The basics of business are the basics of the law surrounding water quality: you have to set a budget and limit your spending to accomplish that budget. For Lake Erie and other nutrient-impaired water bodies, we face the same need: our budget is only so large for the amount of nutrients that Lake Erie can take before we’ve exceeded our budget. In the Chesapeake Bay, such a basic scheme has been put into place in the form of a Total Maximum Daily Load or TMDL, which is a legally-required and nondiscretionary “budget” put into place by the Clean Water Act when a water body is not meeting its desired uses, such as being fishable and swimmable. Similar to a budgeting process, the U.S. EPA has called the Chesapeake TMDL a “pollution diet.”
The problem with Lake Erie is that no one has bothered to set a budget for the Lake. And while fertilizer application certifications are a terrific idea, it’s unclear how those certifications will quantitatively help us stay under budget, especially when other contributing factors may be at play in Lake Erie. In the legal planning scheme of the Clean Water Act, all of those factors should be modeled to determine allowable loading (the budget) for each jurisdiction. Modeling will allow regulatory authorities, small governments, and citizens to rely on an enforceable budget for the Lake.
The sooner the budgeting process begins, the better. After a pollution diet was established for the Chesapeake, the Federal Leadership Committee blogged about a phenomenon coined “lag time.” In short, once all of the planned nutrient and sediment reductions are made in accordance with the TMDL and Watershed Implementation Plans of the contributing states, the US Geological Survey’s data indicates that it will take an additional 10-40 years for “nitrogen-laden groundwater to flow into rivers, streams and the Bay.” The sooner that we control nutrient contributions to Lake Erie, the sooner we can expect the lag time phenomenon to run its inevitable course.
What about Canada? Will they be subject to a TMDL? Canada is obviously not subject to the jurisdiction of the U.S. Federal Clean Water Act. However, the point of a TMDL is to establish an allowed load of pollution. In the Chesapeake, load allocations were made on a state-by-state basis. Canada’s budget clearly should not be taken on by states in the U.S. The planning process of setting load allocations in a TMDL can readily account for Canada’s contributions. The International Joint Commission has, appropriately, called upon Michigan and Ohio to “list the waters of the western basin of Lake Erie as impaired because of nutrient pollution…[to] trigger the development of a tri-state phosphorus total maximum daily load (TMDL) involving those states and Indiana, with U.S. Environmental Protection Agency oversight.” The fact of the presence of an international jurisdiction does not exempt U.S. states from listing the Lake as impaired and creating a plan to bring their jurisdiction under that plan’s budget.
What about just setting TMDLs for feeder streams? The reason to establish a budget for the Lake rather than the waterways that empty into the Lake is that the measurement of how much a feeder stream can take is very different from the measurement for how much the Lake can take. TMDLs for local waters were established in the Chesapeake Bay region prior to the issuance of the Bay TMDL. Again, it’s akin to running a business: you can’t assume that the budget for a midstream company can simply be applied to a larger business. They are fundamentally different entities with differing needs and goals. Similarly, the nutrient level that a flowing stream can endure is not the same as the nutrient level that a shallow lake can take.
But agriculture is exempt from the Clean Water Act, right? Our farmers do enjoy an exemption from the CWA that some of their industrial counterparts do not have, but the law requires states to plan for contributions from all kinds of pollution sources when determining how to meet its pollution budget under a TMDL. In the Chesapeake, the US EPA used a model, Scenario Builder, to calculate the contributions from different “nonpoint” sources of nutrient pollution, including agriculture, atmospheric deposition, forest lands, on-site wastewater treatment, non-regulated stormwater runoff, oceanic inputs, streambank and tidal erosion, wildlife, and tidal resuspension. If states do not determine a budget for a waterbody and assess its expenses, there is no mechanism to control those expenses. In other words, without a TMDL, states and citizens do not have targets to appropriately control the nutrient levels entering the Lake.
The options for citizen involvement in working toward solving the nutrient problem include opportunities for “commenting” on proposed rulemakings and permitting actions at the state and federal levels, which should include state watershed implementation plans to carry out the goals of a TMDL, challenges to those same actions, and citizen enforcement for failure to comply with nutrient loading goals or even the failure to set those goals.
This post was adapted from a presentation entitled “The Chesapeake Bay TMDL: How Did We Get Here?” given by Emily A. Collins at the Lake Erie Waterkeeper’s Lake Erie Central Basin Conference on October 23, 2014.