PA's Dismal TMDL Report: An Opportunity for Change

We recently explored how Virginia’s progress toward meeting the 2017 interim goal for the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) is mostly the product of decades’ old financial commitments.  So, we might hope to see much of the same from Pennsylvania, a fellow member of the Chesapeake Bay Commission since 1985.  Unfortunately, despite decades of participation in the various agreements to clean the Bay, Pennsylvania’s lack of progress is the single biggest reason to worry about the future health of the Chesapeake.

Although no part of Pennsylvania borders the Chesapeake, much of the state is in the Bay watershed. Its agriculture sector alone contributes more than one-quarter of all nitrogen pollution in the watershed.  Put another way, this one sector contributes more nitrogen than the entire Commonwealth of Virginia, or more than every sector in Delaware, the District of Columbia, Maryland, and West Virginia combined.  That’s why the single most discouraging fact facing policymakers, regulators, and advocates in the Bay is that nitrogen from the agriculture sector in Pennsylvania has actually increased by about 4 percent between 2009 and 2014 according to the most recent data from the Chesapeake Bay Program’s Model, whereas the goal is to reduce such pollution by about 26 percent by 2017. 

Combing through the data for silver linings is no easy chore.  Nitrogen loads have also increased from urban runoff and septic systems.  Given that the Bay Model indicates that nearly every jurisdiction in the watershed has already far exceeded the 2017 interim phosphorus goal three years ahead of schedule, it is concerning that Pennsylvania lags all jurisdictions in phosphorus reductions.  The Commonwealth can count only New York among its peers in not yet meeting the 2017 goal.  The lone bit of positive model data for the Commonwealth is that, like most other jurisdictions, it has achieved significant nutrient reductions from wastewater, and has exceeded its 2017 goal for that sector through 2014.

What is supposed to make the Bay TMDL different than previous efforts to restore the Bay is that this time, we are finally supposed to have an enforceable framework.  Not only is the U.S. Environmental Protection Agency (EPA) supposed to be utilizing its existing enforcement and compliance tools, but the states are responsible for continually submitting implementation plans and “milestone” progress reports.  Because of Pennsylvania’s poor showing, it is now well beyond the time to test out the enforceability of this framework.  The Commonwealth must be held accountable for continually and substantially exceeding the limits EPA has set out for it.

To date, EPA has established a system of enforcement tracking, in which it releases progress assessments of each sector within each state, labelling progress as “ongoing oversight,” “enhanced oversight,” or “backstop actions.”  Unfortunately, several sectors have been downgraded to that lowest “backstop action” status, but without significant consequence. Instead, it seems as though EPA has created yet another level of nonattainment.  Last year, EPA downgraded Pennsylvania’s stormwater sector from “enhanced oversight” to the “backstop actions” level, and when the situation failed to improve, instead of taking clear and significant enforcement actions, EPA simply decided to maintain the Commonwealth’s backstop status. 

Enough is enough.  And this is essentially the message that was recently sent in separate letters by several Maryland State legislators and by Senators Cardin of Maryland and Casey of Pennsylvania, as well as the warning given by the Pennsylvania Department of the Auditor General.  This may also be the message that seems to be finally emerging from EPA.  Just last week, EPA released its latest assessments of progress among watershed states toward meeting their latest milestones commitments.  Rather than the usual straightforward analyses of various sectors, programs, and practices, EPA’s assessment for Pennsylvania looked different, providing indications that, behind the scenes, it has begun to implement the initial stages of its enforcement strategy.  For example, the agency expects Pennsylvania to submit a number of additional reports on its basic capacity and resources to meet the TMDL, and stated that it has taken action to object to permits issued by Pennsylvania under EPA jurisdiction.

Thankfully, the Commonwealth has a rare opportunity at hand.  Not only does Pennsylvania’s Watershed Implementation Plan (WIP) rely disproportionately on reductions from its agriculture sector – the cheapest sector to address – but the Commonwealth is currently debating the imposition of a severance tax on its vast reserves of natural gas.  Even if we could successfully halt all fracking of new wells tomorrow, many billions of cubic feet of gas would continue to flow from the wells already drilled, generating potentially hundreds of millions of dollars in tax revenue.  Legislation is now sitting in the General Assembly that would dedicate a portion of this massive revenue stream to existing programs starved of the resources needed to achieve the pollution reductions in Pennsylvania’s portion of the Bay watershed, which the Commonwealth has been promising for decades.   Raising hundreds of millions of dollars in revenues is something most states cannot even dream of today.  But it is a potential reality for Pennsylvania, and just the sort of game changer that the Bay needs.

Editors’ Note:  This is the third in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL.  The first post can be read here.  Future posts will explore the progress of the remaining six jurisdictions.