Virginia’s Watershed Implementation Plan

Virginia's secretary of natural resources, Doug Domenech, submitted Virginia's Watershed Implementation Plan to the Environmental Protection Agency on Sept. 3, 2010, two days later than requested. There may be some political message in that action beyond a tendency to procrastinate, who knows, maybe his dog ate it. The plan begins with the simple acknowledgement that:
“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.”

In his cover letter, Secretary Domenech said: “Having only received our nitrogen and phosphorous allocations July 1, and sediment allocation August 13, it is difficult to develop a comprehensive plan such as this that may have an impact through 2025.” In addition, to meet reductions in non-point source pollution, pollution from agriculture, urban and suburban run off and septic systems, will require changes in regulations and laws and funding for implementation and enforcement. These changes could have tremendous economic and autonomy impacts on business and individuals in Virginia and need to be addressed by the state legislature and impacted communities.

According to the US EPA and the Chesapeake Bay Foundation suburban and urban spread is the fastest growing land use and that suburban and urban storm water run off and septic waste water are the only major source of pollution in the watershed that continue to increase. The experts believe that this has been caused by the increase in impervious cover (pavement, buildings and roadways) that is associated with development and increased density of septic systems as population increases and lots become smaller.

For the urban and suburban storm water to meet the federal mandated pollution diet, new developments will be subject to storm water management, urban nutrient management and erosion and sediment controls that have recently be implemented. In addition, a nutrient exchange program will be developed to encourage implementation of BMPs (best management practices). However, the new storm water regulations will not address the sediment and nutrient loads associated with existing development and the mandated TMDL (total maximum daily load of pollutants) will require reductions from the existing pollution load. EPA is mandating the acceptable nutrient and sediment reductions, not on a statewide basis but on a segment by segment basis. Virginia is proposing that the Commonwealth meet the goals on a statewide basis. Simply looking at an aerial map of northern Virginia demonstrates the problem. The predominant form of development is existing housing, neighborhoods, and roads. Without having to create storm water management for every existing neighborhood, there are few options. Even with statewide compliance and the new storm water management regulation the WIP talks of restrictions on lawn and turf fertilizers, increasing regulation on both traditional and alternative septic systems.

The preliminary response from the Chesapeake Bay Foundations was: “Upon initial examination, we have serious concerns about the WIPs lack of details. Absent dramatic changes, we ask EPA to consider, now, what actions it must take to ensure Virginia will accomplish its share of needed pollution reductions…While there are some good proposals in the WIP—to offset pollution from future growth, to offer tax incentives to farmers to use conservation practices—the document is stunningly deficient on how the Commonwealth will implement many of these proposals. In particular, the WIP does not specify how Virginia will reduce non-point runoff pollution from farms and urban areas.” The reaction by EPA to these comments and the WIP in general will tell us if the federal regulators intend to regulate down to the suburban backyard or if they will allow the Commonwealth to have the local communities address how to reduce their contributions to pollution in the Chesapeake Bay.

The EPA will be having a series of public meetings and webinars. 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

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.