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Phosphorus in the Chesapeake:

An Overview on Nutrient Pollution in the Chesapeake Bay
and Efforts to Limit Phosphorus Runoff in the Watershed

Kathleen Daley
Neil Saunders
1 May 2015

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IV. History of Chesapeake Bay Clean-Up Efforts

1.

Introduction
Efforts to address the declining water quality of the Chesapeake Bay date back

over 30 years. In the late-1970s, U.S. Senator Charles Mac Mathias (R. Md.), noticing
a rapid loss of wildlife and aquatic life in and around the Chesapeake Bay, sponsored a
$27 million five-year study to analyze why this was happening; the study found the main
cause to be excess nutrient pollution- nitrogen and phosphorus- and sediment flowing
into the Bay watershed. The results of the study sparked an increased focus on the
declining water quality of the Bay and its tributaries, involving huge levels of
commitment and resources to research and address where and how pollution was entering
the Bay. The Chesapeake Bay Program (CBP) was established in 1983 to oversee the
cleanup of the Bay along with the Environmental Protection Agency (EPA). Over the
next two decades, a series of voluntary agreements, known as the Chesapeake Bay
Agreements, were signed by the CBP along with the EPA and several of the Bay States
(also referred to as Bay Jurisdictions) to commit to restoring the Bay and its tributaries.
Despite the laudable goals established in these agreements, they achieved very
little in terms of tangible improvements to the Bay. As a result, lawsuits compelling the
Environmental Protection Agency (EPA) to take action, along with a 2009 presidential
Executive Order compelling additional federal agencies to do the same, have led to the
EPA issuing a regulatory document, called a Total Maximum Daily Load (TMDL) to
initiate a federally-led, watershed-wide effort to restore the Bay. Relying on authority
established under the Clean Water Act, the leading federal environmental statute to
regulate water pollution, the EPA is currently working in union with all seven Bay
Jurisdictions to coordinate the largest effort to date through the TMDL and individual
state Watershed Implementation Plans (WIP), with the goal to have all the necessary
practices in place by the year 2025 to restore the Bay.

2.

Chesapeake Bay Agreements

Beginning in 1983, as a result of the congressional study undertaken by Senator

Mathias, several of the Bay states (Maryland, Virginia, Pennsylvania, and the District of
Columbia) along with the Environmental Protection Agency and the Chesapeake Bay
Commission collaborated to write a series of agreements, known as the Chesapeake Bay
Agreements, to improve the water quality of the Bay. Their purpose was to acknowledge
the deteriorating water quality of the Bay and to signal a serious commitment to properly
address the issue.
The first of these agreements was a modest two-page document, which
established the Chesapeake Executive Council to assess and oversee the implementation
of coordinated plans to improve and protect the water quality and living resources of the
Chesapeake Bay estuarine systems.i The Council was charged with creating an
implementation committee of agency representatives which would meet as needed to
coordinate the development and evaluation of management plans. In 1987, a second
agreementii was signed to expand and refine the goals of the original agreement. Far more
specific than the first Bay agreement, the new agreement identified a number of goals and
objectives, as well as the commitments necessary to achieve them. The following goals
were listed in the 1987 Agreement:
-

to provide for the restoration and protection of the living resources in the Bay;
to reduce and control point and nonpoint sources of pollution;
to plan for and manage the adverse environmental effects of human population

growth and land development;

to promote greater public understanding of the Chesapeake Bay system and

increase public participation in decision-making;

to increase public appreciation and enjoyment of the Bay; to support and

enhance the coordinated approach toward management of the Bay; and

to provide for continual and perpetual management of the Bay watershed.iii

The Chesapeake Bay Commission was formed in 1980 by Maryland and Virginia to coordinate
interstate Bay restoration efforts. Pennsylvania joined the Commission in 1983.

The 1987 agreement also established, for the first time, a number of bay-wide
policies and strategies to meet the listed goals. This expanded scope reflected the
Councils recognition that the Bays importance transcends regional and state boundaries,
and the need to adopt a more harmonized policy framework. The most notable
commitment to emerge from this agreement was the commitment to reduce by 40% the
amount of nitrogen and phosphorus entering the Bay by the year 2000.
Despite these efforts, and despite marginal reductions in pollution entering the
Bay, it became clear that the target reductions would not be met on time. Thus, in 2000, a
third Chesapeake Bay Agreement was signed to recommit to the goals previously
established. Maintaining a similar structure to the 1987 Agreement, the 2000 version
included a new list of objectives and commitments to improve the water quality of the
Bay. Again, the most significant of these commitments was the commitment to maintain
the 40% reduction goal from the 1987 Agreement, and the new commitment to improve
the water quality of the Bay and its tributaries so that by the year 2010 they could be
removed from the list of impaired water bodiesiv under the Clean Water Act. By 2007,
however, it became clear that these goals again would not be achieved.

3.

Shortcomings of the Agreements

After nearly 30 years and three multi-state agreements, the water quality of the

Chesapeake Bay remains destitute. For a number of reasons, the efforts behind the
Chesapeake Bay Agreements have failed to achieve the tangible results necessary to
undue the harm caused from decades of pollution. First, these agreements were a set of
nonbinding, unenforceable goals, and not laws. However sincere or noble the signatories
to the agreements were, without a set of enforceable laws or regulations, the
commitments made in the Bay Agreements could easily be delayed or ignored, as they
have been. And without adequate accountability it is possible for problems or
shortcomings to be put aside. For example, the Chesapeake Bay Program (CBP), which
was formed in 1983, played a major role in creating and implementing the programs and
goals established in the Bay Agreements. Yet in 2005 a General Accounting Office
(GAO) report harshly criticized the CBP for its information gathering and reporting

methods, finding that the CBP downplayed negative trends in Bay water quality and
created confusion as to the actual health of the Bay. Subsequent reports revealed that the
CBP had not only fallen significantly short of its goals, but that program officials had also
concealed these failures in order to continue to receive federal and state funding.v
Second, scientific research over the years has shown that the challenges facing the
Bay are more complex than initially envisioned. Independent efforts to address pollution
reduction at the local level failed to result in improvements to the watershed as a whole.
Even efforts made at the major-basin level have fallen short. While much of this can be
contributed to a lack of sufficient resources and funding, it is clear that too many parts
moving independently of one another can often be counterproductive. Given the size of
the Bay watershed, and its transcendence of state lines, it is necessary to have an
adequate, centralized effort that takes into account all sources of pollution.
Third, the lack of sufficient political will makes it difficult to commit the
resources needed to achieve the desired results. The Bay watershed extends into six states
and the District of Columbia, but in four of those states (New York, Pennsylvania,
Delaware, West Virginia) less than half of the state sits on land that contributes to the
watershed. This makes it difficult for state officials to explain to their constituents the
need to commit state funds to address Bay pollution when many of those constituents live
outside the Bay watershed. Also, these states, while contributing significantly to the
pollution of the Bay, do not reap much in terms of its benefits, economic or otherwise.
Furthermore, many of the goals created through these voluntary agreements require
years-long commitments in order to see them through. This often leads to state officials
committing to projects that will not be completed until long after their terms have ended,
thereby allowing them to avoid public accountability during their time in office. The
recent events in Maryland surrounding the Phosphorus Management Tool are a telling
example.

4. Recent Developments
Finally, after over twenty years of ineffective action, changes have begun that
signal an opportunity for real results. In 2009, President Obama signed Executive Order
on Chesapeake Bay Protection and Restoration to address the perpetual inability to
improve the water quality of the Bay. Declaring the Bay to be a national treasure, the
Executive Order required the EPA and a number of other federal agencies to submit draft
reports to identify the recurring issues facing the Bay and to make recommendations on
how to effectively address those issues.
Also in 2009, former Maryland State Senator Bernard Fowler, the Chesapeake
Bay Foundation, Maryland and Virginia watermens associations, and others filed a
lawsuit to compelvi the EPA to write a TMDL for the Bay (explained below), which was
settled.vii In December 2010, the EPA responded to the Executive Order and lawsuit by
issuing the Chesapeake Bay Total Maximum Daily Load (Bay TMDL), a massive
regulatory framework of unprecedented scale to achieve improved water quality of the
Bay. Working with all six Bay States, the Bay TMDL represents the most detailed and
comprehensive effort, using the fullest extent of legal authority, to clean up the Bay.

Clean Water Act: Total Maximum Daily Loads and the Bay
TMDL
Overview of CWA TMDL Requirements
Similar to the Chesapeake Bay Agreements, the Bay TMDL sets goals to be

achieved by a specific date. By 2025 it is expected that all practices necessary to fully
restore the Bay and its tidal waters are in place, with at least 60 percent of the actions
taken by 2017.viii The Bay TMDL also requires the Bay States to create Watershed
Implementation Plans (WIPs) to detail specific strategies and programs that each state
will adopt to meet their pollution reduction targets, as well as to submit two-year
milestone updates to provide reasonable assurances that the states are on pace to reach
the 2017 and 2025 benchmarks. It is important to understand that the goal of the Bay
TMDL is not restore the Bay to a clean or healthy state by 2025, but to have the

technological methods and proper regulatory requirements in place to ensure that the Bay
will eventually be restored. As explained elsewhere in this writing, it may take years,
decades, or even longer to remedy some of the damage caused by excessive pollutants.
Despite some similarities to past methods to address water quality in the Bay, the Bay
TMDL differs from former efforts in its legal enforcement and its size and scope.
A TMDL is a calculation of the maximum amount of pollutants that a water body
can receive and still safely meet its water quality standards.ix Informally known as a
pollution diet, a TMDL works much like a human diet: instead of measuring calories
and other food contents that a human body can healthily consume, a TMDL measures
pollutants that a water body can absorb without becoming polluted. Using scientific
modeling, the TMDL measures the amount of pollutants entering the water body from all
contributing sources (both point sources, such as industrial sites and wastewater treatment
facilities, and nonpoint sources, such as runoff from farms, and urban and suburban
municipalities) and assigns limits (waste-load allocations for point sources and load
allocations for nonpoint sources) to each of the sources so that the aggregate amount of
pollutants, or loads, entering the water body does not exceed the maximum amount
allowed, and also includes a margin of safety. TMDLs can be written for individual
streams or rivers, or for entire watersheds, as in the case of the Bay TMDL.
The EPAs legal authority to issue a TMDL exists under the Clean Water Act.
Originally enacted in 1948 as the Federal Water Pollution Control Act, the Clean Water
Act, as it is known today, is the principal environmental statute to regulate water in the
United States. The goal of the Act is to restore and maintain the chemical, physical, and
biological integrity of the Nations waters. The Acts main characteristic is its bifurcated
administrative framework, which treats pollution separately depending on the pollutions
source. An extremely significant distinction is made between point source and non-point
source pollution. Point source pollution is pollution from any discernible source, such as
sewage treatment plants, or industrial facilities, and is defined under the Clean Water Act
as including, but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other
floating craft from which pollutants are or may be discharged.

Non-point source pollution, although not explicitly defined under the Act,
includes pollution from all other sources, including agricultural run-off, and other natural
sources. While the Clean Water Act grants the Environmental Protection Agency
authority to regulate point source pollution through a permitting program, it grants no
such authority over nonpoint source pollution. Instead, regulation over nonpoint source
pollution is mostly reserved for the states. This is not to say that the CWA is unconcerned
with nonpoint source pollution. Indeed, the text of the CWA states it is the national
policy that programsbe developed and implemented in an expeditious manner so as to
enable the goals of [the CWA] to be met through the control of both point source and
nonpoint source pollution. This division is primarily out of concerns for federalism i.e.
the balance of power created in the U.S. Constitution between federal and state
governments, but also reflects the strong lobbying efforts of farmers and the agriculture
industry.
From an environmentalist perspective, this legal distinction is far from ideal: the
results of the Clean Water Act have had serious consequences because of this important
distinction. Regulation of point source pollution has been largely successful since the
Clean Water Act, especially when compared to nonpoint source pollution.x This is
because the Act expressly prohibits the discharge of any pollutant from a point source.
The only way to lawfully add pollutants to a water body is to obtain a permit through one
of the Acts permitting programs. Conversely, the Clean Water Act contains no such
absolute prohibition on pollution from nonpoint sources. Instead, the Act relies on a
series of voluntary mechanisms to entice state and local governments to take steps to
reduce nonpoint source pollution. The first two programs are largely grant programs,
which offer federal funding to states that adopt nonpoint source pollution management
programs. The third is the TMDL program.
The trigger requirement for the Total Maximum Daily Load exists under section
303(d) of the Clean Water Act.xi One of the features of the Clean Water Act is that, while
the Act grants authority to the federal government to regulate the Nations watersxii, the
states may perform many of the requirements for their waters at their own initiative,
subject to federal (i.e. Environmental Protection Agency) approval. Section 303(d)
requires that the states assign for each of its waters a designated use. Once a section of

water is assigned a designated use, the states must develop a water quality standard
(WQS) that is necessary to support it. That is, the Clean Water Act does not require that
the Nations waters be clean or pure; rather it merely requires that the water quality
achieve the water quality standards that conform to the designated use of the water.
If the current water quality is insufficient to support that use, and effluent
technology limitations are insufficient, (that is, current technologies are incapable of
attaining the requisite water quality), the TMDL requirement is triggered. Again, each of
these requirements are subject to Environmental Protection Agency approval. Thus, if the
EPA finds that the states have failed to adequately write a TMDL, or fail to write one
altogether, the EPA may step in and enforce those requirements, as it has done in this case
with the Bay TMDL.
The Bay TMDL is the largest that the EPA has issued.xiii The TMDL, which
actually represents 92 smaller TMDLs, sets pollution limits for each of the Bay States
throughout the 64,000 sq. mi. watershed, and is supported by an accountability
framework to ensure that cleanup measures are enforced. The Bay TMDL requires
reasonable assurances that the nonpoint source pollution reductions (known as load
allocations in the TMDL) will be met.
A major component of the Bay TMDL accountability framework is the state
Watershed Implementation Plans (WIP). As part of the TMDL writing process, the EPA
worked with the Bay States to write draft WIPs to help formulate the allocations that
would eventually make up the Bay TMDL and provide an overarching roadmap for each
of the Bay States to achieve its pollutant reductions. The WIPs, which are to be submitted
in three phases over the course of the fifteen-year Bay TMDL process, outline the Bay
States strategies and short-term target goals and provide the reasonable assurances
required by the EPA that the states are doing all that is necessary to meet those goals.
Phase I and Phase II WIPs were submitted in 2010 and 2014, respectively; Phase III
WIPs are due in 2017 when the final phase of implementation will take effect and at least
60 percent of the reduction methods must be in place. The state WIPs are further
supplemented by two-year milestone updates to highlight the successes and failures of the
states in each of the main pollutant reduction categories. The EPA collects and evaluates

these two-year milestone updates and provides feedback to the states, emphasizing
highlights achieved and shortcomings that must be addressed in future updates.
The EPA has provided a list of potential actions it may take as part of its
accountability framework should the Bay States fail to develop or implement appropriate
WIPs:
-

First, the EPA may expand coverage of its National Pollutant Discharge
Elimination System (NPDES) permitting program, including expanding

federal overview of reviews of draft permits;

Second, the EPA may require stricter offset requirements wherever new
loadings are increased. Presently, the CWA requires increased discharges to be

offset elsewhere so that the net discharge is unchanged;

Third, the EPA may establish finer-scale allocations in its TMDL should the

Bay States fail to adequately write them in the Phase I WIPs;

Fourth, the EPA may require greater reductions in pollution from point

sources, including increased federal enforcement in the watershed;

Fifth, the EPA may withhold federal funding or condition it based on meeting

WIP load reductions;

Finally, the EPA may initiate federal water quality standards where the state
water quality standards do not contain criteria that protect designated uses
locally or downstream.xiv

The TMDL program is not without it shortcomings, however. Importantly, the

TMDL is not a means by which the EPA can enforce regulation over non-point source
pollution. A TMDL, rather, serves as an informational tool for the state governments to
follow. The EPA can choose to withhold federal funding or enforce stricter standards in
its permitting program for point source pollution, but has limited options for compelling
states to adopt federal standards over nonpoint source pollution. The TMDL program thus
requires a great deal of cooperation between federal and state governments if the TMDL
is to be successful.

i
Chapter IV Endnotes
CBP, 1983 Chesapeake Bay Agreement, http://www.chesapeakebay.net/content/publications/cbp_12512.pdf.

ii

CBP, 1987 Chesapeake Bay Agreement,

http://www.chesapeakebay.net/content/publications/cbp_12510.pdf.

iii

CBP, 1987 Chesapeake Bay Agreement.

iv

Under the Clean Water Act, if a water body fails to meet its water quality standard, it must be
added to the list of impaired waters.

David H. Fahrenthold, Broken Promises on the Bay, Washington Post, December 27, 2008.
http://www.washingtonpost.com/wp-dyn/content/article/2008/12/26/AR2008122601712.html.

vi

Several environmental statutes, including the CWA, include citizen-suit provisions, which
allow the public to sue the administrating government agency when it fails to perform a legal
duty to which it is obligated under the statute. Such duties are called nondiscretionary.

vii

Beveridge & Diamond, P.C. EPA Announces Federal Strategy for Chesapeake Bay and
Related Settlement Agreement in Fowler v. EPA. May 14, 2010. http://www.bdlaw.com/news874.html; CBF, Settlement Agreement, May 5, 2010, http://www.cbf.org/Document.Doc?id=512.

viii

EPA, Chesapeake Bay TMDL Executive Summary, December 29, 2010,

http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/FinalBayTMDL/BayTMDLExecutiveSummary
FINAL122910_final.pdf (page ES-6).

ix

EPA, What is a TMDL? Last modified September 11, 2013,

http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/overviewoftmdl.cfm#tmdlrequired .

William L. Andreen, Water Quality Today- Has the Clean Water Act Been a Success?
Alabama Law Review 538 (2003-2004), http://www.law.ua.edu/pubs/lrarticles/Volume%2055/Issue
%203/Andreen.pdf; Kyle W. Robisch, Getting to the (Non)Point: Private Governance as a
Solution Nonpoint Source Pollution, Vanderbilt Law Review 67 (2014): 539- 568,

http://www.vanderbiltlawreview.org/content/articles/2014/03/5-Robisch_67_Vand_L_Rev_539.pdf.

xi

The Clean Water Act was passed in 1972. The goal of the statute is to restore and maintain the
chemical, physical and biological integrity of the Nations waters.

xii

xiii

xiv

The EPA has issued over 40,000 TMDLs across the United States under the CWA.

http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/FinalBayTMDL/CBayFinalTMDLSection7_final.pdf

12).

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