Cleaner Water on its Way to the Bay

Court victory confirms “pollution diet” for industries in the Chesapeake Bay region

If you’ve ever washed your hands at a public sink or stepped over a storm drain in the Chesapeake Bay watershed, you might have noticed a “Save the Bay” placard. Thanks to a recent court victory, we are one step closer to doing just that. Recently, Defenders and our conservation allies won the second battle in a war waged by agriculture and construction industry groups attempting to weaken pollution limits established by the Environmental Protection Agency (EPA) based on an unprecedented multi-state agreement to protect the Chesapeake Bay.

A unique ecosystem, abounding with wildlife

The Chesapeake Bay is the largest estuary in North America, spanning 4,500 square miles and 11,684 miles of shoreline. An estuary is an ecosystem where rivers meet the ocean in a semi-enclosed coastal area that shares qualities of both environments: salt water sea tides and freshwater river flows. This unique transition zone creates a productive ecosystem with an abundance of nutrients and marine life. The Bay is home to more than 3,000 migratory and resident species. Crabs and oysters not only contribute to commercial fishing operations, but also to the health of the ecosystem. Oysters in particular are a keystone species that hold the ecosystem together, feeding on algae and acting as filters to cleanse the water. Unfortunately, current oyster population numbers are at a meager one percent of historic levels, creating a vicious circle where more pollution leads to fewer oysters, and fewer filter-feeding oysters lead to even more polluted waters.

The Chesapeake Bay is an important stopping point for migrating birds such as common loons, Canadian geese, and the piping plover, a shorebird listed as threatened under the Endangered Species Act (ESA). The Bay is also a nesting area for bald eagles, double-crested cormorants, and osprey. Due to the estuary’s mix of fresh and salt water, it houses more than 350 fish species, including the endangered Atlantic sturgeon, a slow-growing, long bony, prehistoric fish. Mammals of the Chesapeake Bay vary from bottlenose dolphins to river otters. Reptiles, including federally protected loggerhead sea turtles, more than 40 species of snakes, and amphibians ranging from salamanders to frogs all reside in the Chesapeake Bay and its watershed.

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“Dead zones” and the need for a “pollution diet”

The Chesapeake Bay watershed, the area of land that drains into the Bay, spans seven states: Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New York, and the District of Columbia. This drainage basin covers 64,000 square miles and includes tens of thousands of lakes and streams, the water from which all eventually flows into the Bay. That water carries with it pollutants and sediment, including agricultural runoff from manure and fertilizer, sewage waste, and urban stormwater. The Chesapeake Bay watershed is also home to a growing population of 17,000,000 people, putting ever-growing demands on the Bay’s limited resources.

For years, the Chesapeake Bay has suffered from over-pollution and “dead zones.” When nitrogen and phosphorous, largely from agricultural runoff, flow into the Bay, the excess nutrients lead to algal blooms (a buildup of algae). Too much algae means lower oxygen levels in the water, which is bad news for anything that lives there. Algae blooms also block sunlight from reaching aquatic plants, cutting off photosynthesis. Without that source of oxygen in the water, it eventually becomes nearly impossible for any aquatic life to escape suffocation.

In 2010, 62% of the Chesapeake Bay contained dead zones, and only 18% of the Bay had adequate water quality. That same year, the EPA set a “total maximum daily load” (TMDL) for nitrogen, phosphorous, and sediment flowing into the Chesapeake Bay. A TMDL is the maximum amount of pollutants a body of water can safely absorb each day, a sort of “pollution diet.” This particular diet was part of a cleanup plan decades in the making, with unprecedented buy-in from the Bay States and from Congress.

Unsurprisingly, agriculture and construction industry groups (the largest polluters) balked at these limits and sued the EPA. After the federal district court in Pennsylvania ruled in favor of the EPA in 2013, the industry groups appealed to the Third Circuit Court of Appeals. The industries argued that EPA overstepped its authority by addressing the sources of the pollutants, setting target dates, and having the watershed states pledge compliance with the new rules for the Chesapeake Bay. The industry groups, joined by 21 states outside the Chesapeake Bay watershed, also claimed that the EPA infringed on the states’ rights to make their own land-use decisions – even though the results of those decisions can have impacts on water quality and wildlife far beyond state borders. Defenders joined forces with other conservation groups to support EPA in the case.

Victory for clean water and wildlife!

In a unanimous decision on July 6th, the three judge panel of the Third Circuit ruled against the industry groups, describing their challenge as “long on swagger but short on specificity.” Under the Clean Water Act, the “pollution diet” that the EPA sets is more than just a number. It includes all the relevant puzzle pieces, the when, what, why, and how the pollution gets to the Bay. Because the “diet” addresses the overall health of the Chesapeake Bay, and has to account for all sources of pollution to do so, the court ruled that the Congress gave EPA the authority to set those limits through the Clean Water Act. This case sets a historic precedent that could benefit far more than the plants and animals in the Chesapeake Bay. Now that it’s been clearly determined that Congress has given EPA the responsibility and the authority to set pollution limits like these, it will be able to do so more easily in other places around the country where similar cleanups are needed.

When an important resource with significant ecological and economic value spanning several states is in trouble, restoring its health becomes an issue of national concern and importance. Cleaning up the Chesapeake Bay is no small feat. As the court ruling concludes (appropriately quoting Robert Frost), it will take concerted effort, compromise, and cooperation to resurrect the Bay from dead zones back to the “land of living.” But it will be worth it for the thousands of species and millions of people that rely on the Bay. This landmark victory for the Chesapeake Bay shows just how vital clean water is to both the nation and the wildlife that depend on it for survival.