TMDL

Why Section 401 is Important to the Chesapeake Watershed

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The Clean Water Act Section 401 is one of our nation’s bedrock environmental laws. Passed in 1972, Section 401 authorizes states and tribes to review the impacts of many federally licensed projects on waterways and wetlands within their jurisdiction and to limit or stop unacceptable projects. These can include hydroelectric dams, pipelines, and fossil fuel export terminals and have the potential to significantly degrade water quality by damming major rivers, destroying acres of wetlands, and causing significant erosion and sediment pollution. With sediment loads being targeted for major reductions in the Chesapeake Bay TMDL, it is crucial now more than ever to ensure that Bay jurisdictions are able to hold these massive projects accountable in the Bay’s cleanup.

Section 401 review can be states’ and tribes’ only meaningful opportunity to protect their own resources. States and tribes are able to better protect all types of water use, including drinking water; commercial, tribal, and recreational fishing; swimming; critical wildlife habitat; and outdoor recreation.

EPA’s changes to Section 401 of the Clean Water Act will make it even harder for local communities to have a voice in how these projects affect their waterways or degrade their water quality. It will limit the reasons states and tribes can reject, or place conditions on, projects that could pose harm to water quality. It will also give state and tribal authorities’ arbitrary time constraints that will limit their ability to adequately review applications. Limiting this authority will serve only to create less accountability and to increase the threat of sediment pollution. In the Chesapeake, this could have significant impacts on the ability for Maryland to implement conditions on the Conowingo Dam certification and for all states when it comes to pipelines.

These changes will leave states and tribes without sufficient time, information, and resources to ensure that a project will not harm water quality. Our representatives and each state’s inhabitants must speak out on this issue before the EPA takes away every state’s environmental rights. Comments from the public are critical in this decision and can be submitted here until October 21, 2019. 

The official announcement can be found here.

Additional resources and information can be found through the Southern Environmental Law Center or the James River Association.

Kelsey Hillner is the policy and campaigns manager with the Virginia Conservation Network.

Five Years Strong: Delaware's Water Warriors Continue to Rally for Clean Water

Clean Water; Delaware’s Clean Choice

Clean Water; Delaware’s Clean Choice

Delaware is no stranger to water quality and flooding issues; the need for sustainable clean water is growing. After all, 90 percent of Delaware’s waterways are considered impaired and communities across the state, many of which are underserved, face chronic flooding. As the need for clean water funding grows, state and local budgets decrease, leaving a large gap between funding and statewide needs. Delaware Nature Society (DNS) has studied and advocated for Delaware’s water quality for decades and concluded that it would take a grassroots advocacy and education effort to push for much needed funding. So, in 2015 DNS brought together a core group of conservation organizations and pitched the idea of building a statewide outreach and education campaign to grow a strong, unified voice for clean water funding.

With a resounding “yes!” Partnership for the Delaware Estuary and Delaware Center for the Inland Bays joined us to hit the ground running to build Clean Water: Delaware’s Clear Choice campaign. Ambitious and excited, we hosted our first Clean Water Rally that year. A group of around 50 people joined us in Dover to fight for clean water funding and to introduce our mission to decision makers.

Fast forward four years to our recent 5th Annual Clean Water Rally. We stood alongside over 150 blue-clad Water Warriors (our ever-growing group of clean water advocates), Clean Water Alliance members (our diverse clean water stakeholder coalition), legislators, community activists, and tv cameras as we rallied for House Bill 200, the Clean Water for Delaware Act. The legislation, which would dedicate funding for clean water and flood resiliency projects, features sponsorship by House Majority Leader Valerie Longhurst and Senate President Pro Tempore David McBride.

After the rally, our clean water community convened on the House Natural Resources Committee, where the bill was heard. Over 30 of our Water Warriors bravely stood up and testified in support of the bill. The rest of our advocates cheered from the House Chamber and gallery above as faith leaders, grandparents, conservationists and scientists discussed their support for clean water funding. Thanks in part to our ever-growing support, the bill passed out of committee unanimously.

Rally attendees pictured with Representative Sherry Dorsey-Walker

Rally attendees pictured with Representative Sherry Dorsey-Walker

Yet, even with how far we’ve come, we have a long way to go. Governor John Carney and his Administration expressed opposition to this bill, which has stalled its movement. Despite his opposition, it is widely known that additional funding for clean water projects is necessary for water quality and flood reduction in Delaware. Delaware’s draft Phase III Watershed Implementation Plan (WIP) was released in April 2019. This plan detailed ways in which Delaware will reduce nutrient and sediment pollution for waterways that drain into the Chesapeake Bay. For each Best Management Practice (BMP) in the plan, challenges to implementing those practices are listed, most of which cite lack of funding or uncertain funding as a main challenge. Without sustainable funding, Delaware will not be able to meet the goals set by the Environmental Protection Agency (EPA) for Chesapeake Bay health as acknowledged by the state, county, and local stakeholders who took part in drafting the draft WIP.

Though we were met with a setback to our goal of sustainable clean water funding, we will not stop here. With the relentless activism and dedication of the Clean Water Alliance and Water Warriors, we will continue to push for clean water funding. We will continue to advocate. We will continue to hold decision makers accountable and ask them to support the proposed clean water funding mechanism. In her recent Op-Ed, one of the campaign founders Brenna Goggin called upon legislative leaders to stand up for every single person in Delaware and commit to improving our environment, economy, and health for generations to come, either by supporting HB 200 or by proposing another sustainable clean water funding option.

The time for clean water funding is now. We have come so far in five years and we look forward to celebrating the culmination of our hard work with the creation of a clean water solution.

Laura Miller, Delaware Nature Society

The Coalition's Response to the Phase III WIPs

That’s right folks - it is here. The Iast phase in the creation of the states’ watershed implementation plans (WIPs) is almost over. For some, this has been a long and arduous process and for others, they have already clicked out of this post. However, the reality is, what is included in these draft WIPs, that are scheduled to be finalized this year, will have a major impact on not just our water, but on what we as a community focus on in the years to come.

For those who need a little more background, the basic history is that there were three phases of WIP development that started in 2010 with the creation of the TMDL for the bay. Each round of development of these plans required the Chesapeake Bay jurisdictions (Maryland, Virginia, Pennsylvania, Delaware, New York, West Virginia and the District of Columbia) to come up with their plan for how they would reach their water quality goals. For the past 10 years, the Coalition has watched the development of these plans and given feedback and submitted formal comments when and where appropriate.

This final round, Phase III, is the final plan that the states are putting forward as their road map to success and serves as one of the last opportunities for us to formally comment on the plans before they come into effect in August 2019. The Coalition, our State and Outreach Leads, and other member organizations across the watershed, worked for weeks to produce a region-wide and six state-specific comment letters on the Draft Phase III Watershed Implementation Plans. The region-wide letter touched on common barriers to success, such as climate change and project verification, while the state-specific letters addressed the issues that are unique to each jurisdiction.

Even if you and/or your organization have not been involved in this work in the past, I encourage you to review the plans and letters below. The recommendations outlined in these plans will have a major impact on some of the priorities of our work here in the watershed, especially when it comes to state and local policy.

If you have any questions about this or would like to learn more, please do not hesitate to reach out, reillyk@nwf.org.

And That's the End of the First Half...

Growing up in a basketball-obsessed family, it is hard not to hear about “Halftime for the Bay”, better known as the Midpoint Assessment of the Chesapeake Bay clean up, without making sports analogies. Also, as someone who does not fully understand all of the often confusing and sometimes wonky components of the Chesapeake Bay restoration effort, I find it easier to think of it as just one big basketball tournament that started in 2009. We have seven jurisdictions (teams), with three different types of players (agriculture, urban and suburban stormwater, and wastewater), all trying to overcome certain obstacles (nitrogen, phosphorus, and sediment), in order to achieve their goals (all projects for a clean Bay in place by 2025).

So grab that Gatorade and towel from the bench. This is Chesapeake Sports Night.

The first half of the restoration effort started off strong and had some stand out players that should be recognized. Teams District of Columbia and West Virginia have really dominated the first half, with player’s reaching their nitrogen, phosphorus and sediment ‘halftime’ goals. These small, but mighty, teams are definitely on track for a win come 2025, as long as the coach can make some strategic adjustments in the second half (more on that later).

The rest of the field is a mixed bag. You have Virginia, who played relatively well, but is still having issues managing nitrogen and sediment. New York is in the same boat as Virginia, but their nitrogen problems have actually INCREASED since 2009. Maryland and Delaware have both played relatively well, but are also plagued by nitrogen problems that they just cannot seem to get under control. And then there is Pennsylvania. A well-known underdog, this team is suffering from major funding issues that are having an impact on their player’s ability to achieve nitrogen, phosphorus, and sediment goals for the state.

After such a strong start (for most states), why are so many teams struggling as we enter the second half? They put their faith in one single player – wastewater (I could make a LeBron James joke here, but that’s a conversation for another time.) Wastewater is the water which is used in our homes and businesses, think showers, toilets, sinks, washing machines, etc., that typically goes into a treatment facility to be cleaned before being released either into a local waterway or back into the utility system. All of the states focused on wastewater first, their best and easiest player to manage, by making technical upgrades to their treatment facilities. The only state that was not able to capitalize on their wastewater player was New York, which had major challenges upgrading one of their systems.

However, wastewater is tired. It has been playing for the whole first half, and for most states, treatment facilities are now operating at best available technology. In other words, there is very little wastewater can do for the team and relying on it will no longer help push these teams to their goals. If the states are to ever be ‘champs’, they need to refocus their energy, resources, and coaching on other players, like agriculture, and urban and suburban runoff.

Most states have yet to fully tap into these other players because they are often difficult to deal with. They are complicated sources of pollution to track and measure, and often have many other influences. They also require a lot of ‘fan’ or community engagement, buy-in from the local business community, require engaging with local officials (who do not always make the right calls), and partnering with people who may not be their biggest fan. But much like any basketball team, a strong fan base is essential for victory, and the states must turn their attention to these other players if they are to succeed in 2025.

So what are our notes to the coaches for the second half of this game, I mean restoration effort?

  • West Virginia cannot get complacent. Urban and suburban areas in the state are growing, which means more pollution from this source. Start thinking about plays like green infrastructure now before it is too late!

  • Maryland must find and educate officials who will make calls that support fixing stormwater and flooding issues. We have seen enough the past few months to know that we are not doing enough and it will only get worse with climate change coming to town.

  • For Delaware, agriculture and urban and suburban runoff have to get their nitrogen under control. A full court press to put more projects in the ground and you could be looking at victory!

  • With no agriculture on their team, the District of Columbia must focus on urban and suburban runoff, and they may have brought in a ringer. Many are banking on their new draft pick “Chris”, a 680-ton tunnel-boring machine that will help divert combined sewer overflow away from the Anacostia River.

  • For the Commonwealth of Virginia, it is all about investing in their players for the long haul. We are talking multi-year and multi-million dollar 'contracts' for programs like Stormwater Local Assistance and the Agricultural Cost Share. Both of these programs are vital to not only engaging the community in the game, but putting projects in the ground that will help Virginia meet their goals related to nitrogen and sediment.

  • New York has to figure out how to tackle their nitrogen problem from ALL sources. They have to come up with a play that upgrades their wastewater treatment facilities and also reduces pollution from agriculture.

  • Pennsylvania, do not get discouraged. You may be behind but we are all rooting for you! Mainly because if you do not get things going, we are all in trouble. The state must figure out how to push out more funding for on the ground projects, especially to support the agricultural community. Maybe a dedicated funding source for clean water, perhaps? The last thing we need is the EPA calling a ‘technical foul’ on Pennsylvania.

And what can we, as fans, do? We can be supportive but also hold our teams accountable to their goals; for in this game, there is no overtime.

*BUZZER*

And with that, let’s start the second half.

Kristin Reilly is the senior communications director for the Choose Clean Water Coalition.

Chesapeake Bay Blueprint Progress

Photo by Virginia Sea Grant

Photo by Virginia Sea Grant

A few weeks ago, the Chesapeake Bay Foundation released their Midpoint Assessment – a report that highlights the Chesapeake Bay jurisdictions’ progress to meet their Chesapeake Bay restoration goals. The report shows that while we are seeing improved underwater grasses, crab populations, and a decrease in dead zones, some states are not on track to meet their goals to reduce nitrogen, phosphorus, and sediment pollution.

Photo by Matthew Beziat 

Photo by Matthew Beziat 

The Bay jurisdictions have until 2025 to fully implement the plans necessary to meet the Chesapeake Clean Water Blueprint. This Blueprint set scientific maximums for the amount of sediment, nitrogen, and phosphorus that the Bay can handle during a state of restoration. The Chesapeake Bay Foundation’s report organized the midpoint results by state.

Here are some highlights:

Maryland was successful in achieving its goals for reducing sediment and phosphorus, but not nitrogen. To improve the nitrogen levels, Maryland will need to explore further work in reducing agricultural runoff and septic system pollution. Pennsylvania was far off on reaching their sediment and nitrogen goals due to polluted runoff from agricultural and urban areas. They have much work to do to reach their 2025 goals. Virginia reached their goals in nitrogen and phosphorus, but not sediment and needs to focus on reducing urban and suburban runoff. Delaware was successful in sediment reduction, but struggled with reducing nitrogen from many sources. The District of Columbia was overall very successful, though they still face challenges with reducing urban and suburban runoff. New York has much more work to do to reduce their nitrogen pollution, and West Virginia has achieved almost all of their goals, with the exception of nitrogen from urban and suburban runoff.

For more a more detailed analysis, check out the full report here.

 

Mary Katherine Sullivan is an intern with the Choose Clean Water Coalition

The Chesapeake at the Midpoint

The Chesapeake Bay cleanup effort has become an example for other watersheds in the country, due to the collective efforts of the regional partnership. For the past two decades, federal, state and local agencies, nonprofit organizations, academic institutions and citizens have come together to secure a bright future for the health of the Bay and the millions of people and wildlife that depend on it.

Midpoint Assessment

The Chesapeake Bay TMDL calls for a Midpoint Assessment, where the jurisdictions will review their progress towards meeting nutrient and sediment pollution load reductions. As one can imagine, each state possess its own set of hurdles. Some jurisdictions have challenges related to stabilizing funding needs for projects like agricultural best management practices and innovative stormwater retrofits, which have proven to be some of the best solutions to address excess loads. Investing in these practices have been very beneficial to jurisdictions in the watershed, but can be tough to implement by state legislatures.

As our population continues to grow there is also a need to account for growth and climate change impacts. To make matters worse, pollution loads from nonpoint sources continue to be a growing issue in the watershed that has been difficult to manage. Lastly, there is a need to address the sediment and nutrient pollution coming over the Conowingo Dam on the Susquehanna River, which provides the Chesapeake with 70 percent of its freshwater. These demands must be met in order to achieve our water quality goals.

As part of the TMDL, the states and the District are required to develop Watershed Implementation Plans (WIPs) – roadmaps for addressing their share of pollution reductions. In theory, the WIPs are supposed to be binding plans, although in practical terms, they are only as binding as EPA is willing to insist that the states live up to their commitments. Each WIP is developed in partnership with 

input from stakeholders, scientists, nonprofits, and local governments, and each jurisdiction is required to develop WIPs at three distinct phases before the 2025 deadline. Understanding where challenges lie within each of the respective jurisdictions will allow the Chesapeake Bay Program partnership to streamline implementation. Once released, the Midpoint Assessment can be used to better assess constraints that currently present themselves in the cleanup plan. Until then, let’s take a look at how each of the Bay states have characterized and evaluated prior WIPs, remaining challenges for meeting pollution targets, and how the public can engage in the next Phase of the WIP development. 

New York

Photo Courtesy of Otsego Land Trust

Photo Courtesy of Otsego Land Trust

The WIP development in New York has been a collaborative effort between New York State’s Department of Agriculture and Markets, the Upper Susquehanna Coalition and Cornell University. Implementation took place at the county level by the Soil and Water Conservation Districts who share more than 5,000 conservation projects. Pollution reduction from the agriculture, wastewater, and stormwater sectors have been a main focus in the previous phases of the WIP.

During the Phase II WIP, New York failed to fully implement its nitrogen and sediment reduction goals. While New York has comprehensive programs, particularly for agriculture, tracking best management practices (BMPs) and sharing that information across projects has been difficult.  Fortunately, some improvements were made to curb phosphorus leaching through wastewater and fertilizers. Through the legislature, several laws were passed to limit these pollutants in commercial use. Reinvestments in wastewater, sewer, and septic upgrades were also made to clean water infrastructure. For the Phase III WIP, advocates in New York would like to address the future impact of climate change and improve data tracking. The Upper Susquehanna Coalition is currently developing the National Environmental Information Exchange Network (NEIN) for future data reporting on the Chesapeake Bay Program. The data will be used for WIP III planning and specific data needs. 

Pennsylvania

Prior to the Phase III WIP development, Pennsylvania’s Phase II WIP had little teeth to enforce county targets leading to the state falling short of meeting its goals. Future improvements such as a county level scale and enforceable local TMDL efforts could prove beneficial for the Phase III WIP development. Pennsylvania faces a number of challenges to meeting its commitment to achieving pollution reduction. Insufficient funding resources continue to put a strain on common sense practices that benefit clean water in Pennsylvania. The state lacks a dedicated funding source to implement best management practices and clean water programs. Establishing a dedicated clean water fund, such as the proposed HB20 would be crucial. Along with this, state resource agencies have not received adequate funding over the last several years. Pennsylvania’s Department of Environmental Protection (DEP) has been slashed by roughly 40% over the past 14 years, which has increased wait times on permits and decreased and their ability to provide oversight. There is a dire need to revamp the agriculture cost share program and nutrient credit trading programs.

In addition to addressing these shortfalls, advocates are pushing for a comprehensive plan outlining public engagement to garner buy-in from the community and stakeholders for the Phase III WIP in four pilot counties (Lancaster, York, Adams, and Franklin County). Through this process, the state is hoping to better engage individuals from a variety of backgrounds to develop BMP's to help meet the TMDL. The DEP and the state are doing this from a local level, they want to make sure they allow the counties and their local governments are able to set forth goals that are quantifiably reachable for their region.  The state has developed a steering committee dedicated to restoring its rivers and streams via the WIP process, and the public is encouraged to engage in steering committee meetings to provide input on the WIP, which focuses on local government engagement. For any of that to succeed, however, it is imperative that EPA exerts its authority to implement backstops for pollution reduction goals at the state level, so that goals will be met even if the state’s efforts falter.

West Virginia

The implementation process of WIP II implementation in the state has been steered by the West Virginia Chesapeake Bay Tributaries Strategies Team, a partnership of agencies and non profits working with local governments, utilities, land owners, and the public. Coordinated by the West Virginia Department of Environmental Protection (DEP) with support from the from the Conservation Agency, Division of Forestry, Division of Agriculture, and the Eastern Panhandle Regional Planning 

Development Council (Region 9). This effort has been primarily focused on finding connections among the goals and mandates of local governments with the goals of the Chesapeake Bay Program partnership. Pollutions reductions from the agriculture and stormwater sectors remain a particular focus in West Virginia. 

Photo courtesy of the Chesapeake Bay Foundation 

Photo courtesy of the Chesapeake Bay Foundation 

The Eastern Panhandle Regional Planning and Development Council (Region 9) staffs the Region 9 Chesapeake Bay Program Coordinator, to work with local governments and utilities to develop projects across multiple sectors to include agriculture and stormwater, This role key is to identify critical matching funds for projects to meet the goals of the TMDL. Two projects in the City of Charles Town and the Town of Bath exemplify how the local governments leveraged existing funds for projects that reduce wastewater discharge and provide solutions to stormwater management through green infrastructure practices. While these projects have helped to mitigate pollution entering the watershed success lies in helping local government solve their identified problems by tapping into the Chesapeake Bay Program effort.

Inadequate funding for conservation practices continues to be an impediment in West Virginia.  For the Phase III WIP development, advocates in West Virginia aspire to see more capacity for local governments to enhance on the ground project coordination.  Planning for green infrastructure and innovative land conservation planning have funding needs, but would be ideal to consider in the development of WIP III. Additionally, there is a need for more robust public awareness throughout the state. Much of the focus on the WIP has been technical without a clear vision as to why these practices benefit local waterways which benefit public health and prosperity for the state.  

 

Delaware

The Delaware Department of Natural Resources and Environmental Control (DNREC) is leading the effort for WIP implementation in Delaware. The department has convened the Chesapeake Bay Interagency Workgroup made up of representatives from each DNREC Division, Department of Agriculture, Department of Transportation, Office of State Planning Coordination, County Conservation Districts, and other stakeholders. The Workgroups will focus on two selected sectors: agriculture and developed. They are responsible for recommending and reviewing sub-allocating methodologies 

to the various nonpoint sources within the basins, assessing current data tracking and reporting systems, determining maximum implementation goals and methods to fill program funding gaps.

Moving forward, targeted local partners and contractors will need to be involved with public forums and discussions as needed. During the next Phase of the WIP, targeted local partners and contactors will need to be involved with public forms and discussions as needed. DNREC has expressed a need for additional resources from the EPA to achieve expectations for milestones. Delaware is on track for Phase III WIP planning targets for phosphorus, but needs work on their targets for nitrogen. Accounting for future stressors, such as population growth and climate change, must be analyzed to ensure nutrients loads are met. During the development of the Phase III WIP, Delaware needs to ensure strong state best management practice verification plans and local government engagement in the WIP development to create clear numeric goals for localities.

Maryland

The state of Maryland has been actively engaged during the WIP development process. Every county in Maryland submitted a Phase II WIP focusing on nitrogen, phosphorus, and sediment reductions with a focus on agriculture, forests, atmospheric deposition, septic, stormwater, and wastewater sectors. Past WIP processes have provided invaluable information about local conditions and capacity to reduce pollution. The plans submitted by the counties have identified specific opportunities to increase the rate of progress towards cleanup goals.

Photo courtsy of the Alliance for the Chesapeake Bay

Photo courtsy of the Alliance for the Chesapeake Bay

Advocates in Maryland would like to see a gap analysis from the Maryland Department of the Environment (MDE) on where in fact the state stands on meeting its goals for 2025. In order to meet Bay TMDL goals, MDE and local jurisdictions need to accelerate the pace of projects, as well as provide proper verification of well-maintained best management practices. In order to truly reach and maintain our 2025 goals, Maryland needs to improve enforcement, adaptive management, and funding for execution long term improvements to water quality. In an effort to increase awareness and engage the public during the next Phase of the WIP, the state has been hosting a series of regional workshops. These meetings are intended to inform participants about the Phase III WIP process, provide opportunities for questions and feedback, and promote interaction between local partners 

and state agencies. Presentations will be made by staff of Maryland Departments of Agriculture, Environment, Natural Resources, and Planning on topics such as the Conowingo Dam, wastewater, agriculture, funding, and more.

During the Phase III WIP development, advocates would like to see MDE request that counties undertake a program assessment that builds on their local Phase II WIP as the first step in local Phase III WIP planning. Planning should include county planning targets to close the gap. Additional tools and technical assistance could also provide more guidance and assistance to counties during the development of the Phase III WIP. In addition, there is a need to fill vacancies within the MDE and other agencies involved in pollution reduction efforts. Funding constraints continue to be a barrier within the state and at the county level to achieve water quality goals.  

Virginia

Localities in Virginia have lacked direction on how to best implement the WIPs and have expressed concerns to the Department of Environmental Quality (DEQ). A recent statewide election cycle positioned Ann Jennings, an established advocate for the Chesapeake and the former Chesapeake Bay Commission Virginia Director, as the Deputy Secretary of Natural Resources for DEQ. Nonprofits in Virginia remain optimistic that the future of WIP development in the state will be successful with the new state leadership. Stakeholder groups have now convened under the new administration to prepare for local area planning goals.  

Photo courtesy of the James River Association

Photo courtesy of the James River Association

This summer the Local Government Advisory Committee to the Chesapeake Bay Executive Council is hosting a series of roundtables to hear from local elected officials. Each roundtable will include a facilitated discussion about the challenges, successes, and opportunities communities across the Commonwealth face in protecting and restoring waterways. The information provided will be shared with Virginia’s leaders in order to foster a better understanding of the connection between local issues and priorities and the state’s commitments to protecting downstream waters.

During the development of the Phase III WIP, Virginians are looking for more incentives and support from the state to guide and bolster implementation. A big goal for Phase III is to create local strategies rather than focusing on statewide goals. The conservation community will be making a push to enforce non-regulatory goals that will ultimately be effective in guiding efforts to achieve 

water quality standards. Local area efforts could ultimately be seen as a tool to improve accountability and help guide financial investment for cost-share programs. Overall, connecting the WIP to local water is critically important.   

Washington, DC

Unlike the other Chesapeake Bay jurisdictions, the District has limited space for farmland and green space. Much of the District is comprised of imperious surfaces from parking lots, large buildings, and sidewalks. Due to this, stormwater runoff continues to be the largest contributor to poor water quality entering DC’s combined sewer system. Luckily, stormwater runoff is being mitigated through a variety of efforts to include new municipal separate storm sewer system (MS4) permits, multi-sector general permits, federal facility stormwater compliance, wastewater treatments plant upgrades, and the stormwater reduction credit trading program. The District also has several outreach programs for residents designed to reduce stormwater contamination such as Canopy 3,000. This program was designed to expand the number of trees planted on private property and public spaces with a goal to cover 40% of the District with tree canopy by 2032. Each year, the District and its partners have continued to exceed annual planting goals of Canopy 3,000.

The nation’s capital has stringent MS4 permit issued by the Environmental Protection Agency (EPA), which contains requirements for conversion of impervious surfaces to pervious surfaces through green infrastructure. This program is critical since federal facilities make up a large portion of impervious surface in the area. Federal facility compliance with stormwater requirements is a huge challenge in DC, Maryland, and Virginia (DMV) and their combined efforts with be essential to enable DC to meet its pollution goals by 2025. The lack of DC authority to compel the development of effective stormwater control plans by the agencies or enforce them presents and important opportunity to help hold those agencies accountable. Keeping tracking of contaminated stormwater runoff from new commercial facilities and dwelling units will be a focus of the upcoming WIP developments.

Looking forward: Phase III WIP

The Chesapeake Bay TMDL Midpoint Assessment is expected to be released at any moment, and will be a reflection of how far the Bay community has come to meet our clean up requirements. Continued support from local elected officials, members of Congress, businesses, nonprofits and local communities is vital to achieving cleanup goals and to restoring the watershed to health. The region’s economy and its people depend on these efforts to clean up the thousands of rivers and streams.

 

Mariah Davis is the Field Manager at Choose Clean Water.

What the Failure to Account for Growth Looks Like in Maryland

By Evan Isaacson, courtesy of Center for Progressive Reform

This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort.

In a recent post, I described the broad failure of Chesapeake Bay states to follow EPA's basic expectations to account for pollution growth under the restoration framework known as the Bay TMDL. This failure is one important contributor to the current state of the Bay restoration, which is years behind schedule. If states don't hold the line on new pollution by offsetting or otherwise accounting for growth, their jobs only become that much more difficult, and the final restoration of the Bay gets that much further out of reach. In this post and the next, I focus more closely on one state – Maryland – to examine how it responded to EPA's expectation to account for growth and demonstrate what a year of unchecked growth means for water quality in the state. 

Maryland's Historic Smart Growth Vision 

Maryland has earned its reputation as a pioneer in smart growth policy through the passage of a series of land use laws over the past several decades. The first of these laws, which served as the foundation for Maryland's smart growth vision, established a statewide map of "Priority Funding Areas" into which the state would steer funding and investment to avoid subsidizing development on increasingly scarce agricultural and natural areas. 

But after several decades, experts question whether Maryland's smart growth vision has successfully materialized. It is a difficult question to answer because it is impossible to know what would have happened in the absence of all of Maryland's smart growth laws, regulations, and policies. How much more sprawl would have occurred in this rapidly growing region? How many more acres of forests, wetlands, forested riparian buffers, and wildlife habitat would have been cleared for development? 

What we do know is that Maryland was losing its natural landscape at an astonishing rate in the mid-twentieth century. In the 1960s through the late 1970s, the state lost forested land at a rate of hundreds of thousands of acres per decade, according to federal estimates. This rate of forest loss tapered off through the 1980s and even reversed for almost a decade between the late 1980s and late 1990s. But by the turn of the century – ironically, just after the passage of the state's primary smart growth laws – the rate of forest loss began to surge again, hinting at a problem with the effectiveness or implementation of the laws. 

According to U.S. Forest Service estimates, between the late 1990s until the housing bubble burst, Maryland lost more than 10,000 acres of forest per year. That is the equivalent of an area the size of Baltimore City about every five years. And this level of habitat destruction is not expected to end any time soon. In fact, projections made by Maryland's Department of Planning, by the state-federal Chesapeake Bay Program Partnership, and by academic researchers all show a significant amount of forest conversion over the next several decades based on several independent analyses of demographic, economic, real estate, and other trends. 

Every year, the Maryland Department of Planning releases an annual report with an update on smart growth trends. The most recent report, which includes data for 2015, once again showed "mixed results," with some counties doing an excellent job steering new residential parcels into smart growth areas while other counties showed little or no ability to confine development into the areas they set aside for growth. The department concedes that, despite an uptick in the percentage of new residential development within smart growth areas since the housing bubble burst, the "long-term trend shows a decline." 

To read more, click here

Nutrient Trading in Maryland: December 2017 Update

On December 8, the Maryland Department of the Environment published in the Maryland Register proposed regulations to establish a water quality trading program for nitrogen, phosphorus and sediment. A public hearing was held on December 18 and written comments must be submitted by January 8. The regulations were developed together with Maryland Department of Agriculture (MDA) and a broadly representative Water Quality Trading Advisory Committee (WQTAC).

What is nutrient trading?

“Trading“ allows an entity that can reduce one or more pollutants more cheaply than another to install pollution control measures that provide a greater reduction than required by law, and sell the excess reduction, or “credit“, to the other discharger for whom the cost of pollution reduction is greater. The result is that the credit generator makes money for the sale of credits, and the buyer saves money by using the credits to meet its discharge limitations less expensively, achieving the same overall reduction at a lower cost. In a time when funding is tight, this can result in a bigger bang for the buck in meeting the Bay TMDL goals.

 

                               Courtesy of Chesapeake Quarterly   

                               Courtesy of Chesapeake Quarterly   

How can trading work properly?

To work properly, the program must ensure that a trade does not cause or contribute to a violation of any water quality standard or TMDL. A trade should also result in overall net pollution reduction - a feature known as “additionality.“  When this happens, we not only get lower cost compliance, but an overall reduction in pollution.

Before a discharger can generate a credit, it must comply with all pollution reductions required by law, referred to as its “baseline.“ Reductions beyond this generate the “credits.“ Credits can also be purchased to “offset“ a knew or increased discharge, which is required for any new or increased discharge to a water body which is not meeting water quality standards.

To be sure that trading is carried out in compliance with the Clean Water Act (CWA), EPA issued series of Technical Memoranda (TMs) setting forth its “expectations“ for key elements which any trading program in the Chesapeake Bay watershed must incorporate. These key elements include determining “baseline“, protecting local water quality, duration of credits, credit calculation, accounting for uncertainty of the water quality benefits delivered by a best management practice (BMP) installed by a non-point source discharger, representative sampling, and credit certification and verification. They also call for establishment of a publicly available “credit registry“ on which each credit can be registered and tracked, and an opportunity for notice and comment at meaningful times in the process. MDE’s regulations must be evaluated under these criteria to determine how they will fare when reviewed by EPA for compliance with the CWA.

The proposed regulations cover baseline determinations plus calculation, certification and use of credits, and trading procedures. When a discharger buys a credit, the credit is incorporated into its NPDES permit. The buyer/user is liable for ensuring permit compliance, even if the BMP on which the credit is based fails. Any performance failure by the credit-generating practices should be addressed in a contract between the seller and buyer.

Tell me more about the online trading registry...

The regulations provide for an online registry under which each credit, when certified by the agency, gets a number, and it will be tracked through its lifetime. Credits are expressed in terms of pounds of a pollutant. Procedures are established for inspection and “verification“ that the credit practices are performing properly.  The regulations also provide enforcement measures, including corrective action orders, suspension from the program, and other sanctions, as well as an appeal process.

Photo courtesy of Chesapeake Bay Foundation

Photo courtesy of Chesapeake Bay Foundation

Credits generated by farming operations are reviewed and certified by MDA under regulations that it issued in 2016, COMAR 15.20.12. Those regulations are designed to work together with the regulations recently proposed by MDE, on which both agencies collaborated.

While the credit registry will be publicly available, the only opportunity for public comment under the proposed regulations is when a credit buyer proposes to use a credit in its NPDES permit, not at the time of credit certification. Because credit certification is when the agency determines whether baseline has been met and whether the credits have been properly calculated using approved methods, some contend that the public should be allowed to comment at this earlier stage in order to effectively address key issues in the credit generation and calculation process.

What are some issues with the Maryland Nutrient Trading Program?

As the regulations were being developed in consultation with the WQTAC, not surprisingly, there were disagreements over some of the provisions. Those disagreements provide a key to issues likely to be raised by commenters. They will likely include adequacy of protection for local water quality, clarity of the baseline requirements, adequacy of the uncertainty ratio, certification and verification procedures, and public participation. For example, on local water quality, the proposed regulations, to their credit, provide that when the water body where the credit will be used is “within any impaired waters“ (does not meet water quality standards), the credit must be generated in the same subwatershed. While the proposed regulation also appears to require that the credit should be generated upstream of the user, that is not clear in the text. Furthermore, outside of those circumstances, trades are allowed to take place within any of three broadly defined regions: the Potomac River basin, the Patuxent River basin, and the Eastern Shore and Western Shore river basins, including the Maryland portion of the Susquehanna River. While in theory a credit generated on the Eastern Shore and used on the Western Shore might result in no net adverse effects in the middle of the Chesapeake Bay, the credit will not protect the water quality in the place of use on the Western Shore.

Regarding the uncertainty ratio, EPA’s applicable TM provides that this should be presumptively 2:1 when a credit is generated by a non-point source, to account for the uncertainty in the pounds of pollutant reduction which a particular BMP will actually produce. MDE’s regulations prescribe this ratio where credits generated by a non-point source are used by a wastewater treatment plant, but fail to do so where the user is a stormwater point source discharger. The reason for this distinction is unclear.

MDE proposes creating a “reserve pool“ by imposing a 5% reduction (a “reserve ratio“) in the number of credits generated in any transaction to be set aside for use in situations such as replacement of credits that underperform or a lack of available credits. If not used for these purposes any part of the “reserve pool“ can be permanently retired so as to result in an improvement in water quality, but there is no obligation to do this. A “retirement ratio“, by contrast, would require the entire amount to be retired, thereby ensuring that each trade results in a net improvement in water quality (the “additionally” referred to above). The regulations do not include this.

EPA has been promoting trading for over 20 years, but only eleven other states in the country, including Pennsylvania and Virginia, have trading programs. They are still evolving and their effectiveness has yet to be determined. While the principles can be articulated, effective implementation has proven challenging. MDE’s proposed regulations will stimulate lively discussions of the issues facing any trading program, especially when the credits will be generated mostly if not entirely by nonpoint sources.

Photo courtesy of Chesapeake Bay Foundation 

Photo courtesy of Chesapeake Bay Foundation 

MDE leaders believe that, if a truly effective trading program can be put in place, the benefits will outweigh the risks that are inherent in a program where the water quality benefits of various BMPs may not be known until years after they are installed.

If you have any questions, please contact Ridge Hall, board member for the Chesapeake Legal Alliance.

Clean Water Act at 45: Despite Success, It's Under Attack

This week is the 45th anniversary of the adoption of the Clean Water Act. This post takes a quick look at where we were, where we’ve been, where we are, and where we’re going on clean water policy.

cuyahoga_river_fire_1952.jpg

The Bad Old Days Before 1972

Congress enacted the law in response to rampant contamination of waterways and brought about important improvements across the nation. By the 1960s, pollution brought numerous water bodies to the brink of death. The Cuyahoga River, running through Cleveland, Ohio into Lake Erie, became so polluted with industrial waste in the 1950s and 1960s that it famously caught fire on more than one occasion.

Lake Erie itself received so much municipal waste and agricultural runoff that it was projected to become biologically dead. Unchecked water pollution in inland waterways accounted for record fish kills; for example, some 26 million fish died because of the contamination of Lake Thonotosassa, Florida. Industry discharged mercury into the Detroit River at a rate of between 10 and 20 pounds per day, causing in-stream water to exceed the Public Health Service limit for mercury six times over. Waterways in many cities across the country served as nothing more than sewage receptacles for industrial and municipal waste.  The rate of wetlands loss from the 1950s to the 1970s was approximately 450,000 acres per year.

To read more, please visit National Resources Defense Council's website.

What's With That Damn Dam? The Conowingo Story

What is the Conowingo Dam?

The Conowingo Dam is a large, operational hydroelectric dam in the lower Susquehanna River near the town of Conowingo, Maryland close to the Pennsylvania border. As one of the largest non-federal hydroelectric dams in the United States, the dam has a surface area of 9,000 acres and a maximum length of 4,648 feet. Construction was completed on the Conowingo Dam in 1928 and it opened in 1929. The dam is owned by Exelon Corporation, an American 100 energy company headquartered in Chicago, Illinois.

Photo credit: Chesapeake Bay Program 

Photo credit: Chesapeake Bay Program 

How does it work?

Image Credit: WikideVega, Hydroelectric Power 2014

Image Credit: WikideVega, Hydroelectric Power 2014

The dam was built to generate electricity via hydroelectric power. When water from the dam passes through, propeller-like pieces called turbines spin. This then turns a metal shaft in an electric generator, which is the motor that produces electricity. The more water that passes through the dam, the more energy that is produced!

 

Why is the dam significant to the Chesapeake Bay clean-up?

Over time, the dam has unintentionally acted as a “pollution gate” stopping sediment (and attached pollutants) from going down stream into the Chesapeake Bay. However, at this point in time, the reservoir behind the dam is essentially full and is trapping smaller and smaller amounts of sediment over time. When the region experiences large storms that create strong floods, this scours the sediment and other pollutants behind the dam and sends them downstream into the Bay. Original estimates stated that the dam would not be at trapping capacity until 2030 or 2035, but the dam is approximately 95 percent full right now, and recent assessments have determined the dam is no longer stopping pollution at all.

The Susquehanna River flows south past Conowingo Dam, toward Havre de Grace, Md., on June 27, 2016. Photo Credit: Chesapeake Bay Program 

The Susquehanna River flows south past Conowingo Dam, toward Havre de Grace, Md., on June 27, 2016. Photo Credit: Chesapeake Bay Program 

This poses several significant problems to the Chesapeake Bay cleanup. First, the dollar amount that was considered enough to meet pollution reduction goals, around $19 billion, is not going to cut it. Second, even with full implementation of Maryland’s federally-required cleanup plan, it will not be enough to achieve water quality goals on its own. Because of this, Maryland is currently proposing to test dredge a small amount behind the dam to remove some sediment and determine whether this approach would help to improve the health of the Bay. Third, Pennsylvania is significantly behind their cleanup goals, but with the dam filling up, the Keystone State may be asked to do more. This issue may inevitably cause tension between the states about who is responsible for the extra pollution reduction because of the sheer cost of additional reductions.

You might be wondering what Exelon is planning on doing to support the removal of built up sediment and attached nutrients from behind the dam. The short answer is - nothing…yet. However, Exelon cannot operate the dam without a license from the Federal Energy Regulatory Commission (FERC). FERC's current license for Conowingo was issued in August 1980 and expired in September 2014; Exelon is currently operating on a temporary annual license. Exelon has filed an application with FERC for a renewed long-term license. This offers us a rare opportunity to require Exelon to reduce some negative impacts of the dam and support the health of the Chesapeake Bay.

From my perspective, the Chesapeake Bay cleanup was and will always be a team effort among all of the jurisdictions - Virginia, Maryland, West Virginia, Delaware, Pennsylvania, New York, and the District of Columbia – and the federal government. We need to come together as a community to determine the  most effective and least burdensome course of action; one that leads us to a cleaner rivers and streams flowing into a healthy Chesapeake Bay. 

Photo Credit: Chesapeake Bay Program

Photo Credit: Chesapeake Bay Program

What can you do?

President Trump’s FY2018 proposal to cut 31 percent of EPA’s budget would eliminate the Chesapeake Bay Program and the people who coordinate it. Considering the impacts of Conowingo, it is more important than ever to keep the cleanup on track, including the crucial federal investments that improve local water quality. Please contact your Member of Congress and tell them how important the Bay restoration effort is to you!

To learn more, please visit the Chesapeake Bay Program's website.

Chante Coleman is the director of the Choose Clean Water Coalition.

Where Are We in the Clean Up?

I’ve never been afraid to swim in the Chesapeake Bay. Granted, I only moved to Annapolis about two years ago, but I talk to people all the time who were afraid 10, 20, 30 years ago to step foot in the Bay (except for maybe Bernie Fowler). 

This perception of a 'dirty Bay' is changing, and for good reason: The Chesapeake Bay is getting cleaner due to the mandated clean-up plan. Under the Chesapeake Bay Clean Water Blueprint, watershed states are required to implement 60 percent of practices to reduce nutrient pollution and sediments flowing into the Bay by this year and 100 percent by 2025. 

In June 2017, the Chesapeake Bay Foundation released its Chesapeake Bay Blueprint Progress Report, which evaluates the short-term progress made by the six states and the District of Columbia to meet the longer-term pollution reduction goals. This report highlights the significant progress we have made toward these goals. It also highlights shortcomings so that we can direct our energy and take corrective action to make these improvements before 2025.  For example, we see progress in areas like reducing pollution from wastewater treatment plants and factories, while almost all of the states are behind in meeting their urban and suburban runoff goals.

State By State

While Virginia is on track to meet its phosphorus goal for agriculture and installed 6.7 million linear feet of stream exclusion fencing, it is slightly off track for nitrogen and sediment reductions. At the Coalition, we realize the importance of agriculture best management practices in order to reduce agriculture runoff to the Bay.  This is why we are launching a campaign called Our Water, which will focus on increasing clean water conservation funding in Virginia for the agricultural sector, so that farmers are able to install forest buffers and other conservation practices for little or no cost.

Maryland is slightly off track in reducing nitrogen pollution from agriculture and for nitrogen, phosphorus, and sediment in urban/suburban areas, but efforts to upgrade sewage treatment plants are on track, with 67 upgraded so far. In order for Maryland to meet its 2025 goals, the state needs to implement more stormwater reduction practices in urban/suburban areas. Reducing runoff from rain events will prevent the amount of pollution entering Maryland waterways and eventually the Chesapeake Bay. In addition, it is important that the state continue to stay strong on septic system requirements and upgrades.

Pennsylvania is has the most ground to make up when it comes to meeting its 2025 goals. To address this, Pennsylvania instituted a Reboot Plan, which includes a goal to plant 95,000 acres of forest buffers and inspect 10% of farms for nutrient/manure management plans. One of the main issues in Pennsylvania is budget short falls that are reducing the investment needed in agencies and technical services at the state and county levels. The Coalition will be working in Pennsylvania in order to ensure increased funding at the state-level for clean water goals.

But Where's The Good News?

The good news is: the clean-up is working. Wastewater treatment plants are being upgraded, conservation practices to reduce runoff are being installed, the submerged aquatic vegetation is returning to the Bay, and wildlife populations are increasing. The bad news is that we still have a lot of progress to make and the current Federal Administration is threatening to dismantle our cooperative clean-up plan.  In fact, President Trump proposed to zero out funding for the EPA Chesapeake Bay Program in his fiscal year 2018 budget.

It is important to remember that the states cannot achieve these goals without support, and that the federal funding they rely on to make progress is under attack. Without these resources, the states stand to lose millions of dollars for on the ground restoration projects that are improving local communities. The Coalition will continue to work with members of Congress to ensure the restoration effort continues and critical federal funding is restored.

Remember, 11 million people get their drinking water from the Chesapeake Bay watershed. We urge you to contact your Member of Congress and ask them to support the Chesapeake Bay restoration effort.

To learn more about the Coalition’s work to ensure the clean-up continues, click here.

Chanté Coleman is the director of the Choose Clean Water Coalition.