TMDL

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.