PA Environment Digest

The U.S. Environmental Protection Agency this week established a final TMDL watershed plan to restore clean water in Chesapeake Bay and the region’s streams, creeks and rivers. The TMDL is driven primarily by jurisdictions’ plans to put all needed pollution controls in place by 2025 and EPA will hold jurisdictions accountable for results along the way.

The pollution diet, formally known as the Chesapeake Bay Total Maximum Daily Load (TMDL), identifies the necessary reductions of nitrogen, phosphorus and sediment from Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia.

The TMDL is shaped by an extensive public and stakeholder involvement effort during the past two years, coupled with detailed plans by jurisdictions for how they will achieve pollution reductions.

To address deficiencies in draft plans submitted by jurisdictions in September, EPA worked closely with the jurisdictions during the past several months. As a result of this cooperative work and through strong state leadership, the final plans were significantly improved.

EPA was able to reduce and remove most federal backstop measures that were in the draft TMDL, while still maintaining rigorous accountability through enhanced oversight and the availability of contingency actions. The result is a TMDL that is primarily shaped by the jurisdictions’ plans to reduce pollution, which has been EPA’s goal from the outset.

"Today is an historic day for the decades-long effort to restore Chesapeake Bay. In the past two years we have made huge strides that will yield real results for millions of people who rely on the Bay for their livelihood and way of life. Now we begin the hard work of implementing this pollution diet and building on the last two years,” said EPA Administrator Lisa P. Jackson. “We're very pleased with efforts of state officials that helped get us to this point. We will continue to provide strong oversight and transparency to ensure accountability and ensure progress continues."

Among the significant improvements in jurisdiction plans are:

-- Dramatically increasing enforcement and compliance of state requirements for agriculture. (Pennsylvania);

-- Committing state funding to develop and implement state-of-the-art-technologies for converting animal manure to energy for farms. (Pennsylvania);

-- Committing to more stringent nitrogen and phosphorus limits at wastewater treatment plants, including on the James River in Virginia. (Virginia, New York, Delaware);

-- Pursuing state legislation to fund wastewater treatment plant upgrades, urban stormwater management and agricultural programs. (Maryland, Virginia, West Virginia);

-- Implementing a progressive stormwater permit to reduce pollution. (District of Columbia); and

-- Considering implementation of mandatory programs for agriculture by 2013 if pollution reductions fall behind schedule. (Delaware, Maryland, Virginia, New York).

CBF Reaction

“EPA’s actions today reflect a historic change in how government will restore water quality in local rivers, streams, and the Chesapeake Bay and protect the hundreds of thousands of jobs that rely on clean water," said Chesapeake Bay Foundation President William C Baker said. "This plan includes science-based limits, clear expectations, and accountability, and is the result of years of public involvement and close cooperation between EPA and the Bay jurisdictions.

“It is clear, however, that the hardest work is still to come. The states and the District of Columbia must implement the plans through new laws, regulations, funding, and enforcement, and EPA must hold all jurisdictions accountable.

“As we saw in the development of the Watershed Implementation Plans (WIPs), EPA’s threat of serious consequences resulted in significant improvements to the state plans. It is essential that EPA stand firm and impose consequences if the states and the District of Columbia do not achieve the 2009 milestones due to be met by 2011, as EPA stated they would in a briefing today.

“If EPA and the jurisdictions implement the WIPs and the TMDL, history will record December 29, 2010 as the turning point in the restoration of this national treasure.”

CBF's Pennsylvania Agriculture Program Manager Lamonte Garber added, “The Bay TMDL offers the new Administration an opportunity to place Pennsylvania in a leadership role by ensuring compliance with PA's comprehensive pollution control laws. By making this a priority, as reflected in the state's TMDL clean-up plan, Governor-Elect Corbett can dramatically reduce pollution not only to the Bay but also the Commonwealth’s rivers and streams.”

Additional Details

The TMDL still includes targeted backstops for those jurisdictions that did not meet all of their target allocations or did not meet EPA’s expectations for providing reasonable assurance that they will achieve the necessary pollution reductions. These included backstop allocations and adjustments for the wastewater sector in New York, the urban stormwater sector in Pennsylvania and the agriculture sector in West Virginia.

In addition, EPA will provide enhanced oversight of Pennsylvania agriculture, Virginia and West Virginia urban stormwater, and Pennsylvania and West Virginia wastewater. If the jurisdictions don’t make sufficient progress, EPA may utilize contingencies that include additional controls on permitted sources of pollution, such as wastewater treatment plants, large animal feeding operations and municipal stormwater systems.

EPA will also regularly oversee each of the jurisdictions’ programs to make sure they implement the pollution control plans, remain on schedule for meeting water quality goals and achieve their two-year milestones. This oversight will include program review, objecting to permits and targeting compliance and enforcement actions as necessary to meet water quality goals.

The pollution diet calls for a 25 percent reduction in nitrogen, 24 percent reduction in phosphorus and 20 percent reduction in sediment. The TMDL - which sets Bay watershed limits of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year – is designed to ensure that all pollution control measures to fully restore the Bay and its tidal rivers are in place by 2025, with at least 60 percent of the actions completed by 2017.

EPA has also committed to reducing air deposition of nitrogen to the tidal waters of the Chesapeake Bay from 17.9 to 15.7 million pounds per year. The reductions will be achieved through implementation of federal air regulations during the coming years.

Federal agencies will contribute to restoration efforts, particularly through implementation of the federal strategy created under President Obama’s Executive Order. Eleven federal agencies have committed to a comprehensive suite of actions on the same 2025 timeline as the TMDL. As part of this work, federal agencies will be establishing two-year milestones that directly support the jurisdictions’ activities to reduce water pollution.

During the 45-day public comment period on the draft TMDL, EPA received more than 14,000 comments – most of which supported the TMDL – and conducted 18 public meetings. The agency’s response to those comments is included as an appendix to the TMDL.

Despite all of the extensive restoration efforts during the last 25 years, the TMDL was prompted by insufficient progress in restoring the Bay. The TMDL is required under federal law and responds to consent decrees in Virginia and D.C. dating back to the late 1990s.

The TMDL, as well as evaluations of the state plans and EPA backstops and contingencies are available online.

EPA Comments On PA WIP

EPA posted separate comments on each state Watershed Implementation Plan, including Pennsylvania. EPA's comments on DEP's plan include--

Pennsylvania meets its nutrient and sediment allocations for each basin in the final TMDL. After adjusting for EPA-approved nitrogen and phosphorus exchanges, Pennsylvania’s WIP input deck resulted in statewide loads that are 2 percent over for nitrogen and phosphorus, and 5 percent under for sediment allocations.

EPA and the Commonwealth have reached agreement on further nonpoint source reductions in order to achieve allocations both statewide and in each basin, as documented in the final TMDL. The further reductions are supported by contingencies included in the WIP and EPA’s commitment to track progress and take any necessary federal actions to ensure these reductions are achieved and maintained.

Agriculture

Key improvements since draft WIP:

-- Pennsylvania has outlined a very detailed strategy for significantly increasing compliance with agricultural regulations and for advancing manure technologies.

-- The WIP details a specific approach for tracking agricultural conservation to develop verification protocols for crediting non-cost shared practices in the Chesapeake Bay Watershed Model.

EPA actions: Enhanced oversight and actions

-- Based on Pennsylvania's ability to demonstrate near-term progress implementing the agricultural section of its WIP, including EPA approval for its CAFO program and enhanced compliance assurance with state regulatory programs, EPA will assess in the Phase II WIP whether additional federal actions, such as shifting AFO loads from the load allocation to the wasteload allocation or

establishing more stringent wasteload allocations for WWTPs, are necessary to ensure that TMDL allocations are achieved.

-- EPA will use its national review of CAFO State Technical Standards in 2011 and beyond to identify any deficiencies in the State Technical Standards for protecting water quality, including Pennsylvania’s phosphorus management program. EPA reserves its authority to object to permits if they are not protective of water quality. EPA will continue to engage Pennsylvania about ways to phase out the practice of winter spreading of manure.

Urban Stormwater

Key improvements since draft WIP:

-- The WIP provides a strong description of Chapter 102 regulations and what Pennsylvania can enforce and regulate for no net change in stormwater runoff.

-- A “no net increase” provision is required to maintain existing hydrology or demonstrate that at least 20 percent of a previously disturbed site has the hydrologic conditions of meadow or better.

Key areas for improvement:

-- Pennsylvania DEP continues to assert that the scope of the MS4 program is limited to the conveyance system only, and does not include the construction and post-construction requirements.

-- Pennsylvania has not demonstrated a high level of compliance assurance activities nor enhanced the

field resources available to support an enforcement of urban stormwater programs.

-- The requirement for an MS4 to have a TMDL Implementation Plan does not include the Chesapeake Bay TMDL, and lacks supporting documentation to quantify how local TMDL implementation plans will meet Chesapeake Bay nutrient and sediment allocations.

-- Pennsylvania’s WIP lacks clear strategies to achieve the almost 40% reduction in urban loads that the Commonwealth includes in its WIP input deck.

EPA actions: Backstop allocations, adjustments and actions

-- EPA will transfer 50 percent of the urban stormwater load that is not currently subject to NPDES permits from the load allocation to the wasteload allocation. EPA is doing this to signal that it is prepared to designate discharges as requiring NPDES permits to ensure nutrient and sediment reductions are achieved and maintained. Urban areas would only be subject to NPDES permit conditions protective of water quality as issued by the Commonwealth upon designation. EPA will consider this step if Pennsylvania does not achieve reductions in urban stormwater loads as identified in the WIP. EPA may also pursue designation activities based on considerations other than TMDL and WIP implementation.

-- Based on Pennsylvania's ability to demonstrate near-term progress implementing the urban stormwater section of its WIP, including the reissuance of PAG-13 and PAG-2 general permits for Phase II MS4s and construction that are protective of water quality, EPA will assess in the Phase II WIP whether additional federal actions, such as establishing more stringent wasteload allocations for WWTPs, are necessary to ensure that TMDL allocations are achieved.

Wastewater

Key improvements since draft WIP:

-- The WIP includes permit numbers for additional non-significant facilities covered under the PAG-04

and 05 general permits.

-- Pennsylvania added language on a process for granting 25 lb/yr credit to POTW’s for each septic system retired, and on implementation schedules for significant WWTP upgrades.

EPA actions: Enhanced oversight and actions

-- EPA is establishing individual wasteload allocations for significant wastewater plants in the TMDL to increase assurance that permits are consistent with the overall wasteload allocation. Individual allocations do not commit wastewater plants to greater reductions than what the jurisdiction has proposed in its WIP. Provisions of the TMDL Report allow for allocation modifications within a basin to support offsets and trading opportunities.

-- EPA may consider federal actions such as revisiting wastewater allocations if the Phase II WIP does not demonstrate adequate progress toward implementing WIP strategies for agriculture and stormwater.

-- EPA will review NPDES permit conditions to ensure that they are consistent with the loads and assumptions of the Chesapeake Bay TMDL.

General Note on EPA Actions

EPA will assess annual progress and track 2-year milestone commitments. EPA may take additional actions beyond those listed above, as described in its December 29, 2009 letter, to ensure that nitrogen, phosphorus, and sediment reductions identified in the WIP and needed to meet TMDL allocations are achieved.

NewsClips: EPA Outlines Details Of Chesapeake Bay Plan

   EPA Lays Out Major Cheanup For Chesapeake Bay
   Chesapeake Bay Pollution Limits Target Farmers, Stormwater
   Pollution Diet For Chesapeake Bay Impacts NE
   New Plan May Help Cut Pollution To Chesapeake Bay

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