Thursday, June 21, 2018

EPA Outlines Specific Expectations For PA To Meet In The Next Phase Of Chesapeake Bay Restoration, And The Consequences If We Don’t

The U.S. Environmental Protection Agency Wednesday notified Pennsylvania, New York, Delaware, Maryland, Virginia, West Virginia, and the District of Columbia of what the agency expects to see in state and local implementation plans for the third phase of the Chesapeake Bay Total Maximum Daily Load (TMDL).
Four pages of the 18 page expectations document outlines specifically what is expected of Pennsylvania and a series of steps EPA could take if Pennsylvania does not live up to these expectations.
A page and a half was devoted to specific expectations for Delaware, the District of Columbia, Maryland and Virginia combined.
If it was not clear before, EPA made the point clearly that Pennsylvania will be held accountable for meeting its Chesapeake Bay cleanup obligations, obligations it has committed itself to in several Chesapeake Bay Agreements over decades, and that EPA’s role is to provide that accountability.
EPA laid out 7 actions it could take in the absence of credible steps by Pennsylvania to achieve nutrient and sediments reductions required by the Bay Agreements by 2025.  Those steps include--
-- Target federal environmental enforcement and compliance assurance efforts in the Pennsylvania portion of the Chesapeake Bay Watershed;
-- Expand full NPDES Water Quality Permit coverage to animal feeding operations, industrial and municipal stormwater sources and/or urbanized areas;
-- Redirect Chesapeake Bay or other EPA grant funding to other parties to implement practices in priority areas when the Commonwealth has been unwilling or unable to implement necessary load reductions;
-- Redirect EPA Chesapeake Bay funding to priorities EPA identifies if the Commonwealth does not adequately target workplans and funding toward priority actions;
-- Adopt its own “finer scale” wasteload and load reduction allocations through a Pennsylvania-specific amendment to the Chesapeake Bay TMDL;
-- Impose additional reductions of loadings on point sources such as municipal and industrial wastewater facilities in order to increase the share of allocations to stormwater and/or agriculture; and
-- Promulgate nitrogen and phosphorus numeric water quality standards for Pennsylvania streams and rivers in the watershed that would affect all development.
This is not the first time EPA has clearly set out its expectations for Pennsylvania in the Chesapeake Bay Program, only the most recent.
EPA already has Pennsylvania at so-called backstop levels for agricultural and urban/suburban stormwater sectors.  This means they have substantial concerns with Pennsylvania’s strategy to implement measures to achieve the goals and it may take federal action to get the state back on track.
Just last year in June of 2017, EPA wrote a letter to Pennsylvania saying the Commonwealth needs a realistic Plan showing how it will provide enough funding and staff to dramatically ramp up its Bay-related pollution control efforts, or it could face a variety of potentially costly federal actions within the next two years.
The FY 2018-19 budget just adopted by the House and now being considered by the Senate has no additional funding to address Pennsylvania’s Chesapeake Bay obligations in spite of requests by Pennsylvania’s representatives on the interstate Chesapeake Bay Commission to establish a Clean Water Fund, environmental groups calling for more investments in green infrastructure through the state’s Environmental Stewardship (Growing Greener) Fund (which has actually been cut by 75 percent over the last decade) and a recommendation to earmark a portion of any natural gas severance tax for water quality and other environmental restoration projects.
The Chesapeake Bay Program is a partnership between EPA and the states and the federal government has to keep up its end of the bargain in terms of resources too.
The Trump Administration has repeatedly proposed cutting or eliminating Farm Bill and other EPA funding critical to implementing Chesapeake Bay reductions.  Fortunately, Congress, with bipartisan support, has not gone along with those cuts, yet.
Pennsylvania’s Chesapeake Bay Watershed Implementation Plan Steering Committee is now developing the state’s plan to meet the 2025 milestone reductions and has a workgroup specifically on finding additional resources for cleanup up rivers and streams in the state.  (Click Here for more on Pennsylvania’s strategy.}
It’s worth repeating in its entirety to more completely understand the challenges Pennsylvania faces, how far behind the state is in meeting those challenges because of a decade of cuts to environmental funding and staff by the General Assembly and a variety of Governors of both parties.
EPA Expectations Document For PA
The Chesapeake Bay and its watershed are significant national resources, supporting approximately 18 million people, and an estimated $1 trillion of economic activity. As an upstream jurisdiction in the nation’s largest estuary, Pennsylvania has a significant impact on the Bay and much of its watershed, and has a pivotal role in the ongoing restoration effort.
The Susquehanna River provides about 50 percent of the freshwater flows to the estuary, about half of the nitrogen, and more than a quarter of the phosphorus flowing into it.
Through a combination of regulatory controls and voluntary actions in urban/suburban and agricultural settings, Pennsylvania has reduced its loadings of nitrogen to the Bay by 14 million pounds over the past 32 years (since 1985).
During this period, Pennsylvania should have reduced its loadings of nitrogen to the Bay by 28 million pounds.
Between 2018-2025, Pennsylvania needs to reduce its nitrogen loadings by 35 million pounds in order to achieve its Phase III WIP nitrogen target.
The Commonwealth faces a number of challenges in meeting its commitments to achieve the pollutant load reductions called for in the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) including limited resources to effectively implement regulatory programs.
Pennsylvania has reaffirmed these commitments as a signatory of the 2014 Chesapeake Bay Watershed Agreement and in 2016 with the release of the Pennsylvania Chesapeake Bay Restoration Strategy.
The Chesapeake Bay Restoration Strategy informed Pennsylvania’s 2016-2017 milestones and details Pennsylvania’s commitment to increase compliance with state agricultural regulations and to improve tracking of non-cost shared agricultural conservation practices.
Additional commitments from Pennsylvania’s Restoration Strategy include improving implementation reporting and data tracking systems, creating a Pennsylvania Chesapeake Bay Program office, obtaining additional resources to improve water quality, and identifying legislative, programmatic, or regulatory changes necessary to meet the pollutant load reduction goals by 2025.
Phase I and II WIP and two-year milestone commitments that Pennsylvania has consistently not addressed include:
-- Increasing levels of BMP implementation resulting from both programmatic improvements and increases in implementation and targeting of priority practices in the Agriculture and Urban/Suburban Stormwater sectors;
--  Targeting geographic areas with the greatest nutrient pollutant load reduction potential for the Chesapeake Bay in order to target funding to the most effective practices and watersheds;
--  Revising its October 2010 Nutrient Trading Program regulations to address both the issue of the agriculture baseline being consistent with the Bay TMDL and nutrient credit calculation, as well as reconciling and updating these regulations with the trading policies Pennsylvania placed on its Chesapeake Bay Nutrient Trading website in late 2014 and in its Phase II WIP Supplement in 2016;
--  Ensuring farms are implementing manure management plans as required by Chapter 91.36 and Erosion and Sediment Control or Conservation Plans per Chapter 102, and that Pennsylvania is using its authority to ensure BMPs are being implemented per those plans;
-- Pursuing advanced technologies to address manure, and providing additional BMP alternatives if technologies are not providing the intended results; and
-- Revising the Stormwater Management BMP manual.
The Chesapeake Bay Program partnership decision support tools allow the Commonwealth to develop various scenarios to demonstrate a combination of cost effective practices with the intent to achieve the 2025 nutrient and sediment pollutant load reduction goals.
Pennsylvania can use the scenarios to determine innovative financing mechanisms to make the effort affordable using all available tools.
In addition to requirements under the Clean Water Act, the Commonwealth has its own local incentives to act:
-- Impaired water quality conditions in local streams, lakes, and rivers;
-- Increased nuisance algae in the Susquehanna River; and
--  high nitrate levels with health implications for local drinking water supplies.
Within the Chesapeake Bay watershed, Pennsylvania has approximately 14,800 miles of impaired rivers/streams (6,444 miles have a completed TMDL; 8,374 miles are on the 303(d) list and in need of a TMDL).
Of the 14,800 impaired miles, Pennsylvania has identified 1,725 miles as impaired for nutrient related impacts (1,368 miles for nutrients, 525 miles for organic enrichment/low Dissolved Oxygen and 33 for excess algal growth) and 4,976 miles impaired for siltation of which sediment (Total Suspended Solids) is a component.
Over the past 5 years (2013-2017), based on data in the Safe Drinking Water Information System, within the Chesapeake Bay watershed, Pennsylvania has had over 75 drinking water systems with nitrate Maximum Contaminant Level violations (post-treatment finished water) which have impacted nearly 17,000 people.
With these concerns in mind, EPA provides the following specific expectations to guide Pennsylvania’s development of a Phase III Watershed Implementation Plan (WIP) that would outline the actions, document the necessary financial commitments, and provide assurance to the citizens of Pennsylvania, other Chesapeake Bay watershed jurisdictions, and all who depend on a healthy Chesapeake Bay, that Pennsylvania will meet its nutrient and sediment goals under the Bay TMDL.
EPA expects that Pennsylvania’s Phase III WIP will include the technical details (Best Management Practice (BMP) input deck) and evidence of public stakeholder engagement necessary to show it will meet its Phase III WIP planning targets. With a commitment for execution and a schedule for implementation, the Phase III WIP should include:
-- Local planning goals, showing how the Phase III WIP goals will be achieved through action at county, municipal, and/or sub-watershed scales — especially in priority areas in the Susquehanna and Potomac River watersheds where the most impact to the Bay and local water quality can be achieved.
A wealth of decision support tools and high-resolution information is now available to assist in identifying sources of nutrients and sediment, determining appropriate practices to reduce pollution flows, and calculating costs associated with selected actions such as the Chesapeake Bay Assessment and Scenario Tool (CAST).
In addition, the U.S. Geological Survey (USGS) identified sources of nitrogen, phosphorus, and sediment within the Chesapeake Bay that can help Pennsylvania and its local partners determine where to target their efforts.
-- Demonstrated collaboration among local governments, state agencies, watershed and other citizen organizations, academic institutions, agricultural sector leaders, farmers, stormwater and drinking water utilities, source water specialists, and others as partners in identifying, planning for, and implementing the agricultural, urban stormwater, and wastewater actions needed to meet Pennsylvania’s 2025 Bay TMDL goals;
-- Commitment to programmatic, policy, legislative, and regulatory changes needed to implement Pennsylvania’s Phase III WIP and meet Bay TMDL goals. Examples of this commitment, previously discussed with Pennsylvania, include:
-- Public identification of priority practices and priority watersheds to target resources and  implementation to maximize nutrient and sediment pollutant load reductions, consistent with the tiered approach for those highest nutrient loading counties.
-- EPA expects Pennsylvania to share the results of the county pilots in Adams, Franklin, Lancaster, and York Counties after they are conducted this summer to determine if EPA funding and resources need to be redirected towards more priority practices and geographic areas;
-- Implementation of initiatives, including Agriculture Recognition Programs and Agricultural Certainty, designed to implement nutrient management planning and other priority agricultural BMPs;
-- Restrictions on manure application during winter months to protect drinking water sources and ensure local and Chesapeake Bay water quality protection, and a plan for proper management of manure during the winter months;
-- Extension of Chapter 38 nutrient management requirements to all animal and crop operations through statutory, regulatory and/or policy changes, as necessary;
-- Implementation of manure treatment and manure transport programs for areas of manure imbalance;
-- Development and implementation of a state agricultural cost share program to assist farmers in implementing priority agricultural conservation practices that are called for in the Pennsylvania’s WIP and to address local water quality impairments;
-- Development of agricultural tax credit programs that incentivize compliance with state regulatory requirements and higher levels of agricultural conservation practice implementation.  For example, link the Clean and Green tax credit program to compliance with the state agricultural regulatory requirements and consider higher tax credits for higher levels of agricultural conservation practice implementation; and
-- Revision of state trading regulations and NPDES permits to address trading program deficiencies and facilitate MS4 and interstate trading in order to allow permittees to manage their compliance obligations cost effectively and leverage nitrogen and phosphorus reductions.
-- Commitment to the level of staff, partnerships, and financial resources needed to fully implement the practices, treatments, and technologies necessary to achieve Pennsylvania’s Phase III WIP planning targets, including maximizing capacity between the Pennsylvania state agencies to fund and implement grant commitments. An example of this commitment includes:
-- Perform a workload analysis of the Commonwealth’s core state programs, voluntary programs, and grant programs to identify the level of staffing necessary to meet Chesapeake Bay Implementation goals and submit this analysis and a resource strategy, detailing the actions and schedule necessary to address staffing resource needs;
-- Continuing to track, report, and participate in quarterly grant meetings with EPA to demonstrate Pennsylvania’s commitment to reduce the amount of unspent or unliquidated obligations (ULOs) for Chesapeake Bay Regulatory and Accountability Program (CBRAP) and Chesapeake Bay Implementation Grant (CBIG) grant funding
-- Contracting out or otherwise obtaining services of a third party to perform activities central to the implementation of the Phase III WIP;
-- Modification of the current expected reductions for the Urban/Suburban Stormwater sector; and Commitment to additional reductions of loadings from point sources to include reductions in current facility specific wasteload allocations for the significant municipal and industrial wastewater discharging facilities in order to increase the share of the allocations to stormwater and/or agriculture.
EPA Oversight
Given the deficits in Pennsylvania’s projected pollutant load reductions in the Agricultural and Urban/Suburban Stormwater sectors, EPA commits to continue working closely with Pennsylvania in the development of Pennsylvania’s Phase III WIP by providing technical assistance and feedback along the way.
EPA will review the details of Pennsylvania’s draft Phase III WIP in 2019 to assess the adequacy of the programs and policies for confirmation that the Commonwealth will meet its 2025 Bay TMDL goals.
As long as Pennsylvania remains far off track for nitrogen and phosphorus reductions, EPA expects more frequent and detailed reporting of progress by Pennsylvania as part of EPA’s enhanced oversight of Pennsylvania. This oversight reflects EPA expectations that:
-- Pennsylvania will demonstrate there are sufficient resources to meet the Commonwealth’s Phase III WIP implementation needs;
-- In coordination with EPA, Pennsylvania should pursue innovative partnerships with federal, state, and local entities to incentivize sensible market-based approaches and technologies that enhance economic growth and accelerate nutrient and sediment reductions to maximize protection of Pennsylvania’s air, land, and water resources;
-- Every six months Pennsylvania will report on progress towards achieving its programmatic milestone commitments:
--EPA will maintain the current milestone progress reporting deadlines of December for numeric progress and January for programmatic progress with an EPA evaluation provided in the spring; and
-- EPA will conduct an additional review of Pennsylvania’s programmatic progress with an update from Pennsylvania due the end of September and EPA will provide feedback in the fall;
-- Any Chesapeake Bay funds provided to the Commonwealth for implementation should be applied only for the Pennsylvania identified priority watersheds within the Susquehanna and Potomac River watersheds, consistent with the county-level tiered approach; and
-- Chesapeake Bay grant workplans should be in alignment with the evaluation findings of priority actions and needs, and EPA will continue to perform semi-annual grant evaluations with a goal to align the grant evaluation with the progress evaluations.
In EPA’s role to provide accountability, EPA will assess all potential and appropriate federal actions under its discretionary authority under the Clean Water Act (CWA) as described in the EPA letter to the partnership Principals’ Staff Committee in December 2009 and in the 2010 Chesapeake Bay TMDL Section 7.2.4 to take any or all of the following potential actions. Several examples of potential actions EPA could take specific to Pennsylvania include:
1. EPA may continue to target federal enforcement and compliance assurance in the watershed, which could include both air and water sources of nitrogen, phosphorus, and sediment pollutant loads;
2. EPA may expand NPDES permit coverage through designation, as provided by the Clean Water Act and its regulations, for the following sources of pollutants not currently regulated under any NPDES permits: animal feeding operations, [industrial and municipal] stormwater sources, and/or urbanized areas. Such designations would require those sources to apply for NPDES permit coverage and would assist Pennsylvania in achieving the pollutant load reductions proposed in its Phase III WIP;
3. EPA may redirect Chesapeake Bay or other EPA grant funding to a third party (through a grant, cooperative agreement, or contract) to implement practices in priority areas in Pennsylvania when the Commonwealth has been unwilling or unable to implement necessary pollutant load reduction practices or spend down EPA grant funds in an efficient and timely manner;
4. EPA may direct Chesapeake Bay funding to identified priorities in the EPA evaluations if the Commonwealth does not adequately target workplans and funding toward priority actions and watersheds within the Susquehanna and Potomac River watersheds and other expectations of EPA’s evaluations;
5. EPA may establish finer scale wasteload and load allocations through a Pennsylvania state-specific proposed amendment to the 2010 Chesapeake Bay TMDL to include more specific wasteload allocations for additional municipal and industrial wastewater discharging facilities, concentrated animal feeding operations, and regulated stormwater municipalities, as well as more finely, geographically scaled load allocations for the non-federally regulated agricultural, stormwater, and other pollutant source sectors than are contained in Pennsylvania’s Phase III WIP;
6. EPA may require additional reductions of loadings from point sources through a Pennsylvania state specific proposed amendment to the 2010 Chesapeake Bay TMDL to include reductions in current facility specific wasteload allocations for the significant municipal and industrial wastewater discharging facilities in order to increase the share of the allocations to stormwater and/or agriculture; and
7. EPA may initiate a process to propose promulgating nitrogen and phosphorus numeric water quality standards for Pennsylvania applicable to streams and rivers in Chesapeake Bay watershed.
Click Here for a copy of the EPA expectations statement.
Following release of the letter, Chesapeake Bay Foundation President William C. Baker issued this statement:
“These expectations provide a sound framework for the Bay jurisdictions to develop plans to achieve the 2025 goals. As we have seen in the past, however, the success of the plans will depend on how well they are implemented.
“The EPA letter recognizes what we found in our assessment—the states need to accelerate efforts to reduce polluted runoff from agricultural and urban/suburban areas.
“The letter specifically details where Pennsylvania has fallen short in the past. It outlines actions EPA may take to hold the Commonwealth accountable. Now, Pennsylvania must develop a plan to close the gap and meet its 2025 commitments. If the plan does not, EPA must compel action.”
For more information on the Bay program, visit EPA’s Chesapeake Bay Program webpage.
Visit DEP’s Pennsylvania’s Chesapeake Bay Plan webpage for more information on the steps being taken to develop Phase 3 of Pennsylvania’s Chesapeake Bay Watershed Implement Plan.
(Photo: Award-winning forested buffer stream restoration project on a plain sect farm in Lancaster County.)
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