The legal requirement to "Save the Bay" is based on a Federal law, the Clean Water Act. The 1972 law was a major expansion of the requirements in the 1948 Federal Water Pollution Control Act. The law mandates that polluters must get permits before discharging any pollutant from a "point source" (basically, pipes or man-made ditches) into navigable waters, and estanlishes standards for issuing/rejecting permits.
How clean is clean? The Chesapeake Bay is not identified as impaired and listed in the Section 303(d) "dirty water list" due to excessive levels of bacteria, heavy metals, PCB's, or other toxic pollutants.
For the bay, impairment is measured by three specific water quality criteria: dissolved oxygen, water clarity and Chlorophyll A. Excessive amounts of nitrogen, phosphorous, and sediment are the three major pollutants that affect those three standards. To "save the bay," the Environmental Protection Agency has determined in a Total Maximum Daily Level (TMDL) study how much of each pollutant the bay can absorb. EPA then allocated limits for each pollutant to each of the states in the watershed, plus the District of Columbia. Reducing those pollutants will affect the measurements of dissolved oxygen, water clarity and Chlorophyll A.
Chlorophyll A measures the amount of algae floating in the water. The amount of algae indirectly measures the impact of nutrients and sediments that are deposited in the Chesapeake Bay. The higher the concentration of algae, the greater the level of Chlorophyll A.
High concentrations of algae and sediments in the water will also reduce the water clarity. Algae, when alive and photosynthesizing, will produce oxygen. However, after algae dies, the decay process strips oxygen from the water. Excessive amounts of algae will also show up in low dissolved oxygen levels.
Virginia and EPA have disputed the use of the Chlorophyll A standard for the lower James River, since reducing that level will require upgrading wastewater treatment plants in the James River watershed. Reducing nutrients in the James River will affect primarily the river itself and the mouth of the Chesapeake Bay, so Virginia has argued that the $2 billion additional cost of meeting the Chlorophyll A standard will exceed the benefit.1
Based on the Clean Water Act, the Environmental Protection Agency (EPA) has developed a process for determining how much pollution a waterbody can absorb before violating water quality standards. In a Total Maximum Daily Load (TMDL) analysis, EPA determines the limits for different pollutants, and require polluters to reduce discharges below the TMDL limits so the water body meets standards for the six designated uses in Virginia:
- aquatic life
- fish consumption
- public water supplies (where applicable)
- swimming (recreation)
In 1983, the EPA published Chesapeake Bay - A Profile of Envirionmental Change. That report documented the declining condition of the bay. Under the Clean Water Act, the Chesapeake Bay and its tributaries were required to meet Federal water quality standards. The Federal mandate and the EPA report triggered the governors of Pennsylvania, Maryland, and Virginia, plus the mayor of the District of Columbia and the head of the EPA, to sign the 1983 Chesapeake Bay Agreement.
The Chesapeake Bay Agreement was signed at the Fairfax campus of George Mason University. That 1983 agreement did little more than create a Chesapeake Executive Council and state that future actions would be taken, but the commitment serves as a starting point for the multi-state commitment to "do something" in order to comply with the Clean Water Act.
Four years later, the signers of the 1983 Chesapeake Bay Agreement committed in the 1987 Chesapeake Bay Agreement to take specific actions to clean up the bay. A key part of the 1987 agreement was the claim that the signing parties would reduce, by 40%, the nitrogen and phosphorous entering the main stem of the Chesapeake Bay - and achieve that reduction by 2000.
Through the National Pollutant Discharge Elimination System (NPDES) permit regulations, EPA required wastewater treatment plants to reduce nitrogen and phosphorous in their discharges. Banning detergents with phosphorous had a major impact, but additional chemical processes also were implemented at wastewater treatment plants to extract most of the remaining phosphorous. New "biological nutrient reduction" (BNR) technology was implemented at sewage plants, using bacteria to convert excessive nitrates (NO3-) in human sewage into harmless N2 gas molecules that escaped into the atmosphere.
It was very expensive to upgrade old wastewater treatment plants and build new facilities that eliminated nutrients, as well as eliminated biological contaminants such as E. coli bacteria. Federal grants soothed much of the political pain, and ratepayers saw charges increase. Developers and local politicians welcomed the opportunity to expand watewater processing capabilities, because that facilitated new development in the watershed. The "green" money for clean water spurred the clearing of forests and conversion of farmland into suburbia throughout the Chesapeake Bay watershed.
At different times, various forms of pollution have been major concerns - bacteria, pesticides, oil leaks from tankers, heavy metals, acid mine runoff, and bacteria. Today, those threats are all relatively minor. Two factors from farms, cities, and suburbs upstream are the primary causes of damage to the bay:
In the 1990's, Virginia developed a tributary strategy to reduce nutrients and sediment flowing into the streams that then flowed to the bay. Virginia chose to rely upon voluntary action by farmers and land developers to reduce non-point pollution, the runoff from farm fields and parking lots. Grants were directed to farmers in the Piedmont and Shenandoah Valley to implement "Best Management Practices" (BMP's), such as fencing cattle away from streams so runoff from manure would be intercepted by vegetated buffers.
Included in Virginia's "Ches Bay regs" was a requirement to preserve 100-foot buffers of undisturbed vegetation along each side of a perennial (flowing year-round) stream. The buffers were intended to serve as Resource Protection Areas (RPA's), using natural vegetation to capture a substantial percentage of the sediment, nutrients, and other pollutants before they entered the stream and ultimately flowed to the Chesapeake Bay.
Note that RPA's affected land use at the local level, so Federal and state laws to save the bay shaped local government decisions on rezoning specific parcels and approving site plans. Only "Tidewater" jurisdictions were required to identify and protect RPA's. To minimize opposition, most of the acreage and most of the jurisdictions in Virginia's portion of the Chesapeake Bay watershed were not affected.
One state agency in particular - Chesapeake Bay Local Assistance Board (CBLAD) - was tasked with ensuring compliance. Today, the CBLAD organization has lost its independence and is the Chesapeake Bay Local Assistance Program in the Virginia Department of Conservation and Recreation.
By 1999, it was obvious that the states and District of Columbia had failed to reduce nutrients and sediment enough to meet Clean Water Act water quality standards in the Chesapeake Bay. Since 1983, suburban development had continued unchecked in the Chesapeake Bay watershed, especially in Northern Virginia. Forests and fields, with slow runoff patterns, were replaced by impervious surfaces where rainfall raced off rooftops/parking lots. The surging rush of rainwater carved into streambanks, etching new channels and carrying sediment downstream - ultimately, to the Chesapeake Bay.
Since the 1930's, the sediments in stormwater and other pollutants have suppressed the marsh grasses (often Spartina species) and the underwater grasses (Submerged Aquatic Vegetation or SAV) that are essential to the health of the bay. The natural bands of SAV surrounding the points of land and islands have shrunk, and SAV has disappeared from extensive areas on the bottom of the Bay.
There is no secret regarding the cause. Silt from urban/suburban construction, plus erosion after the clearing of forests or plowing of cropland, has physically coated the SAV and blocked the transmission of light that is essential for plant growth.
Since the 1983 Chesapeake Bay Agreement, implementation of Best Management Practices for some development upstream has provided inadequate mitigation. Sediment has continued to pour into the Chesapeake Bay after every major storm. As determined by the US Geological Survey:2
Best Management Practice (BMP) for development: stormwater pond
Stormwater is untreated. Rainwater that flows down a suburban or city gutter and enters a stormwater drain will flow directly to the Chesapeake Bay without being processed. Unlike sanitary sewer waste, there are no treatment plants to clean up stormwater, the way wastewater treatment plants kill bacteria, remove nutrients, and eliminate sediments from sewage.
A styrofoam cup thrown into a stormwater drain will flow downstream, pushed in surges by different storms, until particles of styrofoam reach the bay. Other pollution in the stormwater will also flow to the bay, and stormwater ponds produce minimial improvement in nutrient reduction. Some debris and a small amount of sediment might settle out in stormwater ponds, but the rapid suburbanization in the bay watershed has increased runoff so dramatically that new sediment loads have overwhelmed the tributaries and the bay itself.
In addition, excessive nutrients (nitrogen and phosphorous) have washed downstream into the Chesapeake Bay from fertilized farm fields and cattle and chicken manure, as well as wastewater treatment plants. Combined Animal Feed Operations (CAFO's) for turkeys and chickens have generated more manure than farmers can apply as fertilizer on local fields. Especially on the Eastern Shore, the phosphorous in the chicken manure exceeds the capacity of the soil to absorb it, resulting in continued excessive nutrient enrichment of the Chesapeake Bay.
With the force-feeding of fertilizer, there are bursts of growth by algae. When it dies, the decaying algae absorbs too much oxygen from the water, creating "dead zones" where animals can't survive.
In 1999, two organizations (the American Canoe Association, Inc. and the American Littoral Society) sued in Federal court, requesting a judge to force the states to meet the requirements of the Clean Water Act.
In June, 2000, the District of Columbia, Maryland, Pennsylvania, Virginia, and the Environmental Protection Agency (EPA) signed the Chesapeake 2000 Agreement. In that document, the different levels of government promised to restore the water quality of the Bay, and the Chesapeake 2000 Agreement set objectives beyond just optional promises.
To settle the 1999 lawsuit, the parties agreed that the Bay water quality must improve and become "fishable and swimmable." If not, the Clean Water Act required EPA to list the Bay as "impaired waters" under Section 303(d) of the Clean Water Act. The government agencies agreed that such a listing would require the states and District of Columbia to craft a multi-jurisdictional limit on pollution, through the Total Maximum Daily Load (TMDL) process to protect the Bay's aquatic living resources.
Not all of the states in the Chesapeake Bay watershed signed the 1983 agreement
Source: US Geological Survey, satellite map of Chesapeake Bay
Missing in 1983: West Virginia, New York, Delaware
(New Jersey is outside of watershed)
Source: US Fish and Wildlife Service, Chesapeake Bay Program
The consent order, accepted by the states and EPA, resulted in a new Chesapeake2000 agreement, a promise to complete TMDL studies to define the acceptable level of pollution in Bay tributaries and the Bay itself... and a new deadline to reduce the pollution. States and the District of Columbia were given another 10 years. By 2010, the bay was supposed to be so clean, EPA would not list it as an "impaired water" based on Section 303(d) of the Clean Water Act (the "dirty water" list).
After committing to the Chesapeake2000 agreement, Virginia continued to rely upon voluntary actions to mitigate existing pollution. Many news releases were issued in praise of small projects, and each theoretical reduction in pollution (as predicted by computer models) was highlighted as significant. Not surprisingly, however, by 2009 it was obvious once again that the deadline to remove the Chesapeake Bay from the dirty waters list would be missed.
In 2008, NOAA declared a "blue crab disaster" in the Chesapeake Bay, based on a 41 percent decline in harvest from the late 1990's.3 EPA's 2008 Bay Health and Restoration Assessment said "the overall health averaged 38 percent, with 100 percent representing a fully restored ecosystem."4
In 2010, a Federal judge ruled that the states and District of Columbia had failed to meet the terms in the 1999 consent order. EPA has developed a TMDL for the various segments of the Chesapeake Bay, and allocated total amounts of sediment, nitrogen, and phosphorous reductions to the various states. Each state and DC has developed a Watershed Implementation Plan (WIP), and EPA approved Virginia's plan.
It remains to be seen if the TMDL developed by EPA in 2010 will change the pattern. In theory, each state (and DC) could re-allocate their total pollution budgets to individual jurisdictions via a state-developed Watershed Implementation Plan. Those Watershed Implementation Plans (WIP's) identify specific actions to be completed every 2 years, and EPA will monitor completion of the milestones.
However, Virginia simply required its counties/cities to implement Best Management Practices, and did not try to allocate jurisdiction-specific limits. The Chesapeake Bay computer models lack the capability to provide such granular detail with any reliability
blue crab - one reason people who do not have waterfront property might be motivated to Save the Bay
Source: National Park Service
Virginia's Watershed Implementation Plan (WIP) identified how the state expects to reach 60% of the required reductions of sediment, nitrogen, and phosphorous, by 2017. The remaining 40% will be eliminated by 2025, as described in the Phase II WIP. Action strategies in Virginia's Phase I WIP include:5
Cleaning up the Chesapeake Bay will not occur quickly. Degrading the water quality took about a century, and restoration may not be declared successful until the middle of the 21st Century.
Since population in the watershed will continue to grow, saving the bay will require reducing the pollution produced per person by more than 20-25%. "Business as usual" will not be adequate. Simply recycling plastic bottles will not be adequate. Even with substantial changes in farming practices, urban/suburban development, as wastewater processing, restoration will take decades. As described by EPA in their Frequently Asked Questions about the Bay TMDL:6
If states fail to make adequate progress towards limiting pollution, EPA may impose "consequences" or "backstops" (tighter pollution linits in NPDES permits). Backstops are expected to create enough pain to force states to make politically-difficult choices that reduce pollution, but upset farmers and developers. If progress is acceptable, then by 2025 all mitigation measures are supposed to be in place... and sometime later, the Chesapeake Bay may recover.
To increase public support for those tough decisions, outreach efforts are asking people who live in the watershed - but far from the Chesapeake Bay shoreline - to increase their advocacy for saving the bay. Those outreach efforts are highlighting not the science or the economic reasons to reduce pollution, but the value of seafood. The assumption is that most people in the watershed have a marginal interest in the bay's problems, but could be motivated if "saving the bay" meant "saving a seafood dinner."
The dramatic declines in the harvest of fish, oysters, and crabs over the last 80 years stimulated ineffective responses by local citizens to "Save the Bay." Most of the watermen who once made a decent living from crabbing, fishing, and especially tonging/dredging oysters are unable to make a living now.
As the children in the families of watermen get out of high school and choose to enter college or other professions, a 300-year old way of life on the Bay is nearing extinction. We have traded a healthy bay for urban sprawl in Hampton Roads and Northern Virginia/Southern Maryland, and for agricultural economies in the Shenandoah and Susquehanna river valleys. The political power of the urban areas and the rural farm-dominated counties blocked regulation of subdivision development and traditional farming practices, forcing Virginia to rely upon voluntary efforts to Save the Bay for 25 years. Mandatory limits on pollutants were imposed by EPA only after a Federal judge forced compliance with the Clean Water Act in 2010.
The 17 million people who live in the watershed now have upset the natural balance through a number of different stressors. Life adapts over thousands of years of time, but in the last 400 years, the impacts of increased urbanization have dramatically lowered the productivity and biodiversity of the Chesapeake Bay, especially the Submerged Aquatic Vegetation (SAV).
Grazing animals on land depend upon vegetation to provide food - cattle eat hay, deer browse of branch tips, caterpillars chew on leaves. Birds then eat the caterpillars, in a food chain based on vegetation at the bottom. Similarly, many of the animals in the Chesapeake Bay depend upon the submerged vegetation, or feed on the invertebrates that eat the SAV.
Algae is also a source of food, but excessive algae sucks oxygen out of the water after it dies. Phytoplankton blooms are followed by masses of decaying algae on the bottom of the bay, creating "dead zones" with inadequate levels of dissolved oxygen. Even SAV, which generates oxygen in the daytime, needs sufficient levels of dissolved oxygen in the water at night to fuel its normal metabolic operations.
SAV is killed and submerged lands become underwater deserts when sediments block sunlight, or when oxygen levels drop to zero
Source: US Geological Survey (USGS), Synthesis of USGS Science for the Chesapeake Bay Ecosystem and Implications for Environmental Management
Without underwater pastures of SAV in the water, aquatic invertebrates have no food. Without the invertebrates in the food chain, estuaries no longer serve as nurseries for baby fish that feed on the invertebrates. According to the US Fish and Wildlife Service:7
The Chesapeake Bay can be saved, but not if the stressors continue to increase - and as population increases, stressors will increase. Since there is no mechanism in the American political system to limit population growth in the watershed, the choices are: