April 6, 2023

Virginia MUST Improve Water Quality Standards to Fulfill its Responsibility in the Chesapeake Bay

For the past 40 years, Virginia’s cleanup efforts in the Chesapeake Bay have fallen short time and time again.

Water quality standards in Virginia are insufficient to address the Bay’s nutrient pollutant problem.  Failure to address nutrient pollutants matters  because delays in Bay clean up actions  have wide-ranging impacts. These include effects on local and state-wide economies, plant and animal health, and human health.   The “Total Maximum Daily Load” (TMDL) established in 2010 set limits for pollutants entering the Bay for each of the Bay’s jurisdictions. Bay states are to meet these pollution reduction limits by establishing and enforcing state water quality standards, including water quality standards for nutrient pollution. Initially, the TMDL outlined the measures necessary to fully restore the Bay by 2025. However in Virginia, the recently passed Senate Bill SB1129 has shifted the Commonwealth’s timeline for meeting its TMDL goals and restoring the Bay to 2028. Importantly, while the TMDL includes limits for nutrient pollutants, Virginia’s water quality standards thus far have failed to meet the TMDL’s targets for nitrogen and phosphorus because Virginia does not have a numeric criteria in its water quality standards for these pollutants. Virginia’s poor water quality standards are thus partly to blame for Virginia’s inability to meet the TMDL. If Virginia hopes to meet the newly established 2028 deadline for meeting the TMDL, it must look to enhance its tactics by enforcing  and establishing better water quality standards.  

Virginia Has Historically Side-Lined Chesapeake Bay Cleanup

The Chesapeake Bay has been the source of cleanup efforts since the 1980s, yet it remains polluted. The Chesapeake Bay watershed encompasses six states (New York, Pennsylvania, West Virginia, Maryland, Delaware, Virginia, and the District of Columbia), which means that each of these states is responsible for adhering to pollution guidelines for the Chesapeake Bay (source). The deadline to clean-up the Bay has continuously been pushed back, from 1983, to 1987, to 1992, to 2000. Throughout this decades-long span, agreements signed by the Bay’s jurisdiction states to mitigate pollution in the Bay have proven ineffective.  In December of 2010, the EPA used its authority under the Clean Water Act (CWA) to develop a TMDL for the Chesapeake Bay Watershed that states must comply with. EPA’s action was necessary in light of the continuing inaction from states, including Virginia, on Bay clean up. As a result, Bay states made Watershed Implementation Plans (WIPs), which seek to provide actionable steps to enforcing the TMDL at the state level. Collectively, these plans form the so-called “Clean Water Blueprint,” which has set the stage for much of the Chesapeake Bay restoration-related legislation that has passed since 2010. According to the EPA, the TMDL “set Bay watershed limits of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus, and 6.45 billion pounds of sediment per year. This equates to a 25 percent reduction in nitrogen, 24 percent reduction in phosphorus, and 20 percent reduction in sediment from the base year of 2009.”  Finally, in 2014, representatives from the entire Chesapeake Bay Watershed signed the  Chesapeake Bay Watershed Agreement. The agreement established goals for all six of the Chesapeake Bay watershed jurisdictions not only with respect to pollution control, but also habitat restoration and conservation, improving fisheries, increasing public access, and environmental literacy (source).

 Despite its participation in these agreements and its consequent legal obligations under the CWA, Virginia has pushed back the deadline to meet the TMDL once more with SB1129, this time from 2025 to 2028. Although SB1129 outlines the importance of considering both point source and nonpoint source pollutants, and emphasizes adhering to agricultural commitments (like fence installation to keep cattle away from streams), it does not address the dire need for better water quality standards that contain numeric metrics for assessing nutrient loads. According to the Clean Water Act (CWA) section 304(a), the “ EPA shall develop and publish criteria for water quality that accurately reflect the latest scientific knowledge” (source). This includes but is not limited to developing numeric criteria in addition to narrative criteria for pollutants. 

Numeric criteria are defined by specific numeric limits given for each pollutant; often, narrative (or descriptive) criteria are substituted in the absence of numeric criteria. Relative to narrative criteria, numeric criteria provides an objective and enforceable metric for water quality. Additionally, numeric criteria is more easily implementable for monitoring, assessing, and listing impaired waters, determining pollutant limits, and remediation (source). From 2000-2001, the EPA published nutrient criteria recommendations for various ecoregions, using ambient monitoring data, which ultimately can serve to help states publish nutrient criteria (source). 

Although the decades-long effort to clean up the Bay continues, progress has remained painstakingly slow in part due to problems with progress reporting and poor water quality standards. Senate Bill SB1129 illustrates a dire need to begin effectively implementing the WIP, and establishing better water quality standards immediately in order to meet the new 2028 goal. 

Virginia Continues to Push off Responsibilities in the Chesapeake Bay 

Inadequate cleanup measures perpetuated by the state of Virginia –including a lack of water quality standards for nutrient pollutants in the Bay–ultimately led to the recently passed Senate Bill SB1129. SB1129 extended the contingency effective date for the Watershed Implementation Plan (WIP) in Virginia from July 1, 2026 to July 1, 2028. The altered date considers both point and nonpoint source pollution reduction commitments, outside of agricultural Best Management Practices (BMPs) when determining if goals for the Virginia WIP have been satisfied (source).  Although Virginia’s Phase III WIP included new considerations for climate change, measures for extending Best Management Practice (BMP) lifespans, and new agricultural BMPs, the Phase III WIP fell short in establishing a need for better water quality standards. 

Together, Virginia, Maryland, and Pennsylvania account for approximately 90% of the pollution entering the Chesapeake Bay. Virginia thus has a significant responsibility in lowering its pollution emissions in the Bay. Virginia’s historical addressal of Bay agreements has set an unfortunate precedent of side-lining important pollution control measures. Virginia continues to struggle in reducing pollution from urban and suburban stormwater runoff, as well as agricultural pollution which consists largely of nutrient pollutants. In order to meet the TMDL, water quality standards and numeric criteria that address some of the most potent pollutants entering the Bay, namely nitrogen and phosphorus, must be set. Excessive nutrients cause a process called eutrophication, which leads to low levels of dissolved oxygen in water, and can thus lead to the formation of ”dead zones”, where algae and seagrasses die (source). Dead zones can affect local and state-wide economies, human health, and more. Although most states in the Bay also lack numeric criteria for nutrient pollutants, West Virginia has set statewide phosphorous criteria for lakes and reservoirs. Other U.S states like Florida contain more comprehensive numeric criteria for nutrient pollutants, which has set statewide nitrogen and phosphorous numeric criteria for lakes, reservoirs, rivers, streams, and estuaries (source). Virginia can easily refer to the existing frameworks that other states possess for these pollutants to assist in setting its own numeric criteria. 

            While specific limits were set by the TMDL, Virginia has not implemented these limits. This is in part due to Virginia’s deficient water quality standards, which rely solely on narrative criteria (descriptions of water) for nutrient loads, and do not have numeric criteria for nutrients like nitrogen or phosphorus . 

Virginia Must Take Immediate Action to Develop, Implement, and Enforce Numeric Criteria for Nutrients To Ensure it Can Meet the Now 2028 Deadline for Bay Cleanup Goals

If Virginia hopes to clean up its waters and the Bay by 2028, it must accelerate the adoption of water quality standards that include numeric criteria for nutrients, specifically nitrogen and phosphorus. First, a measurable metric in the form of numeric criteria for determining nutrient pollutant levels in Virginia’s portion of the Chesapeake Bay Watershed informs the Commonwealth whether the TMDL is actually being adhered to. Numeric criteria provides an objective standard for water quality violations. Second, numeric criteria for nutrients would help address a significant source of nutrient pollution in the Bay: agricultural runoff. Agricultural runoff is responsible for 40% of nitrogen and 50% of phosphorus pollution in the Bay (source). It is thus imperative that Virginia develops an objective, measurable standard for nutrient pollutants in order to reduce these pollution loads. Moreover, this is a reasonable solution to the pollution problem because other states have proved that it is possible to develop, implement, and enforce numeric criteria for nitrogen and phosphorus. The EPA has also published recommendations for nutrient criteria, which can inform how states set numeric standards for various ecoregions (source). Virginia can easily refer to these frameworks for nutrient pollutants in formulating its own numeric standards. For these reasons, Virginia can and should take immediate action on numeric criteria for nutrients in order to meet its Chesapeake Bay TMDL clean up goals by 2028. 

Wild Virginia has worked tirelessly to push Virginia’s DEQ to adopt better water quality standards, and remains committed to this goal. In order to ensure that the Chesapeake Bay TMDL clean up goals are met by 2028, we must continue to push for the adoption of numeric nutrient criteria. Critically, these numeric standards will help address the most salient pollutants in the Chesapeake Bay. Supporting our work at Wild Virginia means supporting clean-up in the Bay, and creating safer, cleaner waters for us all.