What watershed improvements, maximum daily loads and septic tanks have to do with smart growth

Although anybody who has traveled Europe can attest that countries with much denser population than the US somehow seem to be able to maintain pristine open spaces right around their metro areas (just drive out of Paris and find pastures and farms instead of endless commercial strips and McMansions), it has become a widely believed truth that the same is impossible here. Maybe because of our local land use powers, our property rights, our love of freedom or whatever other insurmountable reason possibly derived from US "exceptionalism"?

So if planning cannot stop the wasteful consumption (Maryland used up more land in the last 30 years than in 300 years before) and the associated degradation of our lands near big and sometimes small cities, what can? Not surprisingly, lawsuits can. And also not surprising, land use and environmental protection are closely connected. While land use control in the US has historically been weak, fragmented and local, environmental protection got teeth and became a federal affair with the Clean Air Act and the Clean Water Act of 1972.

And should the federal government be disinclined to enforce its own laws, it can be sued in court.  In 2000 the  American Canoe Association and the Sierra Club sued the United States Environmental Protection Agency for non enforcement of its own Clean Water Act. In the wake of this landmark case many more lawsuits against EPA followed resulting in consent decrees and executive orders for endangered waters around the nation often involving the development of watershed plans with "Total Daily Maximum nutrient Loads" (TDML).

The endangered water relevant to Pennsylvania, Maryland, the District of Columbia and Virginia is, of course, the Chesapeake Bay, the nation's largest natural estuary (more information on the Bay see below this article). The Chesapeake Bay Foundation and others filed a lawsuit against EPA in January 2009. In May 2009 the Obama Administration followed up with an Administrative Order regarding the Bay clean up. 

The short of the EPA decree is that all States and jurisdictions in The Bay watershed are now legally required to first develop plans (Phase I) how to achieve the TDML targets and then have these plans followed by specific implementation strategies (Phase II) and be done with implementation by 2025.
With land use power being local,  the states passed the requirements on to the locals and each city and county has to come up with its own plans. The Bay TDML strategy includes Watershed Implementation Plans (WIP) with specific milestones. Maryland developed the BayStat method for keeping tabs on the progress of the plans. The terms TDML and WIP are only slowly seeping into general consciousness. Translated into local action they mostly mean that run-off needs to be reduced and it needs to be cleaner. Run-off reduction comes from making the land "more spongy", mostly through reducing pavement and increase of perviousness. it is clear that this requires hundreds if not thousands of small steps in each County. Cleanliness includes many things, especially nutrient  and pollutant run-off from farms and industry.  It also includes the elimination of sewage seepage as it is common in old urban sewage system. DC, which has in many areas still a combined sewer and stormwater piping system, isn't even trying to fix all the old leaky pipes but builds huge deep tunnels under the pipes to catch the spills. All told, the watershed improvement plans will cost billions to implement.

Although the two year milestone framework promised tight oversight from EPA and little wiggle room for politics, the Phase II WIPs have run already into full fledged wrangling over data, methods and modelling resulting in delays and very divergent compliance of the different counties. One reason for the delays was that in August 2011 EPA provided new load targets based on new Bay models which forced local implementation strategists to go back to the drawing board right around the deadline for phase II. For an assessment what Counties have done to date see this press release from the Choose Clean Water action coalition.

From the Septic Commission

But the O'Malley administration went a step further. It considered the significant impacts that failing and aging septic systems have on the nutrient loads (the chief culprit nutrient is nitrogen) and considered strictly curtailing those systems.

With one fell swoop sprawl would be nibbed in the butt. At least the sprawl from residential subdivisions, one of the main engines of sprawl. Those large lot developments far away from water and sewer systems where each lot digs a hole for a sewer tank with an overflow, euphemistically called a septic field. This medieval technique probably worked alright for the original settlers but it wouldn't work in a time when in 30 years we have developed more land than in the three hundred years before (Maryland).

However, this big strike against septic systems came as a big surprise even to environmentalists when Governor O'Malley proposed it first in 2011. Instantly all kinds of interests rallied against this idea anticipating how effective it might be on the land use side. One senator even created his own website just to propagate his understanding of O'Malley's actions as "war on rural America". The idea was delegated to "summer study" and a committee chaired by Delegate Maggie McIntosh (Task Force on Sustainable Growth and Wastewater Disposal) was created to study it further. The Task Force issued its report in December 2011 which suggested a tiered approach depending on what land is at issue and requires "best available technology" septic systems (which can remove nitrogen) for all new construction in Bay watersheds. The report also includes funding mechanisms that determine how Bay restoration Funds would be distributed to local governments. However, although the report there is lots of movement in Annapolis towards how the bill would come back for this year's legislative session and one can predict that the fight will continue in full force.

No ideological argument will lead around the fact that Maryland and its jurisdictions in the Chesapeake watershed need to comply with the EPA decree and meet the nutrient load targets. One way or another. That order might do more for a smarter use of our lands than all other smart growth legislation combined. It would be worth a discussion why we do the right thing only by edict from above rather than as the result of resolve, enlightenment and foresight.

Another water related topic is the scarecity of water, both in the US and worldwide. For this see this excellent link at Atlantic Cities, "Americas soon to be waterless cities"
from Bay Barometer, March 2009:


Update 1/26/12:

In December 2011, the preliminary draft of Maryland’s Phase II Watershed Implementation Plan (WIP) was provided to the Environment Protection Agency (EPA) to review the draft and confirm that the proposed strategies would meet the Bay TMDL (Total Maximum Daily Load) goals. Based on comments from EPA, the draft of Maryland’s WIP was released for public review and comment  on January 26, 2012. Draft documents are available for review at http://www.mde.state.md.us/programs/Water/TMDL/TMDLImplementation/Pages/DRAFT_PhaseII_WIPDocument_Main.aspx .

The public review and comment period is open from January 26, 2012 through March 9, 2012.

About  the Chesapeake  Bay

The Chesapeake Bay is an estuary, a body of water where fresh and salt water mix. It is the largest estuary in the United States and the third largest in the world. The Bay is about 200 miles long, stretching from Havre de Grace, Maryland, to Virginia Beach, Virginia. The Bay’s

width ranges from 3.4 miles near Aberdeen, Maryland, to 35 miles near the mouth of the Potomac River. The Bay holds more than 15 trillion gallons of water. The Bay is surprisingly shallow. Its average depth, including all tidal tributaries, is about 21 feet. A person who is six feet tall could wade through more than 700,000 acres of the Bay and never get his or her hat wet. A few deep troughs running along much of the Bay’s length reach up to 174 feet in depth. These troughs are remnants of the ancient Susquehanna River. The Bay and its tidal

tributaries have 11,684 miles of shoreline – more than the entire U.S. West Coast. The surface area of the Bay and its tidal tributaries is 125 billion square feet, or around 4,480 square miles. The Bay supports more than 3,600 species of plants, fish and other animals,

including 348 species of finfish, 173 species of shellfish and more than 2,700 plant species. The Chesapeake is home to 29 species of waterfowl and is a major resting ground along the Atlantic Flyway. Every year, about 1 million waterfowl winter in the Bay region. The Bay produces about 500 million pounds of seafood per year.

 A b o u t T h e C h e s ape a k e Bay W at e r s h e d

About half the water in the Chesapeake Bay is from the Atlantic Ocean. The rest drains into the Bay from an enormous 64,000-square-mile watershed. The Chesapeake Bay watershed includes parts of six states – Delaware, Maryland, New York, Pennsylvania, Virginia and West

Virginia – and the entire District of Columbia. The Chesapeake’s land-to-water ratio is 14:1, the highest of any coastal water body in the world.

The Bay watershed is home to almost 17 million people. About 150,000 people move to the area each year. Experts predict that the population will increase to nearly 20 million by 2030. Everyone in the watershed lives just a few minutes from one of the 100,000 streams and rivers

that drain into the Bay. Each of these waterways is a pipeline from communities to the Bay. Of the 50 largest tributaries that flow into the Bay, just three deliver about 80 percent of Bay’s fresh water: the Susquehanna River (48 percent), the Potomac River (19 percent) and the James

River (14 percent). During the 1600s, 95 percent of the watershed was forested. Now about 58 percent is forest. The rest of the land has been developed for other uses, such as agriculture and urban and suburban lands.

From the EPA webpage:

Q. What action has EPA taken?
A. On December 29, 2010, the U.S. Environmental Protection Agency established the Chesapeake Bay Total Maximum Daily Load (TMDL), a historic and comprehensive “pollution diet” with rigorous accountability measures to initiate sweeping actions to restore clean water in the Chesapeake Bay and the region’s streams, creeks and rivers.
Q. What is a TMDL?
A. The Clean Water Act (CWA) sets an overarching environmental goal that all waters in the United States be “fishable” and “swimmable.” More specifically it requires states and the District of Columbia to establish appropriate uses for their waters and adopt water quality standards that are protective of those uses. The CWA also requires that every two years jurisdictions develop – with EPA approval – a list of waterways that are impaired by pollutants and do not meet water quality standards. For those waterways identified on the impaired list, a TMDL must be developed. A TMDL is essentially a “pollution diet” that identifies the maximum amount of a pollutant the waterway can receive and still meet water quality standards.

Q. What are the primary elements of a TMDL?
A. The primary elements of a TMDL are “wasteload allocations” for “point sources” like sewage treatment plants, urban stormwater systems and large animal feeding operations, and “load allocations” for “non point sources” such as runoff from agricultural lands and nonregulated stormwater from urban and suburban lands. There is also a margin of safety built in.
Q. Why is a TMDL being developed for the Chesapeake Bay and its tidal tributaries?
A. Despite extensive restoration efforts during the last 25 years, the Bay TMDL was prompted by insufficient progress and continued poor water quality in the Chesapeake Bay and its tidal tributaries. The TMDL is required under the federal Clean Water Act and responds to consent decrees in Virginia and the District of Columbia from the late 1990s. It is also a keystone commitment of a federal strategy to meet President Obama’s Executive Order 13508 to restore and protect the Bay.
Q. What are some of the features of the Bay TMDL?
A. More than 40,000 TMDLs have been completed across the United States, but the Chesapeake Bay TMDL will be the largest and most complex thus far – it is designed to achieve significant reductions in nitrogen, phosphorus and sediment pollution throughout a 64,000-square-mile watershed that includes the District of Columbia and large sections of six states. The TMDL is actually a combination of 92 smaller TMDLs for individual Chesapeake Bay tidal segments and includes pollution limits that are sufficient to meet state water quality standards for dissolved oxygen, water clarity, underwater Bay grasses and chlorophyll-a, an indicator of algae levels.
Q. How are the pollution limits set and what are those limits?
A. The TMDL sets pollution limits necessary to meet applicable water quality standards in the Bay and its tidal rivers. Specifically, 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. That represents a 25 percent reduction in nitrogen, 24 percent reduction in phosphorus and 20 percent reduction in sediment. These pollution limits are further divided by jurisdiction and major river basin based on state-of-the-art modeling tools, extensive monitoring data, peer-reviewed science, and close interaction with jurisdiction partners.
Q. How are the Bay and its tidal tributaries impaired?
A. Most of the Chesapeake Bay and its tidal waters are listed as impaired because of excess nitrogen, phosphorus and sediment. These pollutants cause algae blooms that consume oxygen and create “dead zones” where fish and shellfish cannot survive, block sunlight that is needed for underwater Bay grasses, and smother aquatic life on the bottom.
Q. What are the sources of pollution?
A. The high levels of nitrogen, phosphorus and sediment enter the water from a variety of sources, including agricultural operations, urban and suburban runoff, wastewater facilities, onsite septic systems, air pollution, and other sources.
Q. How is Chesapeake Bay water quality impacted by actions on the land?
A. The Bay watershed is 16 times the size of the Bay, a ratio much higher than any other comparable watershed in the world. That characteristic makes the Bay highly susceptible to actions taken on the land, including those associated with agriculture, development, transportation and wastewater treatment.
Q. How long has the Bay TMDL process been underway?
A. Since 2000, the seven jurisdictions in the Chesapeake Bay watershed (Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia) EPA, and the Chesapeake Bay Commission, which are partners in the Chesapeake Bay Program, have been planning for a Chesapeake Bay TMDL. Since September 2005, the seven jurisdictions have been actively involved in decision-making to develop the TMDL. During the October 2007 meeting of the Chesapeake Bay Program’s Principals’ Staff Committee, the Bay watershed jurisdictions and EPA agreed that EPA would establish the multi-state TMDL. Since 2008, EPA has sent official letters to the jurisdictions detailing all facets of the TMDL, including: nitrogen, phosphorus and sediment allocations, schedules for developing the TMDL and pollution reduction plans; EPA’s expectations and evaluation criteria for jurisdiction plans to meet the TMDL pollution limits; reasonable assurance for controlling non point source pollution; and backstop actions that EPA could take to ensure progress.
Q. When does the TMDL anticipate the Bay will be restored?
A. The TMDL is designed to ensure that all pollution control measures needed to fully restore the Bay and its tidal rivers are in place by 2025, with at least 60 percent of the actions completed by 2017. While it will take years after 2025 for the Bay and its tributaries to fully heal, EPA expects some areas of the Bay will recover before others and there will be gradual and continued improvement in water quality as controls are put in place around the watershed.
Q. How is the Bay TMDL connected to the Presidential Executive Order to protect and restore the Chesapeake Bay?
A. President Obama issued Executive Order 13508 on May 12, 2009, which directed the federal government to lead a renewed effort to restore and protect the Chesapeake Bay and its watershed. The Chesapeake Bay TMDL is a keystone commitment in the strategy developed by federal agencies to meet the President’s Executive Order.
Q. Will the Bay TMDL have benefits for waterways throughout the watershed?
A. The pollution controls employed to meet the TMDL will have significant benefits for water quality in the tens of thousands of streams, creeks and rivers throughout the region, improving waterways that support local economies and livelihoods, and are used for fishing, swimming, boating, and often as a source of drinking water.
Q. There have been many TMDLs written in the Chesapeake Bay watershed. How do they relate to this Bay TMDL?
A. Previously-approved TMDLs were established to protect local waters.  While some were based on reducing nitrogen, phosphorus, and sediment, many were for other pollutants.  In contrast, the Bay TMDL is based on protecting the Bay and its tidal waters from excessive nitrogen, phosphorus, and sediment.  For waters that have both local TMDLs and Bay TMDLs for nitrogen, phosphorus, and sediment, the more stringent of the TMDLs will apply.
Q.What is the Chesapeake Bay Program?
A. The Chesapeake Bay Program includes the signers of the original 1983 Chesapeake Bay Agreement – the jurisdictions of Maryland, Virginia, Pennsylvania, and the District of Columbia; EPA, representing the federal government; and the Chesapeake Bay Commission, representing Bay jurisdiction legislators. It also includes the U.S. Department of Agriculture and the headwater jurisdictions of Delaware, New York and West Virginia. The Program is led by the Chesapeake Executive Council, which includes the EPA Administrator, the governors of Maryland, Pennsylvania and Virginia, the mayor of the District of Columbia, and the chair of the Chesapeake Bay Commission. The Principals’ Staff Committee, which includes the EPA Region 3 Administrator, state secretaries and others, serves as an advisory body to the Executive Council.
Q. How large is the Chesapeake Bay? How big is the watershed that drains into it? How many people live within the watershed?
A. The Bay itself is about 200 miles long, home to more than 3,700 species of plants, fish and other animals. The Bay watershed totals about 64,000 square miles, covering parts of six states and the District of Columbia. It stretches from Cooperstown, New York, to Norfolk, Virginia. Nearly 17 million people live in the watershed, and the population is growing by more than 130,000 each year.