In the EPA’s TMDL Pollution Diet The Biggest Looser is Northern Virginia

The most recent meeting of the Potomac Watershed Roundtable was in Warrenton, VA at Lord Fairfax Community College and had a series of speakers on the Chesapeake Bay strict pollution diet, the Total Maximum Daily Load (TMDL) mandated by the EPA to the six Chesapeake Bay Watershed states and the District of the Columbia. The TMDLs were assigned by the EPA to each segment of the Chesapeake Bay Watershed. For the TMDL, the Chesapeake Bay’s tidal waters have been divided into 92 tidal water segments. There are 35 segments controlled by Virginia and another five Maryland owned segments that include Virginia drainage areas. The different water segments are determined by their varying degrees of salinity, recalling that the Chesapeake Bay Watershed is an estuary. Finally, the TMDLs address only pollution from excess nitrogen, phosphorus and sediment. No action has been taken on other pollutants that might be present in the Chesapeake Bay and its tributaries.

On November 29th 2010 Virginia, submitted the final version of the Virginia Chesapeake Bay Watershed Implementation Plan (WIP) to the U.S. Environmental Protection Agency and December 29th the EPA accepted the revised version of Virginia’s WIP and issued the “final” TMDL, but with “enhanced oversight.” (Doesn’t that sound like fun.) The TMDLs were created by a series of models of the Chesapeake Bay Watershed that include various land use models, water quality models and watershed models. These computer models are mathematical representations of the real world that estimate environmental events and conditions. The models are at best imperfect, but they are nonetheless the best tool available to view the 64,000 square miles of the watershed. The Chesapeake Bay and its watershed are so large and complex, that scientists and regulators rely on computer models for critical information about the ecosystem’s characteristics and the impact of various environmental actions to reduce pollution. It is possible that they have been spending a wee bit too much time looking at computer output and missed the big picture.

Mike Rolband, President of Wetland Studies and Solutions, Inc. had an interesting presentation pointing out poor model behavior, mistakes and injustices of the current TMDL, what EPA has called the strict pollution diet, but really is an excess nutrient diet. When Mike showed the group his slides, several aspects of the Chesapeake Bay Watershed, the EPA’s models, the mandated TMDLs became very clear for me. First of all, the level of excess nutrients in each of the major tributaries to the Chesapeake Bay is fairly well known and well predicted and calibrated by the models. Second, this is indeed a diet, the Chesapeake Bay is overwhelmed with excess nutrients and sediment, and like an obese person, less nutrients will improve the situation. Thirdly, land use and population density matter, but generally the higher the population the more total nutrients are released. Waste water treatment plants and urban runoff and septic contribute a larger load of nitrogen than the agricultural sector. Finally, the EPA mandated TMDL and the approved WIPs to implement them require a percentage reduction in nutrient load from each sector.

This turns out to be vastly inequitable. Eliminating the agricultural sector, Northern Virginia with 46% of the watershed population is required to obtain a total nitrogen load for the waste water treatment plants, urban and septic of 2.52 pounds of nitrogen/person/year while the James River Basin is only required to obtain 6.38 pounds of nitrogen/person/year and the state target average is 4.43 pounds of nitrogen/person/year. This is the equivalent of mandating a diet for everyone in Virginia to lose 1/3 of their body weight. This might be just fine and actually beneficial for the 300 pound people who will be forced to lose 100 pounds, but it is lethal for the 150 pound Potomac Watershed that will have to loose 50 pounds each. We in northern Virginia are trapped in some Kafka version of a diet where slow death by starvation (stopping population growth and potentially reducing population) may be the unintended consequences of the EPA mandated pollution diet.

HB 2492 Proposes an Amendment to Alternative Septic and Homeowner Responsibilities

Timothy D. Hugo, member of the Virginia General Assembly for the 40th District (Centerville) has introduced a bill HB 2492 in the current session of the Virginia General Assembly: “Onsite sewage systems; certain owners may be exempt from requirements for operation and maintenance.”

This bill contains several provisions restricting the scope and applicability of the new Alternative Onsite Sewage System, AOSS, regulations and the recently implemented Emergency AOSS regulations. The bill would exempt AOSSs installed prior to January 1, 2010, with flows of less than 1,000 gallons per day serving a single-family, owner occupied dwelling from the requirements for the operation and maintenance of the system. In addition, the bill would prevent local autonomy in deciding if these systems can be installed and need to be maintained as recommended by the manufacturer, as currently required by the Department of Health in individual counties. By reducing the authority of the Department of Health and counties to require the maintenance of AOSSs this bill threatens drinking wells with contamination from other properties and is entirely counter to the provisions of the Virginia Watershed Implementation Plan and good stewardship.

Let’s look at how requiring operation and maintenance might protect public health and the environment. A real world example would be a geologically unfavorable groundwater rich location. The small development where I live is located within the northeast quadrant of the Culpeper basin in Prince William County. Groundwater flows under ambient pressure from Bull Run Mountain towards Bull Run, the river flowing west to east. The soils in our neighborhood are described by the USGS as Balls Bluff Siltstone with a gravel, sand and clay type bedding plane. (That is the technical name for the flat plane, edged orange red rocks that are everywhere you put a shovel.) In the siltstone bedding plane, the fractures within the rock run predominately north south. Thus while ground water flows generally speaking west to east, water or a contaminant that catches a fracture will carry the contaminant to drinking water depth in a north south pattern. Contaminants can enter the groundwater at these fractures and zigzag through the neighborhood. There is no natural attenuation in a fractured system. Any malfunctioning septic system, improper disposal, or spill on any property has the potential to impact the drinking water well of other residents to the south, southeast or east.

The alternative septic regulations require me and all my neighbors to properly operate and maintain our AOSSs. This will hopefully prevent the neighbor’s septic system from contaminating the drinking water wells in the neighborhood. (I already have an operation and maintenance contract and my septic alarms to an automatic dialer to the maintenance company and my e-mail.) A cracked septic tank, malfunctioning system, improper management of stables, dumping of chemicals down the drain or in the yard, all have the potential to impact large sections of the neighborhood and need to be diligently guarded against by all residents to protect or drinking water supply. Unfortunately, many homeowners are unaware of how septic systems work and what is necessary to maintain them. Their wish to be exempted from the septic regulations is so that they can ignore problems instead of taking appropriate responsibility for their systems without some sort regulations and enforcement. The proper operation and maintenance AOSS would serve to ensure the proper operation of these AOSSs and serve to protect neighboring properties and drinking water supplies from contamination.

The need to negotiate the best rates for AOSS contracts may offer the opportunity for the home owners to create a buying group and educate their neighbors. This could serve to protect all our drinking water. That remains to be seen; in the meantime I will be testing my water twice a year.

The Error in the Allocation to Agriculture Under the Virginia TMDL

The most recent meeting of the Potomac Watershed Roundtable was in Warrenton, VA at Lord Fairfax Community College and had a series of speakers on the Chesapeake Bay strict pollution diet, the Total Maximum Daily Load (TMDL) mandated by the EPA to the six Chesapeake Bay Watershed states and the District of the Columbia. The TMDL addresses only pollution from excess nitrogen, phosphorus and sediment. No action has been taken or at this time is intended on other pollutants that might be present in the Chesapeake Bay and its tributaries. Part of the meeting was devoted to educating the audience on the Chesapeake Bay Model.

The TMDLs were created by a series of models of the Chesapeake Bay Watershed that include various land use models, water quality models and watershed models. These computer models are mathematical representations of the real world that estimate environmental events and conditions. The models are at best imperfect, but they are nonetheless the best tool available to view the 64,000 square miles of the watershed. The Chesapeake Bay and its watershed are so large and complex, that scientists and regulators rely on computer models for critical information about the ecosystem’s characteristics and the impact of various environmental actions to reduce pollution.

Mike Rolband of Wetland Studies and Solutions, Inc. had some fun with what is apparently one of the large mistakes in the model that is expected to have a correction released in the near future. His professional interest is in managing impervious and pervious surface run off. His consulting firm looked at the underlying data used to create the Land Use estimates. Land Use model estimates the types and amounts of pollution that run off a particular land use are based on comprehensive reviews of the latest scientific literature there is limited measurement here for many of the land uses, but the responsible land use is assigned a numeric blame. Using EPA published data Wetland Studies and Solutions was participant in pointing out to the EPA that they had massively underestimated the impervious and pervious surface areas in the Urban Areas in Virginia (and I assume other areas).

It seems that the most recent version of the model had used approximately 675,917 acres for the impervious surface data and 1,885,915 acres for the pervious surface data. A review of the EPA’s own data found that there were 1,569,377 impervious acres and 3,442,346 pervious acres in the urban areas in the Virginia segments of the model. These include all the paved and landscaped areas of suburbia. Between the 1990 census and the 2010 census the population of Virginia grew from 6.2 million people to 8.0 million people. The bulk of that growth took place in the urban and suburban centers of the Chesapeake Bay watershed.

Now here is where it gets interesting. Pollutions loads for nitrogen, phosphorus and sediment in the urban areas are calculated using a constant pounds/acre/year for impervious acres as a fixed input, and the pervious load is based on total fertilizer sales data. The bottom line is that the EPA has confirmed that they will not change the loading rate because they have high confidence in the loading rate for the impervious surfaces and the total fertilizer sales are reported and tracked data and is a hard number. Thus the total current oad for the urban areas will increase by 2,238,449 pounds of nitrogen per year, 636,097 pounds of phosphorus/year and 137,680 pounds of sediment/per year. However, the total watershed loads for the overall model will remain the same. So, while the urban area loads will increase, other area(s) loads will have to decrease.

Mike Rolband has pointed out that the agricultural sector will probably have their load reduced. The waste water treatment plants numbers are based on constant sampling necessary for their permits so their overall total contaminant load will not change. The forest lands number is also believed to be a “good” number, so that leaves the agricultural sector and in the case of total nitrogen, also septic. Over 2.2 million pounds a year is a lot of nitrogen it represents of the total load attributed to agriculture. The farm segment has been protesting loudly that they are not being given proper credit for implementation of best management practices and that surface waters are already degraded when they reach their farms.

It seems that the American Farm Bureau Federation who have recently filed suit against the EPA claiming the models are flawed is right. The smug assumption that farmers are the bad guys by the new generation of environmentalists is to an extent wrong. Man is the animal contributing the most nitrogen to the Chesapeake Bay in the form of wastewater treatment plant permitted waste, septic and urban/ suburban runoff. The Chesapeake Bay Foundation owes the American Farm Bureau Federation an apology for their recent quote in the Washington Post.

Custom Designed Alternative Septic and Department of Health Oversight

Mark D. Obenshain, Virginia State Senator for the 26th District has introduced a bill Senate Bill #1277 in the current session of the Virginia General Assembly: “Professional engineering of onsite treatment works; Department of Health oversight.”

This bill contains several provisions restricting the Department of Health's oversight of the requirements for and the review of onsite sewage systems custom designed by professional engineers. The Virginia Onsite Wastewater Recycling Association, VOWRA, is opposed to the passage of this bill. Some VOWRA members feel it is an attempt to circumvent the regulations on horizontal setbacks and performance requirements for alternative onsite sewage systems, AOSSs. These physical separations are the last defense of my well and my property from a poorly designed and maintained alternative onsite sewage system on a neighbor’s property. By reducing the authority of the Department of Health to maintain these separations this bill threatens drinking wells with contamination from other properties and is entirely counter to the provisions of the Virginia Watershed Implementation Plan and good stewardship.

Septic is a non-consumptive use of water, the water is returned to the earth. It is important that the septic system or AOSS is designed and operated in a way that protects the environment. Whatever goes down the toilet or the drain goes into the earth. Research performed over a decade ago in Dutchess County, NY and North Carolina demonstrated that minimum lot size, vertical and horizontal separations were the controlling factors to maintaining water quality. Adequate dilution, soil filtration and time are necessary to ensure sustainable water quality. Maintaining the horizontal and vertical separation of all septic and AOSS systems is the last protection of the drinking water supply from septic contamination and allows for weather and use irregularities in operation of septic systems and AOSSs.

In recent sessions the General Assembly has passed several bills amending septic requirements. HB 2551/SB 1486 provided that: AOSS designs submitted by professional engineers to the Virginia Department of Health are required to ensure that the treatment works will meet or exceed the standard discharge, effluent, and surface and ground water quality standards for standard commercial systems tested and demonstrated by the industry and permitted in Virginia under Health Department regulations.

My libertarian streak would love to believe that homeowners would care for their septic systems appropriately to avoid the system backing up in the future, contamination of the groundwater (which may be the source of the local drinking water), and future septic system repair bills of tens of thousands of dollars to remediate and replace a system. Unfortunately, many homeowners are unaware of how septic systems works and what is necessary to maintain them. In addition, people do not seem to be able take appropriate responsibility for their systems without some sort of enforcement or the regulations and the current regulations have no penalties or consequences and so far the public seems unaware of them. Thus, the last defense of neighboring properties and drinking water supplies are the horizontal and vertical setbacks.

The Chesapeake Bay Model

The most recent meeting of the Potomac Watershed Roundtable was in Warrenton, VA at Lord Fairfax Community College and had a series of speakers on the Chesapeake Bay strict pollution diet, the Total Maximum Daily Load (TMDL) mandated by the EPA to the six Chesapeake Bay Watershed states and the District of the Columbia. The TMDL addresses only pollution from excess nitrogen, phosphorus and sediment. No action has been taken or at this time is intended on other pollutants that might be present in the Chesapeake Bay and its tributaries. Two of the speakers, walked the Roundtable audience through some of the issues and uncertainties will impact implementing a plan to achieve the TMDLs on the local level.

Clifton Bell of Malcolm Pirnie, Inc. and Mike Rolband of Wetland Studies and Solutions, Inc. walked the group through some of the issues with the EPA “final” TMDL loading levels and how they were obtained. The TMDLs were created by a series of models of the Chesapeake Bay Watershed that include various land use models, water quality models and watershed models. These computer models are mathematical representations of the real world that estimate environmental events and conditions. The models are at best imperfect, but they are nonetheless the best tool available to view the 64,000 square miles of the watershed. The Chesapeake Bay and its watershed are so large and complex, that scientists and regulators rely on computer models for critical information about the ecosystem’s characteristics and the impact of various environmental actions to reduce pollution. Mr. Bell lifted the curtain to point out some aspects of the models.

Although model simulations are an important part of the Chesapeake Bay regulatory mandate, they are not considered by the EPA to be perfect forecasts. Rather, model simulations are the current best estimates. The Chesapeake Bay Model is really made up of several models that are added together to create the whole: the Watershed Model, the Estuary Model, the Scenario Builder, the Airshed Model, the Land Change Model and the Land Use Models.

The Watershed Model incorporates information about land use, fertilizer applications, wastewater plant discharges, septic systems, air pollution, farm animal populations, weather and other variables to estimate the amount of nutrients and sediment reaching the Chesapeake Bay and which of the major land uses produce these pollutants. This is the most robust and calibrated portion of the model sequence because it is calibrated and validated on the major tributary basin levels where there is decades of measured water quality data available. The Watershed Model divides the 64,000-square-mile Chesapeake Bay watershed into more than 2,000 segments.

The Estuary Model examines the effects that pollution loads generated by the Watershed Model have on water quality. In the Estuary Model, the Chesapeake Bay is further divided into more than 57,000 computational cells and is built on two sub-models: The hydrodynamic sub-model and the water quality sub-model. The water quality sub-model is well calibrated for dissolved oxygen.. However, it is unclear that dividing up the world in ever smaller pieces gives you better resolution when there are not enough hard data points in the cells. Zooming in on a picture without adequate pixels does not increase the resolution.

The Scenario Builder can generate simulations of the past, present or future state of the Chesapeake Bay watershed to explore potential impacts of regulation and management actions and evaluate alternatives. This model creates the assumptions in the regulated community much like Sims game.

The Airshed Model uses information about nitrogen emissions from power plants, vehicles and other sources to estimate the amount of and location where these pollutants are deposited on the Chesapeake Bay and its watershed using information from vehicle registrations and DOT and weather.

The Land Change Model analyzes and forecasts the effects of urban land use and population on sewer and septic systems in the Chesapeake Bay watershed based on: population trends and forecasts, migration, satellite imagery, and waste water treatment plant service area and data. Finally, the Land Use model estimates the types and amounts of pollution that run off a particular land use are based on comprehensive reviews of the latest scientific literature.

Since most of the models were built and calibrated on the data that has been collected over the years they are well calibrated on the major tributaries and basins where most of the sampling and research has been done. The models are designed conservatively; all waste water treatment plants are assumed to discharge their maximum load simultaneously. The best management practices, BMPs, used to manage stormwater and runoff are assumed to be effective only at the low end of their effectiveness range.

In addition, according to Mr. Bell, the model was never designed to be accurate on the local level and this was confirmed in 2008 when the Scientific and Technical Advisory Committee, STAC, Peer Review recommended that the model not be used for local TMDLs. Nonetheless, that is exactly what the EPA did. The models reportedly produce some non-intuitive trends, poorly calibrated results and poor model behavior raising the question of whether the regulatory scheme relies too heavily on the model and will distort desired behavior. They have created a situation where base assumptions are based on the model’s presentation of reality and management practices are not selected for the cost and measured improvement on water quality or ease to maintain, but rather the impact these steps have on model results.

Potomac Watershed Roundtable Meeting:The Chesapeake Bay, the Virginia Watershed Implementation Plan, and the EPA mandated TMDL

The most recent meeting of the Potomac Watershed Roundtable was in Warrenton, VA at Lord Fairfax Community College and had a series of speakers on the Chesapeake Bay strict pollution diet, the Total Maximum Daily Load (TMDL) mandated by the EPA to the six Chesapeake Bay Watershed states and the District of the Columbia. The TMDL addresses only pollution from excess nitrogen, phosphorus and sediment. No action has been taken on other pollutants that might be present in the Chesapeake Bay and its tributaries.

On November 29th 2010 Virginia, submitted the final version of the Virginia Chesapeake Bay Watershed Implementation Plan (WIP) to the U.S. Environmental Protection Agency. The introduction to the revised plan states that full implementation of the plan would cost more than $7 billion dollars the WIP went on to state that “In these austere times, we cannot guarantee what additional funding will be provided by our General Assembly. It is our position that the success of the WIP may be subject to the provision of sufficient federal funding to assist in covering these massive new unfunded mandates.”

If you recall the first version of the Virginia WIP the plan did not meet the TMDL loading levels with “reasonable assurance.” On December 29th the EPA accepted the revised version of Virginia’s WIP and issued the “final” TMDL, but Virginia will have enhanced oversight. The January 7th 2011 meeting of the Potomac Roundtable addressed the next steps for the counties and towns in the Potomac Watershed. Russ Baxter, from the Virginia Department of Environment Quality, DEQ, closed the meeting with the State’s perspective and issues facing the state and local governments in implementing the WIP. I found Mr. Baxter’s perspective to be very enlightening and so I share some of his points.

Mr. Baxter was emphatic that the WIP is a living document intended to attain the TMDL and contains proposed management action among the sectors of the Chesapeake Bay Watershed that are the source of nutrient contamination to the Bay. The WIP is designed not only to satisfy the demands of the Federal regulators but to allow flexibility to the local governments in implementation to allow them to use the most cost effective approach to achieve the TMDL goals. Also, Mr. Baxter acknowledged that the septic portion of the WIP read like a limitation on developing new housing in the region, but that was not intended to happen.

When the Chesapeake Bay Model is revised to correct know deficiencies in the near future the TMDLs mandated to Virginia and the other states and DC will be revised and the Phase II of the WIP will have to be developed to reflect these changes. Though, the Phase II WIPs are supposed to be due in 2011, EPA has yet to notify the states and DC of the changes and in reality it is unlikely that the changes will be available before the annual Virginia Legislative session. Mr. Baxter pointed out that the WIP is intended to achieve the current 2017 check points with “reasonable assurances” and achieve a restored Bay by 2025. We know what direction we are heading in and can start this leg of the journey, making course corrections as we go.

The Potomac Watershed Roundtable was founded in 2000 and serves as a regional government-citizen forum to collaborate and cooperate on environmental issues among the various local government and stakeholder groups of nine counties, six towns and cities, the six soil and water conservation districts and various stakeholders including interested citizens.

Potomac Watershed Roundtable Meeting: The Virginia Watershed Implementation Plan, and septic regulation in Virginia

The most recent meeting of the Potomac Watershed Roundtable was in Warrenton, VA at Lord Fairfax Community College on January 7th 2011. The session addressed the Chesapeake Bay strict pollution diet, the Total Maximum Daily Load (TMDL) mandated by the EPA and the Virginia Chesapeake Bay Watershed Implementation Plan (WIP) to achieve the mandated reduction in nitrogen, phosphorus and sediment pollution.

The revised WIP also reduces the rate of growth in on-site sewage disposal systems, or septic. The stated intension is to raise the costs to operate a septic system through regulation which would make clustered systems or community systems more competitive and raise the overall cost of building and maintaining homes. The cost of constructing housing would increase in the area in response to these requirements. Though according to the Department of Environmental Quality, DEQ, it is not intended to limit regional growth, the requirements cannot help but impact housing costs and availability.

In addition the revised WIP proposes to require the offset new system loads through an expansion of the Nutrient Credit Exchange Program. The Commonwealth intends to implement amendments to Virginia Department of Health regulations for alternative systems which are currently a bit in limbo because of the temporary emergency regulations that the department of health has done little to enforce in much of the Commonwealth and are set to expire on April 7th 2011, but can be extended for 6 months.

The proposed amendments to the current Emergency Regulations that require all single family alternative onsite sewage systems, AOSS, continue to have professional operators certified by DPOR to operate and maintain the AOSS in accordance with the operating permit, and visited by the operator as specified in the operation permit (typically once or twice a year for preapproved commercial systems) and finally an annual maintenance report submitted to the regulators by the operator. In addition, sampling at startup to confirm proper functioning of the system and every five years for those systems put into operation after the date of the enabling legislation and not grandfathered, like mine.

In addition to those requirements the new legislation requires a minimum 50% reduction in delivered nitrogen for all new small alternative onsite systems in the Chesapeake Bay watershed resulting in an effective delivered load to the edge of the project boundary of 4.5 lbs TN/person/year. Single family home AOSSs are about to get very expensive in the Cheseapeake Bay Watershed if the regulations are enforced.

As Bob Marshall pointed out a few days ago, the civil penalty regulation establishing a uniform schedule penalties for violations of onsite sewage and alternative discharging sewage treatment system regulations. was withdrawn. There will be little or no enforcement. Those who ignore the law will not suffer any consequences. There seems to be very little follow through on the part of the VDH to even inform the public of the regulations.

The Potomac Watershed Roundtable of nine counties, six towns and cities, the six soil and water conservation districts and various stakeholders including interested citizens was at a loss of how to incorporate these requirements into their programs. If these regulations are necessary and appropriate, then they should not be voluntary. The public should be informed and simple and reasonable penalties established. The public comment period on these changes closes on February 4th 2011. There will be a public hearing on January 25th 2011 at 10 AM at the James Madison Building at 109 Governor Street in Richmond, VA.