It should be obvious that attainment of the Draft C-WIP’s targeted nitrogen reduction goals for Pennsylvania will pose serious challenges and require an extensive commitment of human, financial and technical resources. But the Draft C-WIP offers no specific or viable means for overcoming these human, financial and technical challenges. In fact, the Draft C-WIP offers virtually nothing of substance to resolve these obvious and serious challenges

The Draft C-WIP also is seriously lacking in providing any substantive analysis of adverse impacts that pursuit of C-WIP’s goals will have on the ability of Pennsylvania and the Bay states to effectively administer and execute state watershed implementation plans (WIPs) developed for Phase 3, or means for identifying and resolving conflicts with state Phase 3 WIPs that will likely arise in pursuit of C-WIP’s general goals and objectives.

Essentially, the Draft C-WIP assumes that Pennsylvania will be the target area and Pennsylvania’s agriculture will be the target sector in bearing the lion’s share of responsibility in performance. Of the 6.72 million pounds in estimated reduction of nitrogen pollution that must be attained annually to offset the nitrogen pollution impacts of the Conowingo Dam, the Draft C-WIP directs that 6.41 million pounds of nitrogen reduction – or 95.4 percent of the total reduction needed for offset from the Dam – be performed by Pennsylvania. And the Draft C-WIP further directs that 5.69 million pounds of nitrogen reduction – nearly 84.7 percent of the total reduction needed for offset – be distinctly performed by Pennsylvania’s agriculture sector.

The numbers cited in the Draft C-WIP themselves do not provide a complete picture of the extent of nitrogen reduction that Pennsylvania must achieve or the degree of conservation measures that Pennsylvania’s farms local communities must perform at home to attain the Draft C-WIP’s goals. The estimates for nitrogen reduction offsets stated in the Draft C-WIP represent nitrogen reductions that Pennsylvania (and other Bay states) must attain at “edge of tide”, or stated more simply, at the point when waters passing through Pennsylvania reach the main inlets to the Chesapeake Bay. The Draft C-WIP’s estimates are not based on “edge of segment” or the levels of nitrogen reduction that Pennsylvania and Pennsylvania’s agriculture will need to achieve at the location of the farm or municipality to reach the resulting nitrogen reduction level at “edge of tide.”

To achieve the level of reduction at “edge of tide”, Pennsylvania and Pennsylvania’s agriculture sector will need to attain substantially higher levels of performance in nitrogen reduction. The staff of the Center for Watershed Protection has estimated in order to reach the Draft C-WIP’s directed level of 6.41 million pounds of nitrogen reduction at “edge of tide”, Pennsylvania will need to perform at-home conservation measures that reduce nitrogen pollution by 9.48 million pounds. And for Pennsylvania’s agriculture sector to achieve the Draft C-WIP’s directed level of 5.69 million pounds of nitrogen reduction at “edge of tide,” Pennsylvania’s family farmers will need to perform at-home conservation measures that reduce nitrogen pollution by 8.40 million pounds.

The drafters of C-WIP should be consciously mindful that achievement of goals for offset of nitrogen runoff from the Conowingo Dam proposed in the Draft C-WIP is additional to the goals and tasks for nitrogen reduction that Pennsylvania and other Bay states are expected to achieve and perform generally in the Bay Watershed. If finally adopted, the Draft C-WIP would increase Pennsylvania’s commitment in reduction of nitrogen pollution by nearly 20 percent1 from the commitment formulated in July 2019 under Pennsylvania’s Watershed Implementation Plan for Phase 3. Pennsylvania’s Phase 3 WIP and the components and recommendations for action adopted were designed for the purpose and objective of attaining the nitrogen reduction goals established under Pennsylvania’s Bay TMDL.

The drafters of C-WIP should equally keep in mind that that performance of conservation measures to achieve C-WIP’s nitrogen reduction offsets will impose a significant amount of additional costs on someone. The Draft C-WIP estimates that $53.3 million annually in additional costs would be incurred to fully achieve the nitrogen reduction goals envisioned under C-WIP. $50.52 million annually are estimated to be incurred to achieve nitrogen reduction goals envisioned for Pennsylvania, with $45.44 million in additional annual costs estimated for Pennsylvania’s agriculture sector to achieve C-WIP’s envisioned nitrogen reduction goals.

With the extensive conservation measures that must be performed and the significant additional costs that must be incurred in achieving C-WIP’s envisioned goals, the pervading question to be raised and answered is how can achievement of these goals be practically accomplished and feasibly financed. Yet the Draft C-WIP provides essentially no answer to this question. No meaningful plan of execution or viable source or means of financing the extensive measures for achievement of C-WIP’s nitrogen reduction offset is offered in the Draft C-WIP. And no consideration is made in the Draft C-WIP on whether C-WIP’s goals and means of achievement are compatible with the plans for nitrogen reduction that Pennsylvania and the Bay state recently developed and adopted in their state watershed implementation plans (WIPs) for Phase 3. Only cursory references are provided in the Draft C-WIP to “innovations” in financing and “leveraging” of private and public capital and market forces to pay for the extensive additional costs to be incurred. Specific recommendations for achievement of financial “innovation” and “leveraging” are seriously lacking in the Draft C-WIP.

Furthermore, those potential sources of financing Pennsylvania’s conservation measures identified in Draft C-WIP are questionable in their current ability to provide adequate financing. Not only is the amount of money currently available through these sources insufficient to satisfy the extensive additional costs to be incurred. Any current or increased funds to be made available through these sources have already been contemplated for use in financing conservation measures to be pursued under Pennsylvania’s Phase 3 WIP. Any future dedication of Pennsylvania sources identified in the Draft C-WIP to attain C-WIP’s nitrogen reduction goals will only diminish Pennsylvania’s ability to effectively pursue and finance conservation measures contemplated in Pennsylvania’s Phase 3 WIP.

The Draft C-WIP asserts generally that nitrogen load reductions to offset the pollution effects from the Conowingo Dam will not be allocated to any particular jurisdiction, but will be achieved collectively by the jurisdictions working together through a flexible, adaptive, and innovative CWIP approach. The problem of the Conowingo Dam’s contribution of nitrogen pollution was known long before establishment of the C-WIP Steering Committee in 2018. The failure by those involved during the past two years of consideration and drafting of the C-WIP to identify a specific, viable and reliable source of financing the extensive conservation tasks contemplated in C-WIP’s calls into serious question the Draft C-WIP’s general assertion that individual states will not ultimately and exclusively bear the obligation of execution of those tasks. Sooner or later, someone will be expected to implement and finance the tasks needed to achieve C-WIP’s goals. Failure in the Draft C-WIP to identify a viable and independent source of financing heightens our skepticism of the credibility of the assertion mentioned above and our fear that Pennsylvania will be the ultimate and predominant bearer of the administrative and financial obligations associated with execution of C-WIP.

The existing burden that the Draft C-WIP would place on Pennsylvania is further aggravated by two other recent actions by the Chesapeake Bay Partnership, both of which have the practical effect of increasing the amount of nitrogen reduction that Pennsylvania will be responsible to attain under the goals established for Pennsylvania in EPA’s Bay Watershed TMDL. The Partnership’s recent adoption of modifications under CAST-19 will have the effect of increasing the nitrogen reduction obligation of Pennsylvania’s agricultural sector by 1.8 million pounds. And proportionate state allocations of nitrogen reduction offsets in response to estimated effects of climate change recently approved by the Partnership will increase Pennsylvania’s obligation for nitrogen reduction by another 1.9 million pounds.

As with the Draft C-WIPs reported numbers, the estimates of Pennsylvania’s additional nitrogen pollution reduction obligations identified in the previous paragraph reflect what needs to be achieved at “edge of tide.” Assuming the same ratio for attainment of “edge of tide” reductions as that estimated under the Draft C-WIP, Pennsylvania and Pennsylvania’s agriculture sector will need to perform at-home conservation measures that reduce nitrogen runoff by 2.64 million pounds and 2.79 million pounds respectively to meet the additional obligations resulting from these two actions.

We are especially concerned with the timing of “finalization” of the Draft C-WIP, assuming it will become final in its current or materially similar form. Pennsylvania is currently engaged in an extensive process to more fully develop and coordinate the administration and prioritization of conservation measures to be pursued locally and watershed-wide under the state’s WIP for Phase 3. Unlike the WIPs developed during Phase 1 and 2, Pennsylvania’s Phase 3 WIP was developed with active participation of the public, including those persons and groups who will be ultimately called upon to execute the WIP’s contemplated conservation measures. Hundreds of representatives from local government, agriculture, business, academia and conservation organizations engaged and collaborated in the development of Pennsylvania’s Phase 3 WIP.

A much stronger effort was also made by Pennsylvania officials than in Phases 1 and 2 to engage and include input from the Commonwealth’s farming interests. Pennsylvania’s agricultural organizations played a significant role in Pennsylvania’s WIP development process, and individual farmers actively served on advisory bodies and provided helpful insight on the environmental effectiveness and practicality of conservation measures being considered for inclusion in Pennsylvania’s WIP. The recommendations and concerns offered by farmers and farm organizations were largely incorporated into the Phase 3 WIP that Pennsylvania adopted finally.

With the assistance of EPA, Pennsylvania also made a significantly greater effort during the Phase 3 development process to commission and engage those with expertise in modeling analysis to assist government officials and advisory bodies in the selection of conservation measures to be pursued under Pennsylvania’s Phase 3 WIP. These analysts gave government officials and advisory bodies a more tangible and quantitative understanding of relative benefits to water quality anticipated to occur from each of the conservation options considered, and enabled the Commonwealth to make more environmentally and economically effective choices in the WIP’s final selection of conservation measures to be pursued.

Because of the inclusive and collaborative process engaged by Pennsylvania in development of its Phase 3 WIP and meaningful opportunity for participation and input among stakeholder interests, there has been a higher level of acceptance and commitment for implementation of the WIP than the plans adopted in the prior two phases. Those communities and landowners who will be called upon to perform the tasks of implementation have substantially higher level of confidence than in the past that implementation Pennsylvania’s Phase 3 WIP is worthy of pursuit, and is doable and feasible, if given a reasonable time for implementation and financing.

But Pennsylvania is also at a critical point in the overall process of WIP implementation. Material progress on Pennsylvania’s Phase 3 WIP is still in the early stages. Keep in mind that Pennsylvania’s Phase 3 WIP was adopted only 18 months ago. And the predominant focus among those involved in development of Pennsylvania’s WIP was improvement of existing point and nonpoint conditions that are currently contributing to local water impairment. Little if any consideration was given by the formulators of Pennsylvania’s WIP to address factors outside Pennsylvania’s boundaries that may also be contributing to water quality impairment in the Bay.