Virginia’s Voluntary Agriculture Programs are Reducing Pollution

“A nation that destroys its soils destroys itself.”- President Franklin Delano Roosevelt. Healthy soil leads to stable food production and healthy water resources. Though in President Roosevelt’s day ecology was an emerging field and we were just beginning to understand how these factors work together, today we have models of the ecology that can quantify the results.

Volunteers, Partners, Directors and staff from the Region II of the Virginia Soil and Water Conservation Districts meet for their regular spring meeting to discuss how their work to protect and preserve the soils and waters of the Commonwealth is helping the state achieve the Chesapeake Bay Total Daily Maximum Load (TMDL) for nutrient contamination and sediment target.

The TMDL was mandated by the U.S. Environmental Protection Agency (EPA) and is really a pollution diet. The TMDL sets a total Chesapeake Bay watershed limits for nitrogen, phosphorus and sediment that were that represent about a 25% reduction in pollution to be achieved by 2025. Virginia and the other five Chesapeake Bay states and Washington DC were required to submit and have approved by the EPA a detailed plan of how they intend to achieve the pollution reduction goals assigned to them. These plans are called the Watershed Implementation Plans, WIPs and when used in conjunction with the Chesapeake Bay Model can quantify the performance. Russ Baxter, Deputy Secretary of Natural Resources for Virginia DCR for the Chesapeake Bay was kind enough to update the group.

Under the mandate by EPA and implementation plan approved by EPA, Virginia needs to reduce the nitrogen released into the Bay by 7.9 million pounds, the phosphorus released to the Bay by more than 1.1 million pounds and sediment released by 404 million pounds by the end of 2015 as compared to the 2009 baseline levels. These goals are just the first set of goals under the mandate and approved implementation plan which requires further reductions in released pollutants until 2025 when we are targeted to meet the overall 25% reduction goal.

All the information we have on how we are doing is based on the Chesapeake Bay Model. The good news is that according to the model, Virginia is ahead of schedule on reductions in nitrogen and phosphorus, the nutrients. Using the latest version of the watershed model (5.3.2) nitrogen reductions are ahead of the 2015 goal and phosphorus is ahead of the 2017 goal.

Unfortunately, according to the model the sediment levels have increased, though it is unclear why. It is hoped that revisions to the land use base data in Chesapeake Bay Model may produce a better sediment result. Overall, though, the water quality of the Chesapeake Bay was dismal at below 30% and falling the past couple of years. However, Virginia is doing well at meeting their goals helped by the billions of dollars Virginia had already spent on updating the waste water treatment plants and the success of their animal management programs.

The U.S. Environmental Protection Agency had recently completed an evaluation of Virginia’s animal agriculture programs and evaluating Virginia’s implementation of those programs. This included imputing agricultural census data (which found fewer animals than expected), and data collected by the Soil and Water Conservation Districts in verifying the implementation and functioning of Agricultural Best Management Practices (BMPs). Agricultural BMPs are approved and quantified methods of farming to ensure reductions in the amount of nitrogen, phosphorus, and sediment pollution going to waterways within the Bay Watershed. Though we have reduced the nitrogen and phosphorus entering the bay from Virginia, it is discouraging that the overall health of the Bay has gotten worse.

The EPA’s assessment looked at Virginia’s implementation of federal and state regulatory programs that manage the large scale permitted concentrated animal operations, as well as voluntary incentive-based programs for smaller animal operations and crop operations to meet the nutrient and sediment reduction commitments in its TMDL Watershed Implementation Plan (WIP). The voluntary programs are implementation of agricultural BMPs by farmers with the help of the Soil and Water Conservation Districts who oversee the cost share programs that are used to encourage farmers to use the BMPs on their farms. There had been criticism that the agricultural programs were largely voluntary, but EPA found the programs to be effective and well implemented and monitored.

Reducing pollution from agriculture and converting acreage to stream buffers and restoring wetlands is the cheapest way to reduce pollution, and the state’s WIP expect to get 75 % of their nitrogen, phosphorus and sediment pollution reductions from agriculture. Even with using the agricultural lands to achieve most of the pollution reductions, the costs of the Watershed Implementation plans are astronomical, about $13.6-$15.7 billion in Virginia alone.

The latest legislative session in Virginia maintained funding for the Conservation Districts though some cost share monies have been reduced. The Virginia Department of Forestry received $1.3 million from the Chesapeake Bay Funds. The NRCS (National Resource Conservation Service which is part of the U.S. Department of Agriculture) is funded under the Farm Bill and has conservation programs and financial assistance programs that complement the work of the Districts. NRCS implements long list of federal programs that you might want to take a look at. Together we all work to help Virginia achieve its pollution goals.

The Bay Report Card

The Chesapeake Bay Foundation's 2014 State of the Bay Report has been released. This report uses 13 indicators in three categories: pollution, habitat, and fisheries to offer an assessment of the health of the Chesapeake Bay. According to the report the overall health of the Chesapeake Bay is unchanged since 2012. The 2014 report notes improvements in dissolved oxygen, water clarity, oysters, and underwater grasses. Nitrogen, toxics, shad, resource lands, forested buffers, and wetlands were unchanged. Declines were seen in rockfish, and blue crabs and the phosphorus score. The 2014 phosphorus score dropped because annual phosphorus loads were higher in 2014 compared to 2012, particularly in the Potomac and James Rivers and on Maryland’s Eastern Shore home of all those poultry confined feed lots. 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. (Human waste contains around 0.15 pounds of phosphorus per pound of nitrogen.)

The 2014 State of the Bay Report scores the health of the bay at 32 out of 100, a D+ according to the Chesapeake Bay Foundation. When I was in school anything below a 60 was an F. However, the Chesapeake Bay Foundation grades on a curve. The current goals of all the Environmental Protection Agency mandated Watershed Implementation Plans is a grade of 70, which would represent a saved Bay according to the Chesapeake Bay Foundation. If you recall the EPA mandated a contamination limit called the TMDL (total maximum daily load for nutrient contamination and sediment) to restore the Chesapeake Bay and its tributaries. The TMDL sets a total Chesapeake Bay watershed limits for nitrogen, phosphorus and sediment that were then partitioned to the various states and river basins. Each of the states and Washington DC were required to submit and have approved by the EPA a detailed plan of how they intend to achieve the pollution reduction goals assigned to them. These plans are called the Watershed Implementation Plans, WIPs, but the Chesapeake Bay Foundation refers to them as the “Clean Water Blueprint.”

In case you are wondering what constitutes a 100, the Chesapeake Bay Foundation says that the unspoiled Bay ecosystem described by Captain John Smith in the 1600s, with extensive forests and wetlands, clear water, abundant fish and oysters, and lush growths of submerged vegetation would rate a 100 on their scale.

Reducing pollution from agriculture is the goal of the Watershed Implementation Plans and the key to cleaning up the Chesapeake Bay. An often stated fact is that agriculture is the largest source of nitrogen, phosphorus, and sediment pollution in the Chesapeake Bay. What is usually not reported is that agriculture is the largest source of nutrient pollution because it is the largest active land use in the region not because agriculture is more polluting than other land uses. According to the Chesapeake Bay model, agricultural land represents almost twice the land as the developed areas. Bay-wide, agriculture is not on pace to meet the 2017 WIP benchmarks, though Virginia is on track thanks to a very successful implementation of a stream exclusion fencing program that has the state paying 100% of the cost of the fencing. However, urban and suburban stormwater runoff is heading in the wrong direction.

Farmers have made progress, especially in Virginia, but not enough. Reducing pollution from agriculture and converting acreage to stream buffers and restoring wetlands is the cheapest way to reduce pollution, and the states WIPs expect to get 75 % of their nitrogen, phosphorus and sediment pollution reductions from agriculture. Even with using the agricultural lands to achieve most of the pollution reductions, the costs of the Watershed Implementation plans are astronomical, about $13.6-$15.7 billion in Virginia alone.

from Chesapeake Bay Foundation report

With budget shortfalls throughout the region, it is important to maintain and expand the cost-share funding for agriculture and the budgets for the Conservation Districts that implement and monitor these programs. If we fail to meet the EPA mandated reductions in nitrogen, phosphorus and sediment pollution EPA has threatened to enforce reductions using litigation and enforcement actions to achieve the reductions using point sources (waste water treatment plants and stormwater permits). Using stormwater retrofits to achieve reductions would bankrupt the state.

In Praise of Nutrient Trading in Virginia

In mid-December Virginia Governor Terry McAuliffe, U.S. Environmental Protection Agency (EPA) Administrator Gina McCarthy and the Secretary of Agriculture all gathered in Fairfax County Virginia to applaud the expansion of the Virginia Nutrient Trading Program to meet the requirements of the U.S. EPA approved and mandated Watershed Implementation Plan. The nutrient trading program is an appealing, flexible and cost effective way to meet and maintain water quality goals. So, let’s back up and explain what is going on.

Volunteers in planting trees to reduce erosion along a stream

The Chesapeake Bay and its tidal waters have been impaired by the release of excess nitrogen, phosphorus and sediment. The EPA mandated a contamination limit called the TMDL (total maximum daily load for nutrient contamination and sediment) to restore the Chesapeake Bay and its tributaries. The TMDL sets a total Chesapeake Bay watershed limits for nitrogen, phosphorus and sediment that was about a 25% reduction from 2011 discharge levels for the six Chesapeake Bay watershed states and Washington DC. The pollution limits were then partitioned to the various states and river basins based on the Chesapeake Bay computer model and monitoring data. Each of the states and Washington DC were required to submit and have approved by the EPA a detailed plan of how they intend to achieve the pollution reduction goals assigned to them. These plans are called the Watershed Implementation Plans, WIPs. The Virginia WIP outlines a series of pollution control measures and strategies on how we are going to achieve and fund the pollution control necessary to meet the EPA mandate.

One of the key strategies was expansion of the Virginia’s successful nutrient trading program. Legislation passed in 2005 created the Chesapeake Bay Watershed Nutrient Credit Exchange Program and provides Virginia’s regulated pollution sources in the Bay watershed with the opportunity to meet required nutrient reductions through trading. The legislation also allows “point sources” like waste water treatment plants to purchase nutrient reductions from “nonpoint” sources like farms to offset new or increased nutrient discharges in excess of established load caps. Until recently the program had primarily been used by waste water treatment plants to offset the additional pollution loads from population growth. The Virginia nutrient trading program is based on the successful cap and trade program that was created to comply with the Clean Air Act’s Acid Rain Program limits for sulfur dioxide.

Virginia has managed to find other ways to utilize nutrient trading to reduce compliance costs for large point and non-point generators of nutrient contamination. The example cited by EPA Administrator McCarthy was the Virginia Department of Transportation (VDOT) who used banked pollution credits generated from farmers implementing Best Management Practices and riparian buffer stream bank plantings to off-set storm water pollution during road construction under increased Federal and State stormwater regulations that would have required building stormwater retention ponds and sediment filters for each construction section. VDOT did install permanent stormwater management infrastructure (using both traditional stormwater management and low impact strategies for the completed road, but using traded credits allowed them to avoid the wasteful building of temporary structures for the construction process yet reduce stormwater pollution on streams during construction.

Waste water treatment plants have predominately treaded among themselves. New expanded waste water treatment plans trade the excess credits that result for years after an expansion until the community “grows” into the plant, while those plants that have outgrown their facilities or need to meet more stringent standards by the credits. Some waste water treatment plants also created multi-year contracts with farmer to install nutrient reduction Best Management Practices during periods before expansion and improvement projects to meet tighter regulation or growth in the population served. There are critics of the program who oppose pollution trading because it allows polluters to buy their way out of controlling their pollution or restoring their degradation. The critics see only that entities are paying to pollute. However, with a growing population only a trading program can provide a framework to offset the inevitable additional pollution loads that come with more people.

Some critics are concerned about the potential for fraud or abuse. However, as you can see in the examples cited above this strategy allows for offsetting a short lived environmental impact without a huge and ultimately wasteful capital expenditure. There are limits to resources including capital, and a trading framework allows for cost effective temporary or longer term solutions. In the examples above in Virginia the permitted entity is required to verify and report the offset credits. Since most permitted facilities are VDOT, public waste water treatment plants and municipalities with storm water permits one hopes their veracity can be depended on to a greater extent and they have the ability to partner with Conservation Districts who have the expertise to evaluate the Best Management Practices in place.

Virginia’s Chesapeake Bay Watershed Nutrient Credit Exchange Program requires a level of Best Management Practice implementation called for in the nutrient tributary strategies to achieve nutrient reductions. You must achieve this level of nutrient reduction (known as the baseline) before you are allowed to generate and sell offsets to potential trading partners. Once the baseline level of nutrient reductions is achieved, additional reductions using approved Best Management Practices or land use conversions are eligible to generate offsets for trading. Cost share dollars can be used to implement the BMPs that achieve the baseline, which must be completed on the entire USDA Farm Services Agency tract before generating tradable credits. The program uses the incentive of earning additional dollars and cost share to further push all farmers to implement Best Management Practices on all their lands.

For a trading program to succeed there needs to be a regular and predictable demand for credits and a fairly straightforward and simple way to obtain the needed credits. Realistically the program will be limited to meeting the compliance needs of county and township stormwater permits, VDOT construction projects and if counties participate in facilitation and mandate the use then for construction projects large and small. The need for credits could be reasonably projected by county staff.

To allow for future population growth there might be a permanent demand for offsets by newer communities. The annual payments, maintenance of Best Management Practices or and use conversions and verifications could be funded by homeowner association fees. Every acre of development requires many more acres of supporting infrastructure development, schools, roads, shopping centers, churches, and public buildings. All this development increases runoff and additional nitrogen, phosphorus and sediment loads from sewer and septic systems and stormwater runoff from pavement and yards. Virginia has plans to “seed” the program to install some eligible credits in the Water Quality Improvement Fund for each watershed. In order for this to work the Conservation Districts in each watershed must have adequate funding, training and incentives. The dollars spent on these programs are the cheapest way to comply with the EPA mandate and cleanup our rivers and streams.


Full disclosure: In another part of my volunteer work I am a Director of the Prince William Soil and Water Conservation District. You should check out all that the Conservation District does at their web site.

Changes at the Virginia Soil and Water Conservation Districts

During the past legislative session the water programs of the state were all consolidated and transferred to the Virginia Department of Environmental Quality (DEQ) by HB 2048 and SB 1279. Though there have been no changes in statutes or regulatory oversight, this was still a really big move to consolidate management and oversight of all water programs within the state under DEQ control. DEQ now manages; the Chesapeake Bay Preservation Areas, erosion and sediment control, point source and non-point source contamination, and the execution of all parts of the Watershed Implementation Plan (WIP) Virginia developed to comply with the U.S. Environmental Protection Agency (EPA) mandates. With these changes the 47 Virginia Soil and Water Conservation Districts were moved under the oversight of the DEQ.

On Monday there was a well-attended Public Meeting in Culpeper to discuss these changes and allow the various community members and stakeholders to express their concerns and support. The soil and water conservation districts (Districts) were born out of the dust bowl days to prevent erosion and preserve the soil and manage the network of small damns that were built throughout the nation. Over the years the mission evolved. Today the districts provide technical assistance to help farmers and landowners adopt conservation management practices. The districts also promote and encourage voluntary adoption of the approved storm water management, water protection strategies and soil protection and conservation measures that are known as “Best Management Practices” or BMPs. Part of the promotion of the adoption of the BMPs are various financial incentives known collectively as cost share programs that help farmers and landowners pay for the necessary improvements. Finally the Districts run a series of educational programs for both children and adults to further understanding of our watersheds, water quality and the seemingly small actions that can provide big solutions to our water quality if they are adopted by most people.

According to Neil Zahradka of the DEQ Office of Land Application Programs, the consolidation of the Districts under DEQ is intended to improved oversight and implementation of Virginia’s WIP. The WIP is the plan created to comply with the Chesapeake Bay pollution diet, the Total Maximum Daily Load (TMDL) of nitrogen, phosphorus and sediment mandated by the EPA to Virginia and the other Chesapeake Bay Watershed states and the District of the Columbia. EPA has legal authority to regulate only point source releases of contaminants and pollutants- wastewater, industrial, and municipal separate stormwater systems (MS4), and concentrated animal feeding operation permits as well as set total maximum daily load (TMDL) of those contaminants in rivers and surface waters. Under threat of EPA reducing these point source release levels to incredibly expensive to achieve or perhaps unachievable levels, Virginia produced a WIP that ultimately satisfied EPA. Though how these activities will be paid for is still unknown. EPA has never had a budget for implementation of these programs that are estimated to cost billions of dollars.

The revised and accepted WIP requires that Virginia’s Stormwater Management Regulations 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 appears to be required to be almost sediment and nutrient pollution free or to “pay” for their developments by reducing runoff from existing developments. 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. It is 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 and road traffic in these areas.

For agricultural operations the revised WIP requires the implementation of resource management plans and BMPs on most agricultural acres which may include: 35 foot grass or forest buffers between cropland and perennial surface waters; stream exclusion of livestock; and implemented nutrient management plans. Virginia plans to continue to provide cost-share funding to achieve these goals through the Districts and has even expanded stream exclusion funding to 100%. According to the Chesapeake Bay Foundation 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. That is why the DEQ has consolidated the water programs, Virginia need virtually all the farmers in the state to implement BMPs.

The Districts depend on the cooperation and willingness of community partners and volunteers to work with them in order to achieve their goals. The relationships and trust that the Districts have with their communities is their greatest strength. The Districts encourage participation using established relationships, technical help and financial incentives and now have 100% funding available for their livestock exclusion program to expand the reach of their voluntary conservation activities. In the idiom of the carrot and the stick, the Districts are strictly a carrot organization. This cannot be said about the DEQ. As the representative of the Virginia’s Cattlemen’s Association pointed out the Districts has been very effective in getting BMPs on the ground and the deadlines under Chesapeake Bay TMDL leaves no time for Virginia to step back and accept the change.

The Districts that objected to the consolidation under DEQ seemed to object primarily for concern for the cultural clash between the culture that has evolved at DEQ in dealing with regulatory mandates for large businesses that have compliance officers rather than smaller and moderate sized farmers who read their paperwork in the evening. The Districts need by-in from the farmers and cattlemen (and women) to make the progress that the EPA requires under the WIP. The Districts that supported the consolidation thought that the agency responsible for implementation for the WIP and Chesapeake Bay TMDL should house the soil and water conservation districts. This was especially true for districts that had significant urban and suburban storm water and non-point source involvement. Increased funding could help the Districts.

PWSWCD 2012 River Cleanup

Mitigating Environmental Impact of Suburban Sprawl

Increasing suburban development and population density is a significant contributing factor to the impaired water resources in the Chesapeake Bay Watershed. Its impact is often hidden in the numbers because agricultural land represents almost twice the land as the developed areas. Growing populations in the suburban fringes of the Washington Metropolitan Area have had a significant impact on ecosystems in the region. Sprawling, low-density residential and commercial areas in the suburban and semi-rural areas result in additional infrastructure like roads (the controversial Bi-County Parkway) and shopping centers that chew up forests, green corridors, tree canopy, and agricultural lands. Often the remaining open areas between existing centers eventually fill with more new development. This type of development increases stormwater pollution and degrades the health of our water.

Image from Chesapeake Bay Foundation

According to the U. S. Environment al Protection Agency (EPA), the primary pollutants in the Chesapeake Bay and its tributaries are; nitrogen, phosphorus and sediment. These nutrients can lead to harmful algae blooms that kill underwater plants and destroy the river, bay and estuary habitat that aquatic life needs to survive. Excess nutrients and sediments can also lead to water with little or no dissolved oxygen to the detriment of aquatic life and the ecosystem. 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.

EPA has legal authority to regulate point source releases of contaminants and pollutants- wastewater, industrial, and municipal separate stormwater systems (MS4), and concentrated animal feeding operation permits as well as set total maximum daily load (TMDL) of those contaminants in rivers and surface waters. The 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.

EPA is invoking a “moderate levels of back stops” for Virginia under the Watershed Implementation Plan (WIP) for the TMDL to ensure adequate reduction in nutrient pollution to the Chesapeake Bay. This means that the WIP aggregate point source allocations for storm water and animal agriculture (CAFO) sectors were adjusted by the federal government to levels determined to be adequate to meet the TMDL. More stringent waste load allocations were applied to waste water treatment plants (regulated via federal programs); so that the waste stream from wastewater treatment plants was assigned to be 4 mg/L total nitrogen and 0.3 mg/L total phosphorus. For municipal separate storm sewer systems, MS4s, the federal government has imposed the requirement that 75% of urban MS4 lands meet aggressive performance standard through retrofit and redevelopment. I’m, quite frankly, not sure what that means in terms of installation and operation of storm systems, but the recent merger of the Virginia Department of Conservation and Recreation to have the Department of Environmental Quality (DEQ) be the lead agency for stormwater management is intended in part to address this.

In order to reduce the stormwater runoff carrying nitrogen, phosphorus, sediment and other pollutants from existing suburban residential areas stormwater best management practices (BMPs) will need to be implemented in the suburban communities. DNR, DEQ and the counties and cities of Virginia are going to have to implement non-point source nutrient management throughout the watershed. Homeowner Associations and individual homeowners need to individually and as a group reduce the nutrients and sediment run off from their properties.

Nutrient management and soil and water conservation districts (SWCDs) play a pivotal role in preventing such runoff in the agricultural community. In fact, SWCDs have been in the business of fighting erosion which prevents nutrient and sediment pollution since the mid-1930s, but 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. The challenge is much greater for 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.

Virginia's 47 soil and water conservation districts have for years focused mainly on on-the-ground work implementing best management practices (BMPs) on farms. They have used the agricultural cost share program as the carrot to help foster the acceptance of BMPs and now have 100% funding available for their livestock exclusion program. DCR and the counties and conservation districts are attempting to develop strategies to reach out to not only farmers, but also urban and suburban landowners, and other land managers to encourage and help them to reduce their stormwater runoff and nutrient loads. Controlling runoff pollution is everyone's business and education and community have to be a large part of implementation. Each of us causes runoff pollution, and each of us must act to reduce its effects.

The difficult question is how does one educate the public of their responsibilities and then ensure that the public meets them? Suburban and semi-rural BMPs have the potential to significantly reduce nutrient and sediment pollution in the Chesapeake Bay, but DCR, DEQ and the Virginia Department of Health (VDH) have struggled to reach, educate and motivate the public. The VDH has set up an advisory committee of private sector septic design, maintenance and installation companies to assist in the transition to privatize the industry to the greatest extent possible and increase compliance with septic regulations by the public. Loudoun County has been in the forefront of innovative programs and to reach the public and appears to have successfully managed to privatize septic design, installation, maintenance and inspection within the county while utilizing their resources to track compliance.

Another area where Loudoun County is leading is experimenting with suburban BMP implementation programs. Loudoun County funded a pilot program with the county Soil and Water Conservation District to implement non-agricultural stream buffer plantings in several suburban developments. The Conservation district worked with county staff, the Department of Forestry, HOAs, individual homeowners, and all other stakeholders to plant canopy trees and under story plantings along stream banks to reduce erosion of the stream bank. The county provided funding for the pilot project at $7,000 per acre for a total of 10 acres the HOAs provided labor for the plantings and a covenant to maintain the plantings in perpetuity. The model of conservation districts working with suburban HOAs (especially the semi-rural developments) is one that could be copied and implemented broadly to include not only buffer plantings but infiltration trenches, bio-retention areas, rain gardens and curb cuts, dry swales and even septic maintenance best practices.

The Chesapeake Bay Gets a C- Overall Health is Improving

For the past seven years the University of Maryland Center for Environmental Science has issued a report card for the Chesapeake Bay, evaluating the environmental health of the estuary. In the past the grade was based on three water quality indicators and three biotic indicators, which had then been averaged into an overall Bay Health Index and grade. This year the method was changed.  Total nitrogen and total phosphorus load (important indicators form the U.S. Environmental Protection Agency (EPA) mandated Chesapeake Bay total maximum daily load of those nutrients) were added and phytoplankton (whose growth in excess is a major contributing factor to the summer dead zone) was eliminated. In addition, each of what are now seven indicators is weighted equally in measuring the health of the Chesapeake Bay. Part of the reason for the change was the data collected under the EPA mandate does not include phytoplankton. According to the scientists and their grading scale we got a “C”. The overall health of Chesapeake Bay improved from 2011 to 2012. In 2011 the overall grade was a 40%, and now is 47%.

From 2012 Chesapeake Bay Report Card

One drawback of the annual reporting framework is the lack of context- an indication of whether Bay health is improving or getting worse. Now with this change in the grading method looking back is more important than ever. This year, Professor Bill Dennis and the other researcher of the University of Maryland Center for Environmental Science have graded all 15 reporting regions of the Chesapeake Bay for the years 1986 to 2011 to look for trends in the data using a consistent methodology. Four out of the fifteen regions had a significantly improving trend. The four reporting regions with significantly improving trends were the Upper Western Shore, Upper Bay, James River and Elizabeth River. One region, the York River, showed a slightly improving trend, although it was not statistically significant. Unfortunately, the MidBay with moderate ecosystem health (its overall grade is a C) is the onlyregion with a declining health trend since 1986 that seemed to be driven by declinesin benthic community and aquatic grasses despite improvements in water clarityand total nitrogen load.  

The organisms that live at the bottom of the Chesapeake Bay and its streams and rivers like clams, worms, oysters and mussels are examples of benthic organisms. Scientists believe that the health of the benthic community organisms provide a good snapshot of environmental conditions in the Bay and its streams and rivers. Most benthic creatures are fairly stationary and reflect pollution or unhealthy water conditions in particular locations. Benthic communities are exposed to many stressors, including low oxygen levels caused by excess growth of phytoplankton, excess sediment and chemical contaminants. Some reasons that the benthic community would be poor are:

• In summer, high temperatures and nutrient pollution often lead to low-oxygen areas at the bottom of the Bay and its rivers.
• Excess sediment suspended in the water can block sunlight from reaching bay grasses growing at the bottom. When sediment finally settles, it can bury oyster bars and other benthic species.
• Many chemical contaminants that are not part of the Chesapeake Bay pollution diet concentrate and bind to bottom sediments, remaining there for years. Benthic species become contaminated when they feed and live in these toxic sediments.
• Heavy spring rains particularly those associated with flash floods are generally responsible for high nutrient runoff and earlier and larger dead zones in the mid Bay’s tidal waters. This usually results in greater degradation in the benthic community. The 2012 dead zone was the 2nd smallest since 1985 and has been followed by the prediction that the 2013 dead zone will be smaller than average this summer. Professor Bill Dennis of the University of Maryland Center for Environmental Science attributes this smaller dead zone to the cool and relatively dry spring followed by late arriving rains. Yet even with this good news, the mid bay region has deteriorated. 
  

EPA Launches Program for Septic Systems

Last week was a busy one for the U.S. Environmental Protection Agency (EPA). They launched “SepticSmart,” a new program encouraging homeowners to properly care for and maintain their septic systems. According to the U.S. Census Bureau, nearly 25% of U.S. households have septic systems, and it is believed by regulators that most are not properly maintained. That is more than 26 million homes whose household waste may not be properly treated by natural processes because the septic systems are not managed and maintained properly and are predominately not regulated. EPA controls the treatment of the rest of the nation’s human and household waste directly by point source regulations and permits, but at this time can only encourage proper behavior in septic system owners.

The number of households with septic systems is large and growing, approximately a third of all new homes have septic systems. EPA has become increasingly concerned over the impact of nutrient contamination into bays and estuaries and is looking for ways to reach individual homeowners. The SepticSmart program is also directed to health departments and environmental groups with recommended actions and outreach pointing out “(a)cross the country, local environmental groups, health departments, and governments face the challenges posed by improperly maintained and failing septic systems. EPA seeks to assist these local agencies in promoting homeowner education and awareness.” Improperly maintained septic systems are reported to be the largest cause of contamination to private drinking water wells, but that tends to be an extremely local phenomena (the well you are most likely to impact is your own or your next door neighbor’s). In addition, more than a third of homes with septic systems do not have drinking water wells because of the problem of contamination. The big concern that the EPA has is nutrient contamination from septic systems.

Nutrients primarily nitrogen and phosphorus are needed by plants and animals to survive, but when too many nutrients make their way into local rivers, streams and bays, they can overwhelm the ecology and create conditions that are harmful to estuary grasses and aquatic life. Excess amounts of nitrogen and phosphorus are the main cause of the Chesapeake Bay's poor health and the reason that EPA has created the Chesapeake Bay pollution diet, the Total Maximum Daily Load (TMDL). Over the past quarter century the excess nutrient contamination to the Chesapeake Bay has decreased, but the Bay’s waters remain seriously degraded from their natural ecology. As a result, US EPA has taken control of the situation and has developed a new federally mandated TMDL to restore the local waters.

While EPA has no authority to regulate septic systems within the Chesapeake Bay Watershed, they can indirectly, by requiring states to include septic system management in the compliance plans called Watershed Implementation Plans or WIPs. The TMDL allocates a pollution budget among the states which will decrease over time and the states have to issue and have EPA accept WIPs that meet EPA standards or the EPA will lower the MS4 and Wastewater Treatment Plants allowed nutrient output to meet the goal. That is the most expensive method of compliance, costing billions more than other acceptable strategies. According to the EPA model of the Chesapeake Bay, septic system account for 4.5% of the nitrogen released to the Chesapeake Bay. It is probable that in other watersheds in the country that have excess nutrient pollution (like the Mississippi River and delta) that septic systems contribute a similar amount of nutrient pollution.

There are very few septic regulations in the nation and EPA does not at this time have authority to regulate non-point sources of contamination. There have been several bills before congress that would expand the Clean Water Act, but none have so far passed and in reality there is great difficulty in regulating individual homeowners and controlling the way they operate their septic systems. Septic systems are a suburban and rural, where monitoring of individual homeowner operation and maintenance of septic systems and oversight are difficult. EPA has instead effectively used the TMDL and WIPs each of the six Chesapeake Bay watershed states and Washington DC were required to develop and have approved by EPA to push for improvements in septic systems. The Virginia WIP had $1.6 billion in improvements in septic systems and Maryland had $3.7 billion (these of course will be paid for by the homeowners). The states in turn will have to find ways to reach homeowners with septic systems and behaviors that can be regulated. It would be very difficult to ban garbage disposals in private homes, or regulate what you can flush down the toilet, pour down the drain, or how many loads of laundry can be done in a day. However, it is easier to require more frequent pump outs of septic tanks and track that behavior. There are a multiple of sins in operating a septic system that can be compensated for by pumping a tank every 3 years.

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

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

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

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

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

Backyard Chickens, Virginia Chesapeake Bay WIP, and October 5th

October 5th is a busy evening in Northern Virginia for the environment. On the agenda for the October 5th meeting of the Prince William Board of County Supervisors, is a proposal to 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. County staff and Planning Commission have offered two differing recommendations for changes to the zoning regulations. The Planning Commission would allow chickens on properties under two acres within the county's rural area, whereas staff recommended that all properties should have to be at least two acres. Two emus, ostriches and similar large birds would be allowed on parcels of at least two acres, but less than 10 acres.

There are two risks that should be carefully considered by the Prince William Board of County Supervisors when making this decision, potential contamination of the drinking water supply for the area and potential for contaminated runoff to impact the Chesapeake Bay. 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. This suburban development has increased the suburban runoff and nutrient contamination to our groundwater and watershed. The proposed zoning change would allow additional nutrient load in the form of backyard poultry. Unless, the county intends to regulate the micro poultry “farms” and require the implementation of and maintenance of BMPs to manage the waste and locating of coops according to the protective separation requirements of the septic regulations, the Prince William Board of County Supervisors should consider only the more conservative staff recommendation.

Also on October 5th is the Northern Virginia’s EPA's Chesapeake Bay TMDL public meeting. The meeting is being held on October 5th from 6:00 to 8:00 pm at the Annandale, campus of Northern Virginia Community College. The address and building appear in the list below. There are 4 public meetings and a webinar scheduled for Virginia. The meetings are scheduled to allow EPA to have a 40-45 minutes presentation, followed by an overview of the Virginia WIP for 15-20 minutes, followed by Q&A and public comments for about 1 hour.

Over the past quarter century the excess nutrient contamination to the Chesapeake Bay has decreased, but the Bay’s waters remain seriously degraded. As a result, US EPA has taken control of the situation and has developed a new federally mandated total maximum daily load, TMDL, of contaminants to restore the local waters. The TMDL (released as a Draft standard in July) allocates a pollution budget among the states which will decrease over time. There is no segment of the Virginia watershed that meets the TMDL at this time, yet Prince William is considering increasing the nutrient load on properties by allowing backyard poultry.

Virginia's secretary of natural resources, Doug Domenech, submitted Virginia's Watershed Implementation Plan to the Environmental Protection Agency on Sept. 3, 2010. 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 and development of a nutrient exchange program to encourage voluntary 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 septic systems, or even the proposed expansion of residential nutrient loads by allowing backyard poultry. EPA is mandating nutrient and sediment reductions to the EPA’s determined acceptable level on a segment by segment basis. Prince William Board of County Supervisors needs to carefully consider what steps they are going to have to take to meet the federally mandated reduction in TMDL when considering any zoning changes. 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. Increasing the waste load from backyard poultry does not fit into these reductions in nutrient runoff.

The WIP does not specify how Virginia will reduce nonpoint runoff pollution from farms, suburban and urban areas beyond allowing the local governments to make those decisions. Prince William Board of County Supervisors have the opportunity to demonstrate how communities in Virginia will rise to the occasion. The reaction by EPA to the WIP and their comments at the public meetings 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 actions of the Prince William Board of County Supervisors will tell us if they can rise to the challenge of restoring and managing our natural resources.

The Prince William Board of County Supervisors will meet on Tuesday, Oct. 5, 2010, in the Board Chambers of the James J. McCoart Administration Building. The zoning change is scheduled for the evening session.

EPA's Chesapeake Bay TMDL public meetings are being held in Virginia October 4th to 7th 2010.

October 4 - from 6:00 to 8:00 p.m. Grafton Theatre, James Madison University, 281 Warren Service Drive, Harrisonburg, VA.

October 5 - from 6:00 to 8:00 p.m. Northern Virginia Community College, Annandale Campus, Ernst Community Cultural Center, 8333 Little River Turnpike, Annandale VA

October 6 - from 6:00 to 8:00 p.m. Robins Pavilion Jepson Alumni Center, University of Richmond, 28 Westhampton Way, Richmond, VA

October 7, webinar 1:00 to 3:00 p.m.
https://www2.gotomeeting.com/register/689259867

October 7 - from 6:00 to 8:00 p.m. Crowne Plaza Hampton Marina Hotel, 700 Settlers Landing Road, Hampton, VA

Chesapeake Clean Water and Ecosystem Restoration Act- Managing an Ecosystem by Brute Force

On October 20, 2009, Senator Cardin of Maryland introduced, S. 1816, the “Chesapeake Clean Water and Ecosystem Restoration Act,” on behalf of himself and Senators Mikulski, Carper and Kaufman. The legislation reappeared from Senator Boxer’s Committee on June 30th 2010 with all 64 plus pages stricken and with a 98 page amendment. Expanding federal authority even beyond that of the original bill to determine what science is acceptable and funded.

The Chesapeake Bay Act is an amendment to the Clean Water Act that serves to expand federal authority down to the smallest potential source of pollution. In the findings section the Chesapeake Bay Act states that the largest land use and largest source of nitrogen, phosphorus, and sediment within the Chesapeake Basin is agriculture. It also states that air pollution of nitrogen oxides and ammonia from air pollution contributes 1/3 of nitrogen loadings to the Bay. Significantly, the legislation states that suburban and urban spread is the fastest growing land use and that suburban and urban storm water run off is the only major source of pollution in the watershed that continues to increase. The Chesapeake Bay Act goes on to state this has been caused by the impervious cover (pavement, buildings and roadways) increasing by 250,000 acres between 1990 and 2000. Finally, the Chesapeake Bay Act states that 58% of the watershed is undeveloped and mostly forested, but that 100 acres of forest are lost to development each day. These claims have been determined by modeling, confirmation sampling and interpretation of data. In other words by the federal government and universities and experts.

This new legislation grants sweeping new authority to promulgate any regulation and issue any permit needed to control pollution from any source (including your back yard) to meet water quality goals set by the EPA, notwithstanding any other provision of the Clean Water Act. Thus, the Clean Water Act exemptions for agricultural storm water or irrigation return flows, or residential storm water flows are voided. This provides authority for the EPA to issue section 402 permits to all minor sources of pollution including your home, certainly your neighborhood. States are given authority to issue permits for any pollution source that the Chesapeake Bay State deems necessary. In addition, it requires that the EPA establish standards relating to site planning, design, construction and maintenance for project resulting in impervious development (concrete, roads, buildings, patios, increasing building footprints), essentially any development. The federal government is granted the right to control building and developments within Chesapeake Basin of the six states.

The legislation creates a nutrient trading program throughout the Chesapeake Basin based on imperfect modeling of the effectiveness of agricultural best management practices, storm water management plans. To development essentially a cap and trade program to attempt to accelerate the restoration of the Chesapeake Bay by creating nutrient credits based on federal government blessed “Big Science and Expert” approved model and best management practices (BMPs) that can be bought and sold to meet nutrient reduction goals. One unintended consequence will be in exploitation of know inefficiencies and errors in the models to game the system. In addition, BMPs need to be adopted then maintained year in and year out, so they need to be tracked. It is not like buying a more efficient filter or machine, but maintaining plantings and drainage patterns, composting animal waste, rotating pastures. So the legislation requires EPA to maintain a database with comprehensive information on best management practices.

Many of the other things covered by the legislation codifies as law the requirements for states to adopt and submit to EPA for approval watershed implementation plans for each segment of the Chesapeake Basin within their states. Codifies the total maximum daily load TMDL limits for nitrogen, phosphorus and sediment and the methods for implementing enforcing the programs. These regulations are currently being implemented without this act which serves to place land use control into federal hands. With one piece of legislation we deliver into federal hands the authority to engage in social, economic and environmental engineering in the six state region.

Chesapeake Bay Basin Pollution Diet Support Group

Over the past quarter century the excess nutrient contamination to the Chesapeake Bay has decreased, but the Bay’s waters remain seriously degraded. As a result, US EPA has taken control of the situation and has developed a new federally mandated Total Maximum Daily Load (TMDL) of nutrients and sediments to restore the local waters. The TMDL (released as a Draft standard in July) allocates a pollution budget among the states and is intended to decrease over time with the goal of restoring the Chesapeake Bay to the best conditions observed in the past 70 years. EPA describes the TMDL as a pollution diet and appropriately enough has created a diet support group. EPA has been having a series of webinars to provide the latest news, information, support and guidance for the state regulators and to provide an approach to implementing the new federal standards in the six Bay watershed states and the District of Columbia.

In the past 25 years much of the improvement in the Chesapeake Bay water quality has been achieved through regulation and control of point source contamination coming from sewage treatment plants and industrial plants combined with the improved management practices in agriculture. During this period, storm water pollution prevention and management planes were developed and implemented for large scale commercial construction. The largest producers of pollution have been regulated. The new pollution diets mandated by the EPA will require more reductions and a new strategy for achieving these reductions.

Nutrient and sediment contamination from mixed open, urban runoff and septic have all increased with the growing population and expanding suburbs over the past 25 years. So, while agricultural and industrial pollution have reduced their contamination of the Chesapeake Bay basin by a quarter to over half depending on which nutrient and which model is used to measure the pollution, the nutrient pollution form open space, urban runoff and septic have grown. To meet the new TMDLs sediment and nutrient limits that are being mandated by the US EPA the six Chesapeake Bay water shed states and Washington DC are going to have to reduce the nutrient pollution and sediment from urban and suburban residential sources.

The historic regulatory approach will not work with home owners and other small source contributors. Households do not have compliance officers to generate Storm Water Management Plans and implement and maintain best management practices. Many homeowners are not educated on the appropriate steps that should be taken to reduce run off and impact from their properties. Instead they are bombarded with advertisements for lawn care products, services and sprinkler systems and pressured by homeowner associations to maintain the appearance of their properties. Hospitals, libraries, schools, public spaces, parks, and retail locations are all landscaped and watered. The old maximum recommended elapsed time for pumping a septic tank is the one required in sensitive areas within the watershed and it is not monitored and enforced. Many homeowners seem unaware that septic systems require maintenance and care. We wash our cars in driveways instead of utilizing commercial operations with recycled water. There is no easy or obvious way to change this.

The entire state and Federal regulatory structure is geared toward large deep pocket corporate sources of contamination not towards ensuring that septic tanks are pumped with adequate frequency, fertilizer is used sparingly (if at all in ornamental applications) and storm water is adequately controlled in all areas. Many small and older developments were built without addressing the storm water flow and sheet flow of water off streets. This clearly needs to be addressed, but how that is to be accomplished in a non-punitive manner and consistently enforce and implemented is not clear. DC’s idea of requiring every structure of more than 5,000 square feet to have a Storm Water Management Plan does not appear workable in the suburbs where mile of developments were built without urban storm sewers, without storm water management plans, or the plans have proved inadequate over time.

I do not know how to improve homeowner behavior in maintaining a septic systems, lawns, garden care and in managing run off to and from residential properties without creating a regulatory and bureaucratic nightmare for the homeowner and a quagmire for the regulators. I look forward to reviewing the Watershed Implementation Plan (WIP) when it is released for comment on September 24th 2010 to see how our regulators have chosen to approach the problem if at all in this first iteration of the WIP. I am planning on attending one of the Virginia meetings for a complete list of meetings go to the EPA web page listing. We should all be informed and know what the regulatory community has planned for us.

The schedule for the EPA public comment meetings in all jurisdictions can also be found on the EPA Bay TMDL page at http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/BayTMDL2010PublicMeetingDates.pdf

Chesapeake Bay Watershed Basin Implementation Plans and the Homeowner

EPA has been having a series of webinars to provide the latest news and information on the Chesapeake Bay strict pollution diet, Total Maximum Daily Load (TMDL). Over the past quarter century the excess nutrient contamination to the Chesapeake Bay has decreased in total, but the Bay’s waters remain seriously degraded. As a result, US EPA took control of the situation and has developed a new federally mandated TMDL to restore the local waters. The TMDL (released as a Draft standard in July) allocates a pollution budget among the states which will decrease over time. The webinars serve as support and guidance for the state regulators and to provide an approach to implementing the new federal standards in the six Bay watershed states and the District of Columbia.

The states and DC have already received their draft nutrient allocation and the sixth and most recent webinar reviewed the sediment allocations to the states and D.C. and had the District. highlight their strategy for their implementation plan. Since my home has a considerable portion of the yard in resource protected area under the Chesapeake Bay Protection Act, I view myself as a steward of the watershed and I wanted to get an update on the program. So I “attended” the webinar. Anyone is welcome to attend the webinars or review past presentations. Just go to this page on the EPA web site. Draft Watershed Implementation Plans (WIPs) from each of the six Bay watershed states and the District of Columbia are due at EPA on September 1st and so time is running out to develop plans acceptable to the EPA and the consultant developed watershed models as meeting the mandated goals. These plans have probably already been developed and are now being finalized in the individual jurisdictions.

There will be a public comment period on the Bay TMDL and WIPs set to begin on September 24, 2010 and end on November 8th 2010. You should get involved. Though I strongly support protection of the Chesapeake Bay Basin, I question whether state regulators and their consultants can develop a WIP that will consider the interests of homeowners. My experience with the AOSS regulations in Virginia show that the homeowner has no representation and thus no voice in regulatory development and there is no rational limitation on regulatory overreach and cost impacts to the homeowner of their various regulatory schemes. (With the AOSS Emergency Regulations they included the requirements to sample septic systems along with the more reasonable requirements to maintain and inspect these systems. The intended purpose of the sampling was to gather data. The Virginia Department of Health believes that they are somehow going to obtain this data without any standard and appropriate sampling protocol and somehow use it. All they will achieve with this requirement is spending several hundred dollars of the homeowner’s money to the profit of the licensed operators who were well represented in the regulatory process.) Make no mistake the WIPs will ultimately impact homeowners who have had no representation on the process.

Based on the presentation by the EPA and the District Department of the Environment (DDOE) about their WIP, these plans will impact homeowners. In discussing the Storm Water Management and MS4 permit process in the D.C., Hamid Karimi, the Deputy Director of the DDOE mentioned that Storm Water Management Plans (SWMPs?... Swamps?) are required for all building over 5,000 square feet. He was asked if that included residential which it does and he went on to say that there had not been a push back on that. I dare say that most large homeowners in the district are unaware of that particular regulation. However, if the other states mimic that requirement and include basements in the square foot calculation, then a insignificant portion of the newer homes developed in recent years would be required to have Storm Water Management Plans. There is only one standard for Storm Water Management Plans, the cost of having each homeowner with a house that exceeds the threshold square foot limit produce the same Storm Water Management Plan as a suburban Walmart is ridiculous. (Such a requirement will be very profitable to an enterprising group of consultants without producing any improvement in the Chesapeake Bay basin.) Furthermore, EPA will be modifying their watershed model in relation to low density development in the coming year. So that suburban development will be fully incorporated into the WIPs in the future. Currently, Virginia exempts single family homes from the requirement for Stormwater Management Plans.

Sediment allocations are going to be controlled by submerged aquatic vegetation (SAV) population and water clarity acreage goals. Excessive sediment clouds the water blocking sunlight from reaching underwater grasses which are need for shelter and survival or young fish and blue crabs. More than 16 species of underwater bay grasses, also called submerged aquatic vegetation (SAV) are found in the Chesapeake Bay and its tributaries. Bay grasses are used as a measure of the Bay's overall condition because they are not harvested and their health is closely linked to the overall health of the Bay. EPA has apparently used historical records and photographs to generate SAV acreage goals for the 92 geographic segments that they have divided the Chesapeake Bay basin into. These goals are to achieve the best level of SAV that they have a record or picture of. Currently, 66 of those 92 segments (representing 185,000 acres) are not in compliance with the SAV/ clarity goals. I say SAV/ clarity goals because apparently each jurisdiction is allowed to count each clarity acre as 2/5th of an acre in meeting their SAV acreage goals.

EPA determines all these allocations based on models of the Chesapeake basin. These models are evolving and improving, but still are only approximations of the ecology of the watershed. EPA has found the model results tend to show more attainment from implementation than the monitored results. Thus, the allocation made reflect an arbitrarily applied margin of safety across the board. So, EPA is setting the basin wide total sediment allocation at 6.1-6.7 billion pound per year to achieve the desired 8 billion pound per year goal. Then based on the draft WIPs and draft TMDL will allocate sediment for each EPA designated segment in the basin.

There will be a series of 18 public meetings held across the watershed basin mostly in October and November. The First meeting is in Washington DC on September 29th followed by Virginia on October 5th 2010 in Annandale; October 6th 2010 in Richmond; and October 7th in Hampton. There will also be a webinar on October 7th. I encourage you to attend. While various interest groups like builders, regulators and “NGOs” have been fully represented in the process of developing the WIPs, no one has represented the interests of the home owners. The WIPs will evolve over time as TMDLs decrease. There is no organization monitoring the development of these regulations and ensuring rational regulatory standards for homeowners. There is no one to look out for your interests but you. While homeowners should be one of the largest stakeholder groups they are absent from the table.

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.

Chesapeake Bay Water Shed-How is it Doing?

Recent articles in the Washington Post have talked about the failure to meet effluent goals for the Chesapeake Bay Water Shed, an area spanning six states, a 64,000 square-mile watershed, and 180,000 miles of tributaries and coastline. This begged the question of what do the release numbers look like. The numbers above were supplied by the EPA’s Chesapeake Bay Program Office in Annapolis. The contaminants of concern are nitrogen, phosphorus, and sediments.

The Chesapeake Bay Commission was created in 1980 to coordinate Bay-related policy across state lines and to develop shared solutions. 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 Chesapeake Bay Commission was established by Maryland and Virginia to assist the states in cooperatively managing the Chesapeake Bay. The Commonwealth of Pennsylvania became a member in 1985. The legislative mandated goals of the commission were:

• assist the legislatures in evaluating and responding to mutual Bay concerns
• promote intergovernmental cooperation and coordination for resource planning
• promote uniformity of legislation where appropriate
• enhance the functions and powers of existing offices and agencies, and
• recommend improvements in the management of Bay resources.

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. As a result, the US EPA is 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, a new federally mandated Total Maximum Daily Load (TMDL) plan is being written to establish and apportion an allowable pollution budget among the states. With input from the six Bay watershed states (Virginia, Maryland, Pennsylvania, West Virginia, New York, and Delaware) and the District of Columbia, the EPA will set nitrogen, phosphorus and sediment limits for each impaired tributary and the Bay, together with maximum allowable point source and non-point source loading.

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 and septic systems. Will the Federal mandate provide the necessary teeth for the states to committee the funds, and other state resources. The states need to address these non-point sources using other regulatory schemes. Reductions in discharge of contaminants can be achieved through the implementation of “agricultural best management practices” operations. Mandated implementation of these practices will have to be accomplished under state regulations. With state budget constraints where will the funding for these programs come from? What programs will be reduced to pay for achieving Federally mandated Total Maximum Daily Load (TMDL) goals? Will this directly impact the cost of food or will that cost be burred in state taxes? Saving the Chesapeake Bay is important, it has been easy in the past to avoid tough choices of spending and resource reductions in other areas by pushing those decisions into the future with each change in the the effluent goal time line.

In addition, Federal action and funding is necessary for reduction of the largest point source of nitrogen remaining in the watershed, the Blue Plain Wastewater Treatment plant in Washington, DC. Congressional action is needed for funding for enhanced nutrient removal technology. This investment at Blue Plains Advanced Wastewater Treatment Plant would significantly reduce nitrogen flows from the largest single source of nutrient pollution in the watershed removing almost four million pounds of nitrogen or 7.7% of the point source total each year.