The Virginia Bar AssociationOctober 22, 2009

Richmond, Virginia

Reginald ParrishU.S. Environmental Protection

Agency

Chesapeake Bay Program

Update on regulatory actions related to Executive Order and the bay TMDL

Discussion Points

• Background/Challenges

• Stormwater and the Bay TMDL

• Stormwater and the President’s Executive Order for the Bay

• Timelines

• How to get information and get involved

Chesapeake Bay Ecosystem

• Largest U.S. estuary• Six-state, 64,000 square mile watershed• 10,000 miles of shoreline (longer then

entire U.S. west coast)• Over 3,600 species of plants, fish and

other animals• Average depth: 21 feet• $750 million contribution annually to local

economies• Home to 17 million people (and counting)• 77,000 principally family farms• Declared “national treasure” by President

Obama

Source: www.chesapeakebay.net

28

27

14

16

Chemical Contaminants

Chlorophyll a

Mid-Channel Clarity

Dissolved Oxygen

Priority Areas

Summary: 2008 Bay Health Assessment

42

53

42

Tidal Wetlands

Bottom Habitat

Phytoplankton

Bay Grasses

Not quantified in relation to a goal

Data and Methods: www.chesapeakebay.net/status_bayhealth.aspx

48%of

Goals Achieved

Fish & Shellfish

Habitats & Lower Food Web

45%of

Goals Achieved

Water Quality

21%of

Goals Achieved

23

100

9

60

Juvenile Menhaden

Shad

Striped Bass

Oyster

Blue Crab

Not quantified in relation to a goal

Restored Bay

Main Sources of Pollution• Agriculture – animal manure, commercial fertilizer• Urban/suburban runoff – a growing problem• Air pollution – tailpipes, power plants• Wastewater – sewage treatment plants

New Approach to RestorationPerformance and Accountability

• Total Maximum Daily Load (TMDL): Mandatory ‘pollution diet’

• Chesapeake Bay Executive Order: New era of federal leadership

• Two-Year Milestones: State/local commitments to action • Consequences: Federal monitoring; consequences for lagging

progress

What is a TMDL?

• Regulatory tool of the Clean Water Act, Section 303(d)

• Identifies pollutant limit a clean waterbody can sustain. Includes:

– ‘Point sources’ like sewage treatment plants– ‘Nonpoint sources’ like polluted runoff from land– Margin of safety

Chesapeake Bay TMDL• EPA sets pollution diet

and oversees its achievement

• Restrictions on nitrogen, phosphorus and sediment

• Limits sufficient to meet states’ Bay clean water standards

The Bay science supports local pollution diets…

Phase 4 Watershed Model

Phase 5 Watershed Model

Pollution Diet for Each Impaired Tidal Water Segment

• Clean Water Act requires a TMDL for each impaired waterbody

• MD, VA, DE, DC have listed most of the Bay’s 92 tidal water segments as impaired

• All 6 watershed states must be part of reaching the prescribed diet for each of these Bay tidal water segments

Watersheds Draining to Virginia’s 35 Tidal Bay Segments

Counties Overlaying the Watersheds Draining to Virginia’s 35 Tidal Bay Segments

Stormwater and Wasteload Allocations

• Urban Workgroup working with states to identify approach for assigning allocations

• Must provide specificity to local governments• MD and VA considering approach to determine regulated

vs unregulated land uses• VA land use data lacking• Significant issues related to MS4 designations and

boundaries• R3 and CBPO working on efforts to refine MS4 permit

database and collect industrial permits data• Permits data to will be available for state and local

WLA’s

Stormwater Permits and Wasteload Allocations (WLA’s)

• Most states update regulations and programs• VA regulations under review – important to

establish performance std protective of water quality and anticipate TMDL

• State programs should incorporate actions into permits that achieve WLA

• Provide accountability and certainty

Mandatory Pollution Diet at Work

Watershed Implementation Plan Expectations

• Identify reductions by river basin, tidal segment watershed, county, source sector

• Identify gaps and strategy for building local capacity

• Commit to develop 2-year milestones at the county scale

• Develop contingencies

EPA Consequences

• Will be outlined in EPA letter this fall. May include:

– Assigning more stringent pollution reductions to point sources

– Objecting to state-issued NPDES permits

– Limiting or prohibiting new or expanded discharges of nutrients and sediment

– Withholding, conditioning or reallocating federal grant funds

President Obama’s Executive Order

• Signed May 12, 2009

• Designates Bay as national treasure

• Directs federal activities to create new generation of tools, accountability, and cooperation in restoring Bay

• Stormwater addressed in 202(a) and 202(c)

Draft Report 202(a)Summary of EPA’s Proposed Approach

• EPA would implement a three-part strategy to reduce nutrient and sediment pollution, two of the most widespread and long-standing water quality problems affecting the Bay

• EPA’s strategy guided by four themes:– Increased accountability and performance at all levels of

government– Expanded use of regulatory authorities to assure reductions in

pollution– Intensively targeting resources where they are needed the most– Harnessing the latest innovations to make leaps in progress

202 (a) Part One -- Create a new accountability program to guide federal and state efforts to restore the Bay

• Chesapeake Bay TMDL process will provide states and DC with draft loading reduction targets for nitrogen (N), phosphorus (P) and sediment in Fall 2009

• States and DC to provide EPA with “reasonable assurance” that nonpoint source (NPS) loading reductions will be achieved before EPA establishes final TMDL in Dec. 2010

• Clean Water Accountability programs in each state and DC– Achieve pollutant reductions from all sources – including nonpoint sources -- via

regs, permits, or enforceable agreements*– Include commitments to dates for needed regulations or other instruments to be

established and implemented to achieve TMDL allocations• Series of 2-year milestones of near-term goals to evaluate progress toward

water quality goals

*enforceable nonpoint source programs expected in MD, VA, PA and DC -- the Chesapeake 2000 Agreement signatory jurisdictions. WV, DE and NY have committed to water quality goals through a Memorandum of Understanding and would not have to adopt enforceable programs if they commit to alternative programs that EPA can be assured will result in necessary reductions and demonstrate progress through 2-year milestones

202(a) Strategy

New accountability to guide federal and state actions to reduce nutrients and sediments. Consequences:

- permits objections

- limit new or expanded discharges

New rulemakings/actions under the CWA, the CAA, and other authorities

- CAFOs

- Stormwater

- New and expanding sources

Enhanced partnership between USDA and EPA

202(a) and Stormwater

1) Additional requirements to address stormwater from new and redevelopment

2) Requiring retrofits in areas served by MS4s

3) Expanding universe of areas covered under MS4 programs

202(a) and Stormwater

Additional requirements to address stormwater from new and redevelopment

• Complete retention of runoff from 95 percentile storm event

• Infiltrate, evapotranspirate, use/reuse • 1.2-1.7 inches in Cbay Watershed• Per draft guidance, option 2 calculate predevelopment

hydrology• Offsets, fee in lieu as off-ramp for unmet portion

202(a) and Stormwater

Requiring retrofits in areas served by MS4s

• Necessary to meet local and bay water quality• Establish goals by permit cycle• Consider broad definition of retrofit • Goals my differ based on land use (e.g large

commercial, institutional)• Residential incentives

202(a) and Stormwater

Expanding the universe of areas regulated under NPDES

• Use of residual designation if necessary• New census and urban areas• Target areas of growth and impervious cover • May target key impaired hotspots• Residual designation may include individual facilities,

jurisdictions, etc

Stormwater Rulemaking Options

• National rule vs Bay specific rule• National rule w/ Bay specific provisions• Coordinate with Construction and Development Effluent

Guideline (12/09)• Work in concert with states to make revisions• Others?

202(c) and Stormwater

Stormwater on Federal Facilities

• Fully implement EISA Section 438• New development and redevelopment projects retain

runoff from 95th percentile storm event (projects 5000 square feet of more)

• Facilities establish compliance targets for retrofit• Led by DOD• EPA to establish SW best practices guide

How, When and Where to Get InvolvedMajor basin

jurisdictionloading targets

Oct 2009

2-yearmilestones, reporting, modeling, monitoring

Starting 2011

Divide Target Loads among Watersheds,Counties, Sources

Watershed Implementation

Plans: November 2009 – March 2010

Final TMDL Established

PublicReviewAndComment

June-September

2010

Dec 2010

Program Capacity/Gap

Evaluation

Bay TMDL Public Meetings

November-December

2009

Executive Order Next steps, timelines

• November 9th release 180 day report for public comment

• Agency continues to explore Stormwater regulatory options

• Consult with White House CEQ and other partners

• Begin rulemaking based on comments

• Final report May 12, 2010