The Next Generation of Tools and Actions

to Restore Water Quality in the Chesapeake Bay 

A Revised Report Fulfilling Section 202a of Executive Order 13508

November 24, 2009

U.S. Environmental Protection Agency
Disclaimer 

Disclaimer 

This document is the U.S. Environmental Protection Agency’s (EPA’s) revised report under 

Section 202a of Executive Order 13508 making recommendations to the Federal Leadership 

Committee (FLC) for the Chesapeake Bay for a strategy to define the next generation of tools 

and actions to restore water quality in the Chesapeake Bay and describe the changes to be made 

to regulations, programs, and policies to implement those actions. This revised document is 

published to supplement the FLC’s publication of a Draft Strategy for Protecting and Restoring 

the Chesapeake Bay (issued November 9, 2009). This revised report includes recommendations 

that may change as the FLC’s draft strategy is further refined based on public comments. This 

revised document is not a final agency action subject to judicial review; nor is it a rule. Nothing 

in this revised document is meant to, or in fact does, affect the substantive or legal rights of third 

parties or bind EPA. While this revised document reflects EPA’s current thinking regarding 

recommendations to protect and restore the Chesapeake Bay, EPA reserves the discretion to 

modify the recommendations included in the report as the Agency works with the FLC to refine 

the draft strategy, or act in a manner different from this report, as appropriate. 

Cover photo(s) courtesy of Jane Thomas/IAN, UMCES 

i 
Disclaimer 

ii 
Contents 

Contents 

Executive Summary ............................................................................................................................1

Introduction....................................................................................................................................... 6

Background .................................................................................................................................... 6

Importance of the Bay................................................................................................................ 6

History and Progress of Earlier Recovery Efforts ..................................................................... 6

Need for Further Action............................................................................................................. 7

Executive Order Directive for this Report and its Integration into a Coordinated Strategy 

for Protecting and Restoring the Bay ............................................................................................ 7

State Consultation and Outreach .................................................................................................. 9

The Water Quality Challenge: Nutrients and Sediment............................................................... 9

Agriculture................................................................................................................................ 10

Urban and Suburban Lands..................................................................................................... 10

Wastewater ............................................................................................................................... 10

Air Pollution ..............................................................................................................................11

Reducing Pollution....................................................................................................................11

Current Legal and Policy Framework...........................................................................................13

Ongoing Efforts to Develop a Bay TMDL for Nutrients and Sediment...................................13

Chesapeake Executive Council 2025 Goal and two-year Milestones ......................................15

CWA Section 117(g) ...................................................................................................................15

Part I: Creation of a New Accountability Framework to Guide State, Local, and Federal 

Efforts to Restore the Bay.......................................................................................................... 16

State Accountability ..................................................................................................................... 16

EPA (Federal) Accountability ......................................................................................................20

Part II: New Rulemakings and Actions........................................................................................... 21

Stormwater................................................................................................................................... 21

Background and Current Control Strategies........................................................................... 21

What EPA Could Do in the Chesapeake Bay Watershed ........................................................ 23

Concentrated Animal Feeding Operations (CAFOs) .................................................................. 25

Background on Animal Feeding Operations ........................................................................... 25

What EPA Could Do in the Chesapeake Bay Watershed ........................................................ 27

New or Expanded Discharges of Nutrient and/or Sediment Pollution .....................................28

EPA Actions under CWA Section 319 and CZARA Section 6217................................................ 29

Publicly Owned Treatment Works (POTWs)/ Industrial Wastewater Discharge Facilities .....30

Background on POTW/Industrial Wastewater Discharge Facilities......................................30

What EPA Could Do in the Chesapeake Bay Watershed ........................................................ 32

EPA Actions under the Clean Water State Revolving Fund (CWSRF) Program ....................... 33

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Contents 

iv 

Onsite (Septic) Systems ............................................................................................................... 33

Background on Onsite Systems and Current Control Strategies............................................ 33

What EPA Could Do in the Chesapeake Bay Watershed ........................................................ 34

Atmospheric Deposition of Nitrogen .......................................................................................... 35

Background on Atmospheric Deposition of Nitrogen............................................................. 35

What EPA Could Do in the Chesapeake Bay Watershed ........................................................38

EPA Action to Improve Compliance............................................................................................ 39

EPA Actions to Reduce Toxic Pollution in the Bay..................................................................... 41

Timing of EPA Actions................................................................................................................. 43

EPA Actions to Hold Itself Accountable...................................................................................... 43

Part III: Enhanced Partnership for a Healthy Waters—Thriving Agriculture Initiative ............ 44

Tables 

Table 1. Stormwater permittees by state and in the Chesapeake Bay watershed, summer 

2009 ................................................................................................................................. 23

Table 2. Estimated load reductions from retrofit programs in existing MS4 areas...................... 24

Table 3. Estimated changes in agricultural loadings to the bay..................................................... 25

Table 4. Wastewater treatment facilities reported by the bay jurisdictions..................................30

Table 5. Tributary strategy target discharge concentration for municipal wastewater 

treatment facilities by jurisdiction ...................................................................................31

Table 6. Onsite systems in the Chesapeake Bay watershed ........................................................... 33 

Figures 

Figure 1. Water quality (percent of pollution reduction goal met in 2008).................................... 9

Figure 2. Relative responsibility for pollution loads to the bay. .................................................... 10

Figure 3. The Chesapeake Bay airshed. ...........................................................................................11

Figure 4. Estimated nitrogen loads delivered to the Chesapeake Bay........................................... 12

Figure 5. Estimated phosphorus loads delivered to the Chesapeake Bay. .....................................13

Figure 6. The state accountability framework. ............................................................................... 19

Figure 7. Estimates of impervious surface and MS4 areas in the Chesapeake Bay watershed..... 23 
Abbreviations and Acronyms 

Abbreviations and Acronyms 

AFO animal feeding operation 

CAA Clean Air Act 

CAFO concentrated animal feeding operation 

CAIR Clean Air Interstate Rule 

CFR Code of Federal Regulations

CWA Clean Water Act 

CWSRF Clean Water State Revolving Fund 

CZARA Coastal Zone Act Reauthorization Amendments 

DNREC Department of Natural Resources and Environmental Control 

ENR enhanced nutrient removal 

EPA U.S. Environmental Protection Agency 

FLC Federal Leadership Committee 

MACT maximum achievable control technology 

MS4 municipal separate storm sewer system 

NADP National Atmospheric Deposition Program 

NAEMS National Air Emissions Monitoring Study 

NHx reduced nitrogen 

NMPs Nutrient Management Plans 

NOAA National Oceanic and Atmospheric Administration 

NOx nitrogen oxides 

NPDES National Pollutant Discharge Elimination System 

NSPS new source performance standards 

PAH polycyclic aromatic hydrocarbons 

PCBs polychlorinated biphenyls 

POTW publicly owned treatment works 

RCRA Resource Conservation and Recovery Act 

RICE reciprocating internal combustion engines 

SRF State Revolving Fund 

TMDL Total Maximum Daily Load 

TN total nitrogen 

TP total phosphorus 

USACE U.S. Army Corps of Engineers 

USDA U.S. Department of Agriculture 

WLA wasteload allocation 

v 
Abbreviations and Acronyms 

vi 
Executive Summary 

Executive Summary 

The Chesapeake Bay and its watershed are an ecosystem and resource of enormous economic, 

social, and environmental significance. Yet the Bay is imperiled by decades of human activities 

that have burdened its streams, rivers, and estuary with excessive pollution, destroyed vital 

habitat for aquatic life and waterfowl, and dramatically reduced commercial and recreational 

fisheries. 

To restore the Chesapeake Bay watershed to health, bold action is needed. In May 2009 the six 

watershed states, the District of Columbia, and the federal government agreed that by no later 

than 2025 they would have completed implementing the measures necessary to restore water 

quality in the Chesapeake Bay watershed. As part of the President’s commitment to federal 

leadership in that effort, the U.S. Environmental Protection Agency (EPA) intends to adopt an 

accountability framework to ensure that the measures are identified, committed to, 

implemented, and reported to the public. 

The key to restoring water quality in the Chesapeake Bay watershed is to achieve significant 

reductions in nitrogen, phosphorous, and sediment loads. In 2008 total estimated nitrogen and 

phosphorus loads from the watershed to the Bay were 284 million pounds and 16.3 million 

pounds, respectively. To meet water quality goals for the Bay, nitrogen and phosphorus loads 

will have to be reduced by 30 percent and 8 percent, respectively, despite expected population 

increases of 30 percent between 2000 and 2030.1

Achieving such loading reductions will require significant reductions in the following: runoff 

from urban and suburban lands and farmland; discharges of nutrient pollution from municipal 

and industrial wastewater facilities; leaching to surface waters from onsite (septic) systems; and 

atmospheric deposition of nitrogen to the Bay and its watershed. EPA intends to work with the 

six watershed states, the District of Columbia, federal partners, local governments, and other 

parties to put in place a comprehensive, transparent, and accountable set of commitments and 

actions that, together, ensure that the technologies and management practices needed to restore 

Bay water quality are implemented by no later than 2025. 

Section 202(a) of the President’s Executive Order, Chesapeake Bay Protection and Restoration, 

directs EPA to prepare a report on the next generation of tools and actions for restoring the Bay 

under existing legislative authorities. This draft report identifies the pollution control strategies 

and actions that EPA recommends to protect and restore Bay water quality and reflects 

consultation with state agencies and input from other stakeholders. 

EPA’s 202(a) strategy has three principal components: 

1. Create a new accountability framework to guide federal and state efforts to 

restore the Bay. In December 2010, EPA will establish a Total Maximum Daily Load 

(TMDL) for the Chesapeake Bay (called the Bay TMDL in this document).2 As part of 

developing the Bay TMDL, EPA provided on November 4, 2009, the watershed states 

and the District of Columbia with draft load reduction targets for nitrogen and 

phosphorus for each major river basin. As first stated in a letter EPA released in 

September 2008 and described in more detail in a second letter released on November 4, 

 

1

 As of late October 2009, estimates of the sediment reductions needed are being recalculated using newly available models. 

2 The section Current Policy and Legal Framework, below, provides more information on TMDLs and the Bay TMDL in particular.

1 
Executive Summary 

2009, EPA expects that the Bay seven jurisdictions will use those draft loading targets to 

further subdivide the needed reductions among point and nonpoint sources of nutrient 

and sediment pollution. Using that information, EPA intends to establish in the Bay 

TMDL wasteload allocations (WLAs) and load allocations for those sources. 

Because the Bay TMDL will allocate pollutant reductions to both point and nonpoint 

sources to meet the Bay’s water quality standards, EPA expects the six watershed states 

and the District of Columbia to provide EPA with documented reasonable assurance

that nonpoint source loading reductions will be achieved as a condition for reflecting 

such reductions in the Bay TMDL. Pursuant to the Clean Water Act (CWA) section 117(g) 

and other authorities, EPA has built on the forthcoming Bay TMDL and announced its 

expectations for commitments by the six watershed states and the District of Columbia 

to achieve the pollutant reductions needed to restore the Bay. In brief, EPA expects the 

six watershed states and the District of Columbia to do the following: 

 Develop Watershed Implementation Plans that identify necessary load reductions 

across source sectors and geographic area, as well as actions and program 

enhancements to achieve the reductions and dates by which any necessary 

regulations or other instruments would be established and implemented

 Achieve the pollutant reductions needed from all sources as identified in the 

Watershed Implementation Plans through regulations, permits, or enforceable 

agreements3

 Adopt a series of two-year milestones detailing near-term actions and loading 

reduction targets to evaluate progress toward water quality goals

While more than two decades of voluntary, cost-share, and regulatory efforts to reduce 

nutrient and sediment pollution from point and nonpoint sources to the Chesapeake Bay 

watershed have made some important progress, that progress has not been sufficient to 

restore the Bay in a reasonable period of time. Limited public funds further constrain 

agencies’ abilities to restore water quality at all levels of government. EPA believes that 

the watershed jurisdictions need to take strong action to assure the public that nutrient 

and sediment problems in the Bay will be reduced and controlled in the face of continued 

population growth and development of the watershed. EPA believes that states’ adoption 

of enforceable or similarly accountable pollution-control programs will reduce pollutant 

loadings to a degree far greater than EPA and the Bay watershed jurisdictions have been 

able to accomplish to date. 

Along with its expectations, EPA will identify a number of potential actions or 

consequences that EPA may take if jurisdictions do not commit to establish and fully 

implement Watershed Implementation Plans or their two-year milestone commitments 

for nutrient and sediment control. Those consequences may include, but are not limited 

to the following: 

 

3

 EPA encourages but would not expect states that did not sign the Chesapeake 2000 Agreement but have committed to the 

water quality goals through a Memorandum of Understanding (Delaware, New York and West Virginia) to commit to 

implementing nutrient and sediment load reductions based solely on regulations, permits or enforceable agreements if they 

commit to an alternative program or programs that EPA can be assured will result in necessary loading reductions and 

demonstrate progress toward these goals through two-year milestones.

2 
Executive Summary 

 Revising the draft or final pollutant WLAs in the Bay TMDL to assign more stringent 

pollutant reduction responsibilities to point sources of nutrient and sediment 

pollution 

 Objecting to state-issued CWA National Pollutant Discharge Elimination System 

(NPDES) permits 

 Acting to limit or prohibit new or expanded discharges of nutrients and sediments 

 Withholding, conditioning, or reallocating federal grant funds 

 Taking other actions as appropriate 

EPA would hold itself accountable by adopting two-year federal milestones for 

completing the actions described in item 2 below. EPA also would work with its federal 

partners, the six Bay watershed states, and the District of Columbia to control 

wastewater discharges and prevent runoff from federal facilities and lands, and account 

for those actions using federal two-year milestones or a similarly transparent process. 

2. New rulemakings/actions under the CWA, the Clean Air Act (CAA), and 

other authorities. To lead by example, EPA would initiate several actions to establish 

transparent accountability and set strong performance standards for restoring the Bay. 

EPA will initiate rulemakings under the CWA to reduce nitrogen, phosphorus and 

sediment pollution in the Chesapeake Bay watershed from the following sources. 

However, if the Chesapeake Bay states/DC strengthen their pollution control programs 

to achieve the reductions in nutrient and sediment pollution needed to meet Bay water 

quality standards, EPA does not expect that it would promulgate new Chesapeake Bayspecific regulations. 

 Concentrated animal feeding operations (CAFOs). Expand coverage and set 

stronger minimum performance standards for permits, including for the land 

application of animal manure. 

 Stormwater. Expand the coverage of the regulatory municipal separate storm 

sewer system (MS4) program to include high-growth areas and strengthen minimum 

performance standards within permits consistent with Bay water quality goals. 

 New or expanded discharges of nutrients, sediment. Ensure that new or 

expanded discharges are offset by appropriate reductions when needed to meet Bay 

water quality goals. Such offsets would account for scientific uncertainty and would 

be in addition to existing reductions necessary to achieve Bay water quality goals 

 Other pollutant sources. As necessary, EPA will initiate rulemaking under the 

CWA to address additional pollutant sources

EPA would propose and finalize its rulemakings as expeditiously as possible. 

EPA would implement a Chesapeake Bay compliance and enforcement strategy that 

focuses on four key sectors—stormwater, CAFOs, municipal and industrial wastewater 

facilities, and stationary and mobile air sources. 

EPA would ensure that advanced nutrient removal technologies are installed by the 483 

municipal and industrial wastewater dischargers that, collectively, discharge about 90 

3 
Executive Summary 

percent of the total municipal/industrial wastewater flow to the Bay, as necessary to 

meet those facilities’ water quality-based permit limits. EPA would take action to ensure 

that the technology upgrades stay on schedule, including objecting to draft permits as 

appropriate. 

EPA would work closely with the Bay Clean Water State Revolving Fund (SRF) programs 

to encourage them to make or increase their investments in SRF-eligible Bay restoration 

projects and market the program to prospective recipients in the Bay watershed. 

To help the states manage pollution from onsite (septic) systems, EPA would develop a 

model state program for states to consider using to reduce discharges from onsite 

systems. EPA expects that jurisdictions commit to achieve Bay TMDL onsite system load 

allocations through state-enforceable or similarly effective programs. 

EPA would substantially reduce nitrogen deposition by implementing its current 

nitrogen emission control programs and establishing air deposition allocations as part of 

the load allocations for the Bay TMDL. EPA would analyze whether additional reductions 

are needed to meet the air allocation targets. 

The Executive Order directs agencies to consult with the Federal Leadership Committee 

and, to the extent practicable and authorized under existing authorities, begin 

implementing core elements of their protection and restoration programs and strategies 

as soon as possible and before releasing a final strategy. While EPA develops new 

regulations and programs, the Agency will also take action using a range of existing 

authorities to reduce nutrient and sediment pollution to the Bay. 

EPA would account for, and track progress on, all its rulemakings, actions, and their 

subsequent pollution reductions by adopting federal two-year milestones. 

3. An enhanced partnership between the U.S. Department of Agriculture 

(USDA) and EPA to implement a Healthy Waters—Thriving Agriculture

initiative. Meeting the challenges in the Bay would require federal agencies to commit 

and coordinate resources on a scale that matches the scope of the environmental and 

agricultural issues in the region. EPA has a unique opportunity to undertake with USDA 

several new and ambitious efforts that build and expand on the strong working 

relationships that have been reinforced in developing the Chesapeake Bay Watershed 

Initiative. Several key areas could result in significant improvements for the Bay and 

farming communities: 

 Target resources in priority watersheds—Strategically expand intensive use of key 

conservation practices in the high-priority agricultural watersheds by aligning EPA, 

USDA, and other partner resources to engage farmers in nutrient and sediment 

reduction efforts. 

 Establish centerpiece projects to address agricultural challenges—Align federal, state, 

and private resources and partnerships to establish high-profile projects to tackle 

some of the most challenging agricultural issues facing the Bay. 

 Collaborate in developing next-generation conservation planning tools with other 

federal, state, agricultural, and research partners. 

4 
Executive Summary 

5 

 Develop technologies—Align EPA programs and resources with USDA efforts to 

achieve water quality improvements by developing critically needed tools and 

technologies to help farmers meet their conservation and farm operation objectives. 

By aligning resources and continued work with federal, state, and local partners, EPA 

and USDA’s collaboration would accelerate the wider adoption of conservation practices 

and support innovative efforts to address some of the most pressing challenges to 

meeting water quality and agricultural goals in the Bay.
Introduction 

Introduction 

Background 

Importance of the Bay 

The Chesapeake Bay is one of the most extraordinary places in America. This unique estuary is 

the largest in the nation and third largest in the world. Its 64,000-square-mile watershed spans 

parts of six states—Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia—

and the entire District of Columbia. The Bay and its watershed have remarkable ecological, 

economic, recreational, historic, and cultural value to the region. 

Economists have estimated the Bay’s value at more than $1 trillion, and its bounty includes 

more than 500 million pounds of seafood per year. 

Supporting more than 3,600 species of plants, fish, and other animals, the Chesapeake is home 

to 29 species of waterfowl and is a major resting ground along the Atlantic Flyway. 

History and Progress of Earlier Recovery Efforts 

Since 1983, a state-federal Chesapeake Bay Program has coordinated and conducted Chesapeake 

Bay watershed restoration efforts. 

The Chesapeake Bay Program partners are the U.S. Environmental Protection Agency (EPA); 

the U.S. Department of Agriculture (USDA); Delaware, Maryland, New York, Pennsylvania, 

Virginia, and West Virginia; the District of Columbia; the Chesapeake Bay Commission, a tristate legislative body; and advisory groups of citizens, scientists, and local government officials. 

The restoration effort has also involved numerous other federal agencies, including the National 

Oceanic and Atmospheric Administration (NOAA), National Park Service, U.S. Army Corps of 

Engineers (USACE), U.S. Department of Defense, U.S. Fish and Wildlife Service, U.S. Forest 

Service, and the U.S. Geological Survey (USGS). 

The Chesapeake Bay Program’s Executive Council leads the partnership, which is composed of 

the governors of the Chesapeake Bay states, the mayor of the District of Columbia, the 

chairperson of the Chesapeake Bay Commission, and the administrator of EPA. 

The partnership has been guided by a series of agreements, including Chesapeake 2000 that 

established goals for the Bay’s health and commitments to adopt restoration measures to return 

the ecosystem to a healthy state. The Bay Program has developed unparalleled watershed 

science and cooperative efforts, and pioneered cleanup strategies that have resulted in 

measureable gains in reducing the flow of pollutants into the Bay and improving aquatic habitat 

for the Bay’s living resources—all in the face of rapidly growing population in the watershed. 

Yet despite so much important work, the Bay’s health is still severely degraded and 

unacceptable. It continues to have poor water quality, degraded habitats, and low populations of 

many species of fish and shellfish. On the basis of those three areas, the overall health of the Bay 

in 2008 averaged 38 percent, with 100 percent representing a fully restored ecosystem. Water 

quality is only at 21 percent of goals, primarily because of pollution from excess nitrogen, 

phosphorus, and sediment entering the water. The main sources of the pollutants are 

agriculture, urban and suburban runoff, wastewater, and airborne contaminants. 

6 
Introduction 

Need for Further Action 

The Bay Program’s Executive Council has acknowledged that the 2010 restoration goals called 

for in the Chesapeake 2000 agreement will not be met. Among other shortfalls, current efforts 

to reduce nutrient and sediment pollution are not sufficient to meet the Bay’s water quality 

goals. In May 2009, the Executive Council set a new deadline to have all restoration measures in 

place no later than 2025, paced by a series of two-year milestones. 

To restore the Chesapeake Bay and its watershed, many more measures must be put in place to 

reduce pollution, restore habitats, manage fisheries, protect watersheds, and foster stewardship. 

It will take a determined and concerted effort—a new dynamic—to advance from a Bay that is 

meeting only a fraction of its health goals to one that is fulfilling its promise as one of the world’s 

most productive and valuable estuaries. 

Executive Order Directive for this Report and its Integration into a Coordinated 

Strategy for Protecting and Restoring the Bay 

On May 12, 2009, President Obama signed Executive Order 13508—Chesapeake Bay Protection 

and Restoration—to protect and restore the health, heritage, natural resources, and social and 

economic value of the nation’s largest estuary system: the Chesapeake Bay. 

In the preamble to this order, the president states a number of findings, including the following: 

 Despite significant efforts by federal, state, and local governments, the Bay is not 

meeting existing water quality standards or the fishable and swimmable goals of the 

CWA. 

 The current level and scope of pollution control programs for the Bay are not likely to 

restore the Bay for many years. 

 The pollutants that are largely responsible for the Bay’s pollution are nutrients (in the 

form of nitrogen and phosphorus) and sediment. Those pollutants come from many 

sources, including sewage treatment plants, city streets, development sites, agricultural 

operations, and deposition from the air onto the waters of the Chesapeake Bay and the 

lands of the watershed. 

 Restoring the Bay will require a renewed commitment to controlling pollution from all 

sources, as well as protecting and restoring habitat and living resources, conserving 

lands, and improving management of natural resources, all of which contribute to 

improved water quality and ecosystem health. 

 The federal government should lead the effort. Executive departments and agencies, 

working in collaboration, can use their expertise and resources to contribute significantly 

to improving the Bay’s health. Progress in restoring the Chesapeake Bay also will depend 

on the support of state and local governments, the enterprise of the private sector, and 

the stewardship provided to the Chesapeake Bay by all the people who make this region 

their home. 

Section 202 of the Executive Order directs federal departments and agencies to draft seven 

reports that address key challenges to protecting and restoring the Bay within 120 days (by 

September 9, 2009). Section 202(a) directs EPA to draft a report that makes recommendations 

for the next generation of tools and actions that will be used to restore the Bay, as well as 

changes to regulations, programs, and policies for implementing those actions. 

7 
Introduction 

In drafting this report, section 301 of the order directs EPA to consult with appropriate state 

agencies on how to maximize the Agency’s use of authorities under the CWA to protect and 

restore the Bay. The order directs EPA to consider appropriate revisions to guidance and 

regulations and identify pollution control strategies and actions under EPA’s existing authorities 

that do the following: 

a) Establish a clear path to meeting, as expeditiously as practicable, water quality and 

environmental restoration goals for the Chesapeake Bay 

b) Are based on sound science and reflect adaptive management principles 

c) Are performance oriented and publicly accountable 

d) Apply innovative and cost-effective pollution control measures 

e) Can be replicated in efforts to protect other bodies of water, where appropriate 

f) Build on the strengths and expertise of federal, state, and local governments, the private 

sector, and citizen organizations 

Section 302 of the Executive Order requires that the strategies and actions identified by the EPA 

administrator in preparation of the section 202(a) report include the following elements (to the 

extent permitted by law): 

a) CWA tools, including strengthening existing permit programs and extending coverage 

where appropriate 

b) New, minimum standards of performance where appropriate, including the following: 

i. A schedule for implementing key actions in cooperation with states, local 

governments, and others 

ii. Watershed-based frameworks that assign pollution-reduction responsibilities to 

pollution sources and maximize the reliability and cost-effectiveness of pollutionreduction programs 

iii. A compliance and enforcement strategy 

Section 203 of the order directs a Federal Leadership Committee (FLC), chaired by EPA 

Administrator Jackson, to review the seven draft reports submitted under section 202 of the 

order, including EPA’s section 202(a) report, and suggest appropriate revisions to the reports. 

The FLC will integrate these reports and prepare a draft strategy for coordinated 

implementation of existing programs and projects to guide efforts to protect and restore the Bay 

that, to the extent permitted by law: 

a) Defines environmental goals for the Chesapeake Bay and describe milestones for making 

progress toward attaining the goals 

b) Identifies key measureable indicators of environmental condition and changes that are 

critical to effective federal leadership 

c) Describes the specific programs and strategies to be implemented, including the 

programs and strategies described in draft reports developed under section 202 of this 

order 

8 
Introduction 

d) Identifies the mechanisms that will assure that governmental and other activities, 

including data collection and distribution, are coordinated and effective, relying on 

existing mechanisms where appropriate 

e) Describes a process for implementing adaptive management principles, including a 

periodic evaluation of protection and restoration activities 

Within 180 days (by November 9, 2009), the FLC will publish the draft strategy for public 

comment, and the agencies will release their final section 202 reports. Within one year, the FLC 

will publish a final strategy. To the extent practicable and permitted under existing authority, 

agencies may begin implementing core elements of their restoration and protection programs, 

in consultation with the FLC, as soon as possible and before the final strategy is released. 

In preparing the reports under section 202 and the strategy under section 203, the order directs 

agencies and the FLC to consult extensively with Chesapeake Bay states and the District of 

Columbia. The goal of this collaboration is to ensure that federal actions to protect and restore 

the Bay are coordinated with the actions of state and local agencies, and most efficiently use the 

resources, authorities, and expertise of all levels of government (federal, state, and local) to 

benefit the Chesapeake Bay. 

State Consultation and Outreach 

While drafting this report, EPA staff met with officials from each of the six Chesapeake Bay 

watershed states and the District of Columbia and met with the Principals’ Staff Committee of 

the Chesapeake Executive Council. EPA held a number of listening sessions with developers and 

homebuilders, the agricultural community, and local governments. EPA staff attended 

numerous public meetings to speak and answer questions. 

The Water Quality Challenge: Nutrients and Sediment 

Water quality is a critical measure of the Chesapeake Bay’s health. For the Bay to be healthy and 

productive, the water must be safe for people and support aquatic life, such as fish, crabs, and 

oysters. The water should be fairly clear, have enough oxygen, contain the proper amount of 

algae, and be free from chemical contamination. 

Excess nitrogen, 

phosphorus, and sediment 

lead to murky water and 

algae blooms, which block 

sunlight from reaching Bay 

grasses and create low 

levels of oxygen for aquatic 

life. In 2008 water quality 

was again very poor, 

meeting only 21 percent of 

the goals established in the 

Chesapeake 2000 

agreement (see Figure 1). Figure 1. Water quality (percent of pollution reduction goal met in 2008) 

9 
Introduction 

The main sources of nutrient and sediment pollution are agriculture, urban and suburban 

runoff, wastewater, and atmospheric deposition (Figure 2). 

Figure 2. Relative responsibility for pollution loads to the bay. 

Agriculture 

Agriculture covers about 25 percent of the watershed, representing the largest intensively 

managed land use. An estimated 87,000 farms cover about 8.5 million acres. Agriculture is the 

number one source of nutrient and sediment pollution to the Bay. While significant efforts and 

progress have been made, improperly applied fertilizers and pesticides still flow into creeks, 

streams, and rivers, carrying excess nitrogen, phosphorus, and chemicals into the Bay. Tilling 

cropland and irrigating fields can cause major erosion. Additionally, the nutrients and bacteria 

in animal manure can seep into groundwater and run off into waterways. 

Urban and Suburban Lands 

Human development, ranging from small subdivisions to large cities, is a major source of 

pollution for the Bay. About 17 million people live in the Chesapeake Bay watershed. In fact, 

because of the region’s continued population growth and related construction, runoff from 

urban and suburban lands is the one of the sources of pollution that is increasing. These areas 

are covered by impervious surfaces (such as roads, rooftops, and parking lots) that do not let 

water penetrate. As a result, water runs off into waterways instead of filtering into the ground. 

The runoff carries pollutants including lawn fertilizer, pet waste, chemicals, and trash. 

Wastewater 

There is a tremendous volume of sewage that must be treated in the watershed. The pollutionreduction technologies used in the past by the 483 major municipal and industrial wastewater 

10 
Introduction 

treatment plants did not remove 

enough pollution, particularly 

nitrogen and phosphorus. Upgrading 

the facilities is now underway, so they 

can remove more pollution from the 

water, but that effort will take time 

and is very expensive. As population 

in the Bay watershed increases, 

additional advanced wastewater 

treatment will be needed to keep 

wastewater loads from increasing. 

Loads from septic systems, which 

release nitrogen that can eventually 

end up in the Bay or its tributary 

waters, are also increasing. 

Air Pollution 

When pollution is released into the 

air, it eventually falls onto land and 

water. Even larger than the 

Chesapeake Bay’s watershed is the 

Bay’s airshed (Figure 3), which is 

defined as the area containing the air 

emission sources contributing 75 

percent of the nitrogen deposited 

from the air to the Bay and its 

watershed. With that definition, the 

Chesapeake Bay airshed is about 570,000 square miles, or seven times the size of the watershed. 

Nitrogen and chemical contaminants such as mercury and polychlorinated biphenyls (PCBs) 

from air pollution contribute to poor water quality in the region. Air pollution is generated by a 

variety of sources, including power plants, industrial facilities, farming operations, and 

automobiles and other gas-powered vehicles. About 21–28 percent of nitrogen loading to the 

Bay comes from non-agricultural atmospheric deposition, more than from all municipal and 

industrial wastewater treatment plants. 

Figure 3. The Chesapeake Bay airshed. 

Reducing Pollution 

In July 2009 EPA announced draft basinwide target loads that the Bay could receive and meet 

water quality standards: 175 million pounds of nitrogen and 14.1 million pounds of phosphorus, 

annually. On the basis of subsequent analysis by EPA, the Chesapeake Bay Program Principals' 

Staff Committee approved revising the draft target to 200 million pounds of nitrogen and 15 

million pounds of phosphorus, annually. (The Chesapeake Bay receives an additional 17 million 

pounds of nitrogen loads through direct atmospheric deposition to the Bay’s tidal waters.) 

Despite all the progress made to date, achieving target loads of 200 million pounds of nitrogen 

and 15 million pounds of phosphorus will require a further 30 percent reduction in nitrogen 

loads and a further 8 percent reduction in phosphorus loads from estimated 2008 levels 

(Figures 4 and 5). The Chesapeake Bay Program Office has not yet run updated scenarios for 

sediment. Those estimates are subject to change as EPA develops the Chesapeake Bay TMDL. 

11 
Introduction 

The Chesapeake Executive Council has committed to implement all controls necessary to restore 

the Bay’s water quality by no later than 2025. Restoring water quality in the Chesapeake Bay 

watershed will require significantly more widespread implementation of pollution reduction 

practices by all categories of sources of nutrient and sediment pollution to the Bay. 

Reducing pollution will become an even greater challenge as population and development in the 

Bay watershed increase. The population is expected to increase by almost 30 percent between 

2000 and 2030, thereby increasing wastewater and septic system loads. If current trends 

continue, impervious cover could increase 60 percent by 2030, leading to greater stormwater 

runoff. Pollution from agricultural might not decrease as fewer acres are in cultivation because 

the density of animals could increase. This all means that programs to achieve the states’ Bay 

water quality standards must account for growth as well as address existing loads. 

Figure 4. Estimated nitrogen loads delivered to the Chesapeake Bay. 

12 
Introduction 

Figure 5. Estimated phosphorus loads delivered to the Chesapeake Bay. 

Current Legal and Policy Framework 

This section contains legal and policy background information that is useful for understanding 

key elements of EPA’s section 202(a) report and, in particular, how EPA intends to use its 

existing CWA authorities to set new expectations for states to control discharges of nutrient and 

sediment sources to the Bay. 

Ongoing Efforts to Develop a Bay TMDL for Nutrients and Sediment 

Because the water quality goals set forth in the Chesapeake 2000 agreement will not be met by 

2010, and because impaired segments of the Bay remain on the states’ CWA section 303(d) lists, 

EPA is establishing a federal Total Maximum Daily Load (TMDL) for nutrients and sediment for 

the Chesapeake Bay and its tidal tributaries. As described in CWA section 303(d), a TMDL 

identifies the pollutant loading reductions needed for a waterbody to meet applicable water 

quality standards. The Bay TMDL, which will be the largest watershed TMDL to date, will 

account for all nutrient and sediment loadings to the Bay and its tidal tributaries from within the 

64,000-square- mile Bay watershed. That watershed includes parts of six states (New York, 

Pennsylvania, West Virginia, Maryland, Delaware, and Virginia) and the District of Columbia. 

The Bay TMDL is scheduled to be completed in December 2010. 

13 
Introduction 

EPA Region 3, the lead agency for the Bay TMDL, is working with EPA Region 2 and modeling 

and water quality experts at the Chesapeake Bay Program Office to develop the Bay TMDL. EPA 

has directly engaged the six watershed states and the District of Columbia in the process 

through the Chesapeake Bay Program's committee structure. 

Under the TMDL process, EPA provided the six watershed states and the District of Columbia 

on November 4, 2009, with draft loading reduction targets for nitrogen and phosphorus for each 

major river basin on the basis of recommendations from the Chesapeake Bay Program 

Principals’ Staff Committee. EPA expects that the seven jurisdictions will use these draft loading 

targets to further subdivide the needed reductions among point and nonpoint sources of 

nutrient and sediment pollution. Using that information, EPA intends to establish wasteload 

allocations (WLAs) and load allocations for those sources in the Bay TMDL. 

Because the Bay TMDL will allocate pollutant reductions to both point and nonpoint sources to 

meet the Bay’s water quality standards, EPA expects the six watershed states and the District of 

Columbia to provide EPA with documented reasonable assurance that nonpoint source loading 

reductions will be achieved as a condition for reflecting such reductions in the Bay TMDL. The 

six states and the District of Columbia will demonstrate this reasonable assurance by developing 

Watershed Implementation Plans. On November 4, 2009, EPA released its expectations that 

the plans include the following: 

1. Identification of nutrient and sediment loads that would achieve water quality standards 

in the Bay and tidal tributaries, and distribution of the loads among point and nonpoint 

sources. 

2. Identification of the current loads delivered to the Bay and state and local capacity to 

achieve the needed reductions (i.e., an assessment of current point source permitting/ 

treatment upgrade funding programs, nonpoint source control funding, programmatic 

capacity, regulations, legislative authorities, participation, and compliance rates). 

3. Estimates of future loads from population growth and development in the watershed, 

and procedures for offsetting the growth. 

4. Identification of the gaps between current program capacity and capacity needed to 

achieve nutrient and sediment controls (additional incentives, new or enhanced state or 

local regulatory programs, market-based tools, technical or financial assistance, new 

legislative authorities, and such). 

5. A commitment from each state and the District of Columbia to work to systematically 

build the program capacity needed to achieve the nutrient and sediment reductions. As 

part of that commitment, the jurisdictions would agree to meet specific, iterative, and 

two-year milestones demonstrating increased levels of implementation and/or nutrient 

and sediment load reductions. 

6. A commitment to continue efforts underway to expand monitoring, tracking, and 

reporting directed toward assessing the effectiveness of implementation actions and use 

the data to drive accountability and adaptive decision making, and redirect management 

actions. 

7. An agreement that if jurisdictions do not meet these commitments, additional measures 

will be necessary. 

Ultimately, because EPA- or state-issued permits under the CWA must include effluent 

limitations necessary to achieve the states’ and District of Columbia’s Bay water quality 

14 
Introduction 

15 

standards, if nonpoint sources do not accomplish the loading reductions identified as necessary 

in the Bay TMDL, more stringent effluent limits in CWA permits for point sources might be 

necessary. 

Chesapeake Executive Council 2025 Goal and two-year Milestones 

A second component of the policy and legal framework is the May 2009 commitment of the 

Chesapeake Bay watershed’s six state governors and the District of Columbia’s mayor to ensure 

that all needed pollution-reduction controls and best management practices needed to restore 

Bay water quality are in place no later than 2025. The governors and the mayor also agreed to a 

process under which the jurisdictions committed to make program modifications and achieve 

interim targets for reducing pollutant loadings to the Bay in a series of two-year milestones. 

CWA Section 117(g) 

A third component of the policy and legal framework is CWA section 117, which includes 

provisions specific to the Chesapeake Bay and its watershed. In particular, Congress added 

section 117(g) in 2000 which, among other provisions, states, “The Administrator, in 

coordination with other members of the Chesapeake Executive Council, shall ensure that 

management plans are developed and implementation is begun by signatories [EPA, Maryland, 

Virginia, Pennsylvania, District of Columbia, and the Chesapeake Bay Commission] to the 

Chesapeake Bay Agreement to achieve and maintain— 

(A) the nutrient goals of the Chesapeake Bay Agreement for the quantity of nitrogen and 

phosphorus entering the Chesapeake Bay and its watershed; 

(B) the water quality requirements necessary to restore living resources in the 

Chesapeake Bay ecosystem; . . . .” section 117 (g)(1). 

Section 117(g) provides a legal framework for ensuring that the signatory jurisdictions develop 

and begin implementing management plans that achieve the nutrient and sediment loading 

reductions needed to restore the Bay. 

The other three states in the Chesapeake Bay watershed—New York, Delaware, and West 

Virginia—have formally committed to act as full partners in carrying out Chesapeake Bay 

Program initiatives designed to restore water quality by signing a Memorandum of 

Understanding with the signatories in 2000 (Delaware, New York) and 2002 (West Virginia). 

Those states have since signed several Chesapeake Executive Council directives making 

additional Bay water quality restoration commitments, including adoption of jurisdictionspecific, two-year water quality milestones described above. 
Part I of EPA’s 202(a) Plan 

Part I: Creation of a New Accountability Framework to Guide 

State, Local, and Federal Efforts to Restore the Bay 

State Accountability 

EPA would create a new accountability framework to guide state and local efforts to restore the 

Chesapeake Bay, building on the policy and legal framework described above, specifically 

1. The section 117(g) directive to ensure that signatories of the 2000 Chesapeake

agreement and the Chesapeake Bay Water Quality Memorandum of Understanding 

develop and begin to implement programs that, among other goals, meet the nutrient 

reduction and water quality goals of the agreement. 

2. The process, schedule, and legal requirements related to developing the Bay TMDL for 

nutrient and sediment pollution. 

3. The May 2009 commitment by the six watershed states and the District of Columbia to 

have all needed pollution reduction controls and management practices necessary to 

restore Bay water quality in place no later than 2025 and to set and achieve interim, 

two-year water quality milestones toward meeting the 2025 goal. 

In November 2009, EPA issued a letter to Preston Bryant, secretary of the Virginia Department 

of Natural Resources and chair of the Chesapeake Executive Council Principals’ Staff 

Committee, calling for the development of Watershed Implementation Plans and future twoyear milestones that meet EPA’s strong, new expectations for reducing nutrient and sediment 

pollution from nonpoint sources for all six watershed states and the District of Columbia. While 

more than two decades of voluntary efforts to reduce nutrient and sediment pollution from 

nonpoint sources to the Chesapeake Bay have made some important progress, that progress has 

not been sufficient, in part, because of limited public funds and authorities and is not likely to 

ensure the Bay’s restoration in a reasonable period. Therefore, EPA emphasized the need for 

strong commitments by all six watershed states and the District of Columbia because achieving 

water quality standards in the Bay requires significant reductions in loads from all source 

sectors throughout the Bay’s watershed and airshed. EPA set forth its expectations that the 

seven watershed jurisdictions commit to achieve the pollutant reductions needed from all 

sources to achieve the states’ and the District of Columbia’s water quality standards for the Bay 

through the following: 

 Developing Watershed Implementation Plans that (1) identify necessary load reductions 

across source sectors and geographic area, as well as actions and program enhancements 

to achieve these reductions, and (2) include commitments to dates by which any 

necessary regulations or other instruments identified in the Watershed Implementation 

Plans would be established and implemented. EPA would consider the program 

commitments when establishing wasteload and load allocations in the Bay TMDL. 

 Committing to achieve the pollutant reductions needed from all sources as identified in 

the Watershed Implementation Plans through regulations, permits, or enforceable 

agreements4

 

4

 Enforceable agreements can include voluntary, incentive-based programs with contracts specifying the practices that will be 

implemented using cost-share dollars.

16 
Part I of EPA’s 202(a) Plan 

 Committing to establish a series of two-year milestones detailing near-term actions and 

loading reduction targets to evaluate progress toward water quality goals 

States that did not sign the Chesapeake 2000 agreement but have committed to the water 

quality goals through a Memorandum of Understanding (Delaware, New York, and West 

Virginia) would not have to commit to regulations, permits, or enforceable agreements if they 

commit to an alternative program or programs that EPA can be assured will result in necessary 

loading reductions and demonstrate progress toward these goals through two-year milestones. 

EPA believes this new expectation for enforceable or similarly effective programs will help 

reduce loadings to a degree far greater than EPA and the Bay watershed jurisdictions have been 

able to accomplish to date. 

EPA transmitted preliminary nutrient loading targets for the major river basins in each state 

and the District of Columbia in a letter to the Principals’ Staff Committee on November 4, 2009. 

EPA will transmit preliminary loading targets for sediment to the jurisdictions in spring 2010. 

EPA expects all seven watershed jurisdictions to submit Watershed Implementation Plans 

documenting from which point and nonpoint sources, and where within each river basin, 

reductions will occur to meet those load targets. EPA expects that Watershed Implementation 

Plans will include sufficient detail to inform limits and conditions within new or reissued 

National Pollutant Discharge Elimination System (NPDES) permits. 

EPA’s Bay TMDL allocations would reflect EPA’s decisions regarding the sufficiency of the 

demonstrations of reasonable assurance and other commitments in the jurisdictions’ Watershed 

Implementation Plans. If EPA does not have adequate reasonable assurance that nonpoint 

source reductions will occur, the Agency could establish smaller WLAs requiring more stringent 

permit limits on point sources or take other actions to ensure that loading reductions will be 

achieved. EPA would use the two-year water quality milestone process to track the six watershed 

states’ and the District of Columbia’s follow-through on their Watershed Implementation Plan 

commitments to address program gaps and make reasonable progress toward achieving the 

pollution loading reductions identified in the Bay TMDL. 

The Watershed Implementation Plans would be the first step in an ongoing accountability 

framework to assess progress toward implementing necessary controls on the ground no later 

than 2025 to meet the jurisdictions’ water quality standards in the Bay. EPA would continually 

evaluate commitments and progress through updates to the Watershed Implementation Plans 

and future two-year milestones that incorporate more detailed commitments than the first twoyear water quality milestones adopted by the seven watershed jurisdictions in May 2009. 

Finally, EPA would identify a menu of potential actions, or consequences, from which EPA 

would select, if states do not submit adequate Watershed Implementation Plans or two-year 

milestone commitments or fail to meet their established two-year water quality milestones. The 

actions might include, but are not limited to the following: 

Revising draft or final Bay TMDL to impose more stringent requirements on 

point sources of nutrient and sediment pollution. If the watershed jurisdictions’ 

Watershed Implementation Plans do not adequately demonstrate reasonable assurance that 

nonpoint source loads will, in fact, be achieved, EPA, in the final Bay TMDL or through 

future revisions to the Bay TMDL, could decrease the WLAs for point sources to the limit of 

technology. Similarly, if the jurisdictions do not complete implementation steps related to 

nonpoint source allocations in the Bay TMDL, or if the jurisdictions do not make reasonable 

progress toward achieving nonpoint source load reductions as defined through the two-year 

17 
Part I of EPA’s 202(a) Plan 

milestones, EPA could revise the Bay TMDL in the future to decrease the WLAs for point 

sources. 

EPA objection to state-issued NPDES permits. EPA could use its existing authority to 

object to inadequate state permits and assure that appropriate permit limits are established 

consistent with the Bay TMDL’s WLAs. 

Addressing new or expanded discharges of nutrients and sediments. EPA could 

use its existing regulations to deny or aggressively limit new or increased discharges from 

point sources to the Bay watershed. For example, EPA could review and object to permits if 

the permit fact sheets do not demonstrate that effluent limits are consistent with 

assumptions and requirements of WLAs in TMDLs pursuant to Title 40 of the Code of 

Federal Regulations (CFR) 122.44(d)(1)(vii)(B) or if the jurisdiction has not demonstrated 

how the increased discharged loads will be offset through other source reductions that are in 

addition to reductions already expected to meet Bay TMDL allocations. 

EPA could review facilities covered under a general permit and, if found to be noncompliant, 

request that state NPDES directors require the facility to apply for an individual permit 

pursuant to 40 CFR 122.28(b)(3). 

EPA could ensure, through a permit objection, that the requirement in 40 CFR 131.12(a)(2) 

(as reflected in state antidegradation regulations) is met (i.e., that “all cost-effective and 

reasonable best management practices for nonpoint sources are achieved” when a Tier 2 

antidegradation review is done for the issuance of a CWA point source permit). 

Withholding/reallocating federal grant funds under CWA sections 117 and 319. 

EPA could condition grants or negotiate state work plans in a manner designed to improve 

existing state program implementation regarding the Chesapeake Bay. EPA now conditions 

CWA section 117(e)(1)(a) implementation grants to signatory jurisdictions in this manner. 

EPA could do the following: withhold all or a portion of state grant funds unless the state 

commits to take steps to improve its existing program; redistribute federal funds to other 

states that will use the grant monies more effectively; target grants to specific geographic areas 

or practices; or decide which facilities or projects are funded in a state receiving federal funds. 

EPA envisions that the new accountability framework would work as follows: 

 States and the District of Columbia develop a Watershed Implementation 

Plan by November 1, 2010, unless otherwise noted, that does the following: 

o Sets nutrient and sediment reduction targets by watershed for each CWA 

303(d) tidal water segment, and by pollutant source sector needed to achieve the 

TMDL loading caps. By November 1, 2011, Bay watershed jurisdictions would update 

the plans to (1) distribute loads among local areas such as counties, conservation 

districts, or subwatersheds, and (2) identify specific controls that would be in place 

by 2017 and would be capable of achieving nutrient and sediment load reductions 

totaling 60 percent of the difference between 2008 nutrient and sediment loads and 

target loads that meet Bay watershed jurisdictions’ Bay water quality standards. 

o Evaluates current pollutant loads and existing legal, programmatic, 

financial, and technical capacity to reduce nutrients and sediment. 

o Accounts for growth, including estimates of future loads from population growth 

and development in the watershed, and procedures for offsetting the growth. 

18 
Part I of EPA’s 202(a) Plan 

o Identifies gaps between the needed pollutant load reductions and existing program 

capacity to deliver reductions. 

o Commits to a strategy for filling those gaps, including a schedule for reducing 

loads on the basis of descriptions of planned program delivery enhancements. 

o Identifies tracking and reporting protocols to assess the effectiveness of 

implementation actions and drive accountability and redirect management actions. 

o Identifies contingencies for slow or incomplete implementation of nutrient and 

sediment controls. 

 States set two-year milestones for achieving specific pollution-reduction actions and 

program enhancements to maintain the established schedule. 

 States/EPA monitor effectiveness of the implemented pollution-reduction actions 

to assess load reduction progress and water quality response. 

 EPA employs consequences if there are insufficient commitments in a jurisdiction’s 

Watershed Implementation Plan or a jurisdiction does not fully meet its two-year 

milestones. 

Figure 6 depicts how the new accountability framework would work. 

Figure 6. The state accountability framework. 

19 
Part I of EPA’s 202(a) Plan 

20 

EPA (Federal) Accountability 

To guide federal efforts, EPA would coordinate an effort among federal departments and 

agencies to directly complement state/DC actions. That effort would establish specific federal 

two-year milestones for further reducing air pollution, further controlling and preventing runoff 

from federal facilities and lands, and strengthening other federal policies for the Chesapeake 

Bay and its watershed and airshed. 

EPA and its federal partners would join the seven Bay watershed jurisdictions in committing to 

two-year milestones for rulemakings and other key actions for reducing nutrient and sediment 

pollution to the Bay. EPA, along with other federal agencies, would adopt and report on the twoyear milestones concurrently with state/DC adoption and progress reporting on their 

jurisdictional two-year milestones. 

For examples of the new rulemakings and actions that EPA would initiate and include in a 

process for adopting and reporting on two-year milestones, see Part II of EPA’s draft 202(a) 

plan below. 
Part II of EPA’s 202(a) Plan 

Part II: New Rulemakings and Actions 

EPA would immediately take a number of important new actions to help reduce nutrient and 

sediment loads to the Bay, including new proposed rulemakings and implementing a 

compliance and enforcement strategy focused on four key sectors—stormwater, concentrated 

animal feeding operations (CAFOs), municipal and industrial wastewater facilities, and 

stationary and mobile air sources. In moving forward with the regulations and other actions, 

EPA would work closely with its regulatory partners, NPDES-authorized states, as well as local 

governments and watershed stakeholders such as point sources, nonpoint sources, and the 

affected communities. 

The approaches described below outline EPA’s current thinking regarding how the Agency 

would proceed with rulemakings. EPA rulemakings would include notice and comment before 

final action. With the rulemakings, EPA would significantly strengthen or clarify federal 

requirements that would further limit nutrient and sediment discharges to the Bay. If, however, 

the Bay watershed jurisdictions strengthen their pollution-control programs to achieve the 

reductions in nutrient and sediment pollution needed to meet Bay water quality standards, EPA 

does not expect that it would promulgate new Chesapeake Bay-specific regulations. 

Stormwater

Background and Current Control Strategies 

Urban and suburban stormwater discharges contain 

nutrients and sediment from pet wastes, lawn fertilizers, 

construction activity, developed property, and 

contaminants deposited from air to urban/suburban 

lands. These nutrients and sediment affect local water 

quality and habitats as well the Bay downstream. 

According to the Chesapeake Bay Watershed Model, 

Airshed Model, and measured discharges, approximately 

10 percent of the total nitrogen (TN), 31 percent of the 

total phosphorus (TP), and 19 percent of the total 

sediment load to the Bay is from discharges of 

stormwater from urban and suburban areas. (Note, 

those figures do not include atmospheric nitrogen that 

deposits on urban lands and is then delivered to the 

Bay.) 

Reductions in nutrient and sediment loads delivered by 

stormwater are necessary to meet the basinwide loading caps. Those reductions could be 

achieved through federal or state rulemaking and/or actions through the NPDES program. 

During rain events, stormwater carries 

sediment and other pollutants into 

waterbodies and eventually the bay (Source: 

USDA NRCS). 

Urban and urbanizing areas contribute significant nutrient and sediment loads to the Bay as a 

result of high amounts of impervious cover. Impervious surfaces like roads, rooftops, and 

parking lots channel stormwater discharges directly to streams, rivers, and the Bay, greatly 

diminishing infiltration into the ground. As the population continues to increase in the Bay 

watershed, so does impervious cover from new homes, commercial buildings, and roads. 

Between 1990 and 2000, human population in the Bay watershed increased by 8 percent, while 

impervious cover increased by approximately 40 percent. 

21 
Part II of EPA’s 202(a) Plan 

In addition to these impervious areas, turfgrass areas (lawns, recreational fields, golf courses) 

contribute significant amount of nutrients to local streams and the Bay because of fertilizer 

applications. Turfgrass areas often function like impervious surfaces because of highly 

compacted soils and, as a result, fertilizer is washed off by precipitation. Many of the highest 

nutrient and sediment discharges are in or near federally regulated municipal separate storm 

sewer systems (MS4s). MS4s include any publicly owned or operated stormwater conveyance 

system including those associated with roads and highways. 

According to population projections by the USGS, the Bay watershed’s human population is 

expected to continue to grow in coming decades, which, under current paradigms, means 

increased impervious surfaces. To prevent any additional nutrient and sediment loading to the 

Bay from stormwater, no net increase in stormwater discharges can result from newly developed 

sites. 

To decrease stormwater-delivered nutrients and sediment loads, we must address both 

stormwater discharges that result from future addition of impervious cover and discharges from 

existing impervious areas. Those areas will require significant retrofit to encourage infiltration, 

reuse, and evapotranspiration of stormwater, thus reducing the amount of stormwater that 

carries nutrient and sediment loads to the Bay and reducing sediment contributions from instream scouring. 

CWA section 402(p), enacted in 1987, establishes the framework for EPA to address stormwater 

discharges through implementation of a comprehensive program. EPA began implementing 

section 402(p) in 1990 through the Phase I stormwater regulations (see CWA section 402(p)(4); 

55 Fed. Reg. 47990, November 16, 1990). In Phase I EPA established NPDES permit 

requirements for stormwater discharges associated with industrial activity, including 

construction activity disturbing 5 acres or greater, and discharges from MS4s serving 

populations of 100,000 or more. The second phase of regulations under CWA section 402(p) 

authorized EPA to examine the remaining unregulated stormwater discharges and identify, 

pursuant to CWA section 402(p)(6), those discharges requiring regulation to protect water 

quality (see CWA section 402(p)(6); 64 Fed. Reg. 68722, December 8, 1999). The Phase II 

regulations require NPDES permits for stormwater discharges associated with construction 

activity disturbing 1 to 5 acres and discharges from MS4s serving populations of fewer than 

100,000 in urbanized areas, including entities serving highways and large complexes such as 

hospitals, prisons, and universities. 

Additionally, EPA regulations provide for the exercise of its authority under CWA section 

402(p)(2)(E) and (6) to designate additional stormwater discharges in 40 CFR 

122.26(a)(9)(i)(C)-(D) (also known as residual designation authority or RDA). EPA continues 

to have authority to designate additional stormwater discharge sources to be regulated pursuant 

to CWA section 402(p)(6). 

Under the current federal stormwater regulatory program are three broad categories of 

regulated discharges: (1) stormwater discharges from certain MS4s; (2) stormwater discharges 

associated with construction activity; and (3) stormwater discharges associated with industrial 

activity (see 40 CFR 122.26; 122.30-37). EPA can designate additional stormwater discharges, 

such as those from impervious surfaces above a certain size threshold, using RDA or CWA 

section 402(p)(6) designation authority. Stormwater dischargers that require NPDES permits 

can either obtain individual permits or, with the exception of medium and large MS4s, obtain 

coverage under state or EPA general permits (see 40 CFR 122.28). 

22 
Part II of EPA’s 202(a) Plan 

EPA issues permits for the 

District of Columbia and 

federal facilities in Delaware. 

Otherwise, all the Bay 

watershed states administer 

their NPDES programs, and 

have generally followed the 

minimum federal 

requirements (Table 1). 

Maryland has included some 

general retrofit requirements 

in some of its Phase I MS4 

permits, and considers its 

non-prescriptive approach to 

have met with only limited 

success; its experience 

however, offers lessons for 

designing future efforts. West 

Virginia finalized a small MS4 

permit in June 2009 with a 

performance standard for new 

and redevelopment 

approaching no net increase in 

stormwater discharges; that 

permit is under appeal 

(Figure 7). 

What EPA Could Do in the 

Chesapeake Bay 

Watershed 

EPA would initiate rulemaking 

that would reduce the volume 

and pollutants loads in 

stormwater discharges to the 

Bay. The rulemaking process 

would include all necessary 

analyses, including economic, to determine appropriate standards and thresholds. In this 

process, EPA would examine the following elements related to stormwater discharges: 

Figure 7. Estimates of impervious surface and MS4 areas in the 

Chesapeake Bay watershed. 

Table 1. Stormwater permittees by state and in the Chesapeake Bay watershed, summer 2009 

DC DE MD NY PA VA WV Total Stormwater 

permit type Baywide 

DCwide Baywide Statewide Baywide Statewide BaywideStatewide Baywide Statewide Baywide Statewide Baywide Statewide Bay* States

MS4 Phase I 1 1 14 11 11 0 1 0 2 11 11 0 0 23 40

MS4 Phase II 0 0 3 82 82 34 502 206 727 75 90 3 45 400 1,449

Industrial 60 60 337 1,578 1,578 122 1,393 1,238 2,494 975 1,432 113 933 4,086 8,227

Construction 212 212 1,375 8,300 8,332 470 7,251 906 2,399 2,252 2,851 651 2,488 12,791 24,908

Total 273 273 1,729 9,971 10,003 626 9,147 2,350 5,622 3,313 4,384 767 3,466 17,300 34,624

% Permittees 

in the Bay 100% 99% 7% 42% 76% 22% 53%*

Note: Numbers of permittees are not static and, especially for categories like construction, are fluctuating regularly. 

* Not including Delaware 

23 
Part II of EPA’s 202(a) Plan 

Additional requirements to address stormwater from newly developed and 

redeveloped sites. EPA would consider setting requirements that ensure no increases in 

discharge volumes and control the discharge of pollutants. This could be done by requiring 

that post-construction hydrology mimic pre-construction hydrology. Developers could 

estimate this on a site-by-site basis or rely on a default retention performance standard 

equivalent to the 95th percentile storm volume for all new development projects larger than a 

certain size. In the Chesapeake Bay watershed, such a standard would mean retaining onsite stormwater from a rainfall event of about 1.2 to 1.7 inches. The standard could vary to 

include incentives for types of development that reduce overall imperviousness at a 

watershed scale (e.g., high-density, transit-oriented, redeveloped sites). 

A requirement for newly developed sites would prevent stormwater discharges from 

increasing. Cost analyses of retention approaches to stormwater management indicate that 

for newly developed sites, retention approaches are competitive with conventional 

approaches to stormwater management. 

Similar to retrofits (next section) a requirement for redeveloped sites provides the 

opportunity for reduced loadings. Incremental costs have not been estimated but could be 

offset in many cases by incentives and/or alternatives such as off-site mitigation (as long as 

any mitigation used to offset another load were in addition to reductions already necessary 

to meet the states’ Chesapeake Bay water quality standards), as relevant. 

Requiring retrofits in areas served by MS4s to reduce loads from existing 

stormwater discharges. Approximately 17 percent of the Bay watershed is covered by 

MS4 permits. Within those MS4 areas, significant expanses of impervious surfaces generate 

stormwater discharges. Therefore, EPA will consider establishing a retrofit provision 

requiring MS4s to develop and implement retrofit plans for discharges from existing 

developed sites. 

Such retrofit requirements would reduce stormwater discharges and, therefore, the overall 

load contribution of nutrients and sediments to receiving waters. Appropriate schedules for 

the retrofits could be developed on a case-by-case basis, considering the MS4’s financial 

capability. 

Implementing an aggressive retrofit program within existing MS4 areas could result in 

nitrogen, phosphorus, and sediment load reductions (see Table 2) within 15–25 years. A 

number of caveats and assumptions are attached to these estimates, including that they are 

based only on loads to and from current MS4 areas rather than all urban and urbanizing 

areas in the watershed. Similar types of reductions could be realized across wider areas of 

the watershed if retrofit requirements are applied outside existing MS4 areas. EPA estimates 

costs for such retrofits in existing MS4s at about $7.9 billion per year. 

Table 2. Estimated load reductions from retrofit programs in existing MS4 areas 

Total nitrogen Total phosphorus Sediment 

Existing load 7,027,362 lbs 900,868 lbs 287,295 tons 

Load after implementation 4,466,768 lbs 571,231 lbs 181,732 tons 

Reduction delivered load 2,560,594 lbs 329,637 lbs 105,563 tons 

Cost effectiveness* $3,088/lb delivered $23,984/lb delivered $37/lb delivered 

* Includes capitol costs as well as operation and maintenance. These ratios are calculated as if each pollutant was the only one 

being reduced when, in fact, they might be removed concurrently. 

24 
Part II of EPA’s 202(a) Plan 

Expanding the universe of areas regulated under the MS4 program. EPA’s 

rulemaking would examine revising the geographic areas subject to MS4 permits. EPA 

would consider using existing residual designation authority and rulemaking options for 

reducing pollutants from stormwater discharges from areas that are vulnerable to future 

development pressures. 

EPA would also consider using existing authority to ensure that MS4 permits have specific, 

quantifiable limits and milestones that are consistent with water quality needs, including TMDL 

WLAs, and provide a clear basis for compliance assistance and/or enforcement actions as 

appropriate. 

The federal partners will continue to lead by example by committing that federal facilities in the 

Chesapeake Bay watershed meet new performance standards for enhanced stormwater 

management. The Bay TMDL’s WLAs and load allocations would specifically reflect those 

heightened expectations for federal facilities and lands. MS4 permits issued to federal facilities 

defined as MS4s and permits issued to MS4s to which federal facilities discharge would contain 

permit conditions consistent with the Bay TMDL’s WLAs. EPA would track progress toward 

meeting enhanced stormwater management by federal facilities through its federal two-year 

milestones.

Concentrated Animal Feeding Operations (CAFOs)

Background on Animal Feeding Operations 

Farms are a vital part of the Chesapeake Bay watershed 

and, as described in Part III of this report below, EPA and 

USDA would work together on a Healthy Waters—

Thriving Agriculture initiative to help farmers produce 

abundant and affordable foods while managing nutrients 

and soils in a manner that helps to restore the Bay’s water 

quality and the values and benefits that derive from clean 

water and a healthy, vibrant Bay ecosystem. 

As described above (see the Water Quality Challenge: 

Nutrients and Sediment in the Introduction), significant 

reductions in nutrient and sediment pollution are needed 

to meet water quality goals for the Bay. All categories of 

sources of these pollutants will need to take significant 

new action to help meet the challenge. 

CAFOs are a source of nitrogen, phosphorus, 

and sediment to the Chesapeake Bay 

(Source: Chesapeake Bay Program).

Farms have made strong progress in reducing loadings to the Bay (as shown in Table 3), 

although it should be noted that some of the reductions resulted from converting agricultural 

land to other uses, such as urban and suburban development, which also deliver nutrient and 

sediment pollution to the Bay. 

Table 3. Estimated changes in agricultural loadings to the bay 

1985 Ag load 2008 Ag load 

Nitrogen (million lbs/yr) 202 131 

Phosphorus (million lbs/yr) 13 8 

Based on Chesapeake Bay Program Watershed Model Phase 5.2. 

25 
Part II of EPA’s 202(a) Plan 

Yet even with that progress, agriculture is still the largest contributor of nitrogen, phosphorus, 

and sediment pollution to the Bay. Manure is the source of about half of the nutrient loading 

from agriculture. 

One of the issues needing attention is excess manure nutrients in some parts of the Chesapeake 

Bay watershed. Extensive poultry operations and associated feed grain production on the 

Delmarva Peninsula, for example, have resulted in elevated nutrient levels in soils, groundwater, 

creeks, and tidal tributaries of the Chesapeake Bay.5 Nutrient budgets conducted by the USDA 

Cooperative State Research, Education, and Extension Service Mid-Atlantic Water Program 

reveal excess nutrients not only on the Delmarva Peninsula, but in other regions with 

concentrated animal production such as south-central Pennsylvania (in which the dominant 

industry is dairy and to a lesser extent swine and poultry) and the Shenandoah Valley in Virginia 

(broilers and turkeys are the dominant sectors and to a lesser extent small and medium-sized 

dairies). Without new action, the nutrient excess in parts of the Bay watershed is likely to grow 

according to (1) projections of growth in the animal agriculture sector that add to the manure 

nutrients generated, and (2) decreases in acres of farmland to accept the nutrients as farmlands 

are converted to other uses (e.g., urban/suburban lands). 

Given the many challenges, EPA believes that a new rulemaking to address pollution from 

animal feeding operations (AFOs) is an important component of a larger program for restoring 

the Bay. 

The animal agriculture sector includes AFOs, CAFOs, and pasture-based operations. AFOs keep 

and raise animals in confined settings, which concentrate animals, feed, manure and urine, and 

production operations on a small land area. Feed is brought to the animals rather than the 

animals grazing or otherwise seeking feed in pastures, fields, or on rangeland. 

CAFOs are defined as large-scale AFOs where animals are confined and raised in concentrated 

areas and are regulated under the NPDES. An AFO is defined in the NPDES regulations as a 

Large CAFO if it confines above the threshold number of animals in a sector, such as 700 mature 

dairy cows, 1,000 beef cattle, or 125,000 chickens.6 A medium-sized operation can be a CAFO 

either by definition (number of animals plus either a discharge through a conveyance or a 

stream running through facility) or by designation. A small operation can be a CAFO only if it is 

designated by the EPA Regional administrator or state permitting authority upon meeting 

specified criteria, including that it is a significant contributor of pollutants to waters of the 

United States. EPA is unaware of any designated small CAFOs in Chesapeake Bay watershed 

states; however, Region 3 could designate a small AFO as a CAFO in the near future. 

The CWA establishes that CAFOs are point sources and requires CAFOs that discharge or 

propose to discharge to seek permit coverage. See 40 CFR 122.23(d). EPA has authorized all six 

Chesapeake Bay watershed states to administer the NPDES program for CAFOs, and each state 

is in the process of revising its jurisdiction’s CAFO program to meet all federal requirements, 

including recently established federal rule revisions. Authorized states also may have NPDES 

programs that are more stringent or with greater scope of coverage than the federal 

 

5

 Status of Nutrients in Delmarva Soils, Groundwaters, Creeks, and Tributaries, Chesapeake Research Consortium, (October 21, 

2003).

6

 A layer or broiler operation is a large CAFO with 30,000 or more chickens if the facility has a system defined as a liquid manure 

handling system.

26 
Part II of EPA’s 202(a) Plan 

requirements.7 For example, New York requires all CAFOs to obtain either an NPDES permit or 

a state permit, depending on whether the CAFO discharges. 

What EPA Could Do in the Chesapeake Bay Watershed 

EPA would initiate a rulemaking that would reduce nutrient and sediment discharges from 

CAFOs to the Chesapeake Bay. During a CAFO rule-development process, EPA would engage 

with states and stakeholders to ensure that the process is informed by successful programs 

already implemented in Chesapeake Bay states. As part of the rulemaking, EPA would examine a 

number of key elements including the following: 

Increasing the size of the universe of CAFOs with NPDES permits

Designating more AFOs as CAFOs. EPA would consider revising the provisions for 

designating AFOs as CAFOs, 40 CFR 122.23(c), to allow designation in more 

circumstances and provide broader authority for EPA and authorized states to designate 

AFOs. Such a change would better facilitate imposing permit requirements on operations 

that are contributing to water quality impairments. 

Revising existing CAFO regulations so that more animal operations qualify 

as CAFOs. EPA would consider bringing a greater number of animal operations into the 

CAFO universe in the Chesapeake Bay watershed on the basis of a record that certain 

types of facilities should now be considered to be CAFOs by definition. For example, EPA 

would consider lowering the threshold number of animals required for an AFO to meet 

the definition of CAFO (40 CFR 122.23(b)). EPA also would consider defining as a CAFO 

any AFO that (1) discharges or proposes to discharge into an impaired water; 

(2) discharges into waters of the United States through a man-made device; or 

(3) discharges directly into waters of the United States that pass through the facility. 

Issuing stronger CAFO permits that contain terms and conditions that further reduce 

the discharge of nutrients from CAFOs to the Bay. 

Requiring permitted CAFOs to implement next generation Nutrient 

Management Plans (NMPs). EPA would consider revising minimum NMP elements 

in the CAFO rule to further prescribe agricultural practices essential for load reductions 

on the basis of sound science and adaptive management principles, such as using a soil 

test phosphorus method, restrictions on fall and winter application of manure, sediment 

management, using cover crops, and enhanced sampling requirements. Under a new rule 

that increases the size of the CAFO universe as described above, a much larger portion of 

row crop acreage in the Bay watershed would be associated with CAFOs, and thus subject 

to implementing next generation practices. 

Off-site transfer reporting and record-keeping. Because many CAFOs do not own 

or lease enough land to apply the manure nutrients generated at the operation, off-site 

transfer of the manure is a common practice. EPA would consider revising the current 

CAFO rule to better regulate handling of all manure generated by CAFOs in the 

Chesapeake Bay watershed and increase accountability. 

 

7

 Note that Maryland and Pennsylvania have state laws that require special justification for the state NDPES program to be 

more stringent than the federal requirements. 

27 
Part II of EPA’s 202(a) Plan 

EPA believes that a CAFO rulemaking containing these elements could achieve significant 

reductions in nitrogen, phosphorus, and sediment loadings. However, if EPA determines that 

each of the states in the Chesapeake Bay watershed has programs in place, or puts new 

programs in place, that achieve the same objectives, the federal rulemaking would not be 

necessary to accomplish these important load reductions. If EPA does develop a CAFO rule, 

such a rulemaking could impose costs on operations that, for the first time, would be required to 

apply for and comply with NPDES permit requirements for CAFOs. There would also be 

increased costs for all CAFOs to implement additional nutrient management requirements. The 

average total annual cost for extending the current CAFO regulatory requirements to all AFOs in 

the Chesapeake Bay watershed that meet the medium-sized-CAFO threshold is estimated at 

approximately $50 million. That estimate does not include the additional next generation NMP 

components that EPA is considering requiring for all existing CAFOs and those AFOs to be 

included under a new rulemaking. Total reductions in nitrogen, phosphorus, and total 

suspended solids (a proxy for sediment) for implementing current CAFO requirements at 

medium AFOs are expected to be approximately 10 million, 7.4 million, and 90 million pounds 

per year, respectively. Additional nutrient and sediment reductions would be achieved by all 

permitted CAFOs implementing the next-generation NMP components. 

In addition to a rulemaking for CAFOs, EPA would consider other new actions for CAFOs. For 

example EPA would consider working with states to achieve greater nutrient and sediment 

reductions from current CAFO rule requirements through new guidance and implementation 

efforts. One option would be to develop new guidance to address production area controls for 

runoff, including example water quality-based effluent limitations that can be established in a 

CAFO permit to meet water quality standards with respect to production area discharges. 

Another option would be for EPA to conduct, as part of ongoing efforts to implement the CAFO 

rule in the Bay states, a rigorous review of each state’s technical standards for CAFOs and work 

with states to update the standards, as needed, to address water quality. To better facilitate 

permit objections discussed above in Part I of this report, EPA would consider classifying CAFO 

permits as major NPDES permits so that all CAFO individual permits are routinely made 

available to the Agency. 

To support either new regulatory initiatives or actions under existing regulatory authority, EPA 

would consider using CWA section 308 to collect additional information about CAFOs. EPA 

lacks comprehensive information on the number, location, and nature of the entire universe of 

medium and large CAFOs. Such information could help EPA, as appropriate, develop new 

regulations and help EPA and the states, under current authorities, direct appropriate 

compliance assistance efforts, better identify technical assistance needs, establish targeted 

enforcement strategies in areas of concern, and develop voluntary programs and stakeholder 

partnerships. 

New or Expanded Discharges of Nutrient and/or Sediment Pollution 

EPA would quickly issue guidance on the appropriate use of offsets in the context of the 

Chesapeake Bay TMDL, scheduled for publication in December 2010. 

EPA also would initiate a rulemaking that would clarify, at a minimum, how permitting 

authorities can authorize new or increased discharges related to population growth and 

development in the context of managing overall pollutant loads into impaired waters. Such a 

rule would, at a minimum, address how high-priority point source load increases could be 

managed so that the resultant load would be protective of water quality standards and achieve 

the goals of the president’s Chesapeake Bay Executive Order. 

28 
Part II of EPA’s 202(a) Plan 

EPA envisions that such a rulemaking would be consistent with EPA’s national trading policy 

that addresses offsets. For example, EPA expects that any nonpoint source reductions that could 

be used to offset an additional point source load could be used to meet only water quality-based 

effluent limitations; the portion of any point source load that is covered under the technologybased requirements in the NPDES permit would continue to require appropriate treatment by 

that point source. EPA also expects that any source reductions used to offset a point source load 

would be only those reductions that occur beyond those reductions already required for the 

point or nonpoint source, such as those based on the allocation in TMDL, a permit or local 

regulation, as applicable. 

Implementing that rule in coordination with the point source WLAs and nonpoint source load 

allocations in the Bay TMDL will be important as EPA and its partner states pursue Bay-wide 

management and lasting reductions of pollutants into the Bay. EPA intends to work 

cooperatively with USDA, our federal partners and the states to coordinate efforts regarding 

offsets, trading, and ecosystem services programs. 

EPA Actions under CWA Section 319 and CZARA Section 6217 

EPA would use CWA section 319(h)(8) to encourage the Bay watershed states to revise their 

CWA 319 management plans for the portion of the state in the Bay watershed to support the Bay 

TMDL and ensure consistency with the state’s Watershed Implementation Plan. The 

management plans require, among other elements, identifying best management practices (also 

required in annual CWA section 319 grant applications) by source category that will be 

undertaken to reduce pollutant loadings; identifying BMP implementation programs; and a 

schedule containing annual milestones on a watershed basis for BMP implementation at the 

earliest practicable date. Significantly, section 319(h)(8) requires an EPA determination of 

satisfactory progress that the state is meeting its nonpoint source pollution reduction schedule 

as a condition of making CWA section 319 grants to the state. 

In addition, section 6217 of the Coastal Zone Act Reauthorization Amendments (CZARA) 

requires states to develop coastal nonpoint pollution control programs and implement 

management measures in coastal zone areas (a significant subset of Bay drainage) with 

enforceable policies and mechanisms to assure their implementation. Section 6217(b)(3) also 

provides authority for continuing revision of states’ management measures that are necessary to 

maintain applicable water quality standards. EPA would, as a condition of the CWA section 

319 grant program, ask the six watershed states to review and revise or supplement their CZARA 

section 6217 management measures to make them adequate to meet the states’ Chesapeake Bay 

water quality standards as part of an update to their state CWA section 319 nonpoint source 

management plan. 

29 
Part II of EPA’s 202(a) Plan 

Publicly Owned Treatment Works (POTWs)/ 

Industrial Wastewater Discharge Facilities 

Background on POTW/Industrial Wastewater 

Discharge Facilities 

Wastewater discharge facilities contributed 20 percent 

of the TN and 21 percent of the TP loads delivered to 

Chesapeake Bay tidal waters in 2008. 

The number of significant and nonsignificant 

wastewater treatment facilities by jurisdiction is listed in 

Table 4. Work is still underway to provide a full 

accounting of all nonsignificant industrial facilities. 

Wastewater treatment facilities are sources 

of nitrogen and phosphorus to the Bay. 

Table 4. Wastewater treatment facilities reported by the bay jurisdictions 

State Significant facilities* Nonsignificant 

Total 

(not including 

nonsignificant 

industrials) 

Municipal Industrial Total significant Municipal 

DC 1 0 1 1 2 

DE 3 1 4 1 5 

MD 75 10 85 182 267 

NY 26 2 28 27 55 

PA 183 30 213 1,204 1,417 

VA 101 23 124 1,249 1,373 

WV 13 15 28 134 162 

Total 402 81 483 2,798 3,281 

* States define a significant wastewater discharger as a facility that meets one of the following criteria: 

 West Virginia, Delaware, and New York: facility treating domestic wastewater and the design flow is greater than 

or equal to 0.4 million gallons per day (mgd) 

 Pennsylvania: facility treating domestic wastewater and discharging greater than or equal to 0.4 mgd 

 Maryland: facility treating domestic wastewater and the design flow is greater than or equal to 0.5 mgd 

 Virginia: facility treating domestic wastewater and the existing design flow is greater than or equal to 0.5 mgd west 

of the fall line or 0.1 mgd east of the fall line, as well as all new facilities greater than 40,000 gallons per day (gpd) 

or facilities expanding to greater than 40,000 gpd 

 Across all seven jurisdictions: industrial facilities with a nutrient load equivalent to 3,800 TP lbs/year or 27,000 TN 

lbs/year 

 Any other municipal and industrial facilities identified within a jurisdictional tributary strategy 

 Wastewater facilities not meeting any of the criteria above are considered nonsignificant municipal or industrial 

facilities 

Of the total nutrient loads from municipal and industrial wastewater dischargers, the 402 

significant municipal facilities contributed 52 million pounds of nitrogen (89 percent of 

wastewater loads) and 3.8 million pounds of phosphorus (84 percent of wastewater loads) in 

2008. The 81 significant industrial facilities contributed 5.7 million pounds of nitrogen 

(9 percent of wastewater loads) and 0.6 million pounds of phosphorus (13 percent of wastewater 

loads) in 2008. 

30 
Part II of EPA’s 202(a) Plan 

In contrast, the 2,798 nonsignificant municipal facilities contributed 0.6 million pounds of 

nitrogen (2 percent of wastewater loads) and 0.1 million pounds of phosphorus (3 percent of 

wastewater loads) in 2008. Nonsignificant industrial facilities contributed less than 1 percent of 

the wastewater loads of both nutrient loads. NPDES permits are required under the CWA for all 

wastewater discharge facilities. The six watershed states issue these permits with EPA oversight. 

EPA Region 3 issues permits for the District of Columbia and for federal facilities in Delaware. 

When the watershed jurisdictions adopted their respective tributary strategies to reduce 

pollution loads to the Chesapeake Bay, they also adopted annual TN and TP loading caps for 

individual significant municipal and industrial dischargers. 

Table 5 lists the tributary strategy targeted discharge concentrations for TN and TP for 

significant and nonsignificant municipal facilities by jurisdictions. 

Table 5. Tributary strategy target discharge concentration for municipal wastewater treatment 

facilities by jurisdiction 

State Significant facilities Nonsignificant facilities Flow 

TN 

(mg/L) 

TP 

(mg/L) 

TN 

(mg/L) 

TP 

(mg/L) 

DCa 4.2 0.18 -- -- Design 

DEb TBD TBD -- -- Design 

MD 4 0.3 18 3 Design 

NY 5 0.5 8 1.5 Design 

PAc 6 0.8 TBD TBD Design 

VAd 3–6 0.3–1 8 1.5 Design 

WV 5 0.5 8 1.5 Design 

Notes: 

mg/L = milligrams per liter 

a. Blue Plains facility only. 

b. Target discharge concentrations pending final tributary strategy, which is pending final Pollution Control Strategies for 

local TMDLs. 

c. Target discharge concentrations will be established following a phased permitting approach. 

d. Different target discharge concentration assigned on the basis of river basin. 

The targeted discharge concentrations for industrial facilities are facility-specific across the 

seven watershed jurisdictions. 

Collectively, the seven jurisdictions’ tributary strategies cap basinwide wastewater loads at 43.8 

million pounds of TN and 3.5 million pounds of TP. 

As of May 2009, states and EPA have issued NPDES permits that include water quality-based 

effluent limits for TN and TP, on the basis of the facility-specific allocations in the jurisdictions’ 

respective tributary strategies, to 252 of the 483 significant municipal and industrial facilities. 

The 252 facilities compose approximately 71 percent of significant facilities’ design flow and 72 

percent of significant facilities’ total nutrient loads. 

Under current schedules, permits for all significant municipal facilities will contain effluent 

limits according to their individual annual loading caps specified in the respective jurisdictions’ 

tributary strategies by 2010 and all treatment upgrades required to meet the 2003 basinwide 

loading caps will be operational by 2014. Over 90 percent of nutrient reductions needed to reach 

the wastewater treatment facilities’ basinwide loading caps are expected to be achieved by 2010, 

31 
Part II of EPA’s 202(a) Plan 

through treatment technology upgrades and nutrient offset programs. By 2008, the industrial 

sector, as a whole, had met its tributary strategy loading allocations, although some individual 

facilities might not yet have their facility-specific loading allocations included in their NPDES 

permit. 

While there might be some additional low-cost opportunities to reduce nutrient discharges from 

this sector (perhaps in the case of some industrial phosphorus discharges, for example), 

generally speaking, it would be very expensive to further reduce loadings from municipal and 

industrial wastewater dischargers below the established facility-specific cap loads in the 

tributary strategies. However, unless EPA and/or the Bay watershed jurisdictions or both 

expand and strengthen their programs to regulate other source sectors, such further reductions 

from municipal and industrial dischargers might be necessary to meet the states’ water quality 

standards in the Bay. 

Achieving the tributary strategy discharge levels or higher levels of treatment requires 

installation of costly, advanced treatment technologies. Upgrading to more stringent enhanced 

nutrient removal (ENR) levels for all significant municipal facilities in the Chesapeake Bay 

watershed, from a year 2008 baseline, could cost about $919 million per year or about $17 per 

pound of TN removed and about $82 per pound of TP removed. Such unit costs are on a life 

cycle basis and include both capital and operational costs. Similar costs for upgrading all 

significant industrial facilities to more stringent ENR levels might cost about $42 million per 

year, or $10 per pound of TN removed and about $23 per pound of TP removed. The total 

capital cost associated with those loading reductions could be as high as $6.8 billion for 

significant municipal facilities and $246 million for significant industrial facilities. 

Implementing phosphorus detergent bans and industrial manufacturing process changes could 

also reduce nutrient discharges. 

What EPA Could Do in the Chesapeake Bay Watershed 

EPA would ensure that advanced nutrient removal technologies are installed by the 483 

municipal and industrial wastewater dischargers that collectively discharge about 90 percent of 

the total municipal/industrial nutrient loads to the Bay, where necessary to meet the facilities’ 

water quality-based permit limits. EPA would continue its review of permits for significant 

municipal and industrial dischargers in the Chesapeake Bay watershed to ensure that their 

permits are consistent with the states’ Bay water quality standards, the tributary strategy cap 

loads, and (when issued) the Bay TMDL’s WLAs. As part of its review, EPA would ask states to 

document whether permits issued for such dischargers are consistent with the currently 

applicable Bay Tributary Strategy or TMDL WLAs and whether any such permits for which there 

is no allocation for growth would provide for offsets in accordance with EPA Region 3's 

December 2004 permitting strategy. See NPDES Permitting Approach for Discharges of 

Nutrients in the Chesapeake Bay Watershed, EPA Region 3, December 2004, 

http://www.epa.gov/reg3wapd/npdes/pdf/ches_bay_nutrients.pdf. 

As described previously, if a jurisdiction’s upfront Watershed Implementation Plan does not 

adequately demonstrate reasonable assurance, or if its two-year milestone commitments do not 

indicate that nutrient and sediment controls would be implemented on a schedule that meets 

the Executive Council’s goal to have all controls needed to meet clean water goals in place by 

2025, or if a jurisdiction does not fully implement its two-year milestones, EPA could impose 

more stringent requirements on its municipal and/or industrial dischargers. 

EPA would work with states to ensure that WLAs in the Bay TMDL are based on federal 

wastewater facilities meeting appropriate effluent limits needed to attain water quality 

32 
Part II of EPA’s 202(a) Plan 

standards. Such effluent limits could be as low as 3 mg/L and 0.1 mg/L for TN and TP, 

respectively, if necessary. 

EPA Actions under the Clean Water State Revolving Fund (CWSRF) Program 

EPA will work with the Chesapeake Bay state CWSRF programs to encourage them to make or 

increase their investments in Chesapeake Bay restoration projects and help them market their 

programs to prospective recipients in the Bay watershed. While states decide which projects to 

finance in any given year, EPA will coordinate with the Bay states’ CWSRF programs and 

promote the use of CWSRF for funding priority Bay projects. In 2010 EPA will host a meeting 

with the CWSRF managers of the Bay states to elicit cooperation and partnership in using 

resources to better protect the Chesapeake Bay and to further leverage available resources. 

Onsite (Septic) Systems 

Background on Onsite Systems and Current Control Strategies 

Onsite systems, also referred to as septic systems or 

decentralized systems, typically serve individual 

residences while clusters of onsite systems are used 

in small communities and can serve hundreds of 

homes. Small community cluster systems can provide 

more efficient treatment opportunities and are 

gaining in popularity as an alternative to individual 

onsite systems and centralized sewers because of 

more reliable centralized management approaches. 

EPA estimates that 2.3 million onsite systems were in 

the Bay watershed in 2008 (for distribution by state, 

see Table 6). EPA estimates that the number of onsite 

systems in the watershed will increase by 35 percent 

by 2030 to a total of 3.1 million systems. 

Overall, onsite systems contributed about 4 percent of nitrogen loading to the Bay in 2008. 

Because of the strong retaining effects by underlying soils, most of the phosphorus in septic tank 

effluent is retained, resulting in very minimal phosphorus load to the Bay. While the typical 

onsite system can perform effectively when managed properly, it is not designed to reduce 

nitrogen and, thus, contributes significant nitrogen loads 

to groundwater, local streams, and, eventually, the Bay. 

Most homes in the watershed with onsite systems have a 

conventional system that does little to reduce nitrogen 

loads to the environment. Recognizing an estimated 10–

20 percent of homes experience malfunctions each year, 

and the significant amount of growth expected, the overall 

nitrogen loading to the Bay from onsite systems is 

expected to increase. 

Advanced treatment technology is available to upgrade 

onsite systems to significantly reduce the nitrogen load in 

septic system effluent. For example, common 

denitrification systems can reduce about 50 percent of the 

Table 6. Onsite systems in the 

Chesapeake Bay watershed 

State 

Total number of 

systems 

NY 148,160 

PA 759,221 

MD 613,209 

VA 682,098 

WV 81,476 

DE 24,996 

DC 0 

Bay-wide total 2,309,159 

Example of an advanced onsite treatment 

technology (Source: EPA Region 4). 

33 
Part II of EPA’s 202(a) Plan 

nitrogen load, while several newer technologies can achieve as much as 88 percent reduction. 

Denitrification system costs are in the range of $8,000 to $15,000 per house or more, with 

significant cost efficiencies associated with large clustered systems. Costs for nitrogen removal 

using these technologies would generally be more than $100 per pound, perhaps $114 to $143 

per pound. 

Nitrogen reduction can also be achieved by modifying or replacing the soil dispersal system 

following the pretreatment components. Using a shallow dispersal system, such as drip 

irrigation, provides additional nitrogen removal through plant uptake and reduced loading 

rates. In addition, raised soil dispersal technologies, such as mounds, allows for greater 

attenuation of nitrogen. These options could provide a less costly alternative to replacing an 

entire onsite system. 

Onsite systems are regulated at the state and local level by the health department in some states 

and the environmental department in others. Onsite systems are not subject to federal permit 

requirements, with a few exceptions. Onsite systems that serve multiple residences are regulated 

under the Safe Drinking Water Act for the purpose of protecting underground sources of drinking 

water. The CWA applies to discharges from onsite systems to waters of the United States. 

Among Bay watershed states, Maryland has an aggressive program. Maryland’s Bay Restoration 

Fund ($30 annual fee for all residents) provides grants, including installation and 5 years of 

maintenance, for homeowners and businesses to upgrade their onsite systems to remove 

nitrogen. The current priority is to address failing systems in critical areas defined as within 

1,000 feet of tidal waters and tidal wetlands of the Chesapeake Bay and its tributaries, then 

other failing systems. Maryland’s regulatory program has performance-based standards for 

advanced treatment systems greater than 5,000 gallons per day, and operating permits to 

monitor performance. As of October 1, 2009, all replacement and new systems in critical areas 

must remove nitrogen. 

Delaware’s Department of Natural Resources and Environmental Control (DNREC) requires 

service providers to be licensed and permitted, and it approves use of innovative and alternative 

systems under operating permits. Delaware has developed a marketing strategy that uses 

workshops, television messages, and nonprofit and community organizations to increase 

consumer awareness and participation in DNREC’s innovative septic loan program for system 

repair and replacement. 

What EPA Could Do in the Chesapeake Bay Watershed 

EPA would develop a model state program for reducing nitrogen loadings from onsite systems 

that the state health and environmental departments would implement. To demonstrate 

effectiveness, a pilot project could be established in a local jurisdiction. Elements of such a 

model program could include the following: 

 A database tracking system to help inventory and assess conditions such as performance 

and growth 

 Requiring nitrogen-reducing upgrades or retrofits of existing onsite systems in 

designated priority areas (e.g., Maryland’s Critical Areas) 

 Requiring all newly developed communities and densely populated areas to use cluster 

systems employing advanced nitrogen-removal technology together with responsible 

management entities 

34 
Part II of EPA’s 202(a) Plan 

 Requiring that all new or redeveloped individual properties have nitrogen-removal 

systems installed 

 Requiring that all failing systems be replaced or upgraded 

 Requiring maintenance contracts with trained and certified operators for all nitrogenremoval systems 

 Promoting connections to sewers where cost-effective and environmentally practicable 

 Using fees to establish a fund for upgrading systems in priority areas, establish 

management entities, and/or to purchase nutrient reductions from other source 

categories with lower costs (beyond what is already necessary for that source to meet 

water quality standards) where onsite systems are not cost-effective 

As part of the model program, EPA would also encourage states and locals to develop growth 

management and land use policies that proactively direct onsite system usage to areas with less 

environmental impact, given that onsite system use increases with population growth. 

EPA would communicate its expectation that jurisdictions achieve onsite system load allocations 

within the Bay TMDL through state regulations, permits, or enforceable agreements that would 

yield the necessary reductions with commitments to dates by which any necessary regulations or 

other instruments would be established and implemented.8

EPA would track state progress in adopting this model state program or similarly effective 

programs. In addition, EPA could issue biannual report cards evaluating jurisdictions’ and/or 

counties’ progress toward reducing nitrogen loads from onsite systems. Such evaluations could 

be by jurisdiction, watershed, county, and/or drainage area of each impaired tidal segment in 

the Bay TMDL. The report card might provide positive recognition for entities that exceeded 

their milestones, and draw attention to areas that have achieved less than a certain percentage 

of their two-year milestones or use a similar, alternative, transparent grading system to rate 

each entity’s performance. 

Atmospheric deposition of nitrogen from 

smokestacks (Source: EPA Region 2). 

Atmospheric Deposition of Nitrogen 

Background on Atmospheric Deposition of 

Nitrogen 

Reactive nitrogen in the atmosphere includes all 

forms of nitrogen except N2 gas and results in 

deposition of nitrogen oxides (NOx) and reduced 

nitrogen (NHx as ammonia or ammonium). 

Deposition can be wet (e.g., rain and snow), occult 

(e.g., clouds and fog), or dry (e.g., gases and 

particles). Sources of NOx include electric 

generating units, other industrial stationary 

 

8

 In states that are not signatories of the Chesapeake 2000 agreement, EPA would strongly encourage that any reductions in 

loads from onsite systems in Watershed Implementation Plans be achieved through enforceable or otherwise binding 

commitments. However, the Agency would accept an alternative program for fulfilling commitments if non-signatory 

jurisdictions can provide assurance that load allocations for onsite systems will be achieved and maintained and jurisdictions 

can demonstrate progress toward these goals through two-year milestones. 

35 
Part II of EPA’s 202(a) Plan 

sources, on- and off-road mobile sources (cars, trucks, ships, and tractors), lightning, and soils. 

Sources of ammonia include AFOs, fertilized fields, vehicles, and industrial stationary sources. 

The NOx airshed for the Chesapeake Bay is designated as those areas that contribute 75 percent 

of the air emission sources that result in pollutants being deposited in the Chesapeake Bay 

watershed and directly on the Bay’s tidal waters. 

The airshed encompasses, but is much larger than, the Bay watershed, extending across 17 states 

and one Canadian province, a total area of about 570,000 square miles. 

Within the Chesapeake Bay watershed, inorganic forms of nitrogen deposition have been 

modeled and monitored. Organic forms have not been well quantified. Of the inorganic nitrogen 

deposited from the air to the Chesapeake Bay watershed in 2002, approximately 67 percent is 

oxidized nitrogen due to air emissions of NOx. The remaining 33 percent is in the form of 

reduced nitrogen from emissions of ammonia. Significant uncertainty remains in the ammonia 

emissions inventory, which will be improved with further emission and ambient measurements.

In 2002 about 87 million pounds (19 percent) of nitrogen load deposited on the watershed was 

delivered to the Bay. An additional 22 million pounds of nitrogen were atmospherically 

deposited directly onto the surface of the tidal Bay’s waters. 

Ammonia emissions, in 2002, were estimated to contribute approximately 147 of the 452 

million pounds of nitrogen atmospheric deposition to the Bay watershed. About 80 percent of 

the deposited ammonia loads were estimated to originate from agricultural operations, and 20 

percent were from mobile and industrial sources, fires, and other sources.

EPA’s Office of Air and Radiation develops regulations and programs to reduce nitrogen 

concentrations in ambient air, resulting in decreased atmospheric deposition. Most of these 

regulations are national in scope but provide significant reductions in nitrogen deposition to the 

Chesapeake Bay and its watershed. Many regulations have been fully implemented since the 

inception of the Chesapeake Bay Program in 1983, while others are still being implemented or 

are proposed. 

The most prominent examples of programs that have or will result in nitrogen emission controls 

are the following: 

 Clean Air Interstate Rule (CAIR): Developed to control emissions from electric utilities 

to help states meet ozone and fine particulate standards 

 National Ambient Air Quality Standards: Designed to improve air quality for the 

protection of human health and welfare, including standards for ozone, PM2.5, and NOx

 Stationary Source Rules: Multiple rules under the section 129 solid waste combustion 

standards and the section 111 new source performance standards (NSPS) have NOx

reduction benefits 

 Mobile Source Rules: Implementing a number of regulations that will continue to 

dramatically reduce NOx from a variety of mobile sources, including cars, trucks, buses, 

trains, ships, and off-road vehicles 

36 
Part II of EPA’s 202(a) Plan 

 State and Local Greenhouse Gas and Energy Programs: As these programs promote 

greater use of renewable energy in electricity generation and greater energy efficiency in 

vehicles, homes and businesses, those efforts will affect fuel usage and, accordingly, act 

to decrease NOx emissions 

Reductions in nitrogen deposition have been estimated from 1985 to 2002 and for 2010 and 

2020 on the basis of projected air modeling analysis scenarios. The future year scenarios reflect 

emission reductions from national control programs for both stationary and mobile sources, 

including the CAIR, the Tier-2 Light-Duty Vehicle Rule, the Nonroad Engine Rule, the HeavyDuty Diesel Engine Rule, and the Locomotive/Marine Engine Rule. Although CAIR has been 

remanded to EPA, it will remain in place pending a rulemaking to replace it. It is yet unclear 

how the replacement rule will compare to the remanded rule. However, EPA anticipates NOx

emission reductions close to those originally projected. In the aggregate, the overall TN 

deposition to the Chesapeake Bay watershed is projected to decline from 1985 levels by 39 

percent by 2010, and 46 percent by 2020 as a result of the projected decreases in NOx driven by 

regulation and factoring in stable to increasing ammonia emissions throughout the Eastern 

United States. 

In terms of atmospheric deposition of nitrogen delivered to the Bay from the watershed or 

deposited directly onto the tidal Bay surface waters, current modeling projections, which are 

based on regulations in place or being proposed at the time, predict reductions of about 40 

million pounds per year in nitrogen deposition to the watershed from 2010 to 2020. 

Implementing mobile source rules through 2025 would provide even more reduction. The most 

recent runs of the Chesapeake Bay watershed model estimate that the 40 million pounds 

reduction from 2010 to 2020 of deposition to the watershed would translate to a reduction of 

about 5 million pounds per year of delivered load and another 2 million pounds of decreased 

deposition directly to the surface waters of Chesapeake Bay. These estimates include the original 

assumptions for reductions from CAIR and various mobile source rules. Updated emission 

inventories and estimates fully considering newer rules will further improve the reduction 

estimates. 

EPA’s Office of Air and Radiation also participates in monitoring ambient air, deposition, and 

emissions to better quantify air quality trends and success of nitrogen emission control 

programs. Some of the current initiatives include the following: 

a) EPA is providing technical oversight of an industry sponsored monitoring study of AFOs, 

called the National Air Emissions Monitoring Study (NAEMS). Emissions from animal 

agricultural operations are being monitored for several pollutants including ammonia. 

This study will complete data collection in early 2010, followed by development of an 

emissions estimating methodology within 18 months. EPA will use the study results to 

aid in assessing appropriate actions for AFOs, which could include actions to reduce 

nitrogen deposition. 

b) EPA is collaborating with the National Atmospheric Deposition Program (NADP) to 

monitor ammonia concentrations as part of a pilot project at 21 NADP wet deposition 

sites. NADP is a multiagency monitoring consortium, including USDA, NOAA, other 

federal agencies, states, tribes, academic institutions, and industry. The goal of this effort 

is to represent temporal and spatial long-term trends in ammonia concentrations, 

provide information to assess changes in ecosystems and agricultural activities, and 

provide benchmarks for air quality goals. 

37 
Part II of EPA’s 202(a) Plan 

Both the NAEMS and the NADP and other monitoring data will be very useful in improving the 

national emissions inventory and assessing the accuracy of our transport and deposition models. 

With these data, EPA would perform the following: 

 Update the emissions inventory with information from new nitrogen emission control 

programs 

 Model the nitrogen transport and deposition onto the Chesapeake Bay and watershed 

 Model the fate and transport of nitrogen across the watershed as it is delivered to the Bay 

 Estimate future nitrogen load reductions as a result of emission control programs 

 Use the results in the development of the Bay TMDL 

 Determine what further reductions in nitrogen deposition are necessary to meet the 

atmospheric deposition portion of the Bay TMDL’s load allocations 

What EPA Could Do in the Chesapeake Bay Watershed 

EPA would implement its agenda described above for reducing nitrogen emissions. On the basis 

of a modified 2002 inventory of planned actions, this approach would result in at least an 

estimated additional 7 million pounds of reduction in nitrogen loading to the Bay between 2010 

and 2020 (5 million pounds via indirect deposition on land and upstream waters and 2 million 

pounds via direct deposition to the surface waters of the Bay). 

EPA is in the process of developing and implementing a number of regulations and programs 

that will continue to reduce nitrogen from a variety of stationary and mobile sources. 

EPA is developing three rules that could affect ambient air levels of NOx and, therefore, the 

deposition of nitrogen: (1) a replacement rule for the court-remanded CAIR, (2) the 

reconsideration of the ozone standard that was promulgated in 2008, and (3) the development 

of a secondary standard for oxides of nitrogen and sulfur. 

EPA is implementing the NSPS for stationary spark ignition engines and finalizing the proposed 

amendments to the national emission standards for stationary reciprocating internal 

combustion engines (RICE). 

EPA is completing implementation of the following mobile source rules and programs: LightDuty Tier 2 Rule, the Clean Heavy-Duty Truck and Bus Rule, the Clean Air Nonroad Diesel—Tier 

4 Rule, four Marine-Related NOx Reductions Programs, the Locomotive and Marine Diesel Rule, 

the Non-road Large and Small Spark-Ignition Engines Programs, the Coordinated Strategy for 

Control of Emissions from Ocean-Going Vessels, and the Voluntary Clean Diesel Programs. 

EPA would continue working to update and improve the national emissions inventory, improve 

modeling of ammonia deposition, and accurately project reductions in TN deposition from the 

most recent proposed regulations and standards. 

EPA would establish air deposition allocations as part of the load allocations for the Bay TMDL. 

EPA would analyze whether additional reductions are needed to meet the air deposition load 

allocations developed under the Bay TMDL. 

38 
Part II of EPA’s 202(a) Plan 

By establishing and adopting each new set of federal two-year milestones, EPA would reevaluate 

ongoing and planned regulations and actions for reducing nitrogen emissions and deposition 

and consider whether additional actions are warranted. 

EPA Action to Improve Compliance 

To address noncompliance with existing environmental laws and associated environmental 

effects on this watershed, EPA has developed a draft Chesapeake Bay Compliance and 

Enforcement Strategy (Strategy), which guides the use of EPA’s compliance and enforcement 

tools to target sources of pollution impairing the Bay watershed (see the attached draft Strategy 

in Appendix 1). 

Urban/suburban stormwater runoff delivers a large load of nutrients and sediment to the Bay 

accounting for approximately 10 percent of nitrogen, 31 percent of phosphorus, and 19 percent 

of sediment. However, most of the nutrients and sediment discharged to the Bay in 

urban/suburban stormwater runoff is discharged through stormwater outfalls that are not in 

designated MS4 areas or represent pre-1986 development and, thus, not specifically regulated 

by the CWA’s NPDES program. Only 2 percent of the nitrogen, 6 percent of the phosphorus, and 

4 percent of sediment delivered to the Bay through urban/suburban stormwater discharge 

outfalls are regulated by EPA and the Bay states under the NPDES MS4 program. In addition, 

about one-half of the nitrogen and one-half of phosphorus from agriculture is from animal 

manure, of which only about one-third is regulated (contributing 6 percent of nitrogen and 8 

percent of phosphorus delivered to the Bay). The remaining nitrogen and phosphorus from 

agriculture is from non-animal agriculture and smaller animal operations or emissions, which 

are not federally regulated. Thus, while EPA regulates pollution discharges from some of those 

sources, including CAFOs and MS4s, through the CWA NPDES permitting program and 

regulates other sources through the CAA, many sources are not subject to federal environmental 

regulations, including row crop agricultural operations and suburban stormwater runoff outside 

specific municipal stormwater sewersheds. 

In addition to being hampered by the limited universe of regulated pollution sources, EPA's 

ability to take enforcement action in a number of key sectors is further compromised by terms of 

existing permits that lack specificity. For example, MS4s are not typical end-of-pipe permits 

with clearly defined numeric effluent limits. Instead, permit conditions often emphasize actions 

that should be taken to achieve certain outcomes and are frequently written with imprecise 

provisions. Without expanded regulatory coverage and stronger permit requirements, 

compliance and enforcement tools will not fix the Bay’s pollution problems. 

The magnitude of efforts needed to achieve the Bay states’ water quality standards is significant 

and requires a new generation of federal and state regulatory tools and actions. Many of the 

programmatic and regulatory recommendations in this report could require additional time to 

develop and implement before pollutant reductions needed for a healthy Chesapeake Bay are 

realized. In the meantime, several enforcement tools and actions can be used now. For example, 

under existing statutory enforcement and/or endangerment authorities, as well as permitting 

regulations (that would inform remedies), EPA has tools to do, among other things, the 

following: 

 Designate AFOs as CAFOs, making them subject to permitting requirements 

 Audit, inspect, and provide compliance assistance to (or take enforcement against) MS4s 

to improve best management practices and stormwater management plans 

39 
Part II of EPA’s 202(a) Plan 

 Enforce stormwater requirements at large construction sites to reduce sediment 

 Enforce new source review, NSPS, and state implementation plan requirements at 

stationary sources and mobile source regulations at port facilities, warehouses, and 

construction sites to reduce NOx emissions 

 Monitor compliance with major milestones for installing controls at wastewater 

treatment plants and take appropriate enforcement 

 Achieve pollutant reductions through strategic use of endangerment authorities 

 Enhance effectiveness in overseeing state enforcement programs and initiate supportive 

federal enforcement actions, as appropriate 

 Seek to ensure that all CAFOs that discharge or propose to discharge obtain NPDES 

permit coverage 

 With other EPA, state, and federal partners, engage in education and outreach to the 

CAFO/AFO community about statutory and regulatory requirements 

 Target cleanup activities at hazardous-waste sites identified as contributing to specific 

impairments to water quality in the Bay 

Given available environmental enforcement authorities, EPA’s strategic use of compliance and 

enforcement tools likely can assure only modest nutrient and sediment pollution reductions to 

the Bay acting alone. However, EPA believes that strategic enforcement efforts aimed at key 

regulated sectors and pollutants affecting the Bay will raise visibility and awareness of the 

importance of a rigorous commitment to strong compliance, stewardship, and accountability by 

the regulated community regarding the health of the nation’s largest estuary. Compliance and 

enforcement efforts would continue into the future after EPA develops new environmental 

requirements that expand coverage of existing permitting programs and establish new, 

enhanced standards of performance for preventing pollutants from entering the Bay’s 

watershed. 

The draft Strategy is a multiyear, multistate, multimedia strategy designed to augment and 

enhance existing work to identify and address violations of federal environmental laws resulting 

in nutrient and sediment pollution in targeted impaired watersheds. The Strategy provides a 

focused and ambitious plan for addressing pollution sources, both in the Bay’s watershed and 

the airshed. The Strategy identifies industrial, municipal, and agricultural sources releasing 

significant amounts of nitrogen, phosphorus, sediment, and other pollutants to impaired 

watersheds in the Bay in excess of amounts allowed by the CWA and the CAA and other 

applicable environmental laws. 

The draft Strategy examines watersheds in the larger Bay watershed and identifies nutrient and 

sediment impaired segments of those watersheds, as well as significant regulated sources 

discharging the pollutants and other contaminants with potential noncompliance problems. 

Regulated sources in noncompliance that are contributing to impairment of the identified 

watersheds would be systematically addressed in accordance with the Strategy. 

The draft Strategy analyzes existing data from a variety of sources to target key regulated sectors 

identified as contributing significant amounts of nitrogen, phosphorous, and sediment loadings 

and other contaminants to impaired watersheds in the Bay. For each of the sectors, EPA would 

examine specific watersheds impaired by nitrogen, phosphorous, sediment, and other 

40 
Part II of EPA’s 202(a) Plan 

contaminants, as well as the regulated sources in those watersheds, and the sources’ compliance 

status. The key sectors are the following: 

 CAFOs 

 Municipal and industrial wastewater facilities 

 Stormwater NPDES point sources, including MS4s and stormwater discharges from 

construction sites and other NPDES-regulated, industrial facilities 

 Air deposition sources of nitrogen regulated under the CAA, including power plants 

In addition, the Strategy identifies appropriate opportunities for compliance and enforcement 

activities related to the CWA section 404 program regulating dredge and fill operations, federal 

facilities, and Superfund sites, including remedial action and removal sites, and Resource 

Conservation and Recovery Act (RCRA) corrective action facilities. 

Finally, the Strategy would examine opportunities for using EPA’s imminent and substantial 

endangerment authorities, including CWA section 504, section 1431 of SDWA, section 7003 of 

RCRA, section 106 of the Comprehensive Environmental Response, Compensation, and Liability 

Act, and section 303 of the CAA to address significant pollution problems affecting the Bay. 

EPA Actions to Reduce Toxic Pollution in the Bay 

While the water quality directive in the Executive Order and this report focus on nutrient and 

sediment pollution, EPA recognizes that the Chesapeake Bay and its tributaries, particularly its 

urbanized rivers, are also threatened by toxic chemicals. In 2006 the Chesapeake Bay Program 

conducted an assessment for toxic chemicals and determined that organic chemicals such as 

PCBs, polycyclic aromatic hydrocarbons (PAHs), pesticides, and endocrine-disrupting 

compounds (estrogens and pharmaceuticals) are a high-priority concern. The risks to 

Chesapeake Bay living resources from those pollutants extend to people who eat fish caught 

from the Bay because certain pollutants such as PCBs and mercury accumulate in fish tissue. For 

that reason, mercury has also been identified as a high-priority toxic chemical. 

EPA’s recommendations, described previously, to strengthen stormwater regulations and 

permits would have the additional benefit of controlling contaminant flow from the land, 

including oils and greases, metals, PAHs, and mercury from air deposition. EPA’s draft 

compliance and enforcement strategy would also address stormwater discharges. 

EPA’s draft compliance and enforcement strategy would also address contaminants such as 

PCBs and PAHs. EPA would focus its efforts in three geographic areas: (1) the Elizabeth River; 

(2) the Anacostia River; and (3) the Baltimore Harbor/Patapsco River. Those areas have been 

identified as the waters most affected by toxic contaminants and contain current or historical 

RCRA facilities and Superfund sites. EPA would use Superfund and RCRA authorities and work 

with the states and federal partners to reduce the effect of hazardous substances from those 

areas on the Bay. 

Under the CAA, EPA regulates 187 toxic air pollutants. EPA is substantially reducing emissions 

of these air toxics, including mercury, through maximum achievable control technology (MACT) 

standards, the new source review program, and mobile source programs. MACT standards 

target specific industries (e.g., coal combustion, cement production, waste incineration) known 

to emit mercury and other toxics listed in the CAA (e.g., PCBs). On the basis of an assessment of 

the risk remaining after application of MACT standards, EPA is to promulgate more stringent 

41 
Part II of EPA’s 202(a) Plan 

standards for those industries if necessary to protect public health with an ample margin of 

safety or to prevent adverse environmental effects. Programs that address specific sources in the 

United States include a number of rules that EPA has adopted over the past several years but 

have not yet been fully implemented. 

In addition to those recommended new efforts, EPA and partner states will continue to 

implement a number of ongoing efforts to reduce toxic pollution to the Bay and its tributary 

waters. EPA and states will establish TMDLs for local streams in the watershed and larger-scale 

TMDLs for listed chemical impairments (e.g., PCBs in the Potomac Basin). EPA will ensure 

conformance of NPDES permits to the TMDL-based allocations. 

EPA will provide leadership in the restoration of heavily affected urban rivers. EPA will lead the 

effort to define a Toxics Management Plan for the Anacostia River as part of the November 2010 

Anacostia Restoration Plan being prepared by the USACE. Continued source control, 

contaminated sediment remediation and land-based, waste site cleanups would be elements of 

the strategic plan for this priority watershed. EPA Region 3 has designated the Elizabeth River 

as a priority urban river, and it will receive significant attention in the coming years. Finally, in 

Baltimore Harbor, EPA Region 3 will focus on ongoing removal, remedial, and corrective action 

activities at sites looking for opportunities to accelerate cleanups. 

Recent action by the District of Columbia to reduce PAHs in local waters by banning the sale 

and use of coal-tar-based pavement sealant is a potential model for use in other areas of the 

watershed. In addition, EPA would lead a feasibility analysis regarding the potential phase-out 

of all equipment containing PCBs on federal lands by a date such as 2025. 

EPA is concerned about the potential risks posed by contaminants of emerging concern such as 

endocrine disruptors (e.g., pharmaceuticals and personal care products). EPA is implementing a 

four-pronged strategy to improve the science and public understanding regarding the 

occurrence and potential effects of those chemicals on aquatic life and human health. Ongoing 

EPA efforts include developing analytical methods and a methodology for assessing risks to 

aquatic life and public health. EPA has recently completed or is conducting a number of studies 

to better understand the occurrence and concentration of the chemicals in POTW effluents, 

biosolids, and fish tissue. EPA is also studying how the healthcare industry manages unused 

pharmaceuticals and expects to recommend best management practices. Additionally, the 

Agency is promoting take-back programs for unused or expired pharmaceuticals. When 

sufficient information is available, EPA would take regulatory action as appropriate to reduce 

any threats posed by the chemicals. 

EPA is also concerned about potential risks posed by total dissolved solids discharges related to 

resource extraction activities, particularly natural gas exploration and mine-pool drawdown, 

and will take appropriate actions to characterize and address those risks. EPA is working closely 

with state partners to investigate impacts and implement measures for most effectively 

regulating treatment and disposal of brine, mine-pool effluent, and waste streams generated at 

coal-fired power plant flue gas desulfurization units. EPA is also exploring the possible transport 

of Naturally Occurring Radioactive Materials through treatment and disposal of brine generated 

from natural gas exploration in the Marcellus Shale. 

42 
Part II of EPA’s 202(a) Plan 

43 

Timing of EPA Actions 

The Executive Order directs agencies to consult with the Federal Leadership Committee and, to 

the extent practicable and authorized under existing authorities, begin implementing core 

elements of their protection and restoration programs and strategies as soon as possible and 

before a final strategy is released. While EPA develops new regulations and programs, the 

Agency will also take action using a range of existing authorities to reduce nutrient and sediment 

pollution to the Bay. 

EPA Actions to Hold Itself Accountable

As described in Part I above, EPA would hold itself accountable through a series of two-year 

milestones for accomplishing the actions identified in this report and reporting transparently on 

our progress just as the seven Chesapeake Bay jurisdictions are doing. Specifically, EPA would 

track its progress toward developing and implementing stormwater and CAFO rules; developing 

and implementing more stringent reductions of ammonia and NOx emissions; reducing 

stormwater loads from federal facilities and lands; and other actions described in this 

document. 
Part III of EPA’s 202(a) Plan 

Part III: Enhanced Partnership for a Healthy Waters—Thriving 

Agriculture Initiative 

EPA believes that maintaining the viability of agriculture is an essential component to 

sustaining ecosystems in the Bay. Environmentally sound farming is a preferred land use in the 

region, and the Agency is committed to strong partnerships and collaboration with states and 

local governments, urban, suburban and rural communities, and the private sector to achieve 

environmental objectives for the Bay. 

Programs that empower voluntary actions to protect the Bay through incentives and technical 

and financial assistance are a fundamental part of improving the Bay. EPA is committed to 

developing and applying new technologies and ecosystems services markets that can provide 

new revenue opportunities for farmers and their communities, increase rural wealth, and 

sustain the restoration of the Bay. 

EPA also believes that a sound system of accountability is critical to ensuring that goals for the 

Bay are met. That system would entail binding commitments from state and local governments, 

as well as federal agencies and the private sector to implement measures that ensure that we 

meet environmental goals for the Bay. Such a system also requires that federal agencies be 

accountable for delivering the resources and assistance necessary for restoring and protecting 

the Bay. 

To further those goals, EPA would work with USDA and other federal and state partners to 

design and implement a series of ambitious programs to secure widespread implementation of 

conservation practices throughout the Chesapeake. In doing so, we would be able to generate 

significant progress in addressing water quality and agricultural issues even as essential 

accountability measures are being developed. 

Key elements of the partnership include the following: 

 Target resources in priority watersheds. Strategically expand intensive use of key 

conservation practices in the high-priority agricultural watersheds by aligning EPA 

resources with USDA and other partners to engage farmers in nutrient and sediment 

reduction efforts. 

The intent of this coordinated effort is to achieve significant reductions of nutrients and 

sediments and demonstrate the value of this targeted approach. By setting conservation 

goals, engaging more farmers, and providing sufficient technical assistance to help 

farmers implement conservation practices, this approach will have broad benefits to 

water quality in watersheds throughout the Bay. 

 Establish centerpiece projects to address agricultural challenges. Align 

federal, state, and private resources and partnerships to establish high-profile projects to 

tackle some of the most challenging and critical agricultural issues facing communities in 

the Bay. 

The intent of these projects is to catalyze collective action in developing sustainable 

solutions to key agricultural challenges such as keeping livestock out of streams, 

engaging small dairy operations in conservation, and addressing phosphorus imbalances 

in areas with high concentrations of animal operations.

44 
Part III of EPA’s 202(a) Plan 

45 

 Collaborate in developing next-generation conservation planning tools. 

Work with federal, state, agricultural and research partners to develop the next 

generation of conservation planning tools in the next eight months and commit 

resources and expertise to implement the tools. These conservation planning tools will 

play a key role in helping the states meet Chesapeake Bay water quality goals. 

 Develop technologies. Align EPA programs and resources with USDA efforts to 

achieve water quality improvements by developing critically needed tools and 

technologies to help farmers meet their conservation and farm operation objectives. EPA 

would seek opportunities to align its resources with USDA to fund technology 

development to assist the agriculture industry in reducing the effects of livestock waste. 

In achieving those ambitious objectives, EPA would work with state and federal partners to 

identify and align resources from its relevant programs—e.g., 319 program, SRF, CWA section 

117, State Innovation Grants, and STAR Grants—in concert with USDA’s Farm Bill programs 

and resources as administered by 

Natural Resources Conservation 

Service, Farm Service Agency, and 

other mission areas. EPA’s 

intention would be to develop and 

demonstrate an increased capacity 

to implement key conservation 

practices in priority agricultural 

watersheds to substantially reduce 

nutrient and sediment loads to the 

Chesapeake Bay through 

enhanced coordination of our 

resources and partnerships. 

Through the alignment of 

resources and continued work 

with federal, state, and local 

partners, EPA would intend to 

enable farmers and communities 

to accelerate the wider adoption of 

conservation practices and 

support innovative efforts to 

address some of the most pressing 

challenges to meeting water 

quality and agricultural goals in 

the Bay watershed. 

Centerpiece Projects: Meeting challenges—Creating

solutions 

Meeting the challenges in the Bay region involves resolving a 

combination of conservation, economic, and sustainability 

issues that require a concerted effort to engage the creativity 

and commitment of federal, state, and local partners. Several 

important opportunities exist for coordinated action by 

USDA and EPA in the region, such as the following: 

 Small dairies—Small-dairy farmers face unique problems 

in implementing conservation practices at the same time 

that they face intense economic pressures. Providing 

creative ways to help them incorporate conservation 

measures while improving their financial position would 

provide an important benefit to rural communities and 

the Bay. 

 Livestock exclusion—New and innovative approaches 

have provided farmers with flexible options for keeping 

livestock out of streams. Expanding access of technical 

and financial assistance to farmers throughout the 

watershed to exclude livestock from streams would 

dramatically improve water quality and improve farm 

operations. 

 Addressing phosphorus imbalances in areas with high 

concentrations of animal operations—Providing technical 

and financial assistance to help farmers manage excess 

manure will be important for long-term sustainability of 

agricultural operations and the health of the Bay. 

With a coordinated effort on those and other issues, USDA 

and EPA can make the resources available that are necessary 

for a successful and sustainable solution that has significant 

benefits for farming communities and the health of the Bay. 
Draft Chesapeake Bay Compliance and Enforcement Strategy

I. Introduction 

The Chesapeake Bay (Bay) is North America’s largest and most biologically diverse estuary, 

home to more than 3,700 species of plants and animals. It is about 200 miles long, contains 

more than 11,000 miles of tidal shoreline, and is fed by 100,000 creeks, streams, and rivers. The 

watershed spreads over 64,000 square miles and includes parts of six states—Delaware, 

Maryland, New York, Pennsylvania, Virginia, and West Virginia—and the entire District of 

Columbia. As of 2007, approximately 17 million people lived in the Bay watershed. The Bay 

provides significant economic and recreational benefits, estimated to exceed $33 billion 

annually, to the watershed’s population.1 The Bay’s waters are threatened by pollution from a 

variety of sources. To address noncompliance with environmental laws and associated 

environmental impacts to this watershed, the U.S. Environmental Protection agency (EPA) has 

developed this Chesapeake Bay Compliance and Enforcement Strategy (Strategy), which guides 

the use of EPA’s compliance and enforcement tools to target sources of pollution impairing the 

Bay watershed.

a. Current Health of the Bay 

Multiple federal, state, and local entities have been working to improve the health of the Bay. 

While total pollution levels have declined since 1985, most of the Bay’s waters are degraded and 

are incapable of fully supporting fishing, crabbing, or recreational activities. Algal blooms fed by 

nutrient pollution block sunlight from reaching underwater Bay grasses and lead to low oxygen 

levels in the water. Suspended sediment from urban development, agricultural lands, and some 

natural sources is carried into the Bay and clouds its waters. Portions of the Bay and its tidal 

tributaries are contaminated with chemical pollutants that can be found in fish tissue. The Bay’s 

critical habitats and food web are at risk. Nutrient and sediment runoff have harmed Bay grasses 

and bottom habitat, while disproportionate algae growth has pushed the Bay food web out of 

balance. The Bay’s habitats and lower food web (benthic and plankton communities) are 

functioning at 45 percent of desired levels. Many of the Bay’s fish and shellfish populations are 

below historical levels. The blue crab population continues to be low, and the stock is not 

rebuilding; oyster restoration efforts are hampered by disease, and the stock remains at low 

levels; American shad continues at depressed levels; the menhaden population in the Bay is low 

despite healthy populations along the Atlantic coast; and striped bass are plentiful, but there is 

concern about disease and nutrition. The Bay’s fish and shellfish populations are at 48 percent 

of desired levels. Fish kills occur in a number of rivers leading to the Bay.2 

b. Significant Pollutants and Sources 

The greatest pollution threats to the Bay are from nutrients (nitrogen and phosphorus) and 

sediment. Such pollutants come from many sources, including agricultural operations, 

wastewater treatment facilities, urban stormwater runoff, and air deposition from power plants 

and cars. Agricultural sources contribute the largest nutrient and sediment pollution in the 

watershed, accounting for approximately 38 percent of nitrogen loading, 45 percent of 

phosphorus loading, and 60 percent of the sediment loading. About one-half of the nitrogen 

from agriculture is from animal manure. Municipal and industrial wastewater treatment 

 

1

 EPA, Office of Inspector Gen., Rep. No. 08-P-0199, EPA Needs to Better Report Chesapeake Bay Challenges: A Summary Report 3

(July 14, 2008), at http://www.epa.gov/oig/reports/2008/20080714-08-P-0199.pdf. 2

 Chesapeake Bay Program, Bay Barometer: A Health and Restoration Assessment of the Chsapeake Bay and Watershed in 2008, 

CBP/TRS-293-09, EPA-903-R-09-001, (March 2009), at http://www.chesapeakebay.net/content/publications/cbp_34915.pdf. 

A-1 
Draft Chesapeake Bay Compliance and Enforcement Strategy

facilities account for approximately 20 percent of the nutrient loading to the Bay. Urban and 

suburban stormwater runoff accounts for approximately 10 percent of the nitrogen loading, 

31 percent of phosphorous loading, and 19 percent of sediment loading. Population growth and 

development and the rapid increase in the amount of impervious surfaces have caused 

stormwater pollution to be a growing concern. 

Air pollution contributes approximately 34 percent of the total nitrogen loading to the Bay.3

Modeling estimates based on projected emissions for 2020 indicate that the relative 

contributions of different source sectors of airborne nitrogen oxide (NOx) emissions to oxidized 

nitrogen deposition to the Bay watershed will be 26 percent from on-road mobile sources; 

21 percent from non-road/marine/construction mobile sources; 17 percent from industrial 

sources; 15 percent from power plants; 12 percent from residential and commercial sources; and 

9 percent from other sources.4 Figure A-1 shows relative responsibility for sector loadings to the 

Bay. 

Figure A-1. Relative responsibility for pollution loads to the Bay. 

Other pollutants of concern in the Bay include hazardous wastes, like PCBs, polycyclic aromatic 

hydrocarbins (PAHs), and metals in river sediment. The contaminants can leach into the 

groundwater or discharge directly into the Bay from different sources in the watershed and 

airshed, such as industrial facilities, hazardous waste sites, landfills, urban stormwater runoff, 

and mobile and stationary air sources. 

 

3

 Chesapeake Bay Program, Questions and Answers from the Senate Environment and Public Works Committee Hearing on the 

Chesapeake Bay on April 20, 2009 (June 3, 2009). 4

 Robin Dennis, Report on Relative Responsibility Assessment of Sectors and States: Oxidized-Nitrogen Deposition in 2020 (final 

numbers), Chesapeake Bay Modeling Subcommittee Meeting, Annapolis, MD. (April 8, 2008). 

A-2 
Draft Chesapeake Bay Compliance and Enforcement Strategy

II. Compliance and Enforcement Role 

In the Bay watershed, only a portion of the nutrient and sediment pollution is regulated under 

the Clean Water Act (CWA) or the Clean Air Act (CAA). According to estimates by EPA’s 

Chesapeake Bay Program Office, at least 49 percent of total nitrogen, 35 percent of total 

phosphorus, and 4 percent of total sediment is subject to federal regulation. The best modeling 

indicates that nitrogen pollution to the Chesapeake Bay must be reduced by 30 percent, and 

phosphorus pollution must be reduced by 8 percent to meet water quality standards. Achieving 

that level of reduction will require significant and sustained reductions by all source categories, 

including agriculture. Yet, even full compliance with existing regulations will not result in the 

necessary pollution reductions to restore the health of the Bay. 

Agricultural sources and urban stormwater runoff account for about half of the nitrogen and 

three-quarters of the phosphorus pollution to the Bay. Air deposition of nitrogen from 

stationary and mobile sources accounts for about one-third of the nitrogen pollution. EPA 

regulates pollution discharges from some of these sources, including concentrated animal 

feeding operations (CAFOs) and municipal separate storm sewer systems (MS4s), through the 

CWA National Pollutant Discharge Elimination System (NPDES) permitting program and 

regulates other sources through the CAA. Many sources, however, are not subject to federal 

environmental regulations, including row crop agricultural operations and suburban 

stormwater runoff outside specific municipal stormwater sewersheds. In addition to being 

hampered by the limited universe of regulated pollution sources, EPA's ability to take 

enforcement action in a number of key sectors is further compromised by terms of existing 

permits that lack specificity. For example, MS4s are not typical end-of-pipe permits with clearly 

defined numeric effluent limits. Instead, permit conditions often emphasize actions that should 

be taken to achieve certain outcomes and are frequently written with imprecise provisions. 

Without expanded regulatory coverage and stronger permit requirements, compliance and 

enforcement tools will not fix the Bay’s pollution problems. 

The magnitude of efforts needed to achieve Bay water quality standards is significant and 

requires a new generation of federal and state regulatory tools and actions. These could include 

the following: (1) finalizing total maximum daily loads (TMDLs) throughout the Bay watershed; 

(2) expanding the definition of CAFO to encompass smaller animal feeding operations (AFOs); 

(3) defining more stringent permit conditions related to the land application of animal manure; 

(4) expanding NPDES stormwater regulations to apply to high-growth, urban/suburban areas; 

(5) creating more stringent permit conditions including standards for discharges of stormwater 

from new/redevelopment projects and retrofit criteria for large facilities with impervious 

surfaces such as shopping malls, roads, and parking lots; and (6) ensuring adequate, enforceable 

NPDES permits for MS4s. 

Many of these programmatic and regulatory fixes could require additional time to develop and 

implement before pollutant reductions needed for a healthy Chesapeake Bay are realized. In the 

meantime, some enforcement tools and actions can be used now. For example, under existing 

statutory enforcement or endangerment authorities (or both), as well as permitting regulations 

(that would inform remedies), EPA has tools to do, among other things, the following: 

 Designate AFOs as CAFOs, making them subject to permitting requirements 

 Audit, inspect, and provide compliance assistance to (or take enforcement against) MS4s 

to improve best management practices and stormwater management plans 

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 Enforce stormwater requirements at large construction sites to reduce sediment 

 Enforce new source review, NSPS, and state implementation plan (SIP) requirements at 

stationary sources and mobile source regulations at port facilities, warehouses, and 

construction sites to reduce NOx emissions 

 Monitor compliance with major milestones for installing controls at wastewater 

treatment plants and take appropriate enforcement 

 Achieve pollutant reductions through strategic use of endangerment authorities 

 Enhance effectiveness in overseeing state enforcement programs and initiate supportive 

federal enforcement actions, as appropriate 

 Seek to ensure that all CAFOs that discharge or propose to discharge obtain NPDES 

permit coverage 

 With other EPA, state, and federal partners, engage in education and outreach to the 

CAFO/AFO community about statutory and regulatory requirements 

 Pursue enforcement-led cleanup activities at hazardous-waste sites identified as 

contributing to specific impairments to water quality in the Bay 

Given available environmental enforcement authorities, EPA’s strategic use of compliance and 

enforcement tools likely can assure only modest nutrient and sediment pollution reductions to 

the Bay acting alone. However, EPA believes that strategic enforcement efforts aimed at key 

regulated sectors and pollutants affecting the Bay will raise visibility and awareness of the need 

for a rigorous commitment to strong compliance, stewardship, and accountability by the 

regulated community regarding the health of the nation’s largest estuary. Compliance and 

enforcement efforts will continue into the future after EPA develops new environmental 

requirements that expand coverage of existing permitting programs and establish new, 

enhanced standards of performance for preventing pollutants from entering the Bay’s 

watershed. 

While EPA will continue to play an important enforcement role in the Bay states, the states 

themselves are the critical cops on the beat, conducting the bulk of environmental inspections 

and compliance assistance. As such, EPA would closely plan and coordinate compliance and 

enforcement efforts with its state (and commonwealth) partners around the Bay to ensure 

robust watershed-wide compliance and enforcement programs that establish clear expectations 

for the public and the regulated community regarding compliance.5 Through our coordinated 

efforts, EPA and state compliance and enforcement programs will strengthen efforts to ensure 

compliance. That complementary effort can identify innovative opportunities for using federal 

and state enforcement tools to promote sound management practices to reduce pollution to the 

Bay. If successful, such pilot approaches could also be used in other estuaries facing similar 

pollution assaults (e.g., Puget Sound, San Francisco Bay). 

To enhance transparency, EPA is developing a Chesapeake Bay compliance and enforcement 

Web site where this Strategy and other relevant information related to compliance and 

enforcement will be posted, including the compliance status of facilities in the Bay watershed. 

The Web site is at www.epa.gov/compliance/civil/initiatives/chesapeakebay.html.

 

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 An EPA/state Planning, Communication, and Oversight plan will be developed pursuant to this Strategy. 

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III. Strategy 

a. Overview 

The Strategy is a multiyear, multistate, and multimedia strategy designed to augment and 

enhance existing work to identify and address violations of federal environmental laws resulting 

in nutrient and sediment pollution in targeted impaired watersheds. This Strategy provides a 

focused and ambitious plan for addressing pollution sources, both in the Bay’s watershed and 

the airshed. The Strategy identifies the industrial, municipal, and agricultural sources releasing 

significant amounts of nitrogen, phosphorus, sediment, and other pollutants to impaired 

watersheds in the Bay in excess of amounts allowed by the CWA and the CAA and other 

applicable environmental laws. 

b. Impaired Watershed Approach 

The Strategy examines watersheds and identifies nutrient and sediment impaired segments of 

those watersheds, as well as significant regulated sources discharging these pollutants and other 

pollutants with potential noncompliance problems. Regulated sources in noncompliance that 

are contributing to impairment of the identified watersheds will be systematically addressed in 

accordance with the Strategy. The Strategy is designed around criteria that focus attention at the 

watershed level including criteria that consider the following: 

 The extent of impairments from pollutants of concern 

 The degree of excess nutrient and sediment loads 

 The number and types of regulated sources located in the watershed segment (or 

depositing pollutants to that watershed for some air sources) 

 The water quality rating (good, threatened, or impaired) 

 The number of primary contact recreation beaches 

 The number of shellfish beds/beaches closed 

 Fish consumption advisories 

 The magnitude of wetlands losses 

 The prevalence of minority populations, populations disproportionately below the 

poverty line, or sensitive populations such as subsistence fishermen 

 Urban rivers 

 Site cleanup opportunities 

The Strategy analyzes existing data from a variety of sources to target key regulated sectors 

identified as contributing significant amounts of nitrogen, phosphorous, sediment loadings, and 

other pollutants to impaired watersheds in the Bay when in noncompliance with current 

applicable environmental regulations. For each of the sectors, EPA will examine specific 

watersheds impaired by nitrogen, phosphorous, sediment, and other pollutants, as well as the 

regulated sources in those watersheds, and the sources’ compliance status. The key sectors are 

as follows: 

 CAFOs 

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 Municipal and industrial wastewater facilities 

 Stormwater NPDES point sources, including MS4s and stormwater discharges from 

construction sites and other regulated industrial facilities 

 Air deposition sources of nitrogen regulated under the CAA, including power plants 

In addition, the Strategy identifies appropriate opportunities for compliance and enforcement 

activities related to the CWA section 404 program regulating dredge and fill operations, federal 

facilities, and Superfund sites, including remedial action and removal sites and Resource 

Conservation and Recovery Act (RCRA) corrective action facilities. 

EPA will examine the compliance records for facilities in the key sectors and which are in 

impaired watersheds including the following: 

 The pattern and seriousness of noncompliance and whether the source is considered a 

high-priority violator 

 The occurrence of un-permitted discharges 

 Whether multiple facilities or sectors are operating under one owner/operator and in 

more than one state 

 The volume and nature of the source’s discharges 

EPA will conduct further investigations and inspections of targeted facilities in selected 

watersheds; pursue appropriate enforcement actions to ensure compliance; and estimate 

pollutant-loading reductions for nitrogen, phosphorous, and sediment related to those 

completed actions. Under the Strategy, EPA will review the ongoing water and air protection 

work in the Bay watershed, much of which addresses some of the most significant discharges of 

pollutants to the Bay, and will focus on sources that have not yet been addressed consistent with 

this Strategy. To leverage EPA and states’ limited compliance and enforcement resources, EPA 

will coordinate closely with the states in the Bay watershed on targeting and pursuing the most 

serious contributors to Bay impairment. Specific projections of enforcement and compliance 

activities will be developed, monitored, and readjusted as the work goes forward. 

Finally, EPA will examine opportunities for the use of imminent and substantial endangerment 

authorities, including CWA section 504, section 1431 of the Safe Drinking Water Act, section 

7003 of RCRA, section 106 of CERCLA, and section 303 of the CAA to address significant 

pollution problems affecting the Bay. 

c. Sector Strategies 

i. Concentrated Animal Feeding Operations 

a. Overview 

EPA will enhance efforts to protect the Chesapeake Bay by prescribing actions calculated to 

increase CAFOs’ regulatory compliance and reduce their nutrient loads to the Bay. EPA will 

increase its visibility in the watershed by targeting enforcement actions and remedies at facilities 

located in geographic hot spots impaired for nutrients and sediment that are critical to the 

restoration of the Bay. 

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 b. Animal Agriculture 

Agriculture is the single largest source of nutrients to the Chesapeake Bay. Agricultural 

operations deliver nitrogen and phosphorus to the Bay accounting for 38 percent of nitrogen 

and 45 percent of phosphorus.6 17 percent of the nitrogen and 26 percent of phosphorus from 

agriculture is from animal manure, and an additional 6 percent of nitrogen delivered to the Bay 

comes from livestock and fertilized soil emissions. About one-third of animal manure is 

regulated (contributing 6 percent of nitrogen and 8 percent of phosphorus delivered to the Bay). 

The remaining nitrogen and phosphorus from agriculture is from non-animal agriculture (e.g., 

rowcrops) and smaller animal operations or emissions which are not subject to the regulatory 

restrictions imposed on CAFOs. Thus, EPA can only address a small portion of nutrients from 

animal agriculture pursuant to existing regulatory authority. 

Three areas represent the greatest contributions of manure-based agricultural nutrient loads to 

the Bay: (1) Delmarva Peninsula: Delaware, and the Eastern Shores of Maryland and Virginia; 

poultry—broiler chickens—is the dominant industry sector; (2) South-central Pennsylvania: 

Susquehanna River watershed/Lancaster and York counties; dairy is the dominant industry 

sector; to a lesser extent, swine and poultry (broiler and egg-laying chickens) also operate in this 

priority area; and (3) Shenandoah Valley: Virginia and West Virginia; poultry—broiler chickens 

and turkeys—is the dominant industry sector; to a lesser extent, small- and medium-dairies and 

swine facilities also operate in this priority area. The watersheds in those areas suffer from 

significant nutrient imbalances and nutrient-related, local water quality impairments. Densely 

populated animal agriculture operations in these areas cause the highest agricultural nutrient 

loads to the Bay by comparison to other areas. Inconsistent implementation of sound nutrient 

management practices has resulted in manure over-application and nutrient loading. 

 c. Goal 

The goal is to reduce nutrient loads to the Bay by addressing noncompliance and by focusing 

compliance and enforcement activities on facilities in three key areas—the Delmarva Peninsula, 

South-central Pennsylvania, and the Shenandoah Valley. 

To achieve this goal EPA is preparing to (1) work with states to target implementation of the 

CAFO program to minimize CAFO nutrient effects on the Bay, specifically to investigate or 

inspect facilities that pose the most risk to the Bay watershed and take enforcement actions to 

compel compliance; (2) maximize the extent to which current state CAFO programs are 

achieving their intended water quality benefits by working with states to expand the permitted 

facility universe, issue sufficiently stringent permits, which should at a minimum require that 

nutrient management plans be based on existing soil saturation levels, and build sustainable 

programs for compliance monitoring and enforcement (e.g., undertake universe-identification 

and information-gathering activities, conduct joint and oversight inspections with state partners 

to ensure appropriate implementation of federal standards); and (3) seek to address CAFO air 

emissions and develop appropriate remedies to reduce emissions and their adverse water 

quality effect on the Bay. 

Working with its state partners, EPA will address identified target facilities in the three key 

areas while implementing this Strategy. Address would mean that either EPA or the relevant 

state has inspected or investigated a facility and determined that the facility is in compliance, or 

that EPA or the relevant state initiates an appropriate enforcement action to compel compliance 

 

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 This estimate assumes that these sources are in full compliance with their current NPDES permit requirements. 

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or abate endangerments to drinking water sources or surface water. In general, target facilities will 

be those facilities that pose a high risk to the Chesapeake Bay watershed.

ii. Wastewater (Municipal and Industrial Wastewater) 

 a. Overview 

Wastewater treatment facilities deliver large loads of nitrogen and phosphorous to the Bay, 

accounting for approximately 20 percent of nitrogen and 21 percent of phosphorus entering the 

watershed. Due largely to previous treatment plant upgrades, nitrogen and phosphorus loads 

discharged by significant municipal wastewater treatment facilities have decreased by 40 

percent and 65 percent, respectively, since 1985. Most of the municipal and industrial 

wastewater treatment plants that remain significant sources of nutrients in the Bay watershed 

will require additional treatment upgrades and are on enforceable schedules to meet more 

stringent annual nutrient limits for total nitrogen and total phosphorus. EPA and Bay states will 

monitor compliance with major milestones for installing the required controls and would target 

facilities in violation of their schedules for appropriate enforcement to ensure that these 

nutrient control upgrades proceed according to permit schedules. 

b. Goal

EPA is initially focusing on significant wastewater facilities that are under permit schedules for 

upgrading treatment, with the goal of addressing all facilities that are in significant 

noncompliance with their schedules. EPA will also monitor those wastewater treatment facilities 

that have monthly average nutrient limits, with the goal of addressing the most significant 

sources of excess nutrients. Once a treatment facility is upgraded as required by its NPDES 

permit and new annual limits for total nitrogen and total phosphorous become effective, under 

the Strategy, EPA and states would then focus on facilities that discharge excess nutrients as a 

result of noncompliance with the more stringent NPDES permit limits. EPA is working with the 

Bay states to address noncompliant facilities that are failing to comply with nutrient effluent 

limits and significantly affecting Bay water quality, including all facilities with violations that 

meet the criteria for significant noncompliance or SNC. In the context of these goals, address

would mean that either EPA or the relevant state initiates an appropriate enforcement action in 

response to identified noncompliance. 

To achieve these goals, EPA is working with states to effectively implement the NPDES program, 

using the full breadth of EPA and state compliance and enforcement tools. This coordination 

includes (1) continuing EPA’s oversight of authorized state NPDES enforcement programs; 

(2) working closely with the Bay states to ensure timely and appropriate enforcement action is 

initiated in response to identified SNC violations for compliance schedules and permit limits; 

(3) working closely with the Bay states to identify and initiate enforcement action in response to 

other permit violations that are not identified as SNC but that have the potential to impair water 

quality; and (4) providing technical and legal assistance to the states where needed. As noted 

earlier, the Bay states conduct the bulk of the inspections and NPDES enforcement actions 

under their authorized NPDES programs. Under the Strategy, EPA is developing and would 

initiate enforcement actions where strategically appropriate, for example, where violators 

operate in more than one state, where high penalties are appropriate or the required injunctive 

relief is extensive, or where a higher profile enforcement action might be beneficial. 

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iii. Stormwater 

 a. Overview 

EPA will address discharges from regulated MS4s and stormwater discharges from construction 

sites and other priority regulated industrial facilities. That approach will enhance overall efforts 

to protect the Chesapeake Bay by focusing enforcement actions and remedies—including 

appropriate compliance assistance—on noncompliant MS4s, construction site operators, and 

priority industrial facilities in geographic hot spots that are critical to the Bay’s restoration. 

Inspection and audit findings within MS4 boundaries will provide leverage for improving MS4 

programs, as well as improving oversight and enforcement by other local entities responsible for 

inspecting construction sites. Inspection findings at construction sites and industrial facilities 

outside MS4 boundaries could provide information to support the designation of certain 

urban/suburban separate storm sewer systems as MS4s, thereby bringing them into the 

regulated program. 

Urban and suburban stormwater discharges deliver a significant load of nutrients and sediment 

to the Bay accounting for approximately 10 percent of nitrogen, 31 percent of phosphorus, and 

19 percent of sediment. However, most of the nutrients and sediment discharged to the Bay in 

urban/suburban stormwater runoff are discharged through stormwater outfalls that are not in 

designated MS4 areas or represent pre-1986 development and, thus, not specifically regulated 

by the NPDES program. Only 2 percent of the nitrogen, 6 percent of the phosphorus, and 

4 percent of sediment delivered to the Bay through urban/suburban stormwater discharge 

outfalls are regulated by EPA and the Bay states under the NPDES MS4 program. 

The NPDES permitting program requires designated MS4s to develop and implement a 

stormwater management program to minimize the discharge of pollutants through MS4s. 

Components of an adequate stormwater management plan include a program to oversee 

construction activities within the MS4’s boundaries. Large and medium MS4 programs must 

also include a program for overseeing industrial and commercial facilities that have a significant 

effect on water quality. In the Bay watershed, approximately 450 MS4s exist. Those MS4s are 

primarily in Maryland, Virginia, and Pennsylvania. When the boundaries of those MS4s are 

overlain with the maps of watersheds impaired by stormwater runoff for nitrogen and 

phosphorous, the MS4s along the I-95 corridor in these states stand out as appropriate areas for 

further compliance monitoring and enforcement efforts. EPA’s Chesapeake Bay Program Office 

is evaluating additional data, which will allow EPA to identify priority watersheds with greater 

precision and specificity. 

EPA does not have national data on MS4 noncompliance. Much of the information regarding 

compliance comes from audits and inspections and discussions with the states concerning 

problems identified in the field. While results have been mixed across EPA Regions, many 

Regions have found deficient municipal stormwater management programs, particularly in 

regard to MS4 stormwater construction oversight programs and the MS4’s ability to assess the 

adequacy of stormwater management practices in protecting water quality standards. 

Permit quality has been a continuing concern for MS4 enforcement efforts. For example, some 

NPDES permits for MS4s do not contain adequate and/or clear and enforceable performance 

standards for developing and implementing municipal stormwater programs. Poorly written 

permits make it difficult to use EPA or state CWA enforcement personnel to identify and require 

necessary improvements to remedy deficient programs. EPA’s Office of Enforcement and 

Compliance Assurance has provided EPA’s Office of Water with feedback concerning permit 

quality problems observed nationwide related to enforceability. The Office of Water has initiated 

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efforts to improve permit quality and some of the larger MS4s are now on their second or third 

permit cycle with successively improved permits. 

Construction sites and industrial facilities are both within MS4s and outside MS4 boundaries. 

Activities at industrial facilities, such as industrial processes and material handling and storage, 

are often exposed to precipitation. As stormwater or snowmelt discharges come into contact 

with such activities or with the raw and processed materials associated with the activities, 

pollutants are transported to nearby storm drains or directly to surface waters. Pollutants in 

stormwater coming into contact with industrial activities and materials likely include total 

suspended solids, oil and grease, and chemical and/or biological oxygen demand. Concrete and 

asphalt operations, such as ready-mix concrete facilities, and mineral extraction have been 

identified as industrial stormwater potential sectors of concern in the Bay. 

The construction sector is one of the 10 industrial sectors regulated under the NPDES program 

for industrial stormwater discharges. Clearing, grubbing, grading, and other construction 

activities disturb and expose the soil surfaces, allowing significant amounts of sediment 

transport through stormwater runoff into storm drains and other discharge points into 

waterbodies. In addition, the loss of vegetation, soil compaction, and increases in the amount of 

impervious surfaces result in increased stormwater flow amounts and velocity. Such increases, 

in turn, contribute to streambed and bank scour and erosion, channel widening, and stream 

bank undercutting, which increase the amount of sediment discharged to the Bay. 

Much of the recent residential construction in the greater Chesapeake Bay watershed has 

occurred in and around the population centers of York, Pennsylvania; Baltimore, Maryland; 

Washington, D.C.; Wilmington, Delaware; and Richmond, Virginia. Data provided by Bay states 

under CWA section 303(d) suggests that waterbodies impaired by sediment in the Chesapeake 

Bay watershed are concentrated in these areas as well. As such, the primary priority watersheds 

for construction stormwater discharges are those watersheds where waterbodies are both 

impaired for sediment and current data projects high population growth rates. These 

watersheds form the basis for targeting efforts using construction permit information, state 

transportation plans, EPA audits of state programs, citizen tips, and other relevant sources of 

information. Additional watersheds might be added to the priority watershed list on the basis of 

factors such as high population growth rates (where receiving waters are not yet identified as 

impaired for sediments), severe impairment (where projected population is not particularly 

high), or the presence of large construction projects or industrial sites with the potential to 

discharge large quantities of pollutants in stormwater discharges. The priority watershed list 

will also be the basis for identifying major industrial sites in the priority industrial sectors for 

compliance inspections. 

 b. Goal 

EPA is preparing to focus its stormwater noncompliance enforcement efforts on MS4s, 

construction activity, and priority industrial sectors within the geographic priority areas. EPA 

and the Bay states would address all MS4s with deficiencies that are clear violations and that are 

within the identified geographic priority areas, and where program deficiencies could 

significantly affect Bay water quality. Where vague and poorly written or inadequate permits 

hamper the use of enforcement tools to address potential deficiencies, EPA plans to provide 

compliance assistance to encourage MS4s to improve municipal stormwater management plans 

and coordinate with permitting staff to improve and strengthen subsequent permits. The 

primary goals associated with construction sites and other priority industrial sectors are 

generally dependent on whether these sites and facilities are within or outside designated MS4 

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boundaries. The primary goals are (1) to gather data to support designating unregulated priority 

urban/suburban separate storm sewer systems for NPDES coverage; (2) to improve MS4’s 

municipal stormwater management programs and/or encourage stronger oversight and 

enforcement of applicable requirements for construction sites by other local authorities such as 

soil conservation districts; and (3) to increase the visibility and showcase the importance of 

strong, effective MS4 stormwater management programs in improving water quality. EPA will 

also continue to inspect and take appropriate enforcement action against discharges from 

noncompliant construction site operations and other industrial facilities in identified priority 

watersheds. 

iv. Air Deposition 

 a. Overview 

EPA will protect the Chesapeake Bay by targeting enforcement actions at sources in the 

Chesapeake Bay airshed, which includes Pennsylvania, West Virginia, Virginia, Maryland, 

Delaware, New York, North Carolina, South Carolina, Tennessee, Kentucky, Indiana, Michigan, 

Ohio, New Jersey, and the District of Columbia. EPA will focus on achieving reductions in NOx

to reduce nitrogen loading to the Bay. 

Enforcement actions designed to reduce nitrogen deposition to the Chesapeake Bay could also 

result in substantial reductions in sulfur dioxide, mercury, and other pollutants if the Agency 

and its state partners are successful in obtaining binding commitments from utilities and other 

sources to install pollution-control technologies. Such additional pollution reductions, in turn, 

could yield significant public health and welfare benefits, including reduced respiratory 

problems and fewer fish consumption advisories. 

Nitrogen emissions from sources within the Chesapeake Bay airshed contribute approximately 

75 percent of the nitrogen deposition to the Bay watershed. The remaining 25 percent of the 

nitrogen deposition is from long-range transport of emissions from sources outside the airshed, 

including emissions from portions of southeastern Canada. Of the inorganic nitrogen deposited 

to the Chesapeake Bay watershed from air emission sources, approximately 67 percent is from 

air emissions of NOx. The remaining 33 percent is from emissions of ammonia (NH3). The 

contributions from any single facility in the long-range emissions transport category are unlikely 

to be significant. Sources of NOx include electric generating units, other industrial stationary 

sources, on- and off-road mobile sources (cars, trucks, ships, tractors), lightning, and soil. 

Sources of ammonia include AFOs, fertilized fields, mobile sources, and industrial stationary 

sources. 

 b. Goal 

The goal is to reduce nitrogen air deposition by addressing noncompliance with existing air 

pollution control requirements. Coal-fired power plants, acid, glass, and cement manufacturing 

are already national enforcement priorities for the Agency because of the substantial emissions 

of NOx and other pollutants from those industries. Since 1999 EPA has pursued a coordinated, 

integrated compliance and enforcement strategy to address CAA New Source Review 

compliance issues at the nation's coal-fired power plants. Many of these cases have already 

resulted in settlements that will reduce nitrogen deposition to the Bay, such as the settlement 

with American Electric Power, which when fully phased in, will reduce NOx emissions from the 

company’s power plants in the Chesapeake airshed by more than 150,000 tons per year. EPA 

also intends to seek additional NOx reductions through enforcement of New Source Performance 

Standards (NSPS) and SIP provisions governing NOx emissions. EPA will continue to vigorously 

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pursue these priorities but with a new emphasis on sources that contribute to nitrogen pollution 

in the Bay. To achieve this goal EPA will (1) seek reductions from stationary sources of NOx

emissions by enforcing New Source Review, NSPS, and SIP requirements pertaining to NOx

emissions and obtaining either judgments or enforceable settlement agreements to install 

pollution control technology and incorporate best management practices to achieve NOx

emissions reductions; and (2) seek reductions from mobile sources of NOx emissions by 

enforcing mobile source regulations at port facilities, warehouses, and construction sites. 

v. Toxics Cleanup 

a. Overview 

In addition to nutrients and sediments other serious contaminants are negatively affecting water 

quality in the Bay, such as PCBs; PAHs ; and metals—such as mercury, endocrine disruptors, 

and pesticides. The U.S. Geological Survey estimates that 72 percent of the Bay segments are 

impaired by contaminants. Such contaminants can leach into the groundwater or directly into 

the Bay from sources in the watershed, such as industrial facilities, hazardous waste sites, 

landfills, urban stormwater runoff, and mobile and stationary air sources. 

b. Goal

EPA will look broadly at the sources of toxic contamination to the Bay and work with the states 

and other federal agencies to reduce the effect of hazardous substances on the Bay. 

In particular, EPA will focus on toxics in three geographic areas in the watershed and closely 

tied to the Bay: (1) the Elizabeth River; (2) the Anacostia River; and (3) Baltimore 

Harbor/Patapsco River. Those areas have been identified as the waters most affected by toxic 

contaminants and contain current and/or historical RCRA facilities, federal facilities, and 

Superfund sites. EPA will use Superfund and RCRA authorities and partner with other federal 

departments/agencies and states. We will seek to access and leverage resources, authorities and 

compliance and enforcement strategies to address contaminants in these three areas. Over time, 

EPA will continue to look for opportunities to use its Superfund and RCRA corrective action 

authorities to address sources of hazardous substances within the Bay watershed. 

In addition, actions taken in other parts of this strategy are likely to have a concomitant impact 

on toxics in the Bay. For example, air enforcement actions designed to reduce nitrogen 

deposition to the Bay could also result in reductions in mercury; improvements in wastewater 

treatment and MS4 permits, facilities, and practices could also result in reduced toxics; and 

better management of chicken litter from CAFOs could reduce the amount of arsenic entering 

the Bay. Finally, ongoing efforts to reduce toxic contaminants entering the Bay and its tributary 

waters, for example, for new TMDLs for local streams and larger-scale TMDLs for listed 

chemical impairments (e.g., PCBs in the Potomac Basin) will also have a positive effect on toxic 

levels in the Bay. EPA will continue to look for opportunities to address nutrients, sediments, 

and contaminants together.