By Sarah Everhart
The article is not a substitute for legal advice. See here for the site’s reposting policy.
The comment period for the third and final phase of the Chesapeake Bay Watershed Implementation Plan (WIP III) closes on June 7, 2019. Each Bay jurisdiction (Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia) has created two previous WIPs that have been submitted to to the U.S. Environmental Protection Agency (EPA) in 2010 and 2012, respectively. The WIPs describe actions and controls, broken down by sector, to be implemented by each state to achieve applicable Bay water quality standards. Maryland’s Phase III WIP is the State’s plan to meet nitrogen, phosphorus, and sediment targets established by the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) by 2025. For a more in-depth explanation of the Bay TMDL, check out this past post.
In 2011, American Farm Bureau Federation (AFBF) and other plaintiffs filed a case in federal court challenging the EPA’s establishment of the Bay TMDL. The Plaintiffs asked the court to vacate the Bay TMDL based on arguments, including but not limited to, that the EPA had exceeded its authority granted under Clean Water Act and violated Administrative Procedures Act in the process of developing the Bay TMDL. In the years that followed, both the District (Am. Farm Bureau Fed’n v. EPA, 984 F. Supp. 2d 289 (M.D. Pa. 2013)) and Third Circuit Court of Appeals (Am. Farm Bureau Fed’n. v. EPA, 792 F.3d 281 (3d Cir. 2015)) found that the Bay TMDL and the framework established by the Chesapeake Bay Program Partnership in developing the cleanup plan was “consistent with” the Clean Water Act and other applicable federal laws.
The Bay TMDL differs from previous voluntary agreements among the Bay jurisdictions in that it has an accountability framework. WIPS are apart of the accountability framework along with EPA’s tracking and assessment of the restoration progress. If a jurisdiction does not meet the restoration commitments outlined in the WIPs the EPA may reduce or condition federal grants, establish substantially more stringent terms and conditions on permits and/or expand regulation over previously unregulated sectors.
As depicted above, Maryland’s 2025 pollution reduction targets for Bay restoration are 45.8 million pounds total nitrogen (TN) and 3.68 million pounds of total phosphorus (TP). In meeting the targets, the state will also meet its sediment goals. Maryland’s success in meeting its restoration targets is driven by implementing key pollution reduction strategies among major source sectors, which include wastewater, stormwater, septic, natural lands and agriculture.
Last year, the Maryland Department of Agriculture held regional meetings across the State to formulate how the agriculture sector should plan to meet the Phase III WIP goals. To the meet the goals in the Phase III WIP the agricultural sector will need to add best management practices. The major best management practice categories in the Phase III WIP, in addition to maintaining the current enrollment level in the State cover crop, are as follows: Soil and Water Conservation Plans covering an additional 100,000 acres, 20,000 additional tons to the manure transport program, add additional grass (4,440 acres), riparian (1,200 acres) and wetland (4,100 acres) buffers, 18,500 acres of agricultural drainage management, convert cropland to (2,500 acres) pasture and (5,200 acres) open space and maintaining current levels of the State cover crop program.
For a full explanation of all of the steps the agricultural and other sectors will need to take to meet the 2025 clean up goals, review the draft Phase III WIP. To comment on the Phase III WIP, submit comments online here on or before June 7, 2019.