Municipalities Take Note: Activities Aimed at Restoring Chesapeake Hold Legal, Regulatory, Technical Ramifications
Special Bulletin From the Editors
The Chesapeake Bay drainage is by a large measure the single largest watershed in Pennsylvania, comprising approximately 50 % of the state. Impaired water quality in the Bay for some years has been the focus of national attention, with EPA and other federal agencies working hard to improve problems (e.g., nutrients nitrogen in various forms, phosphorus, and sediment) which persist. In recent months, after years of strenuous management actions that failed to deliver the desired water quality improvements, more stringent actions have been defined and are pending, all likely to add more water quality requirements on municipalities within the watershed. Given the extent of the Bay watershed in Pennsylvania and the number of municipalities which these new actions could potentially affect, keeping track of what’s going on makes sense.
We recently interviewed Harry Campbell, Senior Scientist at the Chesapeake Bay Foundation (Harrisburg Office) for a summary of these pending actions.
Harry points out that at the moment, there are 4 major developments with both legal and regulatory and technical ramifications for municipalities to watch. Although these developments seem to be converging to some extent, they also are driven somewhat separately by distinct legal and technical mandates.
1. Federal governments significant tightening of water quality performance at its own facilities. Refer to President Obama’s Executive Order 13508 Chesapeake Bay Protection and Restoration. This Order discusses preparation of an Accountability Framework, comprehensive Watershed Implementation Plans, definition of explicit milestones, application of rigorous LEED performance standards at federal facilities, and a host of other new management measures. This is a thesis unto itself!
2. Introduction of Congressional (Senate S. 1816 and House H.R. 3852, named the Chesapeake Clean Water Act) bills to reauthorize and strengthen Section 117 of the Clean Water Act, specifically focusing on the Chesapeake Bay. Go to the CBF webpage ( http://www.cbf.org/Page.aspx?pid=1420) for explanation of why this expanded and more specific law is necessary. Although these 2 companion bills started out life being quite similar, as time progresses, aspects of the bills are undergoing some change. Nevertheless, the legislative intent here is to:
-Places legally enforceable, science-based limits on pollution from all sources.
-Gives states pollution reduction standards to meet and allows them the flexibility to achieve those reductions as they best decide.
-Provides significant funding for technical assistance to farmers so they can implement pollution controls, as well as funding for stormwater pollution controls.
-Encourages market-based approaches to pollution reduction, which could provide an estimated $300 million annually to rural areas.
3. The Bay TMDL. Most folks at this point have come to understand what Total Maximum Daily Loads or TMDLs are all about. TMDLs have been created by the Clean Water Act to quantify the total amount of pollution (pollutant loads from both point sources such as wastewater treatment plants and nonpoint sources such as dispersed stormwater runoff). TMDLs are supposed to address both existing sources and future or projected sources of pollution. As can be imagined, calculating and modeling the 6-state watershed to develop a single TMDL for the Chesapeake is one challenging exercise. Scientists have been at it for some time and have promised to have the TMDL developed by December 31, 2010 for the pollutants of primary concern in the Chesapeake: nitrogen, phosphorus, and sediment.
These TMDLs are critical for any number of reasons. In describing the relationship between the new Congressional bills (above), the CBF website points out:
-EPA will require the states to specify, in great detail, how they will achieve pollution reductions from all sources through enforceable or binding, rather than voluntary measures.
-EPA wants these plans designed to ensure 100% implementation of pollution reduction practices by 2025.
-EPA has indicated its intent to invoke strict consequences if the states fail to develop adequate implementation plans or to make progress in achieving the necessary pollution reductions.
-The TMDL will require tidal states to set pollution caps for smaller geographic areas than in the past, e.g., counties, because much of the reduction efforts will occur at the local level. To clean-up the Bay and its tidal rivers, we need to reduce pollution from all the streams and rivers that feed them. So implementing the TMDL will help clean up local streams as well as the Bay.
-The local pollution caps for tidal states will increase accountability by providing a goal against which local efforts can be measured
The Chesapeake Clean Water Act adopts the Bay-wide TMDL pollution caps and the state cleanup plan requirements, but it also clarifies and strengthens EPA’s role in ensuring the needed pollution reductions occur. In addition, the legislation includes more than $1.5 billion in grants for state and local governments to help cover the costs associated with implementing those reductions. It also establishes an interstate trading program designed to lower the costs of compliance with the new TMDL, particularly for local municipalities.
In addition to the CBF website, more details on the TMDL process can be found here, on EPA’s website>>
4. Finally, in the midst of all of the above, there has been a May 11, 2010 lawsuit settlement, reached between environmental groups (including CBF) and the EPA which will require EPA to strengthen measures to protect and restore Bay water quality.
This historic settlement is a legally binding, enforceable document that requires EPA to take specific actions by dates certain to ensure that pollution to local rivers, streams, and the Chesapeake Bay is reduced sufficiently to remove the Bay from the federal “dirty waters” list. The settlement mandates:
-Reasonable assurances: The settlement outlines what “reasonable assurances” EPA will require of the states to support the Bay TMDL.. The states will be required to develop Watershed Implementation Plans (WIPs) explaining how they will meet the limits for all sources in each area of their state.
-Consequences: The settlement identifies what consequences EPA will impose upon states and localities that fail to develop sufficient WIPs or meet their limits. One of those consequences could be that permits will not be issued to new sources of pollution. That could include new sewage treatment plants or major new developments.
-Offsets: The settlement requires that the states offset all new nitrogen, phosphorous, and sediment loads. In the settlement EPA has agreed that each state’s WIP will provide offsets for new or increased permitted discharges.
-Dates certain: The settlement establishes dates identifying when EPA will complete development of a Bay TMDL and when the states are to provide WIPs.
-Tracking: The settlement requires EPA to develop a tracking system that is publically available and which describes whether increased pollution from new, small sewage treatment plants and industrial dischargers have been included in calculating whether the state or local jurisdiction is meeting its new limits. CBF has recently seen an increase in small sewage treatment plants that are below EPA’s permit threshold.
-Stormwater: EPA agrees that one of the biggest sources of pollution in the Bay region is urban stormwater and that this form of pollution is growing. EPA agreed to:
- review all new construction general permits (those that apply to categories of construction) drafted by Bay states and make sure they meet federal standards;
- by July 31, 2010 develop a guidance for major municipal stormwater permits in the Bay region; and
- by Nov. 19, 2012, take final action on industrial and municipal stormwater regulations.
-Reducing pollution from agriculture: The settlement commits EPA to proposing new regulations for controlling pollution from agriculture by Dec. 15, 2012 and taking final action by Dec. 15, 2014.
-Addressing air pollution: Under the settlement EPA will require an allocation for air deposition of nitrogen from the states in the Bay TMDL, so that some portion of the total nitrogen budget will be attributed to air pollution.
More details on this lawsuit settlement agreement can be found at the CBF website>>
Change is coming to Pennsylvania’s Bay municipalities. Many thanks to Harry Campbell and the Chesapeake Bay Froundation for the work they are doing in forging these changes. Harry can be reached at (717-234-5550, HCampbell@cbf.org)
