Farmers Appeal TMDL Decision – Right to Determine Land Use Belongs to the States

It is an old story now that the Chesapeake Bay and its tidal waters have been impaired by the release of excess nitrogen, phosphorus and sediment. These pollutants are released from waste water treatment plants, agricultural operations, urban and suburban runoff, wastewater facilities, septic systems, air pollution and other sources that enter the tributaries and Chesapeake Bay from the 16 million people living within its vast 64,000 square mile watershed.

There are six Chesapeake Bay states, Virginia, Maryland, West Virginia, Delaware, Pennsylvania, New York-and Washington DC. For decades these states have been attempting to clean up the Chesapeake Bay, and in fact, have made tremendous progress. Nonetheless, a “clean” Chesapeake Bay has alluded them; the cleanup plans hindered by growth in population and the region’s economies and difficulty in controlling the diverse sources of contamination.

In December 2010 the U.S. Environmental Protection Agency, EPA, mandated a contamination limit called the TMDL (total maximum daily load for nutrient contamination and sediment) to restore the Chesapeake Bay. The TMDL sets an overall limit for the entire Chesapeake Bay watershed of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year which is a 25% reduction in nitrogen, 24% reduction in phosphorus and 20 % reduction in sediment from the 2011 levels. The pollution limits were then partitioned to the various states and river basins based on the Chesapeake Bay computer modeling tools and monitoring data. At this time the TMDL addresses only pollution from excess nitrogen, phosphorus and sediment.

Population growth and less than consistent remedial actions on the non-point source contamination has challenged efforts to restore the Chesapeake Bay. Non-point source pollution is pollution that does not come out of a pipe, but are carried to rivers and streams by runoff from rain and snowmelt. The way to reduce impact of this non-point source pollution on the environment is to implement what has been called “best management practices” and stormwater management. BMPs minimize the use of fertilizers, pesticides, etc. and that slow stormwater flow to prevent erosion and achieve a desired level of performance and quality while protecting the environment.

Pollution form urban and suburban stormwater runoff and septic systems is the only category of pollution in the region that has been growing in the 21st Century. In order to reduce the stormwater runoff carrying nitrogen, phosphorus, sediment and other pollutants from existing suburban residential areas, stormwater best management practices will also have to be implemented in the suburban communities. Counties, towns and cities within the Chesapeake Bay watershed are going to have to implement non-point source nutrient management throughout the watershed not only to stop growth in pollution, but reduce the amount of pollution. Homeowner Associations and individual homeowners will need to individually and as a group reduce the nutrients and sediment run off from their properties. EPA did not allow the states to “grandfather” the nutrient levels from existing homes. Suburban and semi-rural BMPs have the potential to significantly reduce nutrient and sediment pollution in the Chesapeake Bay, but state regulators and various health departments have struggled to reach, educate and motivate the public to implement, let alone maintain mitigation strategies. States have struggled with something as simple as trying to increase compliance with septic regulations by the public.

Nutrient management and soil and water conservation districts play a pivotal role in preventing such runoff in the agricultural community. In fact, conservation districts have been in the business of fighting erosion (which prevents nutrient and sediment pollution) since the mid-1930s, but conservation districts have met with varying degrees of success from state to state. Agricultural operations are businesses that can see the direct result of maintaining their top soil and that have learned over the years to deal with various regulations, still there are challenges. When dealing with the individual homeowner and the disperse sources of non-point source contamination; septic systems, poor drainage, impervious ground cover, lawn and plant fertilization, and household behaviors the challenges are much greater.

Nonetheless, it was the farmers who challenged the TMDL. In January 2011 American Farm Bureau Federation and the Pennsylvania Farm Bureau filed a complaint in federal court against the EPA to throw out the TMDL. The two Farm Bureaus were joined by the National Association of Home Builders, the National Chicken Council, the National Corn Growers Association, the National Pork Producers Council, the National Turkey Federation, The Fertilizer Institute, and the U.S. Poultry & Egg Association. This group known collectively as “the Farm Bureau Group” made three complaints: (1) that the pollution limits or TMDL exceeded EPA’s authority, (2) that they were based on faulty science, and (3) that the plaintiff did not have adequate time to participate in the comment process and filed a motion for summary judgment against the EPA.

The EPA was joined by the Chesapeake Bay Foundation, Citizens for Pennsylvania’s Future, Defenders of Wildlife, Jefferson County (WV) Public Service District, Midshore River Keeper Conservancy, and the National Wildlife Federation. Several municipal waste water treatment groups were also allowed to intervene on behalf of EPA. The EPA group filed a counter motion for summary judgment against the Farm Bureau Group’s motion for summary judgment and oral arguments were made in October 2012.

Last September the District Court affirmed that the pollution limits that EPA established for the Chesapeake Bay and its tributaries are within the purview of the Clean Water Act and are based on sound science. The Court also found that the Farm Bureau and Homebuilders had ample time to review and comment on the proposed limits. Summary judgment was granted to the EPA.

The Farm Bureau Group is appealing that decision to the Third Circuit Court of Appeals in Philadelphia and have now been joined by a group of 21 of the nation’s 50 attorneys general who in February filed a friend of the court brief expressing concern that the Bay TMDL would set a precedent for other water bodies, including the Mississippi River basin. This month Thirty-nine members of Congress joined the Farm Bureau Group in their challenge to the EPA mandated TMDL and oversight of the Watershed Implementation Plans, saying the EPA went “far beyond” its authority when it set the TMDL limits and required states to develop the prescribed plans acceptable to the EPA showing how they would meet those limits on the timeline mandated by the EPA. This same structure of overall pollutant reduction with a mandated and supervised plan for implementation is also being used by the EPA to mandate reduction in carbon dioxide from power generation across the United States under the Clean Air Act.

This past spring when the Chesapeake Bay Foundation (CBF) and the Choose Clean Water Coalition (CCWC) issued their report reviewing the results of the 2012-13 pollution reduction milestones against the states’ approved plans they found that pollution is being reduced in every state and Washington DC. However, they report that Pennsylvania and Delaware fell short in meeting their overall nitrogen pollution reduction target for 2013. In particular, estimated loads from the agricultural sector actually increased for nitrogen in Pennsylvania. The wastewater sector is already meeting or exceeding 2017 nutrient reduction goals in Pennsylvania, Delaware, Washington DC and Virginia. Non-point source pollution control on agricultural operations and control of the individual homeowner in urban and suburban areas is proving challenging everywhere, but Maryland. However the CBF and CCWC voiced their concerns about the underlying data for Maryland's calculations on retrofitting stormwater management saying: “There is a lack of transparency concerning both the numbers being reported to the state, as well as how the reductions are calculated.” In addition, while Maryland is tracking dead on target in meeting its pollution reduction milestones they have a long way to go to meet the 2017 and 2025 goals.

Now the Chesapeake Research Consortium and Bay Journal are planning a conference to discuss what they believe is the real policy solution to restoring the Chesapeake Bay. These organizations are looking to discuss and the possibility of and implementation of growth limits on population and the economy to achieve a sustainable Chesapeake Bay. The TMDL stated goal is to restore the Chesapeake Bay to its ecological condition in 1950. The targets of the TMDL are estimates of what those pollution levels were at that time. In 1950 there were approximately 8 million people living and working in the Chesapeake Bay watershed. 

Today there are approximately 16 million people living and working in the 64,000 square mile Chesapeake Bay watershed. The Chesapeake Research Consortium and the Bay Journal are questioning if a restored Chesapeake Bay can be achieved if the population an economy is “allowed” to continue to grow. It is a valid and realistic concern; however, these groups do not seem to question if EPA is can use the Watershed Implementation Plans for the Chesapeake Bay states to control land use, growth and water quality policy decisions. Congress did not grant to EPA the authority to control land use under the Clean Water Act. Growth and sustainability are issues that need to be addressed on the local level.

Toxic Chemicals in Chesapeake Bay -Expanding the Pollution Diet

from EPA report

The U.S. Environmental Protection Agency’s Chesapeake Bay Program just released a report that outlines the extent and severity of toxic contamination in the Chesapeake Bay and the Watershed. This report by Scott Phillips (USGS) and Greg Allen (EPA) is based on a review and compiling of water-quality reports from the various Chesapeake Bay watershed states (Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia) and Washington, D.C., and scientific work performed by the U.S. Geological Survey and U.S. Fish and Wildlife Service who have been doing extensive studies on contaminants in surface and groundwater and also the cause of observed impact on fish, plants and wildlife.  The authors of the EPA  report focused on summarizing studies conducted after 2000 with an emphasis on the 2010 water-quality assessment reports from the states to define the extent and severity of occurrence of: polychlorinated biphenyls (PCBs); dioxins and furans; polycyclic aromatic hydrocarbons (PAHs); petroleum hydrocarbons; pesticides; pharmaceuticals; household and personal care products; polybrominated diphenyl ethers (PBDEs); biogenic hormones; and heavy metals in the Chesapeake Bay watershed and ultimately in the source drinking water for millions of people.

This report was issued under the “Strategy for Protecting and Restoring the Chesapeake Bay Watershed” released in May 2010 and is first in a series of actions to control pollution, restore habitat and wildlife, conserve land, and increase public awareness and accountability in the Chesapeake Bay Watershed. The federal ‘Strategy” for the Chesapeake Bay region of the 64,000-square-mile watershed includes using federal regulations to restore clean water, implement new conservation practices on four-million acres of farms, conserve an additional two-million acres of undeveloped land, and restore the habitat for key species such as oysters, black ducks, and brook trout. Under the “Strategy” the states will be held accountable to achieve specific milestones every two years to ensure measurable progress.

While there is overlap between the so called “settlement agreement” and “Strategy,” they are not the same. The settlement agreement resolved 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 required EPA to:  “Establish and implement a Chesapeake Bay total maximum daily load, TMDL, for nutrients and sediments.”  The TMDL required the creation of watershed implementation plans (WIPs) approved by EPA under threat of  “back step measures” by all of the Chesapeake Bay watershed states and the District of Columbia to ensure they achieve the nutrient and sediment allocations under the TMDL.

The TMDL addresses only pollution from excess nitrogen, phosphorus and sediment. The TMDL does not address toxic, carcinogenic or endocrine disruptors that may be present in the watershed. The excess nitrogen, phosphorus and sediment in the Chesapeake Bay cause algae blooms that consume oxygen and create “dead zones” where fish and shellfish cannot survive, block sunlight that is needed for underwater Bay grasses, and smother aquatic life on the bottom. The result is fish kills and murky water that threaten the aquatic industry and recreational use of the bay. 

The TMDL sets a total Chesapeake Bay watershed limit for the six states and Washington DC of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year which is a 25% reduction in nitrogen, 24% reduction in phosphorus and 20 %t reduction in sediment from the current levels. The pollution limits are then partitioned to the various states, DC and river basins based on the Chesapeake Bay modeling tools and monitoring data. The estimated cost of implementing the WIPs in Virginia and Maryland were $13.6-$15.7 billion and $14.8 billion respectively. Now EPA is preparing to address the toxic pollutants.

This new report addresses toxic pollutants in the watershed and is the first step in a new round of regulations and requirements for the Chesapeake Bay watershed states and Washington DC. In the Chesapeake Bay watershed, both largemouth and smallmouth bass show signs of feminization (testicular oocytes and vitellogenin in males), skin lesions and impaired immune systems. The scientists of the USGS and Fish and Wildlife discovered that the smallmouth bass have the most impacted with a higher incidence of intersex (male fish with eggs)occurrence and a high incidence of skin lesions and large fish kills in the Potomac and James Rivers. Smallmouth bass may be the most sensitive indicator of environmental health in the Chesapeake Bay watershed. The smallmouth bass have been a warning, but the pollution problems they represent remain beyond our understanding at this time. The USGS and Fish and Wildlife have not succeeded in identifying the cause or causes of the feminization, skin lesions and impaired immune systems.

from EPA report

The EPA report found that PCBs, PAHs, herbicides (primarily atrazine, simazine, metolachlor, and their degradation products), and mercury were widespread throughout the Chesapeake Bay watershed. Other contaminants like dioxins/furans, petroleum, hydrocarbons, some chlorinated insecticides (aldrin, chlordane, dieldrin, DDT/DDE, heptachlor epoxide, mirex), and some metals (aluminum, chromium, iron, lead, manganese, zinc) were known in localized occurrences. Finally, for atrazine, some pharmaceuticals, some household and personal-care products, some PBDEs, and biogenic hormones, the extent and amount of contamination could not be assessed based on the information available.

The Chesapeake Bay Program intends to develop toxic contaminant reduction strategies to be added to the Chesapeake Bay TMDL by 2015, but first more data needs to be gathered to identify the extent of contamination for many of the chemicals. The impact on human life and the ecosystem of these and other emerging contaminants is not understood. As the EPA report and previous work done by the USGS point out we need to determine the impact and fate of these micro pollutants before we implement the watershed cleanup plans to make sure we are implementing the right strategies for the health of the entire ecosystem which may include eliminating the use of certain chemicals, upgrading waste water treatment systems and other actions. 

Update on Endocrine Disruption in Water Supplies

From USGS paper cited below

Earlier this month Vicki Blazer of the U.S. Geological Survey published a new paper, “Indicators of Reproductive Edocrine Distruption in Fish in the Chesapeake Bay Watershed.” Dr. Vicki Blazer is a mairine biologist and researcher at the U.S. Geological Survey, USGS. Dr. Blazer received the American Fisheries Society 2010 Publications Award for her article investigating the mortality of fish in the Potomac River basin and is a fish biologist at the West Virginia Science Center studying the impact of contaminants of emerging concern in rivers and streams of the lifecycle and health of fish on the Chesapeake Bay and its tributaries. This paper is a summary of the most recent research (previously published) by the USGS and others on endocrine disruption in fish in the Chesapeake Bay watershed and the implications to our lives.

The Chesapeake Bay watershed feed the Chesapeake Bay, the largest and most productive estuary in the United States. It serves as a nursery ground for the fish and shellfish industry and protects the coast from storm surges and filters pollution. The estuary filters water that is carrying nutrients and contaminants from the surrounding watershed. The nutrients in proper balance bring fertility, but excess nutrient contamination to the Chesapeake Bay has caused degradation in the habitat and impact to fish and other animals. As a result, US EPA has taken control of the situation and has developed a new federally mandated TMDL (total maximum daily load) to try to restore the natural balance in the estuary by controlling nutrients in the local waters. The TMDL addresses pollution from phosphorus, nitrogen and sediment and allocates a pollution budget among the states which will decrease over time. However, according to Dr. Blazer, the fish (and other aquatic organisms) in the Chesapeake Bay watershed are being exposed to a complex mixture of chemicals that may have additive, synergistic or antagonistic effects.

In the Potomac River watershed, largemouth bass show signs of feminization (testicular oocytes and vitellogenin in males) but appear to be less sensitive than smallmouth bass to the effects of estrogenic compounds. The scientists discovered that the smallmouth bass have both a higher incidence of intersex (male fish with eggs) occurrence and a high incidence of skin lesions and large fish kills in the Potomac and James Rivers. Smallmouth bass may be the most sensitive indicator of environmental health in the Chesapeake Bay watershed. The smallmouth bass is a warning that should not be ignored, but the pollution problem they represent are beyond our understanding at this time. More work needs to be done.

Although feminization of male fish has most commonly been associated with exposure to human wastewater-treatment-plant effluent, the prevalence of male smallmouth bass with intersex characteristics is not consistently higher downstream from these point sources than upstream in the areas of the Potomac River watershed that were studied. It is not simply the residue of birth control pills in human waste. However, some additional biomarkers, such as the ratio of gonad weight to body weight and plasma vitellogenin concentrations in female bass, do appear to be adversely affected by the presence of wastewater-treatment plants upstream from the study site, but more is going on.

The sources of the endocrine-disrupting chemicals associated with intersex smallmouth bass appears to be BOTH effluent from wastewater-treatment plants and runoff from agricultural land, animal feeding operations, and urban/suburban land. All impacts of mankind. Other factors, including wastewater-treatment-plant effluent flow, number of animal feeding operations, and number of poultry houses were also associated with an increased intersex severity. Within the Potomac River basin the data showed that the higher the human population density the higher the incidence of intersex in the smallmouth bass. Also, the higher the percentage of agricultural land use density the higher incidence of intersex in smallmouth bass. The data appears to suggest beyond a certain density of agricultural land and/ or human population, the smallmouth bass population is impacted.

The USGS plans to work with the Chesapeake Bay Program to identify the chemicals that are causing the intersex, skin lesions and fish kills. The Chesapeake Bay Program intends to develop toxic contaminant reduction strategies to be added to the Chesapeake Bay TMDL by 2015. The impact on human life and the ecosystem of these and other emerging contaminants is not known, but now is the time to find out the impact from the substance we’ve been allowing to enter the waters of the earth. We need to determine the impact and fate of these micro pollutants before we implement the watershed cleanup plans to make sure we are implementing the right strategies for the health of the entire ecosystem which may include eliminating the use of certain chemicals and other actions.

Give the US Geological Survey the Well Data

It has long been known that natural gas was trapped in the tiny pore spaces that comprise shale rock, but that knowledge was useless. Until recently there was no economically feasible way to extract this gas. However, in the past decade our ability to recover natural gas buried a mile or more beneath the earth in these shale deposits has increased. Advances in horizontal drilling which allows a vertical well to turn and run thousands of feet laterally through the earth combined with advances in hydraulic fracking, the pumping of millions of gallons of water laced with proprietary chemicals into shale at high pressure to release the natural gas stored in the pore spaces have increased our ability to recover natural gas from that shale. This combined with the increase in the price of natural gas has spurred the race to develop wells to exploit the natural gas from a series of major shale gas deposits in North America that could not have been viable without these advances in drilling and fracking. The Fayetteville shale, the Haynesville shale, the Marcellus shale reserves all in the United States and the Horn River shale in Canada are now accessible. At the current rate of natural gas consumption North America is reported to have a 100-year supply (at the current rate of use) of proven, producible reserves.

Natural gas is now seen as an abundant domestic energy resource. When it burns, natural gas emits the lowest amount of carbon dioxide per calorie of any fossil fuel and burns cleanly because of this natural gas could be the “bridge fuel” in the long-term transition away from fossil fuels to renewable energy or whatever the future and science will discover. In the 1990’s natural gas, sold for $2 per million BTUs after peaking in 2005 natural gas is now about $4 per million BTUs, making the extraction of shale gas viable and profitable. The U.S. uses natural gas to produce 21 % of its electricity. Coal is used to product 48 % of electricity in the United States and is still much cheaper than natural gas for generating electricity, but new regulations by the EPA on carbon emissions could decrease that financial advantage because coal burns dirtier than natural gas. Recent ambitious plans to convert the nation to renewable energy: build nuclear plants and solar and wind farms, were made under the assumption that natural gas prices would average $7 to $9 per million BTUs. At that level, electricity prices would have been high enough to make wind and nuclear power look affordable. Now, with natural gas at $4 per million BTUs and more gas reserves announced each year, many of these projects suddenly look too expensive. Shale sourced natural gas could profoundly change the future of our nation and world we live in; however we need to remember that the gas still is a limited resource and be cautious about what other impacts fracking might have on our other resources especially the hydraulic balance.

Though there has been tremendous concern for the potential direct adverse impact that fracking may have on drinking water, geologists and engineers believe that there is little risk that the fracking “water,” a mix chemicals and water, will somehow infiltrate groundwater reserves though a fissure created by the fracking. It is believed though not documented and tested that the intervening layers of rock would prevent a fissure from extending thousands of feet to the water table. There are other risks in how we build wells and fracture the shale. Documented contamination to drinking water wells due to seepage of fracking water into drinking water wells through improperly sealed or abandoned drilling wells can be controlled to some extent by recommendations made in the report of the Shale Gas Subcommittee of the Secretary of Energy Advisory Board. The report had a rational approach to regulation recommending disclosure, testing, evaluation and modification of regulation and practices based on the information and data obtained. It assumes information and data will be gathered and analyzed. That is not being done.

Though the energy companies are beginning to gather baseline data for drinking water wells in the areas being fracked, the data collection is not ongoing nor broad enough. The data that is being collected is not adding to the base of knowledge, but rather I suspect to demonstrate that stray gas was a pre-existing condition of the drinking water wells. What is needed is an ongoing monitoring and data collection of the potential impacts to our water supply from hydraulic fracking. Drilling requires large amounts of water to create a circulating mud that cools the bit and carries the rock cuttings out of the borehole. After drilling, the shale formation is then stimulated by hydraulic fracking, using up to 3 million gallons of water. Data needs to be gathered on the impact to water resources of supplying water for the construction of thousands of wells per year. For gas to flow out of the shale, nearly all of the water injected into the well during fracking must be recovered and disposed of. Though less than 0.5% by volume, the proprietary chemicals are 15,000 gallons in the waste from the typical 3 million gallon hydro fracking job. The chemicals serve to increases the viscosity of the water to a gel-like consistency so that it can carry the propping agent (typically sand) into the fractures to hold them open so that the gas can flow. Determining the proper methods for the safe disposal of the large quantities of this fracking fluid that may also contain contaminants from the geological formation including brines, heavy metals, radionuclides and organic contaminants and monitoring the impact from this disposal must also be done. The impact of so much waste water on our water resources must be measured and monitored. Finally, care must be taken to avoid degradation of watersheds and streams from the industry itself as large quantities of heavy equipment and supplies are moved on rural roads and placed on concrete pads. The watersheds must be monitored. http://pubs.usgs.gov/fs/2009/3032/pdf/FS2009-3032.pdf

U.S. Geological Survey (USGS) collects, monitors, analyzes, and provides scientific understanding about natural resource conditions, issues, and problems. The USGS employs 10,000 scientists, technicians, and support staff that serve the Nation by providing reliable scientific information to describe and understand the Earth; minimize loss of life and property from natural disasters; manage water, biological, energy, and mineral resources; and enhance and protect our quality of life. The USGS is an amazing national resource that we have failed to fully utilize in the understanding of the impacts of hydraulic fracking. The USGS should determine the parameters that need to be monitored for a base line and on an ongoing or periodic basis and industry should provide that data in a usable format to the USGS. For once let’s develop a resource carefully and correctly without scaring the earth or damaging our water supply. We’ve lost our margin for error.

The Quantico Watershed Study and the Chesapeake Bay TMDL

On June 23, 2011 I attended the Prince William Department of Public Works meeting to hear the results of the recently completed Quantico Watershed Study . Warren High from the County’s engineering consultants, MACTEC, presented the results. The study was used to assess the current stream conditions, examine existing storm water management facilities, and to identify future Capital Improvement Projects. They used a standardized system of scoring streams and stormwater basins, ponds and retention ponds called RSAT. http://www.stormwatercenter.net/monitoring%20and%20assessment/rsat/smrc%20rsat.pdf The meeting was attended mostly by representatives of community groups and elected and appointed officials of Quantico Bay area who have fought long and hard to try to restore the Quantico Bay that suffers from excessive sedimentation and hydrilla, an invasive aquatic plant. http://web.ead.anl.gov/ecorisk/case/docs/FINAL_Quantico_Creek_Risk_Screening.pdf

Prince William County at the edge of the greater Washington DC metropolitan area, is part of the greater Chesapeake Bay watershed and has 10 major watersheds of its own covering 360 square miles that are in turn subdivided into 222 sub water sheds. The Quantico Watershed Study is the forth watershed study to be completed. The watershed studies evaluate CIP Planning and Storm Water Management Facilities, Regulatory Compliance with federal and state regulations including EPA, CWA, VA DCR and DEQ and the Army Corp of Engineers. The studies typically examine a small number of sub-watersheds to characterize the watershed as a whole. The Quantico study examined six sub-watersheds that included Quantico Creek, South Fork, Dewey’s Creek and Swans Creek. The elevations of the sub-watersheds range from sea level to 450 feet elevation and cover an area occupied by Prince William Forest Park at the northwestern most portion of the watershed to Quantico Marine Corp Base and Dumfries as well as several residential neighborhoods.

MACTEC found culverts impeding fish passage, supercharging the water flow resulting in the scrubbing the soil during rain events. There were mid channel bars caused by woody debris, lawn cuttings and trash. Utility corridors and low head dams where corridor encroachment had occurred due to the lack of a riparian buffer which has lead to severe bank erosion of 2-3 feet per year. Swans Creek has 30 foot cuts and the extreme erosion has almost buried the stream. Every time there is a storm event all the soil is mobilized. Depositing of eroded soil and sedimentation are filling in the estuary.

MACTEC recommends several steps to increase the stormwater retention volume and detention time to prevent further sedimentation in Quantico Bay. Legacy stormwater retention ponds were designed to discharge at a “2 year storm rate” unfortunately streams are shaped by 1 ½ year storm rates so that all the existing retention ponds are shaping our creeks and streams. So the most basic recommendation is that the on-site stormwater capture and retention needs to be beefed up to slow the discharge rate and capture the first flush pollutants. The older holding basins do not do that, but are nonetheless in compliance with the design standards that were in effect when they were built. Larger basins could slow the flow, provide wildlife habitat and increase groundwater infiltration and recharge.

Open channel recommendations were the other major area that MACTEC felt needs to be addressed. These include infrastructure repair, debris removal channel restoration or enhancements, riparian buffer restoration and finally preservation and monitoring of the enhancements. Overall, MACTEC identified 30 open channel problems and 16 stormwater basin maintenance problems in the 6 sub-watersheds and estimates that these improvements and repairs will cost $15.7 million. Stabilizing the stream beds to slow the catastrophic erosion rate of 2-3 feet per year to a more natural erosion rate in the area of Prince William Estates and Dewey’s Creek is the only way to ameliorate the rate of sedimentation in the Quantico Bay. The only way to restore the bay would be first to stabilize the up-stream stream beds and then dredge the bay. While a certain amount of erosion is entirely natural and is part of the natural cycle, development, pavement, destruction of the riparian buffers have resulted in extreme erosion.

Most of the repairs recommended by MACTEC are to address the open channel problems and will have to be maintained and monitored. These are the costs to address just one of the ten watershed basins in Prince William County Virginia. estimating total costs for the entire county from that number is hundreds of millions of dollars. In thinking about how to finance and maintain theses improvements, credit trading and sale of credits for the EPA mandated TMDL seems one source (beyond a direct surcharge tax on property) for funding these improvements. If these types of improvements could be quantified within the Chesapeake Bay Model modules for compliance with the TMDL targets there might be a way to fund some of these activities without resorting to command and control regulatory model so popular to the north of us. Unlike MS4 (municipal separate storm sewage system) and waste water treatment plant permits which have measured results that can be traded, these would have to be given “model credit” for open channel recommendations, on-site stormwater capture and detention etc. if they are to be traded, but like farm BMPs are probably low lying fruit. It might be possible to utilize the Scenario Builder within the Chesapeake Bay model to generate simulations to quantify watershed restoration.

What’s in the Final Watershed Implementation Plan for Virginia?

After reviewing the September 2010 draft of the Watershed Implementation Plan, WIP, from Virginia the US EPA detailed a series of regulatory threats or as the EPA preferred to call them “back stop” measures for Virginia. These threats and the understanding that Virginia was better off implementing their own plan spurred the Commonwealth to develop a more aggressive WIP that meets the TMDL mandated by the EPA despite protests about the costs. The revised WIP for Virginia was submitted to the EPA on November 29th and appears to address many of the areas of concern, but does not target agriculture as aggressively as the EPA and the Chesapeake Bay NGOs seem to have been pushing for.

In the revised WIP Virginia commits to significant additional pollution reductions from wastewater treatment plants in the James River basin. The existing limits on total nitrogen and total phosphorus are reduced by an additional 1.6 million pounds of nitrogen and 200,000 pound reduction in phosphorus in the James River prior to 2017 and an additional reduction of 1.0 million pounds of nitrogen and 250,000 pound reduction in phosphorus in the James River post-2017. These nitrogen and phosphorus reductions will be obtained by upgrading wastewater treatment plants. Virginia has committed to obtain a total reduction of 6 million pounds of nitrogen pollution from wastewater treatment plants in the WIP at this point; this does include planned upgrades that are currently underway in the Commonwealth.

The revised WIP also reduces the rate of growth in on-site sewage disposal systems, or septic systems. The intension is to raise the costs to operate a septic system through regulation which would make clustered systems or community systems more competitive and raise the overall cost of building and maintaining homes. The cost of housing would increase in the area in response to these requirements. In addition the revised WIP proposes to require the offset of new system loads through an expansion of the Nutrient Credit Exchange Program. The Commonwealth intends to implement amendments to Virginia Department of Health regulations for alternative systems which are currently a little bit in limbo because of the temporary emergency regulations that the department of health has done little to enforce in much of the Commonwealth. The proposed amendments require a minimum 50% reduction in delivered nitrogen for all new small alternative onsite systems in the Chesapeake Bay watershed resulting in an effective delivered load to the edge of the project boundary of 4.5 lbs TN/person/year. All large alternative onsite systems will have to demonstrate compliance with <3 mg/l total nitrogen at the project boundary.

The revised WIP states legislative and regulatory changes will be considered to require all new and replacement septic systems within the Chesapeake Bay watershed to utilize one of the nitrogen reducing technologies. The WIP states that DEQ will seek legislative changes necessary to establish tax credits for upgrade/replacement of existing conventional systems with nitrogen reducing systems. In addition, they will seek legislative changes to establish 5 year pump-out requirements for all septic tanks in Chesapeake Bay watershed not just Chesapeake Bay Preservation Act areas.

For agricultural operations the revised WIP will require the implementation of resource management plans on most agricultural acres which may include: 35 foot grass or forest buffers between cropland and perennial surface waters; stream exclusion of livestock over time; and implemented nutrient management plans. The Commonwealth will provide cost-share funding to achieve implementation of these best practices through the soil and water conservation districts. The WIP calls for farms to implement "resource management plans" to reduce pollution but does not mandate what those plans should include and requires them only if adequate funding is available through the cost share programs. The Chesapeake Bay Foundation objects to the seemingly soft requirement of this provision. If the Chesapeake Bay Foundation is correct that 30% of the pollution loads in the Chesapeake Bay are from farming practices, the best money spent could be to implement agricultural nutrient management plans.

Allocations for newly developed land will be set at a level that results in no increase above allowable 2025 average nutrient loads per acre from previous land uses; unless offsets are obtained. This in effect is a limitation on or added cost to development. Many of these provisions seem intended to slow population growth, because utilization of increased technology and knowledge on how to control the nutrient and sediment pollution has to some extent been overwhelmed by continued population growth in the area.

To attack other problems of suburbia, and the ever increasing suburban sprall in the region, the revised WIP suggests restrictions for application of non-agricultural fertilizers and voluntary reporting from “for-hire” applicators such as lawn service companies. In addition to controls suggested on do it yourself lawn fertilization. Golf courses will be required to implement nutrient management plans.

The revised WIP requires that Virginia’s Stormwater Management Regulations (currently under revision) will require redevelopments to meet reductions in nutrient and sediment loads, and to prevent nutrient pollution and sediment load increases from new development. In the future all new development appear to be required to be almost sediment and nutrient pollution free. The Commonwealth will reduce pollution from stormwater running off urban streets and parking lots by mandating reductions in state permits for large city stormwater systems. According to the Chesapeake Bay Foundation stormwater runoff remains the only source of water pollution in Virginia that continues to increase and must be aggressively addressed if restoration of the Bay is to succeed. It seems likely that the increase in nutrient pollution and sediment pollution from stormwater systems is partially a reflection of the expansion of suburban development out into Loudoun, Prince William and Fauquier counties and the increasing population in these areas.

It remains to be seen if these revisions to the WIP will be adequate to satisfy the federal regulators and how Virginia plans to pay for these estimated $7 billion in pollution control measures in the next six years.

Municipal Separate Storm Sewer Systems

The federal 1987 Water Quality Act (WQA) was an amendment to the Clean Water Act, requiring that EPA issue National Pollutant Discharge Elimination System (NPDES) permits for storm water discharges that were permitted prior to February 4, 1987, or associated with industrial activity, or from Municipal Separate Storm Sewer Systems (MS4s) serving a population of 100,000 or more, or judged by the permitting authority to be significant sources of pollutants or which contribute to a violation of a water quality standard.

The storm water program also includes a Phase II, which phased in regulation of some smaller dischargers than previously regulated. These regulations require storm water permits by March 10, 2003 for numerous small MS4s, construction sites of one to five acres, and industrial facilities owned or operated by small MS4s which were previously exempted under the Intermodal Surface Transportation Efficiency Act. Until now only a portion of the small MS4s have been regulated under Phase II.

The universe of small MS4s is quite large since it includes every storm water collection system in every community except for those medium and large MS4s regulated under the first phase of the storm water program. There are thousands of them. Only a portion of small MS4s have been regulated d by the Stormwater Phase II Final Rule, either by being located near an urban area having high population density or designation by the NPDES permitting authority because the MS4 or drainage ditch discharges to sensitive waters.

As was stated in Executive Order 13508 -Strategy for Restoring and Protecting the Chesapeake Bay Watershed Public Comment Response dated May 12, 2010: EPA will initiate rulemaking to increase coverage and raise standards for CAFOs, municipal stormwater, and new dischargers of pollution. The EPA representative at the Public Hearing in Annandale, VA stated that EPA expects that it will promulgate new Chesapeake Bay specific regulations expanding the reach of MS4 point source regulations to ensure compliance with the total maximum daily load, TMDL, numerical limit imposed by EPA.

Polluted stormwater runoff is commonly transported through Municipal Separate Storm Sewer Systems (MS4s), from which it is often discharged untreated into local water bodies. To prevent harmful pollutants from being washed or dumped into an MS4, operators must obtain a NPDES permit and develop a stormwater management program. In the smallest MS4s a stormwater management program consists of modest activities like education, best management practices, BMPs to control flow and run off.

On December 28, 2009, EPA issued a Federal Register Notice announcing EPA's initiation rulemaking to strengthen its stormwater program. EPA is now soliciting input on potential rules and regulations relating to the Chesapeake Bay watershed, with several public “listening sessions” to be held in October and November 2010, and an interactive Webcast scheduled for November 16, 2010, 1 p.m. to 4 p.m. EST, Visit http://www.epa.gov/npdes/stormwater/rulemaking to register to participate in the Webcast.

The intent of the new regulations is to control and manage stormwater discharges not currently regulated that are causing or contributing to water quality impairments in the Bay watershed. That is pretty much every drop of stormwater in the Chesapeake Bay watershed. This would require additional measures, such as BMPs and change in flow patterns targeting ( but not limited to) nitrogen, phosphorus, and sediment in the Chesapeake Bay Watershed, According to the Federal register these rules would require the retrofit of stormwater controls for existing developments; and applying specific performance standards to discharges from new and retrofitted stormwater systems within the watershed. EPA is also seeking input on whether to consider specific evaluation, tracking, or reporting elements.

That modest announcement will probably impact all homeowners throughout the Chesapeake Bay watershed. The success of any changes in stormwater regulations in protecting the environment will depend on notification of and the compliance of individual homeowners, homeowner associations and communities. For the individual homeowner the regulations will have to be clear, fair and easily understood by a layman reading them and county and community staff will have to be informed and informative. Compliance with the regulations will suffer if no one is ever aware of them, the building department will issue roadwork permits with out ensuring compliance with MS4 regulations or the regulations are, or are perceived, to be excessively costly or burdensome and without environmental benefit.

Tough Choices Ahead for Virginia

The Chesapeake Bay and its tidal waters are impaired by amongst other things 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. The US EPA has taken control of the situation and has developed a new federally mandated TMDL to restore the Chesapeake. The total maximum daily limit, TMDL, allocates a pollution budget among the states which will decrease over time.

The plan to meet the federally mandated TMDL is called a Watershed Implementation Plan, WIP. The six Chesapeake Bay states and the District of Columbia were required to develop WIPs to meet the federally mandated TMDLs. The EPA found Virginia’s WIP to have serious deficiencies. It did not meet allocations for nitrogen (6 percent over the limit) and phosphorus (7 percent over the limit), but did meet allocations for sediment (12 percent under the limit). 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 EPA deemed the WIP to be vague and contain limited enforceability and accountability for filling the gaps identified by the EPA. The federal government will require Virginia 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 has made it clear they will enforce reductions in the areas they can control under federal law to meet the TMDL. The EPA can only mandate reductions in waste streams from waste water treatment plants, CAFOs (concentrated animal feed operations), municipal separate storm sewage systems, MS4s and wastewater treatment plants.

To ensure that Virginia meets the TMDL goals the EPA will squeeze the MS4s, CAFOs and waste water treatment plants possibly beyond the economically feasible limit to get what they want. The EPA wants Virginia to develop a set of regulations for land use that will meet the TMDL. The Chesapeake Bay TMDL will force changes in how each of us lives, the costs for building new homes, hospitals, businesses and roads, the costs for repaving roads and redeveloping areas, the costs for building and operating a septic system, the cost of public water and sewage and taxes. That is the price of growing population density and a healthy and sustainable Chesapeake Bay. About half the land and 60% of the population of Virginia is within the Chesapeake Bay TMDL.

The first TMDL to be developed for Prince William County, Virginia (where I live) is for Cedar Run. The Cedar Run watershed is the land area that drains into Cedar Run and includes much of Nokesville. The nearly 87,000 acre watershed continues into Fauquier County. While EPA and environmental groups have emphasized the contribution of agriculture in the form of CAFOs and waste water treatment plants, the reality is that only a portion of Prince William County is serviced by the HL Mooney a WWTP and the Daly City units and the county only has two working dairy farms left. These days the horse farms greatly out number the beef cattle operations. Golf courses and suburban development are increasingly the sources of nutrient and sediment contamination in the watershed. The state and county is going to have to increase regulations on hobby horse farms, golf clubs and suburban developments. In order to meet the TMDL for the watershed changes will have to be made. No area will remain untouched by regulation.

For example along with the issue of backyard chickens, the county will have to readdress the zoning for horses. The keeping of a single horse produces approximately 45 pounds of manure per day, and depending on the type and amount you use, bedding can add another 20 +/- pounds of waste a day. If the horse was kept turned out year round (in our area that would require approximately 3-4 acres of open field per horse) then the horse would not be using bedding, which accounts for an addition 50% of the waste and the open acreage could serve as a solution to what to do with the manure. That single horse produces approximately eight tons of manure each year that would be "spread" by the horse at a rate of about two ton per acre per year. Spreading manure at this rate probably will not overload the plants or cause water quality problems through runoff. However, if the property lacks adequate field to keep the horses turned out, then the waste from the sacrifice area and paddocks needs to be managed to prevent excessive nutrient runoff and contamination of ground water. One of the things that will have to be addressed in future regulations is the open acreage requirements for horses.

Septic systems are another area that will have to be reexamined. Dutchess County New York did a study to monitor the nitrate concentrations associated with septic systems. They chose to use nitrate concentrations at half the drinking water level as a proxy for adequate dilution and natural attenuation of all contaminants. Historically, little thought was given to the dilution for wastewater components like nitrate and phosphorus in developing septic regulations. The NY Department of Health separation distances were assumed (and these are almost identical to the Virginia setbacks), but the overall regional density of septic systems was examined to ensure that groundwater and surface resources would not be overwhelmed by the total load of contaminants. The density recommendations were developed based on the nitrate concentrations. Nitrate was used as a proxy because all humans produce nitrate, it does not easily break down and there is a drinking water standard. The study found that overall average density of on-site waste disposal should not exceed one unit per 2-3 acres for an average size household to ensure water quality. In many neighborhoods septic density is much greater than one unit per 2-3 acres. In the WIP Virginia is beginning to address the possibility of requiring nitrate removal technology in new and repaired septic systems.

The county is currently considering a proposal to allow backyard chickens in residential areas. According to the Delaware Department of Natural Resources and Environmental Control, the typical household generates 10-15 pounds of nitrogen per year and 1-2 pounds of phosphorus per year. According to a Maryland state study, each chicken generates approximately 0.41 lbs of Nitrogen per year and around 0.35 pounds of phosphorus per year. Thus, each household with 10 chickens would generate 4.1 pounds of nitrogen and 3.5 pounds of phosphorus per year. This is a significant increase in the nutrient load of a typical house hold, a more than three fold increase in phosphorus load and an increase of nitrogen load by more than 30%. This additional waste is delivered in an uncontrolled manner to the surface. The poor location of a chicken coop could potentially impact ground water and well heads both on and off site and subject to runoff. Before Prince William allows additional nutrient loads they need to address reducing the current source of excess nutrient pollution.

More on Virginia’s Watershed Implementation Plan

“The Chesapeake Bay is truly a national treasure and an ecological wonder. As Virginians, we have an obligation to protect this incredible resource, and we are all committed to ensuring a clean and vibrant Chesapeake Bay for future generations to enjoy and cherish.” Thus begins the introduction of Virginia’s Watershed Implementation Plan, WIP, to the Environmental Protection Agency. The Chesapeake Bay watershed is more than that, it is our water and our life. Unless the Chesapeake Bay watershed is protected our groundwater and all our drinking water are at risk.

To cleanup of the Chesapeake the EPA has determined that nitrogen, phosphorus and sediment from waste water plants, septic, agriculture, urban/ suburban runoff and forest land runoff will have to be reduced. The EPA has divided the Chesapeake Bay Watershed into 92 geographical segments and assigned maximum loads for nitrogen, phosphorus and sediment to each segment. Although the Chesapeake Bay total maximum daily load, TMDL, is often discussed and thought of conceptually as a single TMDL, it is comprised of 92 separate segments with different sources of contamination and different TMDLs. Virginia lands drain into 39 of these segments within the watershed. All 39 segments are listed as impaired for excessive nutrients and sediments and thus each area within Virginia that is part of the Chesapeake Bay water shed needs to reduce the amount of sediment, nitrogen and phosphorus that is released to the Chesapeake from urban/ suburban run off, waste treatment plants, industrial plants, agricultural runoff, forest lands, and septic.

The WIP that Virginia submitted is fairly generic because it does not confer any additional regulatory or legal authority to governmental agencies nor does it propose to make any specific changes beyond expanding the Virginia nutrient credit program to allow the most cost effective pollution reduction strategies to be implemented statewide. However, the WIP does talk about future regulatory expansions. Any programs or strategies that are not currently authorized by state law may be pursued through the legislative process or through the Virginia Administrative Process Act, but those decisions are left for the future. Virginia is also bound by the provisions of state law that require cost evaluations along with a benefit analysis for implementation plans.

The Department of Natural Resources formed an advisory group last winter that seemed to include every regulator, business interest and environmental group, but failed to include representation for the Virginia homeowner. According to the Chesapeake Bay Foundation half of Virginia is drained by Chesapeake Bay watershed rivers, and two-thirds of the state's population lives within the Bay watershed. In addition there are 536,000 homes with septic systems within the Bay watershed. The WIP will control building, remodeling of homes, road construction, lawn maintenance, possibly increase requirements on homeowners with septic systems or require neighborhoods to install storm water management systems. Restoring the Chesapeake Bay and protecting the water for fishing recreation and water supply will cost money and impact our lives and the value of our property. Two thirds of the homeowners in Virginia live within the Chesapeake Bay watershed and they should have the most powerful say in how the TMDL is implemented in our neighborhoods.

The EPA will be having a series of public meetings and webinars attend one of the meetings. You need to be informed and look out for your interests because no one else is. The Virginia meetings are October 4th from 6-8 p.m. at the Grafton Theatre, James Madison University, 281 Warren Service Drive, Harrisonburg, VA.
October 5th - from 6-8 p.m. Northern Virginia Community College, Annandale Campus, Ernst Community Cultural Center, 8333 Little River Turnpike, Annandale VA
October 7th from 6-8 p.m. Crowne Plaza Hampton Marina Hotel, 700 Settlers Landing Road, Hampton, VA. There is also a webinar on October 7th from 1-3 pm

Chesapeake Bay Watershed and Backyard Chickens

On July 8th 2010 the Prince William Planning Commission held public hearings on a proposed change to the zoning and land use regulations within the county. Currently chickens and other farm animals are allowed on 2 acres or more of agricultural land, but only if there's no house on the land. If there's a house, the property is considered residential and chickens are not allowed. Though probably not intended this regulation serves to protect the groundwater of the county. The proposed change to the zoning law would allow up to 10 chickens, pigeons or doves, or 5 ducks, or 3 turkeys, geese or pea fowl, or one emu or ostrich, or some combination of those on 2 acres. The law would also require the birds to be kept in a fenced area, coop or cage at least 10 feet from the house on the property, and at least 15 feet from the property line. The Planning Commission has tabled the matter.

According to Rodale's All-New Encyclopedia of Organic Gardening, poultry manure (chicken in particular) is the richest animal manure in nitrogen (N), phosphoric acid (P) and potash (K). Chicken manure is considered "hot" and must be composted before adding it to the garden. Otherwise, it will burn any plants it comes in contact with. However, there is an even darker side to poultry manure. The main cause of the Chesapeake Bay's poor water quality and aquatic habitat loss is elevated levels of two of those nutrients, nitrogen and phosphorous. According to the Chesapeake Bay foundation, runoff from animal manure accounts for about one-quarter of the nitrogen and phosphorus pollution that feed "dead zones" downstream.

According to the Virginia Cooperative Extension, poultry yards, and enclosed holding areas are areas of concentrated and accumulated animal wastes. These areas can be a source of nitrate and bacteria contamination to groundwater. The impacts can be mitigated by utilization of farm best management practices (BMPs); however, backyard farmers are not often versed in appropriate waste management techniques. The potential for livestock and poultry operations to affect groundwater is greatest if located on Karst terrain or over sandy-textured permeable soils, or other susceptible groundwater basins.
According to the US Geological Survey (USGS), much of Prince William County, especially the northeastern portion is located within the Culpeper basin which is highly susceptible to contamination. This is the source of drinking water for all the private wells in the area and feeds the tributaries to Bull Run.

The geology of this area consists of an interbedded sequence of sedimentary and basaltic rocks. The rocks of the Culpeper basin are highly fractured and overlain by a thin cover of overburden (that would be soil). The lack of overburden is a challenge to gardens and limits natural protection to the aquifer. The sedimentary rocks create a productive aquifers, but allow contaminate to easily wash into the groundwater basin. Ground water flows under ambient pressure from Bull Run Mountain towards Bull Run, the river. The soils in this area are described by the USGS as Balls Bluff Siltstone with a gravel, sand and clay type bedding plane. (That is the technical name for the flat plane, edged orange red rocks that are everywhere you put a shovel.) In the siltstone bedding plane, the fractures within the rock run predominately north south. Thus while ground water flows generally speaking west to east, water or a contaminant that catches a fracture will carry the contaminant to drinking water depth in a north south pattern. Contaminants can enter the groundwater at these fractures and zigzag through the adjacent neighborhoods.

There are two risks that should be carefully considered by the Planning Commission when making this decision, potential contamination of the drinking water supply for the area and potential for contaminated runoff to impact the Chesapeake Bay. Runoff from animal manure accounts for about one-quarter of the nitrogen and phosphorus pollution that feed "dead zones" downstream. Over the past few years, as I have monitored my groundwater quality, I have watched the nitrogen levels in my neighborhood rise. Groundwater protection should be a major consideration in whether to allow poultry on all residential properties. As our area has become more suburban, density has increased, along with the utilization of groundwater for domestic purposes and the density of septic systems. Unless, they intend to regulate the micro poultry farms and require the implementation of and maintenance of BMPs to manage the waste the county Planning Commission should deny the request.

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.

Protecting the Chesapeake Bay Watershed with Best Management Practices

With the expansion of suburbia, the nature of the Prince William County has changed. There are fewer and fewer truly agricultural properties and an increasing number of suburban developments and hobby farms. We are, nonetheless, still in the “Hunt Country.” Horse farms here are typically small in size often just five to ten acre properties with only a portion of that dedicated to horses. My own neighborhood consists of 10 acre properties which allow 6 horses each under the HOA rules. According to the Prince William Soil and Water Conservation District, PWSWCD, horses will naturally graze 18 hours each day if allowed free access to pastures. Too many horses on too few acres can quickly denude green meadows and threaten the health of the horses and the environment and straining relationships among neighbors. Our neighborhood has a very small on-site horse population so our problems are limited.
In the most recent rainstorms exposed soil, horse manure, and whatever else was there wash across the neighborhood. I was digging sediment, leaves, plastic and all manner of odd things out of the drainage ditch at the end of the road this morning after watching the ditch flow brown to the river yesterday. I am still trying to figure out where some of the wash waste came from. There were plastic milk jugs dated 6 months ago, where have they been hiding? I walk the two miles of road next to the ditch regularly and collect trash and trust me much of the waste that appeared in the rain was not evident last weekend. Chestnut Lick is directly down hill from the drainage ditch and in turn runs right into Bull Run and finally onto the Bay. The wooded hillside generally protects Chestnut Lick from the drainage ditch muck and trash, but requires that I clean the trash out of the woods, I rather clean the muck out of the ditch, I’m much less likely to get Lyme disease.
Where the river and streams are not as well protected the run off containing soil sediment and excess nutrients from fertilizers and animal manure contribute to the high nitrate, potassium and sediment concentration in the Chesapeake Bay. To prevent these problem Horse farms can use basic principals called Best Management Practices (BMPs) so that they don't damage the environment. The PWSWCD created a model horse farm to demonstrate these principals include the installation of fencing to exclude the horses from a 25 foot buffer/filter area alongside the stream, waterlines and troughs to provide an alternate source of drinking water for the horses, pasture seeding and renovation to discourage weed growth, interior fencing to allow for rotational grazing, manure storage that allows for properly timed application or removal for off-farm use, and the installation of confinement paddocks for non-pasture turnout.
The ‘Big Reveal’ of the Chesapeake Bay-Friendly Horse Farm project in Gainesville, VA on is on Friday June 11 from 11am-1pm, and well worth the trip for anyone involved with horses. Check with the PWSCD website for other scheduled tours. The project was developed by the PWSWCD with a grant from the Virginia Department of Conservation and Recreation for $125,000. An equal amount was contributed by PWSWCD and its' more than 20 partners in direct funding, staff and volunteer time, products, and services. The model farm was in poor condition at the start, so many of the ideas can be incorporated into less stressed properties cost effectively. Check out the PWSWCD web site for more information.
In addition, the PWSWCD has free metal signs that indicate a property’s commitment to protecting the Chesapeake Bay Watershed by becoming a SWCD "Cooperator." Just like a Hybrid in the driveway they could become the status symbol for the environmentally conscious horse-keeper. BMPs could also become required under the new Strategy for the Chesapeake Bay Watershed. Call the District if you've cooperated in the past, if you've been doing the right thing all along, or if you're interested in implementing BMPs at your property. Prince William Soil and Water Conservation District is in Nokesville, VA (703) 594-3621.

Strategy for Protecting and Restoring the Chesapeake Bay Watershed

The “Strategy for Protecting and Restoring the Chesapeake Bay Watershed” was developed under President Obama’s Executive Order 13508 issued in May 2009. 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. EPA Administrator Jackson stated in her announcement that the EPA will implement broad conservation and restoration efforts and prevents pollution from the urban, suburban and rural areas that feed into the Bay. The new federal strategy for the Chesapeake Bay region of the 64,000-square-mile watershed includes using federal regulations to restore clean water, implement new conservation practices on four-million acres of farms, conserve an additional two-million acres of undeveloped land, and restore the habitat for key species such as oysters, black ducks, and brook trout. The combined agencies and states will be held accountable to achieve specific milestones every two years to ensure measurable progress.

While there is overlap between the recently announced settlement agreement and Strategy, they are not the same. The settlement agreement resolves 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.

The Strategy is far more sweeping in its goals as outlined in the full muti-color 173 page text available at: http://executiveorder.chesapeakebay.net/file.axd?file=2010%2f5%2fChesapeake+EO+Strategy%20.pdf .

The Strategy sets four main goals for Bay restoration and identifies “key environmental outcomes” and “supporting strategies” that are intended to help accomplish these goals and complement the multi agency efforts to restore and protect the Chesapeake Bay Watershed. The goals are to: restore clean water; recover habitat; sustain fish and wildlife; and conserve land and increase public access.
Among the federal actions identified in the Strategy, EPA must establish and implement the Chesapeake Bay TMDL and an associated “accountability framework.”

The Executive Order established the Federal Leadership Committee (FLC) for the Chesapeake Bay, which is chaired by the Administrator of the U.S. Environmental Protection Agency and includes senior representatives from the departments of Agriculture, Commerce, Defense, Homeland Security, Interior and Transportation. The Executive Order charged the FLC with developing and implementing a new strategy for protection and restoration of the Chesapeake region. The FLC is intended to support and guide the local efforts. The strategy is intended to support the restoration activities of state and local governments, watershed groups, county conservation districts, landowners and citizens.

The FLC is also charged with developing “key environmental outcomes” that include: Expand Citizen Stewardship. Respond to Climate Change. Develop Environmental Markets and Strengthen Science. Apparently, creating environmental markets is the current darling of the regulatory movement. Selling water release rights and creating a market for these rights is will make non-point source reduction possible and quantifiable.
The Executive Order directs the FLC to expand its role beyond just producing the strategy, to: “Oversee development, coordination and implementation of new federal programs and activities for Chesapeake Bay restoration. Collaborate with state partners to ensure that federal actions are closely coordinated with actions by state and local agencies and resources are used efficiently. Consult with stakeholder groups and the general public. Define milestones for meeting goals. Track and report on restoration activities and spending. Publish an annual Action Plan describing how federal funding will be used. Publish an annual Progress Report on environmental health and restoration efforts. Utilize independent evaluation to strengthen accountability. Make all reports available to the public by posting on a web site. Describe and carry out a process for adaptive management. Federal agencies will join the states in establishing two-year milestones with many federal efforts designed to support the states and District in meeting their current and future water quality milestones.” Buried in this mind numbing list of bureaucratic meetings, spending and report writing is an expansion of federal regulatory control of non-point source pollution.

Revisions to the Clean Water Act

Recently Congressman James Oberstar introduced H.R. 5088, America’s Commitment to Clean Water Act (formerly known as the Clean Water Restoration Act). Congressman Oberstar has been trying to get a version of this bill through congress for years. This is a revision to the current federal regulation that deletes the term “navigable waters” from the Clean Water Act (CWA) and replaces it with “waters of the United States”. The National Association of Conservation Districts, NACD, is not supporting this bill because it is concerned about rural agricultural areas that may be impacted by changes in the law and subsequent changes in jurisdiction over drainage ditches, dry creek beds and other areas that occasionally convey water. These seasonal creeks, wetlands and drainage ditches should not be regulated on a federal basis, but should be overseen locally since water management is really a local issue. A federal regulation that would adequately and appropriately regulate the creek in my back yard would not be the appropriate tool for the 1,200 miles of canals in the California water distribution system. The central command and control model is inappropriate for the diverse issues associated with regulating and permitting water. Nor should the method the EPA proposes for the Chesapeake Bay States, presenting numeric target and mandating a regulatory scheme be put in place, be expanded to all the waters of the United States for all the chemicals of concern.

Congressman Oberstar’s bill has drawn support from environmental and conservation groups including Clean Water Action, the National Wildlife Federation and Trout Unlimited. Other groups including the NACD, American Farm Bureau Federation and the Waters Advocacy Coalition, which includes farming, cattle, building and manufacturing groups, oppose the bill. Various versions of this bill have been offered by Congressman Oberstar over the years. The current version of the bill has the same basic goal as previous versions, to protect all of the nation's waters using federal regulations. During the news conference in support of the bill it was high lighted that is different from prior versions. To try and get this bill through congress, this version grandfathers prior converted croplands, exempts waste treatment systems and excludes groundwater from the definition of “waters of the United States.” These changes were intended to overcome the objections to the 2007 version of the bill, HR 2421, federal regulation of ground water and reclaimed water, which are regulated by the States if at all. This regulation would ignore the importance of groundwater and protecting that valuable resource while regulating seasonal streams. About 21% of the freshwater used in the United States in 2000 came from groundwater sources; the other 79% came from surface water. Ground water is an important natural resource, especially in those parts of the country that don't have ample surface-water sources, such as the arid West. This regulation would ignore the more than one fifth of the fresh water supply that comes from groundwater while regulating all surface water.

Although the intent of these bills, to protect wetlands and the water resources of the United States is a laudable one, the current legislation will still have unintended consequences, including extending the enforcement of federal “numeric water quality limits” upstream and controlling on a federal level local land use decision making. The current bill’s exemptions do not exclude local drains, streets, curbs and gutters from federal pollutant limits. This would result in federal regulation of rural, urban and suburban runoff, eliminating local control of decisions on land use and water supply to the States and may possibly interfere with water rights. No longer will the Clean Water Act be limited to the historic federal concern with navigable waters and Commerce Clause authority under the Constitution. Instead, this proposal will expand federal control over, puddle, moist land area, man-made waterway, storage facility, conveyance system, holding facility, or re-regulating reservoirs.

The EPA’s Chesapeake Bay Cleanup Agreement

The Chesapeake Bay Commission was created in 1980 to coordinate Bay-related policy across state lines and to develop shared solutions for cleaning up the Chesapeake Bay. The catalyst for their creation was the Environmental Protection Agency's (EPA) seven-year study (1976-1983) on the decline of the Chesapeake Bay. 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.

Despite more than 25 years of effort, the Bay’s waters remain seriously degraded as measured by the agreed upon criteria and considerably short of attaining the 2010 water quality goals set forth in the Chesapeake 2000 agreement. As a result US EPA was under a court order to draft a new Bay-wide cleanup plan by May 2011. Because of the region’s failure to meet the 2010 deadline for water quality in the Bay, EPA is now developing a new federally mandated Total Maximum Daily Load (TMDL) plan to establish and apportion an allowable pollution budget among the states.

On Tuesday, May 11th 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 being formulated by the federal agency. On Wednesday, the administration laid out their initiative to purify (as measured by nitrogen, phosphorus and sediment) 60 percent of the Chesapeake Bay's waters within 15 years, combining federal resources with a mandate that requires the six Bay watershed states (Virginia, Maryland, Pennsylvania, West Virginia, New York, and Delaware) and the District of Columbia to develop the regulatory blueprint.

The plan is to develop a top down regulation model. EPA will dictate numeric pollution values for every surface water of the regions and force the states to develop an acceptable (to the federal government) regulatory framework to achieve those goals. This will avoid direct federal regulation of rural, urban and suburban runoff only in the most technical sense, eliminate local control of decisions on land use and water supply. Each state will be required to propose its own regulations for developers, farmers, homeowners, and other sources of non-point source pollution to be approved by the federal government. The EPA is trying to determine how much reduction is necessary to meet the targets. Then, under the agreement it signed this week, it will require the six watershed states and the District to come up with pollutant reductions that bring them into compliance with those goals. Some of the ideas being tossed about are the imposition of a ban on pesticides for ornamental use in at least some areas of the watershed, limitations on farming, developing incentives or requirements for farmers to utilize best practices.

Spring Cleanup and Good Stewardship of my Resource Protected Area

It was a long harsh winter in this part of Virginia. Spring as always seems to arrive suddenly and I was faced will a garden that had been damaged by the severe winter storms and a few misses by the snow plow. The past week and a half have been warm and spring like and that is all it took for the first buds of spring to appear. It was time to assess the garden, the woods and do a spring cleanup. As I walked the few miles surrounding my house I watched homeowners take different approaches to the spring cleanup. There were lots of homes (mine included) where trees were downed by the storms. We maintain woods on most of our property an area larger than the mandated Resource Protected Area (RPA) under the Chesapeake Bay Preservation Act and manage it as one riparian forest buffer. Our spring assessment began with the woods.

The Regulations of the Chesapeake Bay Protection Act require that a vegetated buffer area of at least 100-feet wide be located adjacent to of all tidal shores, tidal wetlands, certain associated non-tidal wetlands, and along both sides of all water bodies with perennial flow within the Tidewater region. These aquatic features, along with the 100-foot buffer area, are the RPAs and serve to protect water quality by reducing excess sediment, nutrients, and potentially harmful or toxic substances from groundwater and surface water entering the Chesapeake Bay and its tributaries. In the RPA the roots of the woody vegetation helps to maintain the stability of the stream bed, minimizing bank erosion to limit sediment. A wooded buffer has porous soils from leaf litter, fungi, twigs, fallen branches and associated bacteria all help to enhance the infiltration of the rain water and snow runoff. The root mass and forest floor also retains nutrients, aids in denitrification and pollution degradation.

As an engineer, I do not truly understand the nuances of the forest ecosystem. It is a complex mix of trees, understory shrubs and groundcover. Over time the process of natural succession occurs. Small saplings develop and will become the next generation of trees as the older ones die out. I take on faith that understory trees are a necessary part of this ecosystem and that insects, disease, ice and wind are a normal part of the succession process. In a forested area the roots, twigs and leaf litter and detrius are important for slowing storm water runoff and trapping debris and sediment. The twigs and roots also trap blown litter. So, our spring clean up of the RPA is to walk the woods collecting plastic bottles, and other litter. We walked the woods to make sure that nothing is amiss, pick up litter and see the river. There is always something magical about flowing water. This year my husband made a little video of the river running.

Several trees had been downed in the woods along with many branches. Pretty much we don’t have to worry about those trees. Benign neglect is the rule for RPAs which appeals to my lazy heart. We did cut off a section of tree that had crushed our fence and fallen into our manicured garden. However, that tree was not in the RPA. We left the two parts of the tree in the woods. I am thinking of expanding the wooded border with some additional tree plantings. Our big cleanup in the RPA this year was finding an old tire and a part of an appliance (I would guess washing machine). We removed the trash from the woods and took a bunch of pictures of the river and called it a day after ensuring we had not picked up any ticks. (Lyme disease is not a joke.) Now we are done, so much for spring cleanup of the riparian buffer zone. Next up the manicured garden.

Living in an RPA under the Chesapeake Bay Protection Act

The Regulations of the Chesapeake Bay Protection Act require that a vegetated buffer area of at least 100-feet wide be located adjacent to of all tidal shores, tidal wetlands, certain associated non-tidal wetlands, and along both sides of all water bodies with perennial flow within the Tidewater region. These aquatic features, along with the 100-foot buffer area, are the Resource Protection Area (RPA) and serve to protect water quality by reducing excess sediment, nutrients, and potentially harmful or toxic substances from groundwater and surface water entering the Chesapeake Bay and its tributaries. The RPAs are riparian buffers and provide critical habitat to terrestrial and aquatic species and stabilize stream banks. You can determine if you have a RPA area on a property by using the mapping function from the Assessors Department. Generally, RPA is one of the available mapping layers.

Riparian buffers are noted for their ability to protect and enhance water quality. A properly planted and healthy riparian zone can trap sediment, and reduce or remove nutrients and other chemicals from precipitation, surface waters and ground waters. Riparian buffers are especially important on headwater and small streams that have the greatest amount of water-land interaction and, therefore, have the most opportunities for gaining and transporting sediment. Once sediment has entered the system it can be continually re-suspended as it travels downstream and should be prevented from washing into the stream.

Riparian buffers perform many ecological functions. While required by the Chesapeake Bay Preservation Act for water quality benefits, the advantages realized by a natural or established forested buffer go well beyond clean water, erosion control and control of runoff. The presence of properly vegetated buffers provides biologically diverse habitats both in the water and on land. Watching the wildlife on the edge of the forested zone has provided hours of peaceful pleasure. The buffers are complex ecological systems that connect the upland areas with surface waters providing a transitional area through which both the surface and ground waters flow. Protecting riparian buffers protects human health and welfare by protecting the watershed, one of our most valuable resources.

According to Helms and Johnson a healthy forest has living trees functioning as part of a balanced and self replacing ecosystem. That ecosystem is a complex mix of trees, understory shrubs and groundcover. Over time the process of natural succession causes a change in species composition and structure. Small saplings are developing into the next generation of trees as the older ones die out, and understory trees add valuable functions between the larger dominant species. A riparian, forested buffer may require some degree of maintenance to retain its health and function. Since a forest is a dynamic ecosystem, change is inevitable as vegetation grows and dies.

I had noticed that some of the trees on the garden potion of our land (the area not part of the RPA) seemed to be dying, chocked to death by what appeared to be wineberry and some unknown vine. As an experiment my husband cut down much of the vines on three trees that appeared to by dying the year we moved into the house. Two years later the trees seem to be once more thriving. As I studied the garden I noticed vines growing over many of the trees and began to think that maybe the invasive vines should be cut back on all the trees. This raised the question of the health of the RPA. Wanting to be a good steward of the RPA entrusted to me, I turned to the Virginia Department of Natural Resources.

According to the “Riparian Buffers Guidance Manual” it is practically always best to allow the RPA to evolve on its own. Removal of noxious weeds or dead, dying and diseased vegetation should only be done as necessary to maintain the health of the forest or to prevent fire fuel buildup problems. So I contacted the Virginia Department of Forestry to assess the health of the woodland. The Forester seemed to think that the woodland appeared healthy, though he did not have time to walk the acres within the woodland. The Forester recommended that in the area not part of the RPA that a section of invasive vines be removed and replanted with native species, a dying tree removed and replaced with a native species and some additional tree suggestions for expanding our plantings. The Riparian Buffers Guidance Manual had a wonderful section on the management of woodlands that essentially stated that leaving the woods alone is the best plan.