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Virginia and the Clean Water Act

Statement of the Issue

While the Clean Water Act establishes the states as the primary guardians of America’s streams and rivers, it also provides for multi-state collaboration to restore our largest waterways. For example, the water (and pollution) in the Chesapeake Bay comes from six states and the District of Columbia; all of that water will eventually flow through Virginia on its way to the Atlantic Ocean. A succession of Virginia governors has recognized that a multilateral approach is the best way to protect Virginia’s multibillion-dollar fishing and tourism industries.

The precedent setting “pollution diet” (or Total Maximum Daily Load) for the Chesapeake Bay is the latest phase in this multilateral approach. This regional pollution diet is to be made up of state-based plans. Virginia was charged with developing its own cleanup plan to manage our own pollution levels, just as the other jurisdictions are in charge of their own plans. Each state Watershed Implementation Plan (WIP) details enforcement provisions, and other programs that will need to be maintained, developed, or enhanced to protect and restore rivers.

This plan is a road map for the pollution reductions that Virginia has agreed to achieve. Success now hinges on Virginia’s lawmakers and regulators, who must provide the funding and enforcement necessary to follow the map and execute the plan.

Background

In 1972, the U.S. Congress passed the Clean Water Act with a wide margin of support. The law established state-administered permits as a means of controlling the pollution then choking America’s waterways. These state permitting programs were predicated on attaining water quality standards set by the states themselves. States like Virginia went after the biggest polluters first, greatly reducing the pollution being dumped into rivers by requiring that industrial facilities use the “best available technology.” The Clean Water Act’s technology-based limits established a level playing field for industry.

However, by 1983, when the bill had envisioned all rivers would be fit for human recreation, many of America’s waters were still not “fishable and swimmable.” That same year, the Environmental Protection Agency released a congressionally-commission report titled Chesapeake Bay: A Framework for Action. The report identified nitrogen and phosphorus as the primary pollutants in the Chesapeake river system, citing polluted runoff from farms and cities in addition to wastewater treatment. The Chesapeake Bay Agreement of 1983 was signed later that year, establishing the state-federal Chesapeake Bay Program.

The Clean Water Act was amended again in 1987 to address the lingering cause of dirty rivers nationwide: polluted runoff. The state-administered permit system was expanded to include stormwater from cities and industrial sites. That same year, Chesapeake region governors signed the 1987 Chesapeake Bay Agreement, which included specific quantitative goals and commitments to reduce nutrient pollution to the Chesapeake by 40% by 2000.

When it became clear that efforts would fall short, the American Canoe Association and American Littoral Society filled a lawsuit which alleged that Virginia had done too little to assess waterways and set pollution limits thus the federal EPA was compelled to intervene. An impaired-waters list was prepared, and the lawsuit was settled with a consent agreement in the Federal Eastern District of Virginia in 1999. Under the terms of the agreement, Virginia was to complete a Total Maximum Daily Load (TMDL) for the impaired rivers by May 1, 2010.

The Clean Water Act established the TMDL as means whereby states determine how much pollutiona river can safely tolerate. After setting science-based “maximum loads,” states can adjust permits accordingly and communities can develop plans to address non-permitted runoff pollution. These Watershed Implementation Plans (WIPs) are critical to any TMDL because they raise community awareness, inform local land use and code enforcement, and help nonprofits and local governments attain funds for projects that reduce runoff pollution.

The 2010 TMDL deadline was foremost in the minds of Virginia’s leaders when the time came to renew the multistate-federal restoration compact. The Chesapeake 2000 agreement, signed in June of 2000, established the goal of removing Chesapeake Bay from the impaired waters list by 2010. Pursuant to this goal, Virginia drafted Tributary Strategies, which detailed the steps needed to restore major rivers such as the Shenandoah, Rappahannock, York and James. The state made significant progress on some goals. However, the amount of polluted runoff from developed land continued to increase over the decade.

In 2008, administration representatives from all six watershed states and the District of Columbia as well as state lawmakers formally requested that EPA accelerate the Chesapeake TMDL to take effect no later than December 31, 2010. A lawsuit brought by Chesapeake Bay Foundation subsequently yielded a federal court consent decree that bound the agency to completing the TMDL no later than May 1, 2011.

The Chesapeake Bay Program was tasked with developing pollution limits for each river in the system, and it was left to states to develop companion WIPs. Virginia completed the first phase of its WIP in November of 2010. To achieve the needed pollution reductions, the WIP outlines several programmatic needs and strategies for major sources of pollution including wastewater, stormwater, and agriculture. Many of these, like expansion of the nutrient credit exchange program, will require significant policy changes and financial commitments.

Success will also require the full participation of local governments, who oversee land use, building codes, stream buffer ordinances and water utilities. With that in mind, the state and EPA invited local governments to participate in the second phase of implementation planning. In 2011, local governments and planning district commissions catalogued existing land cover, stormwater best management practices, on-site septic systems, and other relevant information. They developed custom strategies to reduce pollution, tailored to local conditions, regional economies and citizen priorities such as stream restoration and greenway development. Phase two is scheduled for completion in the spring of 2012.

Recommendations

Unfortunately, our waters are suffering the cumulative effects of pollution from lawns, farms, and cities. Polluted runoff carries animal waste and bacteria into streams. It erodes stream banks, degrading habitats and increasing the risk of flooding.

The TMDL for the Chesapeake Bay represents an unparalleled opportunity to apply the lessons of past successes to the lingering problems of polluted runoff and aging infrastructure. By approaching the process with resolve, Virginia can achieve the fishable, swimmable rivers envisioned by the Clean Water Act. It is incumbent upon state lawmakers to make it a priority by:

· Allocating sufficient funding to agricultural best management practices. This allocation must be sufficient to meet the funds needed to pay for the practices Virginia has agreed to implement in its WIP each year. In 2012 this is estimated to be roughly $40 million.

· Providing $10 million in financial assistance for local stormwater planning and pilot projects.

· Assisting localities with wastewater treatment plant upgrades with $300 million in bond authority.

These pollution-reducing activities are critical to restoring the value of our rivers.

• vcn@vcnva.org
• 804.644.0283