollution from excess nitrogen, phosphorus and sediment.

In addition, each of the six states and Washington DC were required to submit and have approved by the EPA a detailed plan of how they intend to achieve the pollution reduction goals assigned to them. These plans are called the Watershed Implementation Plans, WIPs. The Virginia WIP and the other plan) lay out a series of pollution control measures called best management practices, BMPs that need to be put in place by 2025, with 60% of the BMPs completed by 2017. While it will take years after 2025 for the Bay and its tributaries to fully heal, EPA expects that once the required BMPs are in place (and maintained) there will be gradual and continued improvement in water quality as the BMPs reduce the nutrient and sediment run off and better control storm water so that the Chesapeake Bay ecosystem can heal itself.

About half of the 39,490 square mile land area of Virginia is drained by the creeks, streams and rivers that comprise the Chesapeake Bay watershed, and two-thirds of the state's 8.26 million population lives within the watershed. To develop a remediation plan acceptable to the EPA and likely to achieve the goals of the revised WIP, the state legislature passed a series of laws and the state implemented a series of regulations addressing among other items: nutrient management plans, septic regulations, limitations of the sale and use of lawn maintenance fertilizer, banning deicing agents containing urea, nitrogen, or phosphorus intended for application on parking lots roadways, and sidewalks, or other paved surfaces, etc.

Many of these laws and regulations address non-point source pollution (NPS) which is a major factor impacting the quality of the water supply. The rate at which diffuse sources of pollution are generated and delivered to water resources is greatly affected by human activities and natural processes. These pollutants do not come out of a pipe, but are transported to surface water bodies by runoff, which results from rain or snowmelt. The way to reduce impact of this non-point source pollution on the environment is to implement what has been called “best management practices.” BMPs minimize the use of fertilizers, pesticides, etc. to achieve a desired level of performance and quality while protecting the environment. BMPs are also designed to reduce runoff and  benefit water quality while maintaining or even enhancing agricultural production. EPA has never had the authority to regulate non-point source pollution, but through the TMDL and WIPs that is exactly what they are doing.

Recently, the Chesapeake Bay Foundation (CBF) and the Choose Clean Water Coalition (CCWC) issued their report reviewing the results of the 2012-13 pollution reduction milestones against the states’ WIPs and found that pollution is being reduced in every state and Washington DC. They report that “Virginia met its overall pollution reduction goals for 2013. Of the eight practices assessed, the Commonwealth met or exceeded its goals for fencing cattle out of streams and urban stream restoration, and was very close to meeting the goal for agricultural practices such as nutrient management, pasture management, and cover crops. Virginia fell short of its goals for forest buffers, conservation tillage, stormwater practices, urban nutrient management, and composite urban practices.”

Virginia remains significantly agricultural and has used the voluntary agricultural cost share program implemented by the state’s conservation districts to reach out to farmers to educate and assist in the implementation of BMPs and verify their maintenance. There has never been a program designed to educate and implement BMPs in suburban communities. In the past several years Virginia has invested hundreds of millions of dollars to upgrade wastewater treatment plants and utilized its Soil and Water Conservation Districts to expand the utilization of stream exclusion fencing by offering to have the state pay for the total amount of the fencing. Conservation districts were very successful in giving away fencing to farmers and are working to count the fencing that already exists and is effective and might not meet current cost share program guidelines.

In the first two years of the WIP, Virginia has struggled to build programs and methods for data gathering to address the problems with managing and tracking implementation of what is essentially remedial programs for farming operations both large and small and for individuals. EPA is using the WIPs to reach down and manage what is called non-point source pollution. Much of the urban stormwater management in Virginia is suburban and is a house by house, street by street series of plans that will be implemented by builders and existing homeowners, and maintained by homeowners and some will have to be retrofitted to existing communities. It is not clear how that will be accomplished, nor tracked as the new stormwater regulations have been delayed due to the challenges of implementation. Given these challenges it is not at all surprising that the first steps taken towards the TMDL were the ones that could be most easily implemented and tracked. The steps taken had the programs in place to both implement and track progress.

from CBF

It was noted by CBF and CCWC in their review that conservation tillage acres had actually declined since 2011. This is probably not true; the cost share incentives for conservation tillage have declined as the practice has become more widely adopted by farmers without the need for financial incentives. However, the farming practices that are not part of the cost share program have not been routinely tracked. So, the decline in conservation tillage acres may simply be a reflection that the Commonwealth does not track nor document every activity of every farmer in the state. Though, this may become necessary to satisfy the requirements of the EPA to require the implementation of resource management plans on most agricultural acres.

from CFB

Virginia also has a lot of work ahead to develop the infrastructure for the implementation of Virginia’s new Stormwater Management Regulations especially in smaller communities. Ways to work with existing homeowners and communities to address these diverse small sources of contamination will require the development of programs, education and outreach. The time and difficulty in implementing septic regulations on alternative septic systems and having the homeowners comply with regulations to inspect and maintain their systems is a challenge that is yet to be solved. It is not clear what level of data collection and tracking will be necessary for the individual homeowner. EPA is mandating to counties and towns actions that will raise property taxes, and require changes to properties and behavior. Citizens will first have to be convinced to support these programs.

To meet the demands of the WIP, the total amount of stormwater runoff will have to be reduced. This means that there will have to be implementation of improved stormwater management in existing developments to meet reductions in nutrient and sediment loads. The Commonwealth needs to reduce pollution from stormwater running off urban streets and parking lots by mandating reductions in state permits for large city stormwater systems and requiring some implementation of improved stormwater management in suburban developments. According to the Chesapeake Bay Foundation stormwater runoff remains the only source of water pollution in Virginia that continues to increase and must be aggressively addressed if restoration of the Bay is to succeed.

Given the challenges of developing programs for addressing non-point source pollution to meet the TMDL pollution reduction goals one home and a few acres at a time, it is not surprising that Virginia has used the big nutrient reduction numbers from waste water treatment plant upgrades and a big push in stream exclusion fencing by having the state pay the full cost to achieve the first round of benchmarks. The CBF Virginia Executive Director, Ann Jennings, says in the report: "Our analysis of the 2012/13 milestones indicate that reductions from wastewater treatment plants will not carry us across the goal line. The McAuliffe Administration has a unique and important opportunity to put Virginia on course for success by taking more aggressive steps to confront agricultural and urban pollution." I am very interested in seeing what those aggressive steps might be.

The Environment: Getting Better Over Time

I have just finished reading Steven F. Hayward’s 2011 Almanac of Environmental Trends which is the latest adaption of the former Index of Leading Environmental Indicators. The book is a quick read because Dr. Hayward loves charts and data in this particular effort so that there are a limited number of words. This annual publication can be relied upon to reframe several environmental issues by simply looking at the data differently. Also, Dr. Hayward in examining the trends over the past several decades seems to mirror some of my own optimism when it comes to environment. I was working in the environmental field in the 1970’s so I always see the vast improvement in the environment everywhere I look despite the huge increase in population since that time.

The water quality section has been vastly expanded to examine the data relating to the adequacy of water supplies and the health of several estuaries including the Chesapeake Bay estuary. The good news about water is that “on average” the United States uses less than 8% of the water that falls as precipitation within our borders annually. The happy perspective of Dr. Hayward is that water like solar energy is a renewable resource and that is mostly true. Unfortunately, precipitation varies from the average significantly on a regional basis and thus, allocations and supply on a regional basis will remain a problem especially in locations where irrigations is the major water use (mostly the western states). In addition, it is unknown in most locations if we are using groundwater in a sustainable way. Comprehensive data on groundwater use for the nation is not available. There is no monitoring of groundwater basins.

For example, in California a significant portion of the water supply comes from groundwater. Typically, groundwater supplies about 30% of California’s urban and agricultural uses. In dry years, groundwater use increases to about 40% statewide and 60% or more in some agricultural regions. This rate of groundwater use is unsustainable; California is mining its groundwater, using it at a rate higher than can be recharged. When you withdraw the groundwater from fine-grained compressible confining beds of sediments and do not replace it, the land subsides. The incredibly fertile Central Valley has been identified as the location of maximum subsidence in the United States. Once the land subsides, it looses its water holding capacity and will never recover as an aquifer. The groundwater in California may be a relic of the last ice age and is not being replaced or likely to be replaced under the current climate conditions.

The three estuaries covered in this year’s edition of the Almanac of Environmental Trends are the Gulf Delta, the Long Island Sound and the Chesapeake Bay. Unfortunately, the environmental report card for the estuaries is mixed. The bottom line with the Gulf of Mexico is that hypoxia, oxygen depletion; detrimental to aquatic life has been increasing. Dr. Hayward attributes this in part to incentives in the “well-meaning but ill-designed subsidy and conservation programs…especially subsidies for ethanol related corn production.”
The data after the Gulf oil spill is not included in the series so that the hypoxia can not be attributed to that.

Long Island Sound has shown a steady progress in habitat restoration, increased wetlands and an early achievement of the 2011 fish passageway restoration goals. The combined efforts of state and local governments with conservation organizations have made much progress but are still short of the regional goal. As for the Chesapeake Bay, according to the indices created by the Chesapeake Bay Foundation, The Chesapeake Bay Program and Chesapeake EcoCheck, there has been little if any progress in the past decade after making excellent progress during the previous 22 years. Dr. Hayward, always the optimist points out that while the population in the region exploded in the past decade, the health of the Bay got no worse, still, the Chesapeake Bay Foundation judges the Bay to be “dangerously out of balance.” Hopefully the various Watershed Implementation Plans from the six states and Washington DC will show great progress in the next decade. An interesting correlation in nitrogen and phosphorus contamination in the Bay is with rainfall as seen above. I had not appreciated how much nutrient contamination was correlated with runoff volume. Riparian buffer restoration and nutrient management improvements may be our most effective methods of meeting the Chesapeake Bay TMDLs.

The American Way to a Better World, Litigation

A coalition of environmental groups have announced that they have filed a motion in federal court to oppose the efforts of the American Farm Bureau Federation and their group. The environmental coalition includes the Chesapeake Bay Foundation (CBF), Citizens for Pennsylvania's Future, Defenders of Wildlife, the Jefferson County Public Service District, the Midshore Riverkeeper Conservancy, and the National Wildlife Federation. These groups are seeking to intervene in a lawsuit filed earlier this year by the American Farm Bureau and other agricultural groups. Intervening is a legal tactic that, if successful, would make the environmentalists a party in the case.

American Farm Bureau Federation and the Pennsylvania Farm Bureau went to federal court in Pennsylvania have since been joined the Fertilizer Institute, the National Pork Producers Council, the National Corn Growers Association, the National Chicken Council, the U.S. Poultry and Egg Association, and the National Turkey Federation. The American Farm Bureau and their groups argues that the EPA’s “allocation” of pollutant loads among sources in a TMDL exceeds EPA’s authority under the Clean Water Act; the assigned TMDLs are based on erroneous information that was input into computer models that are unsuitable for determining such loads even if accurate information had been used. Finally, the Farm Bureau contends that during the comment period the public did not have access to the information it needed to comment effectively on the modeling results and the assumptions in the Final TMDL.

The Chesapeake Bay Model is really made up of several models that are added together to create the whole: the Watershed Model, the Estuary Model, the Scenario Builder, the Airshed Model, the Land Change Model and the Land Use Models. The Watershed Model incorporates information about land use, fertilizer applications, wastewater plant discharges, septic systems, air pollution, farm animal populations, weather and other variables to estimate the amount of nutrients and sediment reaching the Chesapeake Bay and which of the major land uses produce these pollutants. This is the most robust and calibrated portion of the model sequence because it is calibrated and validated on the major tributary basin levels where there is decades of measured water quality data available. The Watershed Model divides the 64,000-square-mile Chesapeake Bay watershed into more than 2,000 segments. According to the 2010 versions of the EPA models that were used to derive the TMDLs, cropland accounts for 25% of sediment in the bay, 32% of the nitrogen and 27.5% of the phosphorus while accounting for only 10% of the Chesapeake Bay watershed acreage.

The waste load allocations in the TMDL are based to a large extent on land use data, and the amount that is impervious area. The EPA used satellite photographs to derive the amount of impervious surface. An analysis of Geographic Information System (GIS) land use data sampled in the Hampton Roads area of Virginia showed that the satellite imagery used by EPA for its land use inputs to the watershed model had underestimated the amount of paved surfaces in the region by an average of 48% compared to their GIS information. Neither EPA nor Hampton Roads provided an explanation of why these numbers are so different. Mike Rolband of Wetland Studies and Solutions, Inc. reported that his organization found that 2010 version of the model had used approximately 675,917 acres for the impervious surface area and 1,885,915 acres for the pervious surface area in the Virginia segments of the model. His organization reviewed the EPA’s own data from another sources and found that there were 1,569,377 impervious acres and 3,442,346 pervious acres in the urban areas in the Virginia segments of the model. This aligns with the Hampton Roads data.

Pollutions loads for nitrogen, phosphorus and sediment in the urban areas are calculated using a constant pounds/acre/year for impervious acres as a fixed input, and the pervious load is based on total fertilizer sales data. Pollutions loads for nitrogen, phosphorus and sediment in the urban areas are calculated using a constant pounds/acre/year for impervious acres as a fixed input, and the pervious load is based on total fertilizer sales data. Thus, if the EPA used their own data instead of the satellite data, the total current load for the urban areas would increase by 2,238,449 pounds of nitrogen per year, 636,097 pounds of phosphorus/year and 137,680 pounds of sediment/per year in Virginia. However, the total watershed loads for the overall model would remain the same since they were based on sampling results. So if the urban area loads increase, other area loads will have to decrease to keep the model’s output consistent with sampling data. The waste water treatment plants numbers are based on constant sampling necessary for their permits so their overall total contaminant load will not change. The forest lands number is also believed to be a “good” number, so that leaves the agricultural sector

In the regulatory world the model is reality. If the EPA chooses to not fully correct this error, and instead stays with the under reported amount of impervious surfaces the result would be MS4 permits that would be calculated based on a fraction of the total paved areas, and will have to reduce their urban runoff loads based on modeling data which assumes less impervious area than they actually have. In other words, the urban land area that will have to be treated in order to attain their mandated waste limits would be almost twice the land area assumed in the TMDL. In addition, the model would require a more extensive implementation of Agricultural BMPs to meet the required reduction in nitrogen, phosphorus and sediment than if the urban/suburban segment had correctly reflected the amount of pavement. This will unnecessarily increase the cost to the states of compliance with the TMDL. The Chesapeake Bay Phase 5.3.2 Model is due from the EPA on July 1, 2011.

The Farm Bureau claims that their lawsuit challenges a specific, unlawful EPA regulatory action. It is about federal government overreaching into state rights to self govern across seven jurisdictions. The States within the watershed have estimated that implementation will cost billions of dollars making this a very high stakes argument for the States, cities and farmers. At their news conference the Chesapeake Bay Foundation described the Farm Bureau and their coalition as "big ag" and described their lawsuit as an attempt to derail the latest bay cleanup program for profit. Earning a profit is not necessarily evil.

The EPA model’s allocation of pollution origination is one of sources for the current “green community” anti agriculture stance. The agricultural sector is being viewed as an excessive polluter, though farm management practices have improved over the years as output has increased to feed the ever growing population. The farmers (both family and corporate) feel they have not been given full credit for that improvement. The Chesapeake Bay Watershed Model is a good tool in understanding how nitrogen, sediment, and phosphorus loads from different sources are delivered to the Bay. On a major tributary basis, real world data has been used to calibrate and validate the watershed portion of the model. Thus, it can provide predictive results of implementing best management practices, a useful tool to help make decisions about tradeoffs to control the loads of nutrients and sediment in the Chesapeake Bay Watershed. Implementing and maintaining best management practices and conservation plans on farms is difficult, because it involves changing often long established practices and the way that farmers manage their land and operations and requires a management plan for each operation no matter the size, but it is still probably the most cost effective method of meeting the TMDL. Instead of paying for lawyers maybe both of these groups should consider funding agricultural wells for animal operations so that water way exclusion fencing (which has available cost share dollars) can be built.

The Future of Lawn Care in Virginia

About half of the land area of Virginia is drained by the creeks, streams and rivers that comprise the Chesapeake Bay watershed, and two-thirds of the state's population lives within the watershed. From the Shenandoah Valley to the Eastern Shore, each Virginian can literally touch the Chesapeake Bay through the network of creeks and streams that cover the area. In an effort to reduce pollution in urban and suburban runoff one of the growing areas of nutrient pollution in the Chesapeake Bay estuary, the 2011 Virginia General Assembly passed SB 1831 that bans phosphorus in most lawn fertilizers and more tightly restricts the use of fertilizer by professional lawn and turf service companies. This bill was supported by the Chesapeake Bay Foundation and the Piedmont Environmental Counsel.

The newly passed law prohibits the sale, distribution and use of lawn maintenance fertilizer containing phosphorus after December 31, 2013 and it will be unlawful to offer for sale any deicing agent containing urea, nitrogen, or phosphorus intended for application on parking lots roadways, and sidewalks, or other paved surfaces. The law also requires golf courses to implement nutrient management plans by July 1, 2017, and will utilize the existing resources of the Soil and Water Conservation Districts and the Department of Conservation and Recreations to provide technical assistance and training and establish a cost-share program to assist in implementation of the nutrient management plans. For homeowners the Department of Agriculture and Consumer Services will develop consumer information and recommended best practices for the application of lawn fertilizer. The law also regulates lawn service companies and establishers reporting requirements for those who apply lawn fertilizer to more than 100 acres of nonagricultural lands annually This effectively leverages the existing resources and expertise to get the most bang for the buck in meeting the Chesapeake Bay TMDL and restoring the Chesapeake Bay estuary and should not impact property owners excessively. Research has shown that most lawns are not deficient in phosphorus and phosphorus free lawn fertilizer is widely available.

The TMDLs were created by a series of models of the Chesapeake Bay Watershed that include various land use models, water quality models and watershed models. These computer models are mathematical representations of the real world that estimate environmental events and conditions. The models are at best imperfect, but they are nonetheless the best tool available to view the 64,000 square miles of the watershed. The Chesapeake Bay and its watershed are so large and complex, that scientists and regulators rely on computer models for critical information about the ecosystem’s characteristics and the impact of various environmental actions to reduce pollution.

Pollutions loads for nitrogen, phosphorus and sediment in the urban areas are calculated using a constant pounds/acre/year for impervious acres as a fixed input, and the pervious load is based on total fertilizer sales data. Reducing the salting of roads, sidewalks and parking lots should impact the load number on impervious acres. Restricting the statewide sales of phosphorus containing fertilizer will reduce the total sales number which represents roughly five percent of excess nitrogen and phosphorus pollution discharged into the Chesapeake Bay from Virginia.

Most lawns are not deficient in phosphorus. Despite the widely accepted myth that phosphate fertilizers will stimulate root growth of transplanted trees and shrubs, research at Washington University has proved this incorrect. Only soils that have been heavily used for agricultural crops or are acid sandy and granitic soils tend to have their phosphorus depleted. In landscaped urban soils, phosphorus is rarely deficient and the misapplication of this element can have negative impacts on the soil environment and the watershed without any benefit to the lawn or plants. Restricting the statewide sale of lawn fertilizer containing phosphorus and educating homeowners about the inappropriate use of lawn fertilizers is a simple way to reduce nitrogen and phosphorus runoff and save consumers a few dollars on unnecessary fertilizer. This could prevent the EPA from implementing stricter stormwater point source limits which was one of “backstop” threats leveled at Virginia if we fail to meet the Chesapeake Bay TMDL goals. This simple step should be all the more effective when the suburban/urban surface portion of the Chesapeake Bay model is revised.

The Error in the Allocation to Agriculture Under the Virginia TMDL

The most recent meeting of the Potomac Watershed Roundtable was in Warrenton, VA at Lord Fairfax Community College and had a series of speakers on the Chesapeake Bay strict pollution diet, the Total Maximum Daily Load (TMDL) mandated by the EPA to the six Chesapeake Bay Watershed states and the District of the Columbia. The TMDL addresses only pollution from excess nitrogen, phosphorus and sediment. No action has been taken or at this time is intended on other pollutants that might be present in the Chesapeake Bay and its tributaries. Part of the meeting was devoted to educating the audience on the Chesapeake Bay Model.

The TMDLs were created by a series of models of the Chesapeake Bay Watershed that include various land use models, water quality models and watershed models. These computer models are mathematical representations of the real world that estimate environmental events and conditions. The models are at best imperfect, but they are nonetheless the best tool available to view the 64,000 square miles of the watershed. The Chesapeake Bay and its watershed are so large and complex, that scientists and regulators rely on computer models for critical information about the ecosystem’s characteristics and the impact of various environmental actions to reduce pollution.

Mike Rolband of Wetland Studies and Solutions, Inc. had some fun with what is apparently one of the large mistakes in the model that is expected to have a correction released in the near future. His professional interest is in managing impervious and pervious surface run off. His consulting firm looked at the underlying data used to create the Land Use estimates. Land Use model estimates the types and amounts of pollution that run off a particular land use are based on comprehensive reviews of the latest scientific literature there is limited measurement here for many of the land uses, but the responsible land use is assigned a numeric blame. Using EPA published data Wetland Studies and Solutions was participant in pointing out to the EPA that they had massively underestimated the impervious and pervious surface areas in the Urban Areas in Virginia (and I assume other areas).

It seems that the most recent version of the model had used approximately 675,917 acres for the impervious surface data and 1,885,915 acres for the pervious surface data. A review of the EPA’s own data found that there were 1,569,377 impervious acres and 3,442,346 pervious acres in the urban areas in the Virginia segments of the model. These include all the paved and landscaped areas of suburbia. Between the 1990 census and the 2010 census the population of Virginia grew from 6.2 million people to 8.0 million people. The bulk of that growth took place in the urban and suburban centers of the Chesapeake Bay watershed.

Now here is where it gets interesting. Pollutions loads for nitrogen, phosphorus and sediment in the urban areas are calculated using a constant pounds/acre/year for impervious acres as a fixed input, and the pervious load is based on total fertilizer sales data. The bottom line is that the EPA has confirmed that they will not change the loading rate because they have high confidence in the loading rate for the impervious surfaces and the total fertilizer sales are reported and tracked data and is a hard number. Thus the total current oad for the urban areas will increase by 2,238,449 pounds of nitrogen per year, 636,097 pounds of phosphorus/year and 137,680 pounds of sediment/per year. However, the total watershed loads for the overall model will remain the same. So, while the urban area loads will increase, other area(s) loads will have to decrease.

Mike Rolband has pointed out that the agricultural sector will probably have their load reduced. The waste water treatment plants numbers are based on constant sampling necessary for their permits so their overall total contaminant load will not change. The forest lands number is also believed to be a “good” number, so that leaves the agricultural sector and in the case of total nitrogen, also septic. Over 2.2 million pounds a year is a lot of nitrogen it represents of the total load attributed to agriculture. The farm segment has been protesting loudly that they are not being given proper credit for implementation of best management practices and that surface waters are already degraded when they reach their farms.

It seems that the American Farm Bureau Federation who have recently filed suit against the EPA claiming the models are flawed is right. The smug assumption that farmers are the bad guys by the new generation of environmentalists is to an extent wrong. Man is the animal contributing the most nitrogen to the Chesapeake Bay in the form of wastewater treatment plant permitted waste, septic and urban/ suburban runoff. The Chesapeake Bay Foundation owes the American Farm Bureau Federation an apology for their recent quote in the Washington Post.