Chesapeake Bay Program Partnership 25 Years and Still a Long Way to Go: Why We Must Go a More Regulatory Route and What

1
Chesapeake Bay Program Partnership25 Years and
Still a Long Way to Go Why We Must Go a More
Regulatory Route and Whats Going to be
DifferentFebruary 20, 2009
2
All The State of the Bay Reports Have the Same
Bottom-line
the Bays health remains degraded.
Sources UMCES 2008, CBP 2008, CBF 2007
3
In 2002, over 90 of the Bay and its tidal rivers
were impaired due to low dissolved oxygen levels
and poor water clarity, all related to nutrient
and sediment pollution. Without oxygen and
grasses, the Bays crabs, oysters, and fish
cannot survive and thrive.
Impaired Water
Source U.S. EPA 2002
4
2007 Bay Health Summary

• Most of the Bays waters are degradedless than
  one-third of Bay water quality goals are being
  met.
• The Bays critical habitats and food webs are
  currently at about a third of desired levels.
• Many of the Bays fish and shellfish populations
  are below historic levels.

Source CBP 2008
5
Extensive low to no dissolved oxygen conditions
persist throughout the Chesapeake Bay and its
Tidal Tributaries
Source www.chesapeakebay.net/data
6
Bay Restoration About 50 of Actions Taken
Source CBP 2008
7
At Current Rate of Implementation, We are Not
Going to Achieve Our WQ Goals by 2010
Source CBPO 2008
8
Nitrogen Loads to the Bay Still Above the 175
Million Lbs Basinwide Loading Cap
Nitrogen Cap Load
Monitoring-based estimates for major rivers and
below fall-line wastewater treatment facilities
plus model-based estimates for coastal plain
portion of watershed.
9
Phosphorus Loads to the Bay Still Above the12.8
Million Lbs Basinwide Loading Cap
Phosphorus Cap Load
Monitoring-based estimates for major rivers and
below fall-line wastewater treatment facilities
plus model-based estimates for coastal plain
portion of watershed.
10
Our Rivers are Running CleanerBut Still Arent
Clean Enough
Source CBP 2008
11
So, Why a Bay TMDL Now?

• Impaired waters over 90 of Bay and tidal rivers
• EPA Policy requires development of a TMDL within
  8-13 years of listing waterbody as impaired
• Bay waters and tidal tributaries were listed as
  impaired on 303(d) lists in 1998 by MD, VA, DE,
  DC
• Legal obligations Lawsuit settlements (consent
  decrees) with VA and DC and MOU between MD and
  EPA resulted in 2010/2011 deadlines
• Accelerate implementation use latest science and
  increased accountability to expand implementation
  and speed up Bay restoration

12
TMDL 101 Required Elements

• TMDL WLA LA MOS
• WLA Waste Load Allocation to Point Sources
  and NPDES-regulated Stormwater Discharges
• LA Load Allocation to Nonpoint Sources
• MOS Margin of Safety against uncertainties
• TMDLs must also
• Address critical conditions and seasonality
• Include public review and participation
• Be designed to achieve applicable Water Quality
  Standards

13
Sorry, but this just aint like your Mamas TMDL!
14
So Whats Different?

• Scope
• Allocation Scale
• Accountability
• Consequences
• Adaptive
• Implementation-focused

15
Whats the Scope of the Bay TMDL?

• Entire watershed
• Nutrients, sediments
• All sources
• Oxygen, clarity/Bay grasses, algae
• All impaired tidal water segments

16
Impaired Segments

• Clean Water Act requires a TMDL for each impaired
  waterbody
• States, DC have listed Bay tidal waters on the
  basis of designated use by tidal Bay segments

17

• Maryland will have 51 TMDLs one for each
  impaired tidal segment
• Each TMDL will address all sources within the
  watershed directly draining into the impaired
  tidal Bay segment

18
(No Transcript)
19
Whos Developing the Bay TMDL?

• EPA given interstate waterbody, watershed
• Six state watershed with four jurisdictions
  sharing tidal waters
• Ex. NY loads influence MD and VA bay water
  quality conditions
• Watershed jurisdictions are all at the table
  actively contributing, providing input at each
  step
• Local governments and interested public have a
  key role in crafting next generation of
  implementation plans and helping ensure future
  reduction actions can meet states Bay water
  quality standards

20
Scale of allocations 2003
Major River Basin
Major River Basin by Jurisdiction
Jurisdiction Tributary Strategy Basin
Agreed to by the Chesapeake Bay Program Partners
Partners Decision
21
Starting point from Bay watershed model
County Segment
Impaired Segment
Tributary Basin
County
State
leading to various aggregations of county
segments.
22
Chesapeake Bay Program Past Modeling Structure
Do we have the right scale of data?
Airshed Model
Watershed Model
Estuary Model
23
Yes We Do
New Generation of the Partnerships Bay Models
Airshed Model
Watershed Model
Estuary Model
24
and Then Some

• Phase 4 Watershed Model

Phase 5 Watershed Model
25
Assurance Reductions Can be Made
26
Four Key Questions

• What needs to be done?
• Who will be doing it at the state and local
  scale?
• How will it be done?
• By when will it be done?

Answers in the next generation implementation
plans!
27
What Consequences?

• Built into the reasonable assurance framework
• To be spelled out by EPA within the Bay TMDL
• Asking for contingencieswhats plan B
• Driving an adaptive approachdiscard whats not
  working and ramp up to the next level
• Integral component of the 2-year milestones
• Must make up for whats not achieved and make
  mid-course changes to implementation

28
We Gotta Adapt!

• Factor in new, more local data
• Develop/apply new tools
• Update implementation plans
• Amend the Bay TMDL

29
Implementation or Bust!

• Fair share new allocation methodology
• Assign responsibility for taking actions local
  allocations
• All hands on deck allocations to source sectors

30
Implementation or Bust!

• Need for accountability for inaction
  consequences/contingencies
• Adapt or fail commitment to change as we learn
  more
• The devil is in the details next generation
  implementation plans

31
Whats Up Next?

• February 2009 EPA publishes Notice of Intent to
  Develop Bay TMDL in Federal Register
• May 2009 Governors/Mayor announce draft refined
  cap loads, caps by states and the District, new
  deadline for implementation and 2-year milestones
• June 2009-May 2010 Local governments, local
  implementors engaged in revising implementation
  plans, exploring new approaches to closing gaps
  on whats needed to restore individual impaired
  tidal waters
• June 2009 Coordinated EPA/States public
  outreach begins
• May-October 2009 States allocate nutrient and
  sediment caps within Bay segments, tributary
  basins

32
Whats Up Next?

• Nov 2009 States provide recommended nutrient
  and sediment allocations to EPA for verification
  of achievement of states Bay water quality
  standards
• Feb-Dec 2010 States, locals revise tributary
  strategies to reflect draft allocations
• May 2010 Governors, Mayor announce formal
  public review of the draft Bay TMDL
• June-Sept 2010 Approximate public comment
  period for draft TMDL report
• Oct-Nov 2010 Partners approval of final Bay
  TMDL
• Dec. 31, 2010 EPA establishes TMDL by
  accelerated deadline

33
No Surprises this Time!

• Going to more difficult to reach cap loads and
  achieve water quality standards this time
• Facing the possibility of expanded Bay water
  quality standards restoration variances
• Need to talk about implementation means and
  mechanisms beyond what exists today including
  more mandated efforts, new authorities/resources/t
  ools needed

34
2-Year Milestones Guidelines

• Focused on Bay water quality restoration goals
• Jurisdiction-specific milestones could be rolled
  up into a single, basin-wide summary
• Possible milestones outcomes include
• Acres of practices implemented
• Pounds of pollution reduced
• Adoption of new regulations, legislation,
  policies
• Common set of milestone attributes will ensure
  consistency, accountability and ease of
  communications
• Milestones will be based on the new Bay cleanup
  deadline

35
Milestone Attributes

• Measurable, trackable, reportable and related to
  the end goal (cap load allocations)
• Translate or relate actions and resources to Bay
  water quality endpoints
• Using common currency (e.g., delivered load to
  tidal waters)
• Applying translator tools (e.g., Bay watershed
  model)
• Not just limited to pounds reduced and acres
  implemented
• Need to get at the means for accelerating
  implementation
• Could set milestones for seeking funding, new
  authorities (e.g., regulation, legislation,
  policies)

36
Cleanup Deadline Guiding Principle

• Cleanup deadline is
• The date by which all the actions required to
  achieve the jurisdiction-specific and basinwide
  cap load allocations have been fully implemented
  on the ground

37
Initial Evaluation to Full Implementation

• Based on 2000-2008 implementation rates,
  estimated the jurisdictions would full achieve
  their nitrogen cap loads by
• 2014 DC
• 2020 New York
• 2012 Delaware
• 2024 West Virginia
• 2032 Pennsylvania
• 2037 Maryland
• 2044 Virginia

Analysis conducted for the PSC-October 2008
38
Initial Evaluation to Full Implementation

• Based on doubling of current implementation
  rates
• DC, New York, Delaware and West Virginia would
  achieve their nitrogen loading caps by 2020
• Pennsylvania would be at 96 of achievement
• Maryland at 93
• Virginia at 81

39
Setting the New Deadline

• Based on implementation rates used by states to
  set 2-year milestones and anticipated future
  implementation rates
• Factor in projected growth in loads over next two
  decades
• Determine whether to set overall basinwide
  deadline or jurisdiction-specific deadlines

40
For PSC April Retreat

• Proposed new Bay cleanup deadline
• Proposed jurisdictional 2-year milestones
• New draft basinwide nutrient/sediment load caps
  (full attainment of states Bay WQ standards)
• New draft nutrient/sediment cap load allocations
  by major tributary basin by jurisdiction

41
For PSC April Retreat (Cont)

• Information on Bay water quality response to
  incremental load reductions from current down to
  draft basinwide caps
• Information on maximum feasible implementation
  levels and resultant loads and Bay WQ response
• Information on how the allocations were derived
• Explanation of basis for a likely new Bay UAA

42
For PSC April Retreat (Cont)

• Implications for states existing WQ standard
  regulations and the Bay TMDL under a Bay UAA
• Proposed schedule/process leading to December
  2010 and Bay TMDL adoption
• Local government/ public stakeholder engagement
  post the May 2009 Executive Council meeting
• Continued development of the Bay TMDL and more
  source sector and geographic specific allocations

43
Questions for CAC

• Does CAC agree with the key components of the Bay
  TMDL as currently envisioned local allocations,
  reasonable assurance, contigencies/consequences,
  revised implementation plans
• Would you recommend the Executive Council
  announce the draft allocations at the May meeting
  to start the public engagement process?

44
Questions for CAC

• How do we best engage the public on whats
  feasible and the possible trade-off with Bay
  water quality?
• Does the approach to setting the new deadline
  make sense to CAC?
• How do we best communicate the new deadline?

45
Questions for CAC

• How can CAC help ensure the jurisdictions 2-year
  milestones are a stretch yet achievable?
• Does CAC envision taking on a proactive advisory
  role at the April PSC retreat?
• What roles can CAC take on during the 19 months
  following the May EC meeting up through final
  adoption of the Bay TMDL in December 2010?

46
Contact Information
Rich Batiuk Associate Director for Science U.S.
Environmental Protection Agency Chesapeake Bay
Program Office 410 Severn Avenue, Suite
109Annapolis, MD  21403 410-267-5731 batiuk.rich
ard_at_epa.gov www.chesapeakebay.net