The Cost of the Chesapeake Bay TMDL for Virginia

From Senate Finance Committee Report November 18, 2011

For the last three weeks of this month The Virginia Department of Conservation and Recreation, DCR, is holding a series of public meetings on the Phase II of Virginia’s Chesapeake Bay Total Maximum Daily Load, TMDL, Watershed Implementation Plan (WIP) across the state. Meetings are scheduled in Richmond on May 23; Eastern Shore on May 23; Ruther Glen on May 30; Covington on May 30; and Harrisonburg on May 31.  For more information, call the DCR, Richmond office (804-786-1712). 

The Phase II WIP was submitted to EPA on March 30 and opened a formal public comment period on that will conclude on May 31.  The DCR planned a total of 8 meetings beginning on May 9th in Chesapeake, VA to provide a brief update on the status of the Phase II WIP, the next steps in the Chesapeake Bay TMDL planning process and to provide local governments, planning district commissions, soil and water conservation districts and other stakeholders with an opportunity to comment on the Phase II WIP.  The meetings were held with little publicity or advance notice.

On Tuesday, May 15th 2012 I attended the meeting in Prince William County  in a very overcrowded meeting room.  If you missed the meeting, don’t worry about it, DCR plans to put the presentation on line and all the details covered were included in the slides and there is still time to attend another meeting. Check the TMDL Homepage to see the presentation. The meeting was opened by Marc Aveni of Prince William County who had taken the time to personally call me to tell me about the meeting because I had called his office to ask if he knew when the meetings were planned.  James Davis-Martin of DCR presented the overview of the WIP Phase II.

About half of the land area of Virginia is drained by the creeks, streams and rivers that comprise the Chesapeake Bay watershed, and two-thirds of the state's population lives within the watershed. Chesapeake Bay pollution diet, the Total Maximum Daily Load (TMDL) of nitrogen, phosphorus and sediment was mandated by the EPA to the six Chesapeake Bay Watershed states (Virginia, Maryland, Delaware, New York, Pennsylvania and West Virginia) and the District of the Columbia. The Chesapeake Bay TMDL and the Watershed Implementation Plans (WIP) Phase I and II are designed to ensure that all pollution control measures needed to fully restore the Bay and its tidal rivers are in place by 2025, with at least 60 % of the pollution control measures called best management practices, BMPs, completed by 2017. While it will take years after 2025 for the Bay and its tributaries to fully heal, EPA expects and their computer model predicts that once the required BMPs are in place there will be gradual and continued improvement in water quality as BMPs reduce the nutrient and sediment run off and better control storm water so that the Chesapeake Bay ecosystem can heal itself.

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. The Virginia TMDL is 53.4 million pounds of nitrogen, 5.4 million pounds of phosphorus and 2.6 billion pounds of sediment per year. That translates into a 21% reduction of nitrogen and sediment and a 25% reduction in phosphorus from 2009 the base year. The Virginia TMDL is further broken down into the 39 segments of the river basins that are in Virginia and EPA established a specific TMDL for each segment that must be met. To develop the Phase II WIP which required Virginia to identify how the counties and towns will implement the WIP, Virginia  had the Department of Conservation and Recreation (DCR) staff subdivide the TMDL allocation from the 39 segments to the local government (county and town level). Each community was asked to input land use data that was not in agreement with the federally supplied data, catalog existing BMPs, develop implementation strategies and identify resource needs.  

Many of the smaller communities did not have the data or resources to even know if the land use data supplied by EPA was accurate. However, the larger communities and cities were able to provide much more detailed information, but that information is not currently publicly available. The northern Virginia communities were unable to obtain  approval of the planned strategies from the county elected officials before the submission deadline. In addition, 1.7 million acres (12.3%) of the Virginia portion of the Chesapeake Bay Watershed is federal land. Though this federal land includes the Jefferson National Forest, it also includes military bases and land controlled by 12 federal departments. The Virginia DCR plans to develop a memorandum of understanding, MOU, with the Department of Defense to develop a plan for their compliance with the TMDL and then extend that MOU to the other agencies. Several of the federal departments did not respond to the Virginia DCR request. 

The Phase II WIP drove the planning process for compliance with the TMDL down to the local level. This past legislative session, the Virginia legislature passed several bills to facilitate compliance with the federal mandate. HB 176 and SB 77 Nutrient credit certification; regulations.  HB 932 Voluntary Nutrient Management Plan Program; DCR to develop training and certification program. HB 1009 Land-disturbing activities; service of order for violation. HB 1065 Erosion & Sediment Control Stormwater, & Chesapeake Bay Preservation Acts; integration of all related programs.  Previously, the  Virginia General Assembly passed SB 1831 that bans phosphorus in most lawn fertilizers and more tightly restricts the use of fertilizer by professional lawn and turf service companies.  The Stormwater Regulations, 4VAC50-60,  finally went into effect on September 13, 2011 after a difficult journey. In addition, the James River Study was incorporated into the WIP.

From Senate Finance Committee Report 2011

The Chesapeake Bay TMDL and WIPs are a continuation of work begun with the 1983 Chesapeake Bay Agreement, Virginia’s 1998 Water Quality Improvement Act and the 2005 Tributary Strategies (designated in the chart above as TS). Over the years substantial improvement has been made in upgrading waste water treatment plants though many improvements to the combined sewer systems in Richmond and Lynchburg still need to be addressed. Also, significant progress has been made in implementing agricultural BMPs through the cost share program. Virginia’s nitrogen and Phosphorus loads into the Chesapeake Bay have fallen since 1985, but we have failed to meet the promised reductions under the various acts over the years. So, now under the Chesapeake Bay TMDL EPA can impose “backstops” to ensure that goals are met.

EPA has legal authority to regulate point source releases or contaminants and pollutants- wastewater, industrial, and municipal separate stormwater system (MS4), and concentrated animal feeding operation permits. If Virginia fails to meet the goals set under the TMDL in other areas (as identified under the Phase II WIP), EPA will reduce the allowable releases under the permits to make up the difference. In some cases these back stock measures would require an additional layer of treatment. In short this would be the most expensive way to meet the TMDL, so it represents a good "stick."  The best estimate of the cost to meet the TMDL (without EPA imposing “backstop”punishment measures) was the report prepared by the Virginia Senate Finance Committee at the end of 2011. They estimated that the total cost complying with the TMDL over the next 7-13 years will be $13.6 billion to $15.7 billion paid for by individual home owners in the case of septic system upgrades, water and sewage rate payers in the form of increased rates, property owners in the form of higher stormwater management fees and tax rate, state government and VDOT who get their funds from tax payers and local governments who also get their funds from tax payers. 

So, that big number will be paid for directly and indirectly by us (no matter what promises are made by local politicians) and someday soon the Chesapeake Bay will be clean. Like all estuaries the Bay is an incredibly complex ecosystem that we are only beginning to understand. Estuaries are very productive ecosystems and habitats. The Chesapeake Bay 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, protecting and restoring our drinking water supplies, the commercial oyster harvest and the beauty and ecological balance of the largest estuary in the United States. 

Environmental Chapter of Prince William County Comprehensive Plan

Prince William County as well as all interested parties have submitted their comments to the US EPA on the Chesapeake Bay TMDL and that comment period is now closed. I was fortunate to hear a summary of the PWC’s concerns and comments by Prince William County Public Works representative Marc Aveni. The Chesapeake Bay TMDL could eventually mean more monitoring and reporting on the county level and more government control of our lives.

The TMDL proposes very strict standards on both point and non-point sources of pollution. Everything from construction site runoff to individual lawn fertilization could become a regulatory issue. The Chesapeake Bay TMDL allocates nitrogen, phosphorus and sediment pollutant reductions to both point and nonpoint sources to meet the Bay's water quality standards, EPA expects Virginia and the other five watershed states and the District of Columbia to provide EPA with documented "reasonable assurance" that nonpoint source loading reductions will be achieved as a condition for reflecting such reductions in the Bay TMDL.

The meaning of reasonable assurance could be a costly issue in Virginia. Ultimately, because permits under the Clean Water Act (CWA) include effluent limitations necessary to achieve the Virginia’s Chesapeake Bay TMDL water quality standards, if nonpoint sources do not accomplish the loading reductions identified to EPA’s satisfaction or “reasonable assurances” then, more stringent effluent limits will be applied to CWA permits for point sources. This could cost millions upon millions of dollars because the higher level reductions in nutrients simply requires more treatment steps at waste water treatment plants and storm water systems. I am not a big fan of command and control method of regulation for all non-point source pollution. Unfortunately, regulatory command and control of the littlest corners of our lives is the only form of “reasonable assurances” that the US EPA recognizes.
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Though the comment period has closed EPA has not yet taken final action on the Chesapeake Bay TMDLs it is clear the new regulations will focus on short-term, two-year goals called milestones by the EPA. Virginia and the six other Chesapeake Bay jurisdictions will be required to meet the soon to be finalized TMDL and future milestones, and will be required to put in place all pollution control measures the EPA deems necessary for a restored Bay no later than 2025. The final TMDL are scheduled to be met by December 31, 2011 and according to comments submitted to the EPA by Prince William County everything from construction site runoff to individual lawn fertilization, limitations on backyard chickens, and horse ownership could be under the microscope in order to meet the new TMDL within the framework of the EPA Chesapeake Bay pollution models. The federal TMDL could eventually mean more monitoring, reporting and possibly even more staff at the county level, though Prince William County Public Works believes they can meet the demands by fully staffing the two vacant FTEs.

Prince William County is holding public hearings on the environmental chapter of the PWC Comprehensive Plan on December 7th at 7:30 pm at the PWC offices at the McCoart Building at One County Complex Ct., Woodbridge, VA. If you have an interest and are local you should be there. I am anxious to hear the concerns of citizens, businesses and developers and to see if these comments relate to the Chesapeake Bay TMDL. I am hoping to gain insight into how Prince William and the other localities within the watershed will manage to navigate the requirements of the TMDL. I do look forward to seeing a fully restored Chesapeake Bay some day.