Implications of Complying with the TMDL for Virginia

The Chesapeake Bay Commission was created in 1980 to coordinate Bay-related policy across state lines and to develop shared solutions. The six Bay watershed states are Virginia, Maryland, Pennsylvania, West Virginia, New York, and Delaware and the District of Columbia and are all parties to the Chesapeake Bay Agreement. Back in May 2010 the EPA announced that it will mandate that the six states and the District of Columbia who are parties to the Chesapeake Bay Agreement limit their nitrogen, phosphorus and sediment flow into the bay in compliance with an overall daily maximum, TMDL, allocated by the EPA. The six Bay watershed states (Virginia, Maryland, Pennsylvania, West Virginia, New York, and Delaware) and the District of Columbia have all developed Watershed Implementation Plans, WIPs, to meet these targets.

The EPA found that none of the states met the reasonable assurance standard they set, but that Virginia’s WIP had a “moderate need” for federal backstops (the WIPs from Maryland and Washington, DC were found to need only minor backstops). Virginia’s WIP was found to have serious deficiencies. It did not meet allocations for nitrogen (6 percent over) and phosphorus (7 percent over), but did meet allocations for sediment (12 percent under). EPA will invoke federal authority where they can to ensure the mandated reduction in nutrient pollution to the Chesapeake Bay. Though EPA states that they prefer the individual states develop their own approach to develop a final WIP with an acceptable level of assurance, so that EPA will not have to invoke federal actions. The states have more flexibility and can achieve reductions from a wider range of sources than EPA can. Dozens of small measures will allow the state to achieve the TMDL goals. The problem is creating the regulatory network to control the non-point source nutrient and sediment contamination.

If the states’ WIPs do not meet the EPA standard of reasonable assurance, the EPA’s only possible response is to further control the point source contamination it can regulate. This means that more stringent waste load allocations will be applied to waste water treatment plants (regulated via federal programs). The waste stream from wastewater treatment plants was assigned to be 4 mg/L total nitrogen and 0.3 mg/L total phosphorus. For municipal separate storm sewer systems, MS4s, the federal government has imposed the requirement that 50% of urban MS4 lands meet aggressive performance standard through retrofit/ redevelopment; 50% of unregulated land will be treated as regulated, so that 25% of unregulated land meets aggressive performance standard.

At the public hearing held in Annandale, Virginia, Anthony Moore, Assistant Secretary for Chesapeake Bay Restoration in Virginia stated that the reduced levels of discharge of total nitrogen would not be set so low as to cause algae blooms in the Occoquan Reservoir. This statement left me confused since it is the nitrogen and phosphorus contamination which cases the algae blooms. I went down to the HL Mooney Waste Water Treatment Plant in Woodbridge, VA to talk about the TMDL and algae blooms with Glenn B. Harvey, the plant Process Engineer. He provided me with additional insight into the very complicated balancing act necessary to restore the Chesapeake Bay.

HL Mooney is an AWWTP operating at around 13 million gallons of waste water a day. The plant was built originally in 1979, expanded in the 1990’s and is being expanded to 23 million gallons a day today. HL Mooney serves around 130,000-150,000 people a day which represents about 40% of the population of Prince William County. Mr. Harvey explained to me that the sediment of the Occoquan contains amongst other contaminants nitrogen and phosphorus. He stated that when the nitrogen in the Occoquan waters falls too low, anaerobic nutrients are released from the sediment. According to Mr. Harvey, the nitrogen keeps it anoxic and not anaerobic. Unless, the entire Occoquan were dredged, which would make the water undrinkable for an extended period of time, release of nutrients from the sediment would have to be considered in any point sourc reduction.

HL Mooney is only a fraction (about 7%) of the size of Blue Plaines AWTTP. The monthly discharge averages are less than 0.1 for phosphorus, TSS 1 mg/l, BOD non- detect and nitrogen is currently 5 mg/l but according to Mr. Harvey will be 3 mg/l when the expansion is completed. He pointed out that the average monthly TMDL is about 50% more lenient a measure than the weekly measure that EPA is mandating. Mr. Harvey worried that the cost of the technology to achieve the weekly TMDL limit might be prohibitive. The more I examine the issure the more complicated it becomes. Weighing raising sewage and water rates on public systems to pay for the technology to meet the TMDL goal for the state and implementation and enforcement costs to have the Commonwealth regulate the non-point sources of contamination.

Chesapeake Bay TMDL, Virginia WIP and the Northern Virginia Public Meeting

EPA has been having a series of public meetings in conjunction with the six Chesapeake Bay States to provide and information on the Chesapeake Bay strict pollution diet, the Total Maximum Daily Load (TMDL), the Watershed Implementation Plans, WIPs and to encourage public comment. The Chesapeake Bay and its tidal waters are impaired by the release of excess nitrogen, phosphorus and sediment. These pollutants are released from waste water treatment plants, from agricultural operations, urban and suburban runoff, wastewater facilities, air pollution and other sources, including septic systems that enter the tributaries and Chesapeake Bay. These pollutants cause algae blooms that consume oxygen and create dead zones where fish and shellfish cannot survive, block sunlight that is needed for underwater grasses, and smother aquatic life on the bottom. Over the past quarter century the excess nutrient contamination to the Chesapeake Bay has decreased, but the Bay’s waters remain seriously degraded. As a result, US EPA has taken control of the situation and has developed a new federally mandated TMDL to restore the local waters. The TMDL (released as a Draft standard in July and to be finalized at the end of November) allocates a pollution budget among the states which will decrease over time. On Tuesday evening there was a public meeting at Northern VA Community College in Annandale.

Robert Koroncai from Region III of the US EPA Water Protection Division in Philadelphia made it quite clear that the federal government is in charge and in their evaluation of the Virginia WIP the plan did not meet the TMDL loading levels with “reasonable assurance.” The EPA found that none of the states met the reasonable assurance standard, but that Virginia’s WIP had a “moderate need” for federal backstops. Virginia’s WIP was found to have serious deficiencies. It did not meet allocations for nitrogen (6 percent over) and phosphorus (7 percent over), but did meet allocations for sediment (12 percent under). In addition, the EPA found that the Virginia WIP relied on pollution trading programs but had no commitment to adopt new regulations relying instead on market forces. The WIP was deemed to be vague and was found to have limited enforceability and accountability for filling the gaps identified by the EPA and few data points to demonstrate compliance. Stronger CAFO (concentrated animal feed operation), MS4s and wastewater treatment plants were all areas that Mr. Koroncai pointed out required federal backstops. Mr. Koroncai stated that Virginia needed to reduce their nitrogen release by an addition 12 million pounds per year, and their phosphorus release by 1.7 million pounds per year beyond those identified in the WIP.

EPA is invoking a “moderate levels of back stops” for Virginia to ensure adequate reduction in nutrient pollution to the Chesapeake Bay. This means that the WIP aggregate point source allocations for storm water and animal agriculture (CAFO) sectors were adjusted by the federal government to match levels determined to be adequate in Maryland’s WIPs. More stringent waste load allocations were applied to waste water treatment plants (regulated via federal programs); so that the waste stream from wastewater treatment plants was assigned to be 4 mg/L total nitrogen and 0.3 mg/L total phosphorus. For municipal separate storm sewer systems, MS4s, the federal government has imposed the requirement that 50% of urban MS4 lands meet aggressive performance standard through retrofit/ redevelopment; 50% of unregulated land will be treated as regulated, so that 25% of unregulated land meets aggressive performance standard. I’m, quite frankly, not sure what that means in terms of installation and operation of storm systems. Erosion and sediment control will be required on all lands subject to Construction General Permit. Finally, in animal agriculture and CAFO operations waste management, barnyard runoff control, mortality composting will be required. In addition, precision feed management for all animals in unpermitted animal feed operations, permitted CAFOs but not to dairies.

Mr. Koroncai did make positive comments on the Nutrient credit exchange program that Anthony Moore, the Assistant Secretary for Chesapeake Bay Restoration of Virginia, highlighted. Mr. Moore was the primary speaker for Virginia and highlighted the WIP for the audience. It was clear that addition requirements will have to be placed on existing homeowners, neighborhoods and communities. Animal agriculture will have to expand best management practices, BMPs and waste water treatment plants will have to be retrofitted with additional equipment. This all comes down to the limitations to land use freedom, increased regulation, costs and taxes. The Virginia homeowner and citizen needs a voice in the process to determine the balance of regulations, taxes and fees that occur in meeting the TMDL. The Chesapeake Bay will be cleaned up, that is not in question, how we pay for the cleanup is in question. Significant changes in land use regulations, storm water management, waste treatment plant operation, septic regulations and operations, agricultural practices will have to be made to meet the TMDL, the federal regulators should allow Virginia to decide how to best meet the TMDL and not impose the command and control method of compliance they prefer. There is cost to achieve a healthy Chesapeake Bay, let us determine how to pay for it.

The Next Steps in Chesapeake Bay Restoration in Virginia

On Friday, Governor McDonnell announced the appointment of a new Assistant Secretary for Chesapeake Bay Restoration in Virginia, Anthony Moore. Mr. Moore recently served for six years at the US EPA as a Senior Policy Advisor for the Office of Water. Prior to serving at the EPA, Mr. Moore briefly served as the Director of Policy for the Virginia Department of Environmental Quality, was Assistant Secretary of Natural Resources for the Commonwealth of Virginia, and worked as a Chemist for Dominion Power for 15 years. This appointment marks the first step in Virginia’s response to the anticipated release of the final total maximum daily load, TMDLs for nutrients and sediments.

If you will recall, this past spring EPA released the “Strategy for Protecting and Restoring the Chesapeake Bay Watershed” developed under President Obama’s Executive Order. The Strategy was released in May 2010 and outlines actions that will be taken by each federal agency to control pollution, restore habitat and wildlife, conserve land, and increase public awareness and accountability in the Chesapeake Bay Watershed. The executive order complements and overlaps with the settlement agreement resolving the lawsuit brought by former Maryland State Senator Bernard Fowler, the Chesapeake Bay Foundation, Maryland and Virginia watermen’s associations, and others filed against the EPA in January 2009 alleging the Agency failed to fulfill its duties under the Clean Water Act (CWA) and the Chesapeake 2000 Agreement. EPA settled the lawsuit with the “settlement agreement,” which requires EPA to:
Establish and implement a Chesapeake Bay total maximum daily load, TMDL, for nutrients and sediments. This will include reviewing watershed implementation plans (WIPs) by the Chesapeake Bay watershed states and the District of Columbia to ensure those jurisdictions achieve the nutrient and sediment allocations under the TMDL.
Review state-issued permits, including proposed construction general permits and NPDES permits for “significant point source discharges of nitrogen, phosphorus, and sediment” in the Chesapeake Bay watershed.
Develop new storm water regulations by 2012 and concentrated animal feeding operation (CAFO) regulations by 2014.
Issue guidance on permitting for municipal separate storm sewer systems.

Virginia Secretary of Natural Resources, Doug Domenech, in a press conference last week said the amount of nitrogen from cars, power plants, fertilizer and other sources is down 20 percent bay wide since 1985. According to the Chesapeake Bay Foundation, this decrease in large part to the water shed states reducing point source reductions by improving sewage treatment plant discharge. The new TMDLs are to take effect next year; the federal government could punish states that do not meet requirements by withholding grant money, imposing more regulations and taking other measures. Mr. Domenech called the consequences "unnecessarily aggressive,” but it is still unclear what how the reductions will be measured, documented and enforced. Mr. Domench argued the current approach, in which states are encouraged not required to meet EPA pollution reduction goals, is working and therefore should not be changed. Pointing out that new regulation could lead to job losses, especially among farmers, ranchers and land developers.

Yet, despite more than 25 years of effort, the Bay’s waters remain seriously degraded and considerably short of attaining the 2010 water quality goals set forth in the Chesapeake 2000 agreement by the states. As a result of the court order, the US EPA is required to draft a new Bay-wide cleanup plan by May 2011. After point source reduction, which was mandated by federal regulation, improvements in water quality of the Chesapeake Bay Watershed stalled. All of the states failed to meet the 2010 deadline for water quality in the Bay. The new federally mandated Total Maximum Daily Load (TMDL) plan is will establish and apportion an allowable pollution budget among the states and review the implementation plans for achieving those goals. The US EPA will set nitrogen, phosphorus and sediment limits for each impaired tributary and the Bay, together with maximum allowable point source and nonpoint source loadings.

The Federal Clean Water Act gives regulatory authority to the states to restrict pollutants discharged into the waters of the Bay from point sources, such as wastewater treatment plants. In contrast, that authority does not extend to non-point sources, such as farms, ornamental gardens, horse facilities and septic systems. The states need to address these non-point sources using other regulatory schemes. That lack of bright line regulatory authority has been the root cause of the stalled cleanup of the Chesapeake Bay. There were always other calls for the resources of the states. Reductions in discharge of contaminants can be achieved through the implementation of “agricultural best management practices” operations and sensible management of septic systems in the state. In Virginia, the Soil and Water Conservation Districts work with farmers, and livestock owners to develop BMP implementation plans. The property owners are not “required” to implement BMPs and there is no system to verify the BMPs are followed. The most recent budget cycle has slashed the Soil and Conservation budgets throughout the state. There has never been and mechanism for enforcing the adoption and maintenance of BMPs now it seems there will be no budget for developing them.