Adopting Proposed Policies for Addressing Climate Change Considerations in the Jurisdictions’ Phase III Watershed Implementation Plans

Adopting Proposed Policies for Addressing Climate Change Considerations in the Jurisdictions’ Phase III Watershed Implementation Plans

November 28, 2017
 

Ben Grumbles, Chair, Principals’ Staff Committee
Secretary of Environment, State of Maryland
ben.grumbles@maryland.gov

Via Electronic Mail Only

Re: Adopting Proposed Policies for Addressing Climate Change Considerations in the Jurisdictions’ Phase III Watershed Implementation Plans

Dear Secretary Grumbles:

The undersigned members of the Choose Clean Water Coalition want to express their strong support for adoption of both the numeric and programmatic proposals for addressing climate impacts during the development and implementation of Phase III Watershed Implementation Plans (WIPs). Over the last year, these proposals have been developed by the Chesapeake Bay Program (CBP)’s Climate Resiliency Workgroup, in collaboration with the CBP Modeling Workgroup, and have been extensively reviewed by the Scientific and Technical Advisory Committee. The proposals represent a reasoned and pragmatic approach to addressing climate change effects on Bay restoration and, in the case of the numeric proposal, is supported by rigorous scientific analyses.

Adoption of the numeric proposal - the explicit quantification of climate change effects on the attainment of water quality standards - is necessary, because the Bay jurisdictions are bound by their commitment in the Chesapeake Bay Watershed Agreement of 2014 to address the impacts of climate change. This should be done consistent with legal precedent, and the Partnership’s strong history of using best available science in its management decision-making.

Section 10.5 of the Chesapeake Bay TMDL (“Factoring in Effects from Continued Climate Change”) calls for action to “incorporate new scientific understanding of the effects of climate change into the Bay TMDL [...] during the mid-course assessment.” Federal courts have also upheld challenges to TMDLs that failed to account for climate change, and, nationwide, newer TMDLs are accounting for climate change as an important factor in calculating watershed pollutant rates and the assimilative capacity of receiving waterways.

The Chesapeake Bay Program partnership has a long history of commitment to sound science. In developing the Bay TMDL and in the ensuing implementation, the Partnership has relied upon rigorous scientific research, expert panels, and updated modeling tools to support planning and management decision-making. Confidence in this decision-making is fundamentally connected to the thorough quality assurance and peer review that undergird the Chesapeake Bay Program’s scientific processes. To reject policy proposals that account for climate change impacts on Bay restoration efforts would constitute a repudiation of the commitment to decision-making based upon the best available science. Furthermore, the Bay TMDL and Chesapeake Bay Program are viewed nationally, and even internationally, as potential models for ecosystem restoration. The integrity and credibility of the Partnership as leaders in ecosystem restoration could be compromised if climate change impacts are not considered both numerically and programmatically in the Mid-Point Assessment.

The numeric and programmatic policy approaches will set a precedent for development of adaptive management strategies at a crucial period in the restoration process. Adopting these approaches today will help to ensure that resulting adaptive management strategies are more sophisticated and tested before the even worse effects of a changing climate take place after the TMDL’s 2025 deadline. The policy approaches will also help mitigate impacts of more severe storms and increased pollution loads and water temperatures on local rivers and streams in the near-term, thereby protecting water quality not just in the Bay, but throughout the watershed.

Finally, the programmatic approach commits the Chesapeake Bay Program to establish a framework that will drive guidance and provide an incentive for study and design of climate-resilient BMPs. This in turn will encourage implementation of climate-responsive BMPs that will be relied upon for their restoration value years beyond the 2025 deadline. Adoption of the proposed policies will also ensure demand for continued agency-led study and monitoring of climate impacts to the Bay and its restoration.

We thank you and the rest of the Principals’ Staff Committee for your leadership on Bay restoration and for your thoughtful consideration of our input.

 

Sincerely,

Action Together NEPA

Anacostia Riverkeeper

Anacostia Watershed Society

Audubon Naturalist Society

Blue Water Baltimore

Butternut Valley Alliance

Center for Progressive Reform

Chesapeake Bay Foundation

Chesapeake Climate Action Network

Clean Water Action

Coalition for Smarter Growth

Conservation Voters of Pennsylvania

Delaware Nature Society

Friends of Accotink Creek

Friends of the Nanticoke River      

Interfaith Partners for the Chesapeake

Interfaith Power & Light (DC.MD.NoVA)

James River Association

Lackawanna River Conservation Association

Lower Susquehanna Riverkeeper

Lynnhaven River NOW

Maryland Conservation Council

Maryland League of Conservation Voters

Maryland Native Plant Society

Midshore Riverkeeper Conservancy

National Parks Conservation Association

National Wildlife Federation

Natural Resources Defense Council

Nature Abounds

New York League of Conservation Voters

Otsego County Conservation Association

PennFuture

Potomac Conservancy

Potomac Riverkeeper

Potomac Riverkeeper Network

Rachel Carson Council

Rivertown Coalition for Clean Air & Water

Rock Creek Conservancy

Savage River Watershed Association

Severn River Association

Shenandoah Riverkeeper

Sleepy Creek Watershed Association

St. Mary's River Watershed Association

Upper Potomac Riverkeeper

Virginia Conservation Network

Virginia League of Conservation Voters

West Virginia Rivers Coalition

Wicomico Environmental Trust

 

CC:

Nicholas DiPasquale, Chair, Management Board
Director, Chesapeake Bay Program Office, U.S. Environmental Protection Agency
dipasquale.nicholas@epa.gov

James Davis-Martin, Chair, Water Quality Goal Implementation Team
Chesapeake Bay Coordinator, Virginia Department of Environmental Quality
James.Davis-Martin@deq.virginia.gov

Mark Bennett, Chair, Climate Resiliency Workgroup
U.S. Geological Survey
mrbennet@usgs.gov

Erik Meyers, Chair, Climate Resiliency Workgroup
The Conservation Fund
emeyers@conservationfund.org

Zoe Johnson, Coordinator, Climate Resiliency Workgroup
NOAA Chesapeake Bay Office
zoe.johnson@noaa.gov

 

CoSponsor Letter Chesapeake Bay Farm Bill Enhancements Act of 2017

CoSponsor Letter Chesapeake Bay Farm Bill Enhancements Act of 2017

October 16, 2017

Dear Senator:

The undersigned members of the Choose Clean Water Coalition urge you to cosponsor Senator Chris Van Hollen’s Chesapeake Bay Farm Bill Enhancements Act of 2017, which should be introduced soon. This bill is essential to maintaining and restoring clean water in the Chesapeake Bay watershed.

There are 87,000 farms in the six-state Chesapeake region. Those that are well run protect their water resources and add much to our landscape, environment, and economy. We want to ensure that these responsible farms and farmers remain economically viable. Nutrient and sediment pollution from farms is by far the largest source of contamination in the Chesapeake Bay and its tributaries. Recognizing this, the 2008 Farm Bill established the Chesapeake Bay Watershed Initiative that provided $238 million over five years to producers in the region to apply conservation practices on their farms that would help to restore and/or protect water quality.

The 2014 Farm Bill created the Regional Conservation Partnership Program (RCPP) that replaced a number of geographic programs, including the Chesapeake Initiative. Unfortunately, the RCPP has provided a significantly reduced level of support for conservation in the Chesapeake region providing only 22 percent of the funds that were previously allocated under the Chesapeake Initiative in the prior Farm Bill.

Senator Van Hollen’s Chesapeake Bay Farm Bill Enhancements Act of 2017 makes some important changes to the RCPP that will fix many of the problems the Program had in our region. Farmers will get critical funding for conservation practices that will lead to cleaner streams and rivers as well as a healthier Chesapeake Bay.  

Thank you for your consideration of this important request that is critical to clean water throughout the Chesapeake Bay region. Please be an original cosponsor of the Chesapeake Bay Farm Bill Enhancements Act of 2017.

Sincerely,

Alliance for the Chesapeake Bay
American Rivers
Anacostia Watershed Society
Audubon Naturalist Society
Butternut Valley Alliance
Cecil Land Use Association
Chesapeake Bay Foundation
Clean Water Action
Conservation Voters of Pennsylvania
Delaware Nature Society
Earth Force
Earth Forum of Howard County
Friends of Accotink Creek
Friends of the Bohemia
Friends of the Middle River
Friends of the Nanticoke River
Friends of the North Fork of the Shenandoah River
Friends of the Rappahannock
Interfaith Partners for the Chesapeake
James River Association
Lackawanna River Conservation Association
Lancaster Farmland Trust
Lower Susquehanna Heritage Greenway
Lower Susquehanna Riverkeeper Association
Maryland Conservation Council
Maryland League of Conservation Voters
Maryland Native Plant Society
Mehoopany Creek Watershed Association
Mid-Atlantic Youth Anglers & Outdoors Program
Montgomery Countryside Alliance
National Parks Conservation Association
Natural Resources Defense Council
Nature Abounds
New York League of Conservation Voters
New York State Council of Trout Unlimited
Otsego County Conservation Association
Otsego Land Trust
PennFuture
Pennsylvania Council of Churches
Piedmont Environmental Council
Potomac Conservancy
Potomac Riverkeeper
Potomac Riverkeeper Network
Prince William Conservation Alliance
Rachel Carson Council
Rivertown Coalition for Clean Air & Water
Rock Creek Conservancy
Savage River Watershed Association
Shenandoah Riverkeeper
Shenandoah Valley Network
Sidney Center Improvement Group
Sleepy Creek Watershed Association
Southern Environmental Law Center
Southeast Rural Community Assistance Project
Southern Maryland Audubon Society
SouthWings
Sparks-Glencoe Community Planning Council
St. Mary’s Watershed Association
Susquehanna Heritage
Trout Unlimited
Upper Potomac Riverkeeper
Virginia Conservation Network
Virginia Eastern Shorekeeper
Virginia League of Conservation Voters
Waterkeepers Chesapeake
West/Rhode Riverkeeper
West Virginia Rivers Coalition

 

 

 

 

 

 

Coalition Letter to House on Goodlatte Amendment

PDF Version: Coalition Letter to House on Goodlatte Amendment


September 7, 2017


Dear Representative:

On behalf of the more than 230 member groups of the Choose Clean Water Coalition, we strongly urge you to oppose an amendment Congressman Bob Goodlatte plans to offer on the Interior and Environment Appropriations Bill. The amendment undermines the successful cooperative federalism demonstrated by the Chesapeake Bay clean up and would severely hamper progress being made to restore and protect local waters.

The Chesapeake Bay is North America’s largest estuary and its vast watershed covers portions of six states - Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia - and the District of Columbia (DC). The Bay is a national treasure and an economic engine for the region. After decades of unsuccessful attempts to restore the Chesapeake Bay, the six Chesapeake Bay states and DC agreed to a geographically-tailored clean up process – and it is working.

Each state has drafted and is following its own Watershed Implementation Plan reflecting the state’s needs and detailing how it plans to reduce water pollution in the region. All of these plans have been approved by the U.S. Environmental Protection Agency (EPA) and incorporate an adaptive management approach to let each state respond to lessons learned throughout the restoration effort.

The clean up is working and there have been clear results in the Bay watershed. The current process has given the states more control than ever in seeking solutions to the degraded waters of the region, while utilizing federal resources to help the states meet their commitments. While the effort has been challenged, including in Federal Court, it has been upheld by the United States Court of Appeals and retains widespread support throughout the watershed.

The Goodlatte Amendment is an attempt to stop a federal-state-local cooperative restoration program that is working. The Chesapeake Bay jurisdictions have no desire to end their coordinated efforts and significant investments in their clean up plans. In 2014, the governors of the Bay states and the mayor of DC all reaffirmed their commitment to the restoration effort by signing a new Chesapeake Bay Agreement, and confirmed their continued support when they met this past June.

Two and a half years ago, Congress passed the Chesapeake Bay Accountability and Recovery Act by a unanimous vote of 416-0 in the House. This program is being successfully implemented by EPA and the states, and we believe that accountability is a critical element of keeping the Chesapeake Bay cleanup effort on track. This amendment would hinder the restoration effort by undermining accountability when we need it most and reverting to the failed policies of the past. 

For these reasons, we urge you to protect the investments and commitments made by each of the Bay watershed states and vote “NO” on the Goodlatte Amendment.

Sincerely,


Jennifer Mihills                                       Angie Rosser                                   Karla Raettig

National Wildlife Federation                   West Virginia Rivers                       Maryland League of

                                                               Coalition                                           Conservation Voters  

Recommendations for New Metrics Approach for the Phase I MS4 Permit Renewals

PDF Version: Recommendations for New Metrics Approach for the Phase I MS4 Permit Renewals 

August 25, 2017

Lynn Buhl
Assistant Secretary Maryland Department of the Environment
1800 Washington Boulevard
Baltimore, MD 21230

RE: Recommendations for new metrics approach for the Phase I MS4 permit renewals

Dear Assistant Secretary Buhl,

The undersigned members of the Choose Clean Water Coalition would like to thank you and the Water Management Administration for inviting this broad coalition of clean water advocates to help create and comment on the new Phase 1 MS4 permits in Maryland. The Choose Clean Water Coalition consists of over 200 diverse nonprofit organizations throughout the Chesapeake Bay watershed, with over 75 based here in Maryland. The Coalition serves as a strong and united advocate for restoring the thousands of streams and rivers flowing to the Chesapeake Bay by coordinating policy, messages, and accountability for clean water at the federal, state, and local levels. Several of our organizations are involved in the ongoing permit conversations with MDE.

Attached are our recommendations regarding the appropriate metrics to be included in the next iteration of Phase I MS4 permits. These recommendations emphasize developing a new restoration methodology for the next generation of Phase I MS4 permits. These recommended policies will strengthen the connections between the durable impervious surface area restoration requirements and stormwater volumetric focus of the current permits, with the pollutant reductions needed to meet the Chesapeake Bay TMDL and to address local water quality impairments. We seek to establish more relevant goals for the new permits and at the same time, ensure our local government and State Highway Administration (SHA) partners continue improving local waterways and the Chesapeake Bay.

We have been part of a series of meetings with you and your staff to discuss the future of these critically important permits. We thank you and Secretary Grumbles, Lee Currey, and Ray Bahr for your engagement during these discussions.

This submission offers an opportunity to find agreement on the core substance of the new permits. It also offers an important opportunity for MDE to respond to the deficiencies highlighted by the U.S. Environmental Protection Agency in their recent assessment of the performance of the Maryland stormwater sector in meeting expectations under the Bay TMDL.

We understand that recently resolved and continuing litigation over Maryland’s current Phase I MS4 permits create uncertainty, including on some of the topics we have been asked to help address. This has, in some cases, caused us to reconsider previous positions or to replace specific recommendations with somewhat vague suggestions that serve as temporary “placeholders”. We look forward to working with you and your staff to finalize the metrics and issues and to reach agreement on the monitoring and maximum extent practicable issues. For specific questions and concerns, please contact Caitlin Wall at wall@potomac.org.

Sincerely,

Anacostia Watershed Society

Audubon Naturalist Society

Audubon Society of Central Maryland

Baltimore Harbor Waterkeeper

Blue Heron Environmental Network, Inc.

Blue Water Baltimore

Chesapeake Bay Foundation

Choose Clean Water Coalition

Citizens for the Preservation of Middletown Valley

Clean Water Action

Conservation Montgomery

Envision Frederick

Frederick Zero Waste Alliance

Friends of Frederick County

Friends of Quincy Run Friends of Sligo Creek

Friends of Ten Mile Creek and Little Seneca Reservoir

Friends of the Nanticoke River

Interfaith Partners for the Chesapeake

Little Falls Watershed Alliance

Lower Susquehanna Riverkeeper

Maryland Conservation Council

Maryland League of Conservation Voters

Maryland Sierra Club

Mattawoman Watershed Society

Neighbors of the Northwest Branch

Potomac Conservancy

Potomac Riverkeeper

Potomac Riverkeeper Network, Inc.

Rock Creek Conservancy

Savage River Watershed Association

Severn River Association

Sierra Club, Catoctin Group

Southern Maryland Audubon Society

South River Federation

St. Mary’s River Watershed Association

WaterKeepers Chesapeake

Watts Branch Watershed Alliance

West Montgomery County Citizens Association

Wicomico Environmental Trust

CC: Benjamin H. Grumbles, D. Lee Currey, Raymond P. Bahr

Section 1: Principles for MDE’s third round of MS4 permits

Overview: With the Stormwater Management Act of 2007, and as an early and innovative adopter of water quality protection charges (WQPCs), MS4 permits, and other key tools, Maryland has long been a leader in stormwater management, addressing legacy impervious surface area and new development.

In the current second round of permits, jurisdictions were required to achieve an additional 20% impervious surface restoration using methodologies including Environmental Site Design (ESD), pond retrofits, and stream restoration. In addition, jurisdictions could implement various practices deemed “equivalent” to impervious surface restoration (as defined in the 2012 Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated: Guidance for National Pollutant Discharge Elimination System Stormwater Permits - “Accounting Guidance”), such as septic system pumpouts and street sweeping.

Jurisdictions are continuously challenged by the increasing demand across the state for qualified contractors and the need for internal project management for this level of infrastructure investment. As a result, Montgomery County did not meet its 20% retrofit requirement and Prince George’s County is experimenting with a new tool, a large public-private partnership (P3) to meet its permit. These two counties, as well as several other jurisdictions (Anne Arundel County, Baltimore City, Baltimore County, Charles County, and Howard County), maintain robust WQPCs despite policy reversals in the General Assembly. Counties without any or insufficient dedicated local funding, such as Carroll County, Harford County, or Frederick County) are even further off track in meeting the 20% retrofit requirement.

Lessons learned from these past two rounds of permits led the Maryland stormwater community to prioritize the following principles. We recommend embedding these into the upcoming statewide template and into individual Phase I permits as developed over the next two years:

  • Prioritize durability o Uncertainty, such as budget fluctuations and climate change impacts, requires durable solutions to manage stormwater impacts over time. ESD and other forms of green infrastructure, such as tree plantings, grade contouring, and sustainable wet-pond retrofits that mimic natural wetlands, provide long-lasting solutions. These solutions mimic nature and use their own natural growth processes to adapt to changing conditions over time. Hard, engineered surfaces and treatments (e.g., street sweeping) intended to reduce pollutant loads can never be self-sustaining or adaptive, as they will always require continued capital inputs and maintenance. o Projects must also be legally durable, with instruments such as easements used to ensure that new infrastructure will remain in place for as long as it is designed to do so.
  • Restore both local waterways and the Chesapeake Bay o The challenge of meeting Chesapeake Bay Total Maximum Daily Load (TMDL) 2025 deadlines is immense, and continues to be a substantial driver of stormwater policy (rightfully so, as stormwater is the only growing pollution threat to the Chesapeake Bay). However, many jurisdictions lack local TMDLs for small streams, allowing jurisdictions to use equivalent-acre practices that benefit the Bay (i.e., septic system pumpouts) but don’t protect local waterways. Similarly, many jurisdictions do not use any local prioritizing or targeting in determining where to place their stormwater retrofits, providing benefit for the Bay but not strategically restoring local streams. Conversely, the impervious acreage standard is not quantitatively tied to the Wasteload Allocations (WLAs) required to actually meet the Bay TMDL. Treating impervious acreage alone is 4 an output, not an outcome, standard that does not provide substantial assurance of Bay restoration on a reasonable time frame. o Our metrics proposal (Section 2 of this document) addresses the need to simultaneously focus on local waterways and the Bay.
  • Reduce stormwater volume o The increased energy and velocity of stormwater over impervious surfaces may not be the ultimate cause of the pollutants that affect the Bay (primarily N, P, and TSS), but the volume of stormwater is certainly the vehicle for and the proximate cause of much of this pollution. Practices that promote stormwater on-site retention and infiltration, not just detention, best reduce volume impacts further downstream.
  • Use a treatment-train approach o As stormwater moves downhill, it gathers energy. Treating it as high up in the watershed as possible first, means that there will be less pressure further down the system during storm events. This can also contribute to restoring natural groundwater regimes disrupted by development, by allowing water to naturally filter into the ground throughout the watershed. A successful treatment-train approach requires MS4 permits to incentivize projects on privately-owned land, and perhaps even above the pavement itself (i.e., granting credit for spongy turf and native landscaping practices). Similarly, this principle implies that stream restoration should be closely coupled with a watershed-wide strategy that seeks to restore baseflow to the stream (and modulate peak flows, which could be harmful to the desired stability of the restoration itself). Finally, addressing pollutants farther upstream in the watershed often increases pollution reduction credits at the final downstream location (e.g., the Bay).
  • Incentivize innovation o Innovative jurisdictions, such as Montgomery and Prince George’s Counties, attempting new engineering practices (such as committing to very high levels of green infrastructure) or new business models (such as P3) should be supported and incentivized to continue testing these ideas for the benefit of other jurisdictions. With risk comes the possibility of failure. The MS4 permit template should include an incentive rubric that enables jurisdictions to reap the benefits of innovation: for example, bonus credit given for achieving gains above and beyond the minimum.
  • Provide structure, versatility, and flexibility o Every jurisdiction is different and has different needs. MDE should develop a permit template establishing a framework for desired outcomes that allows flexibility in how to achieve those outcomes; this flexibility should be incorporated into the permit text itself (not open to interpretation as part of the Accounting Guidance). For example, requiring each county to universally retrofit 20% of its impervious surface is inflexible and quite structured, but each county can choose from a very large menu of options on its own regarding how to achieve the 20%. This model results in MDE abdicating its role to enforce any of the other principles outlined above.

Section 2: Recommendations for a revised MS4 metric

  • Overview: o This methodology combines new WLA reduction requirements with ESD implementation requirements (Part IV. E. 2. Restoration Plans).
  • Proposal: o Develop a new restoration methodology for the next generation of Phase I MS4 permits to combine WLA reduction requirements with durable ESD restoration requirements to meet the Chesapeake Bay TMDL, local TMDLs, and stormwater volumetric reductions.
  • Methodology: 1) MDE conducts a gap analysis to identify pollution reduction requirements needed to meet WLAs (for the Chesapeake Bay TMDL and local TMDLs) for receiving waterbodies within the permittee’s jurisdiction that have been assigned to a Phase I MS4 permittee. These numeric reduction requirements should be explicitly stated in the permits. a) Rationale: MDE (rather than the permittees) developing specific numbers for each permit provides certainty for the permit holder, the regulator, and the public, while avoiding any delay or potential reason for delay by the jurisdiction associated with conducting their own calculations. b) For the Bay TMDL allocation, new tools from the Chesapeake Bay Program are available to use the Phase III WIP methodology, Phase 6 Bay Model, and new CAST and other Bay Program tools. For different pollutants in other TMDLs, there are various other modelling protocols. Rather than allowing different modelling protocols for different permittees, MDE should determine the best methodology for each pollutant and use that to determine the “gap” for each permittee. c) In addition, each permit holder was required to develop watershed assessments and restoration plans. These assessments and plans, and the data used to support them, should be used by MDE over the next 12 to 18 months to perform the gap analyses for meeting WLAs. d) Example: Based on a county’s existing plans and past performance, MDE may determine that 1 million additional pounds of pollution removal is required in order to meet the jurisdiction’s WLA. 2) Permittees must have 100% of the Bay TMDL (or local TMDLs for nutrients and sediment) practices and programs in place by the end of the permit term which includes the year 2025. a) Rationale: 2025 is the end date by which Bay TMDL reductions via WLAs must be achieved at 100%. The MS4 permit must include language prompting jurisdictions to have all practices and programs in place for whichever permit term includes the year 2025. b) For each numeric WLA assigned to each Phase I MS4 permit holder, MDE will use the (1) baseline year and load; (2) the current year load; and (3) the final target load. Then MDE will determine the reductions assigned to specific BMPs or projects that have been implemented to date (even if overall loads have increased across an MS4 county due to growth), as well as the gap between current loads (new baseline) and the final target. 3) Permittees must identify priority local watersheds to focus efforts and meet stormwater WLAs for local TMDLs on a defined timeframe as recommended by MDE in the gap 6 analysis described in Step 1 above.1 Under current permits, the permittees were required to complete watershed assessments that: “identify and rank water quality problems” in every local watershed; “specify pollutant load reductions benchmarks and deadlines” to meet the applicable stormwater WLAs; and, submit a restoration plan “for each stormwater WLA approved by EPA prior to the effective date of the permit.”2 Creating and implementing local WLA plans should be fairly straight-forward, as most of the work was already completed under the current permit. These priority identifications, gap analyses, and plans should be utilized to create enforceable restoration plans and compliance schedules for all local impaired watersheds. These plans must include an identified end date for achievement of local stormwater WLAs, selected using one of these methods: (a) Establishing an end date: ii) Option 1: require the permittees to hold local public hearings to establish an end date for each TMDL within a specified period of time. iii) Option 2: MDE suggests an end date based on the gap analysis, using as benchmarks at least one progress over time scenario. 1. Example: MDE could use the Bay TMDL 2025 scenario to establish a linear progress curve that plots annual progress until the end date is reached (e.g., a line starting at year 1 of the permit with a slope determined by various levels of annual progress). MDE could also develop several curves using alternative scenarios to present a range of options. 4) Permittees must meet a percentage of these reductions through durable ESD restoration techniques. a) Counties can fulfill multiple goals by targeting projects that provide multiple benefits and build more durable means to reach the TMDL or other water quality goals for the county, by emphasizing the use of ESD, and limiting the reliance on projects that provide purely temporary treatment of symptoms without lasting capabilities to improve water quality, such as street sweeping. b) Similarly, MDE should require a minimum percentage of ESD project types that yield durable benefits. For example, two permittees have established ESD goals (Prince George’s County at 100% and Montgomery County at 60%). i) Recognizing the need for a tailored approach based on each jurisdiction’s demographics and geography, the remaining permits should include a goal of 40% ESD as a minimum, with the ability to increase this over time. ii) Low-cost ESD projects, like planting trees and employing compost amendment to turf, should be encouraged and fully accredited in the Accounting Guidance. In addition, the Accounting Guidance should be revised in accordance with current best practice in this rapidly-changing field to ensure that its metrics and equivalencies are as up-to-date as possible and match the expectations included in the new CAST and other Bay models. c) Example: if the gap analysis reveals that the reduction needed to meet the WLA is 1 million pounds of pollution and the permit requires 40% of the reduction to be achieved through durable restoration (using ESD), then the gap to be achieved 1 We recognize that not all local impaired waterways have TMDLs. We caution MDE to remain aware of other waterways which are currently unregulated or without established TMDLs, and to continue to work with the EPA and local authorities to propose and designate local TMDLs accordingly. 2 See Phase I MS4 Permit Part IV.E(1)(b)(iii)-(v) and Part IV.E(2)(b). 7 through ESD is 400,000 pounds of pollution.3 These percentages of the WLA might vary depending on a county’s needs.
  • Discussion:
    • Inclusion of a requirement to meet WLAs with a minimum ESD requirement will support both water quality improvements and runoff reduction for local waterways and the Chesapeake Bay.  The WLA sets the ultimate reduction requirement and the ESD target becomes a technology-based means to achieving that target.  The challenge to introducing a water quality based numeric reduction standard in the new permit is that it is obviously only applicable where a WLA has been assigned to the MS4 permit. Ideally, every watershed would have a WLA for every pollutant for which the watershed is impaired. In reality, most watersheds have few TMDLs and even fewer numeric WLAs assigned to MS4 permits. (Incidentally, this is why additional promotion of ESD restoration is required – it reduces a variety of pollutants whether or not the watershed has a WLA or is considered impaired.)  Under this methodology, the ESD requirement in the next permit would not be a percentage of the county’s impervious surfaces (e.g. 20%) expressed in acreage but rather a percentage of the WLA (e.g. 40%) expressed in pollutant pounds that must come from projects and practices that specifically target stormwater volume and runoff through ESD.4

Public Comment Invited to Help Develop State Plan to Improve Local Water Health in Chesapeake Bay Watershed Counties

PDF version: Public Comment on Pennsylvania State Plan to Improve Local Water
Health in Chesapeake Bay Watershed Counties
 

July 7, 2017

Pennsylvania Department of Environmental Protection
Policy Office
Rachel Carson State Office Building
PO Box 2063
Harrisburg, PA
17105-2063
(via electronic mail to ecomment@pa.gov)

RE: Public Comment Invited to Help Develop State Plan to Improve Local Water Health in Chesapeake Bay Watershed Counties

The undersigned members of the Choose Clean Water Coalition submit the following comments to help inform the Commonwealth of Pennsylvania’s Department of Environmental Protection (DEP or Department) about how best to develop and implement the Phase III Watershed Implementation Plan (WIP).

It is no small secret that Pennsylvania is off-course in meeting its portion of the nutrient and sediment goals established in the Chesapeake Bay Total Maximum Daily Load (TMDL). In fact, “Pennsylvania is only about 10 percent of the way towards its 2025 nitrogen goal, and thus about 35 percent below its 2015 target.” (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 1)

The Department has solicited input regarding the planning, drafting, and implementation of the Phase III WIP. The undersigned members of the Choose Clean Water Coalition assert that in order to forge a path toward achieving local and Bay-wide water quality goals, the Commonwealth must:

● be realistic in its ability to provide funding for Department staff and restoration initiatives;
● include more detail and documentation in the portions of the WIP related to agriculture;
● include a frank assessment of whether or not the Department has the programmatic capacity necessary to implement the Phase III WIP and underlying restoration strategy;
● include and engage local partners in the planning and implementation of WIP III, particularly conservation districts;
● target financial and staff resources to the Southcentral tier of the state where agricultural pollution is most profound and where water quality improvements will have the most impact upon Bay restoration efforts;
● increase the quantity of inspections completed;
● require agricultural operations to fully implement their planning documents;
● focus on installation of efficient and effective best management practices;
● prohibit the land application of manure in the winter; and,
● require all farming operations to submit reportable information related to farm practice and best management practices to DEP or the County Conservation District.

Funding

All parties involved understand that these are tough budget times in which we are operating. While there has been much talk about the state legislature passing a water usage fee or a new iteration of Growing Greener, neither is on the cusp of passage and should therefore not be relied upon when the Commonwealth is in the planning phase of WIP III. EPA expects the Commonwealth to “coordinate with EPA to perform resources workload model analyses in 2017 [to] determine if there are sufficient resources to implement the Commonwealth’s core state regulatory programs, and in 2018 to determine if there are sufficient resources to meet the Commonwealth’s Chesapeake Bay Phase III WIP implementation needs.” (EPA Expectations for Pennsylvania’s Phase III WIP, p. 5) EPA has also instructed the Commonwealth that any Chesapeake Bay funding provided by EPA for implementation of best management practices should only be applied to projects in priority watersheds in the Susquehanna and Potomac River watershed. (EPA Expectations for Pennsylvania’s Phase III WIP, p. 5)

Agricultural Sector

EPA has stated that it expects the Commonwealth’s Phase III WIP to contain more detail and documentation related to the Agriculture Sector because that sector is under backstop actions and oversight by EPA. EPA has also provided the Commonwealth with “state-specific expectations for jurisdictions and pollutant sectors which are under enhanced or back-stopped levels of federal oversight. . . .” (EPA Interim Expectations, p. 8) The Commonwealth’s Phase III WIP must address gaps in programmatic capacity aimed at addressing “the financial cost share, technical assistance, and regulatory oversight capacity to deliver agricultural conservation practices at levels consistent with those projected as needed to achieve their Phase III WIP agricultural sector load reductions.” (EPA Interim Expectations, p. 2) First and foremost, the Phase III WIP must document programmatic and policy changes needed to “[e]nsure compliance with and full implementation of state nutrient and sediment pollutant load reduction regulations.” (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 3) The Phase III WIP must also include a discussion of implementation incentives meant to encourage nutrient management planning and other priority best management practices. (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 3) The Commonwealth also needs to identify and address the Department’s lack of programmatic capacity and failure to track best management practices. (EPA Interim Expectations, p. 2) EPA notes that jurisdictions should consider corollary benefits of best management practices targeted for implementation, such as addressing other environmental issues, improving wetlands, increasing forest buffers in addition to water quality benefits of a practice. (EPA Interim Expectations, p. 3)

Local Engagement

EPA has stated quite explicitly that local partners must be engaged in both the WIP III planning process and implementation of strategies and practices. (EPA Interim Expectations, p. 3) “A significant and integral driver towards restoring local waters within the Chesapeake Bay watershed and meeting the goals of the 2010 Chesapeake Bay Total Maximum Daily Load (Bay TMDL) is active engagement and participation from local partners, such as local governments, conservation districts, planning districts, municipalities, federal facilities, watershed organizations, source water protection groups, private businesses, and local elected officials.” (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 1) The Bay Program has stated that “the Phase III WIPs should help local partners understand their contribution to achieving water quality improvements and clearly articulate who will be held accountable for following through on Phase III WIP implementation.” (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 1)

The Bay Program recommends including local partners in discussions and decisions about who will take responsibility for which load reductions, from planning to implementation. (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 9) “A justification of the distribution should be provided in terms of equity, practicality, or cost-effectiveness.” (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 10) The Bay Program has stated that merely allocating load reduction responsibility to a local partner is not acceptable. (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 9) Within the Phase III WIP, the Commonwealth must “demonstrate collaboration” with and among it partners, not merely set directives for them to follow. (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 2)

In addition to engaging local partners, the Phase III WIP must describe in detail how local planning goals below the state-major basin scales will be achieved. (EPA Interim Expectations, p. 1) “A recommendation is to engage those at the county level first to gain an understanding of the process of determining their fair share of the allocation and what they need to do in order to meet that target.” (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 9) The Choose Clean Water Coalition supports county level planning goals in PA, with emphasis on the Southcentral part of the state with respect to the agricultural sector. If agriculture continues to lag behind in meeting its sector goals, DEP should assign individual cap loads to agricultural operations. A permitting program would be needed to capture all farming operations, but this would be a fair and equitable way to ensure that all farms are doing their part to meet the sector load. DEP has suggested that it would consider such a program. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 29)

To demonstrate commitment to inclusion of local partners, the composition of Pennsylvania’s Steering Committee for the Phase III WIP must be adjusted to include more local partners. The Choose Clean Water Coalition suggests that directors of Conservation Districts in the Southcentral tier of the state should be added to the Steering Committee, particularly those from Cumberland, Adams, York, Lancaster, and Lebanon Counties. Pennsylvania’s Steering Committee for the Phase III WIP is comprised completely of state agency or quasi-agency officials. There are no county or local government officials represented on the Commonwealth’s Steering Committee for the development of the Phase III WIP. (Pennsylvania Chesapeake Bay Phase 3 Watershed Implementation Plan (WIP), Steering Committee Meeting Minutes, April 3, 2017) Additionally, there is no representation on the Steering Committee by EPA. Failure to include EPA in discussions about how the Commonwealth could reach its Bay TMDL sector loads is a missed opportunity for guidance about whether the chosen path will be accepted by EPA as sufficient, especially in light of EPA’s enhanced oversight of the Commonwealth for both agriculture and stormwater.

Require Implementation of Planning Documents

In order to create the culture of compliance that the Department seeks from agricultural operations, DEP is going to have to require farm operators to implement their nutrient and sediment control plans. “Inspection and verification activities related to agricultural . . . sources have been a missing piece in creating a culture of compliance with existing regulatory requirements, and documenting pollutant reductions necessary to meet our targets. If these basic functions of BMP documentation and verification of compliance are not given their proper role, Pennsylvania’s performance in meeting water quality goals and Bay performance measures will continue to seriously lag.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 1) First and foremost, DEP must increase the number of agricultural inspections it is completing in order to address pollutant reduction deficiencies. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 2)

EPA has set a goal for jurisdictions to inspect 10 percent of farms in the Chesapeake Bay Watershed annually, and the Pennsylvania Department of Environmental Protection has made a commitment to meet that goal within the Commonwealth’s portion of the Bay watershed. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 2) In 2014, DEP completed 592 farm inspections which is only 1.8 percent of the farms in the Commonwealth’s portion of the Bay watershed. That is only 17.6 percent of EPA’s required level of inspections, well below the 3,360 that EPA anticipates being inspected annually. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 13) DEP completed even fewer inspections of agricultural operations in 2016. In 2016, DEP and Conservation Districts had only completed approximately 500 inspections of farming operations. (Agriculture Initial Inspection Update, Presentation to Ag Advisory Board, April 27, 2017)

PA DEP’s strategy thus far for agricultural inspections, thus far, has been to require each County Conservation District Chesapeake Bay Technician under contract with DEP to do “50 Manure Management and Agricultural E&S Plan inspections, supplemented with an unfunded BMP data collection activity.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 9) PA DEP’s strategy has focused exclusively on whether farms have planning documents and locating and quantifying previously undocumented best management practices. DEP’s directive to Conservation District staff has been to focus on assuring “that everyone who is required to have plans to be in regulatory compliance has all the necessary plans applicable to their farming operation.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 9) Of the farms inspected in 2016, 64 percent had an administratively complete Manure Management Plan (MMP) while only 60 percent had an administratively complete Agricultural Erosion and Sediment Control Plan (Ag E&S Plan). (Agriculture Initial Inspection Update, Presentation to Ag Advisory Board, April 27, 2017)

DEP has completely ignored making a determination as to whether those plans have been implemented. DEP has specifically directed Conservation District staff to only seek confirmation that plans are in place, but staff should not seek to make a determination as to whether a farming operation is in compliance with those planning documents. This is completely contradictory to EPA’s directive to implement planning requirements and BMPs. DEP’s Standard Operating Procedure for farm inspections states that “[i]nspections do not include inspection of waste management systems, production areas, barnyards and other animal housing areas, or Best Management Practices (BMPs).” (Standard Operating Procedure, Chesapeake Bay Agricultural Inspection Program, SOP No. BCW-INSP-018, Version 1.0, Final, May 27, 2016, p. 14) The undersigned members of the Choose Clean Water Coalition believe it is the duty and obligation of DEP and Conservation District staff inspecting farming operations to make a determination about BOTH compliance with planning requirements AND implementation of MMP and Ag E&S Plans.

Geographic Targeting of Resources

The Commonwealth must target financial and staffing resources to specific geographic areas where “accelerated restoration efforts are needed and where local governments are receptive towards making a discernable difference in their community in meeting their WIP commitments.” (Chesapeake Bay Program Partnership’s Phase III WIP Stakeholder Assessment Action Plan, 2016, p. 4) As discussed at the PA Steering Committee meeting on April 3, 2017, “[t]argeting should factor into each workgroup’s discussion. Where BMPs are placed is as important as what, when[,] and how they are implemented.” (Pennsylvania Chesapeake Bay Phase 3 Watershed Implementation Plan (WIP), Steering Committee Meeting Minutes, April 3, 2017) Given the lack of financial resources for the restoration effort, the Commonwealth must focus funding and staffing where it can most effectively and efficiently “maximize nutrient and sediment pollutant load reductions.” (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 2) EPA has stated that the Commonwealth’s Phase III WIP should prioritize areas in the Susquehanna and Potomac River watersheds where restoration efforts will have the most impact on the Bay and where local water quality improvement can be achieved. (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 2) EPA has stated that the Commonwealth should utilize available information and tools that assist “in identifying sources of nutrients and sediment, determining appropriate practices that reduce pollution flows, and calculating costs associated with selected actions. . . .” (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 2) EPA acknowledges that programs and practices may need to be targeted to certain geographic areas in order to more effectively and efficiently reduce pollutant loads. (EPA Interim Expectations, p. 2). Accordingly, the Commonwealth should focus agricultural pollutant reduction programs and practices on the Southcentral tier of the state in which the majority of agricultural operations exist.

DEP’s compliance efforts thus far have been spread across the watershed fairly even, based upon location of Chesapeake Bay Technicians at Conservation Districts that have a memorandum of understanding to complete work on behalf of DEP. However, the effort should be more heavily targeted toward the Southcentral tier of the state, given the total agricultural loading to the Bay coming from that region. DEP should either contract for more Conservation District staff in those areas or target the efforts of its staff geographically to the Southcentral Regional Office with respect to agricultural enforcement. EPA has suggested that it would be appropriate for jurisdictions to contract with third parties to provide services that are central to the implementation of the WIP. (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 4) Thus, DEP could contract with third parties to perform agricultural data collection and reserve staff for farm inspections related to plan implementation or pollution related discharge events.

Additionally, Conservation District Watershed Specialists should be utilized to facilitate restoration projects in impaired waters. This adjustment to job responsibilities was previously discussed by the Department and would be a better use of resources to achieve water quality improvements in each county. DEP has stated that the Department should “[i]mplement targeted efforts in impaired watersheds where the cause listed is . . . agriculture . . . and where geography and land use are amenable to successful BMP implementation. . . . These watersheds should be in an area where there is an interested local group ready to take the lead on implementation.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 11-12)

In addition to targeted efforts by DEP, EPA should also continue to complete targeted watershed assessments within Pennsylvania. DEP has previously acknowledged that EPA could pursue one of two approaches in order to further Pennsylvania’s efforts to gain compliance with existing regulatory requirements for farming operations. In the first approach, “EPA would directly contract for field work to assess rates of compliance with state and federal requirements of animal Ag operations in Pennsylvania.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 20) In the second approach, EPA field staff would support 3-6 targeted watershed inspection efforts per year in areas with the highest nutrient loading rates for agriculture. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 20) The undersigned members of the Choose Clean Water Coalition recommend that EPA continue to undertake targeted watershed assessments in the Southcentral tier of the Commonwealth.

Installation of Effective and Efficient Best Management Practices

The Phase III WIP should focus restoration efforts at agricultural operations on best management practices that are effective and efficient at controlling the loss of nutrients and sediment. DEP has committed to “putting new high-impact, low-cost BMP projects on the ground in watersheds that are currently impaired by agriculture. . . .” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 2) DEP has suggested that it is appropriate for cost share programs and funding to be targeted to the most effective and efficient BMPs. DEP has stated, and the undersigned members of the Choose Clean Water Coalition agree, that it would be most beneficial for the jurisdiction to focus on installation and implementation of the following agricultural BMPs: cover crops, tillage (no-till and conservation till), manure transport, streambank fencing, and buffers. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 27)

Winter Manure Applications

DEP should make programmatic and policy changes necessary to prohibit winter manure applications. It is well recognized that winter manure applications are not an effective or efficient use of nutrients as plants are not actively growing. It is also well recognized that nutrients are more likely to become unavailable to plants via runoff or leaching if they are not applied close in time to when plants are actively growing. EPA has also stated that Pennsylvania’s Phase III WIP must include a discussion of programmatic, policy, legislative, and regulatory changes needed for “[r]estrictions on manure application during winter months to protect drinking water sources and ensure local and Chesapeake Bay water quality protection.” (EPA Expectations for Pennsylvania’s Phase III WIP, April 27, 2017, p. 3) DEP has also suggested that winter manure spreading should be prohibited unless it is conducted under an approved and certified nutrient management plan. (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 27)

Mandatory Reporting of Data

DEP should make programmatic and policy changes necessary to require all farming operations to submit reportable information related to farm practice and best management practices to DEP or the County Conservation District. DEP has stated that “[c]ontinued reliance on voluntary reporting and costly estimation techniques of indeterminate accuracy result in continued high levels of state and Federal expenditure . . . and seriously hamper the Commonwealth’s ability to make informed policy decisions on which to take effective action.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 6-7) DEP in partnership with the Penn State Agriculture and Environment Center completed a farm survey in which they were able to collect data on approximately 7,000 farms within Pennsylvania’s part of the Bay watershed. However, there are no immediate plans underway to repeat this effort. DEP has previously noted the importance of establishing a mandatory reporting requirement for all farming operations, even the smaller farms. DEP has stated the need to “[e]stablish reporting requirements for Ag E&S and Manure Management Plans in the agriculture sector, and provide the CDs with tools (Practice Keeper) to capture these data.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 12) All farms should be required to provide information or plans detailing how a farming operation is meeting DEP’s regulatory requirements under the Clean Streams Law. “The data collected, coupled with verification by inspection and compliance assurance activities, will allow the Commonwealth to gather reportable, Bay model-countable data and will result in real improvement in water quality in Pennsylvania, and in the Chesapeake Bay.” (A DEP Strategy to Enhance Pennsylvania’s Chesapeake Bay Restoration Effort, January 21, 2016, p. 7)

Failure by the Commonwealth to draft and implement a Phase III WIP could lead to serious consequences by EPA, including, but not limited to: targeted EPA enforcement and compliance assurance inspections; establishing finer scale wasteload and load allocations; additional load reductions from point sources; and, nitrogen and phosphorus numeric water quality standards. The Commonwealth must use the Phase III WIP process to meaningfully engage with local partners to draft a plan in which resources are targeted to where they can be efficiently and effectively implemented to achieve water quality improvement, both local and Bay-wide.

If you have any questions or would like to discuss these comments further, please contact Kim Snell-Zarcone at (717) 648-0602 or kim@choosecleanwater.org.

Respectfully submitted by,

Kimberly L. Snell-Zarcone, Esquire

Choose Clean Water Coalition
2707 Yale Avenue
Camp Hill, PA 17011

On behalf of:
Lower Susquehanna RIVERKEEPER
National Parks Conservation Association
Nature Abounds
PennFuture
Pennsylvania Council of Churches

Maryland Nutrient Trading Comments

PDF Version: Maryland Nutrient Trading Comments 

July 1, 2017

Via Email:

gary.setzer@maryland.gov

Mr. Gary Setzer
Water Quality Trading Advisory Committee
Maryland Department of the Environment

Re:  Comments on Maryland Department of Environment’s Subtitle 08 Chapter 11 Maryland Water Quality Nutrient and Sediment Trading and Offset Program Draft Regulations

Dear Mr. Setzer:

Thank you for the opportunity to comment on the draft regulations which were distributed on June 7.  The undersigned organizations, including some of the over 200 member organizations of the Choose Clean Water Coalition, respectfully submit the following comments in response to the Maryland Department of the Environment’s (MDE) proposed regulations to establish a Nutrient and Sediment Trading and Offset Program. 

The Choose Clean Water Coalition

Choose Clean Water works in the seven jurisdictions, Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia that make up the Chesapeake Bay region. The coalition’s members range in size and scope from national to regional to the most local level, but share the vision of vibrant clean rivers and streams in all of the Chesapeake region’s communities. One of the main objectives of the coalition is ensuring the Chesapeake Bay pollution limits, the corresponding state Watershed Implementation Plans (WIPs) and broader Clean Water Act protections continue to lay the groundwork for clean water in the region. The Coalition is interested in programs that have the potential to create cost-effective achievement of the goals set forth in the Chesapeake Bay Total Maximum Daily Load (TMDL) and Maryland’s Watershed Implementation Plan (WIP). The Coalition recognizes that the nutrient credit trading in the Chesapeake Bay watershed could be a cost effective mechanism to meet a portion of the required TMDL reductions. However, improperly designed programs increase the chance of water quality degradation, which ultimately means failure to meet water quality goals.

Comments on Draft Regulations

We commend MDE for listening to many of the concerns of several of our members and other stakeholders in creating regulations to comment on rather than trying to establish a trading program simply relying on guidance. We urge MDE to include more details in the regulations and make some changes to improve the regulations in order to make a robust trading program that will not endanger water quality in the Bay or at the local level.

1. The regulations must adhere to the EPA technical memoranda on nutrient trading.

The Environmental Protection Agency (EPA) has developed a series of technical memoranda that provide details on EPA’s expectations for nutrient trading programs designed to meet the Bay TMDL target allocations.[1] Specifically, the technical memoranda elaborate on Appendix S and Section 10 of the TMDL.[2] These are not merely guidance, but reflect the fundamentally important “expectations” of EPA, the Chesapeake Bay Program (CBP) partner responsible for ensuring accountability in the TMDL implementation. As you know, if Maryland chooses to ignore the memoranda, it runs the risk not only of forcing EPA to object to permits and reject credits or offsets for use in meeting TMDL allocations, but also of losing credibility in the eyes of other partners and the public.

2. The draft regulations must require the use of a 2:1 uncertainty ratio for all trades involving nonpoint credit generators.

The pollution loads from nonpoint sources of pollution, which by definition lack discreet “point” source outfalls, are very difficult to measure.  When these nonpoint sources implement Best Management Practices (BMPs) to reduce pollution loads, the reductions are equally difficult to measure. In practice, these loads and pollution reductions are never measured, but are instead estimated. Nutrient credits generated by nonpoint sources are therefore inherently uncertain.

Adding to that basic uncertainty is the fact that most estimates of BMP effectiveness are generated from carefully controlled research experiments – not real-world demonstrations. The National Research Council (NRC) observed that:

BMP efficiencies are often derived from limited research or small-scale, intensive, field-monitoring studies in which they may perform better than they would in aggregate in larger applications . . . Thus, estimates of load reduction efficiencies are subject to a high degree of uncertainty.[3]

Note that the NRC authors are suggesting that the uncertainty is largely in one direction—BMP efficiencies are likely to overestimate actual nutrient removals. Indeed, the authors go on to say that “[p]ast experience . . . has shown that credited BMP efficiencies have more commonly been decreased rather than increased in the light of new field information.”[4] 

In other words, BMP effectiveness estimates tend to overestimate pollution reductions. The Chesapeake Bay Program has modified certain BMP effectiveness estimates to address some, but not all, of this bias (to “remove unwarranted optimism”).[5] There has been some confusion on this point. For example, in 2011 the Maryland Department of Agriculture (MDA) stated that “[a]ny uncertainty associated with [BMPs] has already been taken into account by the CBP in the adoption of the stipulated efficiency.”[6]  This is incorrect.  Not all BMPs have been adjusted as described above, and not all sources of uncertainty have been addressed. According to EPA: 

The CBP partnership BMP effectiveness values vary across the Chesapeake Bay watershed for conditions such as implementation date, growth rate of crops, and physiographic region.  These adjustments generate BMP effectiveness values that are unbiased and realistic but not necessarily conservative because they were established using realistic estimates for load reductions that do not reflect additional sources of uncertainty, especially hydrological variability and operation and maintenance over the lifetime of BMPs. The uncertainty ratio recommended in this technical memorandum is designed partially to account for those additional sources of uncertainty.[7]

This means that there is a reasonable probability that a BMP will not generate the pollution reductions that it is given credit for. In order to avoid a net increase in pollution loads, EPA expects the states to use an uncertainty ratio “of at least 2:1” for trades between nonpoint credit generators and point source credit buyers.[8]  In other words, a credit buyer hoping to offset one pound of new nitrogen load would have to purchase credits worth two pounds of nonpoint nitrogen. EPA allows for two possible exceptions to this policy.  The first is where “direct and representative monitoring of a nonpoint source is performed at a level similar to that performed at traditional NPDES point source.”[9]  The second is where land conservation is made “permanent” through a conservation easement or other deed attachment.[10] 

In general, however, Maryland is required to apply a 2:1 ratio to all nonpoint-point trades. The draft regulation defines uncertainty ratios, but does not include any substantive language about them. We presume that this is an error in drafting – since MDE included a definition, we presume that the Department intended to include substantive language. Maryland’s most recent guidance manual[11] includes some language about uncertainty ratios, but misses the mark. Specifically, the manual requires a 2:1 uncertainty ratio for trades between nonpoint credit generators and “wastewater point sources,” but does not require a 2:1 ratio for trades between nonpoint credit generators and “stormwater point sources.”[12] This is an arbitrary distinction, and it is impermissible. The characteristics of the credit purchaser are irrelevant to the policy goal that a 2:1 uncertainty ratio is intended to serve. The uncertainty ratio is there to ensure that credits do not overestimate the pollution reductions achieved by the credit generator.

Virginia has adopted an uncertainty ratio requirement that comports with the TMDL and EPA’s expectations:

Credits used to offset new or increased nutrient loads under this subdivision shall be:

  • Subject to a trading ratio of two pounds reduced for every pound to be discharged if certified as a nonpoint source credit by the board pursuant to § 62.1-44.19:20 of the Code of Virginia. On a case-by-case basis the board may approve nonpoint source to source trading ratios of less than 2:1 (but not less than 1:1) when the applicant demonstrates factors that ameliorate the presumed 2:1 uncertainty ratio for credits generation by nonpoint sources such as:
    • When direct and representative monitoring of the pollutant loadings from a nonpoint source is performed in a manner and at a frequency similar to that performed at VPDES point sources and there is consistency in the effectiveness of the operation of the nonpoint source best management practice (BMP) approaching that of a conventional point source.
    • When nonpoint source credits are generated from land conservation that ensures permanent protection through a conservation easement or other instrument attached to the deed and when load reductions can be reliably determined.[13]

MDE should adopt the same language and apply it to all trades and offsets.

Furthermore, the same logic should apply to all trades involving nonpoint credit generators, including the sale of credits to nonpoint credit purchasers. Again, the uncertainty ratio is there to ensure that credits do not overestimate the pollution reductions achieved by the credit generator. The characteristics of the credit purchaser are irrelevant.

In short, MDE must require the use of a 2:1 uncertainty ratio for all trades involving nonpoint nutrient credits, including but not limited to trades between nonpoint credit generators and “stormwater point sources.”

3. Use a retirement ratio to ensure net improvement to water quality. 

Trading programs must result in actual net improvements to water quality. The current draft regulations do not include a retirement ratio.  They include a “reserve ratio”, which is not the same thing, because that does not ensure that there is a net reduction of pollution from any trade.  This is sometimes called “additionality”. This is an EPA “expectation” set forth in its Technical Memoranda on Components of Credit Calculation.[14] We urge MDE to include a retirement ratio similar to the one that used to be a part of Maryland’s draft trading policy. MDE should require that 5% of credits generated by point sources, and 10% of credits generated by nonpoint sources, be “retired.” An earlier iteration of MDA’s nutrient trading policy included the following “fundamental principle”:

Trades must result in a net decrease in loads.  To ensure this net decrease is achieved, 10 percent of the agricultural credits sold in a trade will be “retired” and applied toward Tributary Strategies or TMDL goals.  The buyer will retire the credits following the transaction, and this determination should be reflected in the buyer/seller contract.[15]

At the January 8, 2016 trading symposium, MDE stated that a percentage of credits will be retired for the sake of net water quality benefit. We agree with this policy and urge MDE to ensure that these levels are included. As noted above, the current draft omits the retirement ratio and instead includes a ‘reserve ratio.’ The reserve ratio alone is insufficient for two reasons. First, it is not a retirement ratio, and does not ensure a net reduction in pollution loads. Second, at the end of the year there is nothing preventing MDE from distributing the reserved credits to noncompliant dischargers. This means that not only is there zero net pollution benefit, but there is also an incentive to polluters to fall short of their pollution reduction targets.  We have no objection to applying a reserve ratio if MDE also incorporates the appropriate retirement ratio. 

We recommend the following in words or substance:

“A retirement ratio will be applied to each trade, and represents the percentage of the total purchased credits to be retired towards net water quality benefit. The retirement ratio is 1.05 for point source credits and 1.1 percent for nonpoint credits. This means that credit purchasers will have to purchase 1.05 pounds of point source credits, or 1.1 pounds of nonpoint credits, before accounting for any other trading ratios, to offset one pound of pollution.”  

4. Ensure that trading does not cause degradation of local waters or pollution hotspots. 

We strongly support the intent of the language in section .05.B.  The TMDL and EPA’s technical memorandum on local water quality both prohibit trades that would cause or contribute to local water quality impairments, including any exceedances of water quality standards.[16] We commend MDE for limiting trading to credits generated upstream of where the water discharge reaches impaired waters as a good practice to help ensure compliance with local water quality standards.  However,  section .05.B.1, as written, is too narrow and is inconsistent with section .05.B, the TMDL, and EPA’s technical memorandum. Section .05.B. prohibits trades that would cause or contribute to an impairment or to an exceedance of water quality standards. We would strongly urge MDE to consider language that would avoid creating pollution hot spots for local communities by requiring all trades be executed within a small watershed and where the credit generator is upstream of the purchaser. At a minimum, however, we would request the following.

Please change:

“Where necessary to ensure compliance with local water quality standards, the exchange of credits in an area within the Chesapeake Bay Watershed subject to an approved local TMDL for total nitrogen, total phosphorus, or total suspended solids with allocations more stringent than the Chesapeake Bay Watershed TMDL shall be limited to those credits generated upstream of where the discharge reaches impaired waters.” 

To:

“Where necessary to ensure compliance with local water quality standards and to prevent local water quality impairments, the exchange of credits in areas where a credit purchaser may cause or contribute to a violation of water quality standards, an impairment identified by the Department under in the most recent biennial report, or a violation of a local TMDL, shall be limited to credits generated upstream of where the credit purchaser’s discharge reaches impaired waters.” 

We also urge MDE to ensure that permittees, particularly MS4s, do not use trading to meet the entirety of their permit. Trading should not be allowed to offset more than 50% of a permittee’s pollution reduction requirements. This would ensure that local waters are not significantly degraded and also ensures that MS4s do not abandon all stormwater and polluted runoff reduction efforts within the boundaries of their jurisdictions. 

5. Include additional details on enforcement: The regulations should ensure greater enforcement against fraud in the program and repeat offenders.

Since nutrient trading creates a host of new enforcement issues, the draft regulation must add significantly more detail on enforcement. Section 11 should outline specific enforcement measures that MDE would pursue in response to credit failure, willfully fraudulent trading or verification misrepresentations, and repeat offenders.

To begin with, the regulation should clearly and comprehensively state that credit purchasers are responsible for credit failure, and that a credit failure is a permit violation subject to Clean Water Act and state law enforcement. Section .08.A.1(d) states that “in the event of a default in a trade contract or the invalidation of credits, the MS4 permittee using those credits remains responsible for complying with MS4 permit requirements that would apply if the trade had not occurred.” This is a step in the right direction, but it does not go far enough and only applies to MS4 credit purchasers. The draft regulation should expand this language to state that permittees are subject to enforcement for permit violations in the cases of credit default, and apply that language to all credit purchasers.

Enforcement provisions should recognize that there will likely be minor infractions, or a failure of a BMP performance, that can be corrected expeditiously.  They should authorize administrative compliance orders to address these and other violations, coupled with penalties for failure to comply.

In addition, we recommend that the regulations expand the enforcement sanctions for willfully fraudulent trading or verification, and for repeat offenders.  A noncompliant verifier working with a willful counterfeiter of credits could jeopardize the integrity of the entire trading system and the health of the Chesapeake Bay. Greater enforcement mechanisms are necessary to reduce the temptation to falsify credit verification reports, particularly when the verifiers are third party entities.

Both the MDA and MDE should have the authority to impose on any noncompliant party a ban from the nutrient trading system of up to 10 years, as well as a lifetime ban for the most serious and/or repeat offenders. The MDA should also refer cases of fraud to the State Attorney General to take appropriate action under the state's general civil and criminal fraud laws.

Finally, we recommend the Department include a definition of “significant noncompliance” since this term is used in .04E.(1) to describe one basis for becoming ineligible to participate in the trading program.

6. The draft regulation must include more detail on certification and verification of credits

The draft regulation currently includes very little detail on verification, despite the fact that Maryland has adopted a comprehensive Best Management Practice verification plan.[17] Much of the verification under this plan will be done by MDA, but the plan also assigns numerous responsibilities to MDE (e.g., stormwater BMP and wastewater treatment plant verification, review and submittal to the Chesapeake Bay Program of MDA verification data, etc.). To the extent that the BMP verification plan may overlap with the nutrient trading regulation, MDE should incorporate the overlapping policies and language.

In addition, section .05.E(5) suffers from both substantive and drafting problems. First, section .05.E(5) states that “permanent credits are available in perpetuity and . . . may be verified annually.” This suggests that permanent credits may not be verified at all. Nothing is truly “permanent,” and MDE must prescribe some form of follow-up verification for any practice used to generate credits. Maryland’s BMP verification plan lays out a schedule for initial and follow-up inspections for virtually every kind of credit-generating practice.[18] EPA’s technical memorandum on verification simply says that the Agency expects “all credit generating projects and practices to be verified on an annual basis.”[19] MDE must ensure that the draft regulation is consistent with that plan.

Section .05.E(5) goes on to exempt two types of practices from the preceding language, but because the preceding language includes three clauses, it is unclear what the practices in .05.E(5)(a) and (b) are exempted from. If the language exempts (a) and (b) from the “may be verified annually” clause, then MDE is effectively stating that these two practices – converting septic systems to wastewater treatment plant hookups and land conversions with deed restrictions – cannot be verified after initial project completion. It makes no sense for MDE to tie its hands in this way. Since .05.E(5) does not require anything beyond initial verification on project completion, there is no reason to exempt any practices, and the word “except” and parts .05.E(5)(a) and (b) should be deleted.  

7. Credit timing: adhere to EPA’s expectations

The draft regulation presents a conflicted set of requirements for the use of credits over time. On one hand, credits are generally valid for one year and cannot be banked for future years – a good policy (section .05.E(4)). On the other hand, the draft regulation contemplates “permanent credits” (.05.E(5)), and “[p]ermittees are required to secure credits in perpetuity or the term of their permit,” (section .05.E(6)), or for up to 20 years (section .07.A.(3)(b)(ii)). The draft regulations fail to explain how a permittee could “secure” credits for 20 years (or in perpetuity) when most credits are annual and expire a year after they are created.

This issue requires careful thought on MDE’s part. The Department may wish to require that long-term credit purchases be limited to long-term credit generating practices such as land conversion with deed restrictions. Alternatively, the Department will have to provide a mechanism by which permittees can “secure” credits in a way that the Department can validate and track. A simple contract between a permittee and a broker, where the broker promises to find annual credits every year for the next 20 years, is plainly insufficient.

Unfortunately, EPA has provided very little guidance on this issue, but the agency does expect that “[t]he procurement of credits should be documented in the permit, the fact sheet, and the administrative record. This includes documented assurances in place to show that credits have been secured from a project and/or practice certified by a person properly authorized to do so for the duration of the authorization to discharge.”[20]

MDE must adhere to EPA’s expectations in the following ways: (1) It must revise the draft regulation to specify that “securing” credits means lining up credits from specific projects and/or practices (not from brokers), and (2) it must include how the credits were secured in the relevant permit, fact sheet, and administrative record.

8. The draft regulations should explicitly prohibit bubble permits and interstate trading

As written, the draft regulation would allow for “multiple facilities in a watershed” to form an association and obtain a single permit (a “bubble permit”) as co-permittees. This provision is not authorized under the Clean Water Act and has no basis for inclusion in nutrient trading regulations.

Moreover, even if a way could be found todesign a “bubble permit” that is consistent with the CWA, we have serious concerns about the impact of bubble permits, which create a laundry list of potential problems for local water quality, transparency, accountability, and enforcement, and must be avoided. For example, as drafted, the term “watershed” is not defined and could allow permittees anywhere within the Chesapeake Bay watershed to combine their discharge limits. Worse, the draft regulation establishes no restrictions at all on the number of owners forming an association. Theoretically, a single “bubble permit” could be written for all nutrient dischargers in Maryland’s Chesapeake Bay watershed.

Even a bubble permit involving a limited number of facilities poses significant permit-writing and enforcement questions. How will MDE ensure that there are no local water quality impacts at all locations? As a preliminary matter, how will MDE even conduct a “reasonable potential” analysis, which it must do pursuant to the Clean Water Act, to determine whether water Quality-Based Effluent Limitations are required? Will co-permittees report their discharges individually, as a group, or both? These are just a few of the questions that are not addressed in the draft regulations. MDE needs to initiate an entirely new rulemaking process and create a new set of regulations to address all of the complex issues and potentially dangerous consequences of bubble permitting. It is inappropriate to address this issue with five lines of text in an unrelated regulatory proposal that contains no reference to bubble permits in the Statement of Purpose.

9. Baselines must be better defined

Section .07.B(2)(d) is unclear. Subsection (d)(i) begins with “If greater than 6,100 pounds per year total nitrogen load cap and 457 pounds per year total phosphorus load cap.” It is unclear what is (or is not) greater than these load caps. It may be baselines, but it may also be “previously assigned 2004 Point Source Tributary Strategy” goals (section .07.B(2)(d)(i)). MDE should clarify.

That section goes on to describe how the baseline can be “no more than 50 percent of the amount that is above [the load caps].” This is unclear mathematically. Why would the baseline be half of the excess above the load caps? We strongly encourage MDE to clarify this language as well.

Furthermore, section .07.B(4) suggests that the baseline for significant industrial dischargers will be “based on a combination of historical performance levels, the amount of loading reductions already achieved since the initial baselines established in 1985, and establishment on a case-by-case basis of additional potential loading reductions.” This language is ambiguous and appears to be a statement of purpose, but is not appropriate in the context of a regulation. MDE should settle on a baseline definition and provide a precise statement for the benefit of the regulated community and public.

The baseline provisions must be rewritten to ensure full compliance with EPA’s Technical Memorandum on Establishing Offset and Trading Baselines (February 2, 2016).  In particular, for any point source discharger, baseline must include compliance with any technology based requirements and with any Water Quality Based Effluent Limitations (WQBELs) established by the permit. For nonpoint source dischargers, baseline requirements must ensure compliance with any applicable load allocation “for the appropriate sector [of which the NPS is a member]…and…needed to facilitate improved environmental compliance with WQS.”[21] The load allocated to an individual NPS within a sector should be calculated to ensure that that source is doing its fair share to contribute towards achieving compliance with any applicable WQS so as to avoid inequitable burdens being placed on members of the sector whose baselines are established at a later date. While many if not most baselines will be established by MDA under its regulations, MDE will likely be called on to establish some of these, and its regulations therefore must include appropriate provisions to enable it to do so.

10. Do not allow Capacity Credit generation or Trading

The Maryland Water Quality Trading Advisory Committee rightly reached a decision that wastewater treatment plants should not be allowed to sell credits representing the extra capacity of their wastewater treatment plants. Not only does it not comport with Clean Water Act principles and the fundamentally important principle of additionality embedded in the TMDL,[22] it can also flood the market with ‘free’ credits that interfere with the creation of the viable marketplace that MDE is trying to create. 

Several MS4s have already declared the intent to use this allowance as a loophole to get out of financing new stormwater projects if it becomes available. In subparagraph .08A.(1)(b)(iv), the regulations allow an MS4 to purchase capacity credits if other sources of credit generation do not “reasonably” meet the demand. This provision is both ambiguous and inappropriate. The entire purpose of these regulations is to create the rules for the marketplace. Not only does this open-ended provision not precisely define what is “reasonable,” it represents a very clear and bold loophole that could sabotage the marketplace and, more importantly, all of the past and present efforts to meet our commitment to the Bay TMDL and attain local water quality standards. By making capacity credits the trade of last resort, the Department is in essence declaring that (a) capacity credits are not an appropriate or effective means of reducing pollution; (b) the purchase of these undesirable credits is preferable to stimulating demand for new and effective pollution reduction projects and practices through market signals (higher prices); and (c) that giving pollution allowances away is preferable to the enforcement of existing pollution limits set out in Clean Water Act permits.

Wastewater treatment plants should only be able to generate credits if they invest in new projects or undertake other new initiatives that create additional pollution load reductions which would not otherwise occur. Credits fail this additionality test if, for example, they are not set at a baseline consistent with the nutrient load concentrations envisioned in state law (3 mg/L for nitrogen; and .3 mg/L for phosphorus) and created by wastewater treatment plant upgrade projects that have already been completed and financed with taxpayer dollars. We strongly urge MDE to create clear eligibility requirements for credit generation by wastewater treatment plants. These criteria could include, for example, the submission by the facility of an application created by the department that allows the proposed credit generator to describe what additional capital projects or operational changes the facility will undertake, an estimate of the load reduction to be achieved, and the formula that the applicant will use in this estimate and that the department will use to ultimately certify the number of credits created. The formula must ensure that credits are only certified for reductions that are based on (1) new or additional projects, investments, or actions taken; (2) reductions below the “enhanced nutrient removal” load concentration levels set by the General Assembly and codified in Title 9, Subtitle 16 of the Environment Article; and (3) load concentration levels which are, in fact, lower than historic levels for the facility.

11. Increase Transparency: Provide an opportunity for the public to comment on an application for credit approval when MDA or MDE receives a completed Certification and Registration Form.

The regulation needs to include more opportunities for transparency into the nutrient trading program. The MDA regulations give some guidance to what MDE should include in the regulations.  These regulations stated in Sections 07.B and C the essential requirements that must be met before a credit can be certified. Section 07.F of those regulations specifies that credits may be “certified” once those requirements are met, and Section 07.G says that following approval each credit shall be given a “unique registration number” and registered. This or similar language should also be included for other nonagricultural credit generation. 

There are also additional components MDE should add to this regulation. After credits are certified, include a system for tracking each credit, as required by the EPA Technical Memorandum on Certification and Verification of Offset and Trading Credits in the Chesapeake Bay Watershed.[23] 

Furthermore, public notice and comment should be required when the MDA or MDE receives a completed Certification and Registration Form, along with the other documents and information required by Sections 07.A and .B. of the MDA trading generation regulations. Without the publication by the department of an announcement of the credit request and a reasonable period for comments, there is no meaningful transparency in the program. Requiring public notice and comment is the only opportunity for interested parties to review the proposed credit(s) and supporting documentation and evaluate and comment on whether:  (1) the applicant has properly complied with baseline requirements, (2) the requirements that the Nutrient Management Plan and Soil Conservation and Water Quality Plan be fully implemented are demonstrated, (3) the effectiveness and likely duration of the credits have been properly calculated, (4) whether calculations requiring application of the Maryland Nutrient Trading tool have been properly performed and documented, and (5) the other information required by Section 07.A and B has been provided by the applicant.

In addition, MDA and MDE should both receive a copy of the application no later than the date of the public announcement. MDE has an important interest in any measure which could affect achievement of TMDL goals and water quality standards. In most, if not all cases, any credit purchased and used by a point source discharger will be incorporated into an NPDES permit, which is issued by MDE. In cases where a credit application is submitted to MDA, MDE should have an opportunity at this time to review the credit application and provide comments to MDA. In the event MDE believes there is anything unsatisfactory in the credit, the correction should be addressed before the credit has been approved, registered, purchased, and included with a permit application to MDE.

The MDA regulations in Section 08.D appear to recognize the important role played by MDE because they require that MDE be provided with a copy of the verifier’s report generated after an annual verification inspection.  However, MDE regulations should also require the original application be shared with MDE as well to assist in verification. 

These important elements of the process can be effectively accomplished by adding a new subsection C under Section .07. The existing Subsection 07.C should then be designated as 07.D. The new Section 07.C should provide, in words or substance, as follows:  

C. Promptly after a determination by MDE or MDA that an application for approval and registration of one or more credits includes all of the documentsspecified in this Section 07, and Sections 08, 09 and 10, as applicable,, the Department shall post on its website an announcement ofthe application and identifying a location where the application and related documents can be inspected and copied, and allowing a time for public comments on the application of not less than 30 days following the date of publication of the announcement. In addition, not later than the date of publication, MDE or MDA, as appropriate, shall provide the other with a copy of the application and supporting information.

Finally, the Department should get copies of disputed information reports. Section 09.E of the MDA regulations allows the owner or operator of a facility to “dispute information in” the verifier’s report by filing a statement of written concerns with the MDA within 30 days of his or her receipt of the report. MDE should require that a copy of the written concerns be provided to MDE at the same time as MDA.  MDE will have received the verifier’s report, and should be advised if there is a challenge to it by the owner/operator.

We appreciate the opportunity to submit these comments. We would be pleased to discuss any aspect of them and answer any questions. Please contact Chante Coleman, director of the Choose Clean Water Coalition, with any questions, comments, or concerns.

Respectfully submitted,

Anacostia Watershed Society 

Audubon Naturalist Society 

Blue Water Baltimore

Clean Bread and Cheese Creek

Clean Water Action

Maryland Academy of Science at the Maryland Science Center 

Maryland Chapter of the Sierra Club

Maryland Conservation Council

Midshore Riverkeeper Conservancy

National Parks Conservation Association 

Potomac Conservancy

Rock Creek Conservancy 

Savage River Watershed Association

Severn River Association

Waterkeepers Chesapeake

West & Rhode Riverkeeper

Wicomico Environmental Trust

cc by email:      

Ben Grumbles, Secretary, Maryland Department of the Environment, ben.grumbles@maryland.gov

Lynn Y. Buhl, Assistant Secretary, Maryland Department of the Environment, lynn.buhl@maryland.gov

Nick DiPasquale, Director, Chesapeake Bay Program, Dipasquale.nicholas@Epa.gov  

Rich Batiuk, Associate Director for Science, Accountability and Implementation, Chesapeake Bay Program, batiuk.richard@epa.gov

Chante Coleman, Director, Choose Clean Water Coalition, ColemanC@nwf.org

 

Sincerely,

Chante Coleman
Director, Choose Clean Water Coalition

[1] U.S. EPA, Trading and Offset Technical Memoranda for the Chesapeake Bay Watershed, https://www.epa.gov/chesapeake-bay-tmdl/trading-and-offset-technical-memoranda-chesapeake-bay-watershed.

[2] U.S. EPA, Accounting for Uncertainty in Offset and Trading Programs – EPA Technical Memorandum, 4 (Feb. 12, 2014).

[3] National Research Council (NRC), Achieving Nutrient and Sediment Reduction Goals in the Chesapeake Bay 73 (2011).

[4] Id. at 76.

[5] U.S. EPA, Accounting for Uncertainty in Offset and Trading Programs – EPA Technical Memorandum, 8 (Feb. 12, 2014).

[6] MDA, Producing and Selling Credits in Maryland’s Nutrient Trading Market, 9 (Mar. 14, 2011).

[7] U.S. EPA, Accounting for Uncertainty in Offset and Trading Programs – EPA Technical memorandum, 8 (Feb. 12, 2014) (emphasis added).

[8] U.S. EPA, Accounting for Uncertainty in Offset and Trading Programs – EPA Technical memorandum, 4 (Feb. 12, 2014).

[9] Id. at 5.

[10] Id.

[11] MDE and MDA, Maryland Trading and Offset Policy and Guidance Manual, Chesapeake Bay Watershed (Apr. 17, 2017).

[12] Id. at 13.

[13] 9 Va. Admin. Code 25-820-70, Part II.B.1.b.(1).

[14] EPA, Components of Credit Calculation – EPA Technical Memorandum at 5 (May 14, 2014)

[15] MDA, Producing and Selling Credits in Maryland’s Nutrient Trading Market, 5 (Mar. 14, 2011).

[16] U.S. EPA, Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus and Sediment, S-4 (Dec. 29, 2010); U.S. EPA, Local Water Quality Protection when Using Credits for NPDES Permit Issuance and Compliance, EPA Technical Memorandum, (March 17, 2014).

[17] Maryland’s DRAFT Best Management Practice BMP Verification Protocol (Nov. 2015), http://www.chesapeakebay.net/documents/MD_BMP_Verification_Protocols_Final.pdf

[18] Id.

[19] U.S. EPA, Certification and Verification of Offsets and Trading Credits in the Chesapeake Bay Watershed, Technical Memorandum, 7 (July 21, 2015).

[20] U.S. EPA, Permanence of Credits Used for NPDES Permit Issuance and Compliance, Technical Memorandum, 5 (Aug. 19, 2014).

[21] See EPA , Technical Memorandum, Establishing Offset and Trading Baselines p. 4 (February 2, 2016).

[22] See, e.g., U.S. EPA, Components of Credit Calculation, Technical Memorandum, 5 (May 14, 2014).

[23]  U.S. EPA, “Certification and Verification of Offset and Trading Credits in the Chesapeake Bay Watershed”, p. 9 (July 21, 2015).

Letter To Secretary Perdue on RCPP

PDF Version: Letter to Secretary Perdue on Regional Conservation Partnership Program 
Response from Secretary Perdue: Secretary Perdue Response Letter 

March 30, 2017

The Honorable Sonny Perdue
Secretary Designee
U.S. Department of Agriculture
1400 Independence Avenue, SW
Washington, D.C. 20250-3700

Dear Secretary Designee Perdue:

The undersigned members of the Choose Clean Water Coalition are concerned about federal support for programs that are essential to maintaining and restoring clean water in the Chesapeake Bay watershed. For that reason, we are concerned about the funding cuts to the Chesapeake under the Regional Conservation Partnership Program (RCPP).

There are 87,000 farms in the six-state Chesapeake region. Those that are well run protect their water resources and add much to our landscape, environment, and economy. We want to ensure that these responsible farms and farmers remain economically viable. Nutrient and sediment pollution from farms is by far the largest source of contamination in the Chesapeake Bay and its tributaries. Recognizing this, the 2008 Farm Bill established the Chesapeake Bay Watershed Initiative that provided $238 million over five years to producers in the region to apply conservation practices on their farms that would help to restore and/or protect water quality.

All of the conservation programs under the Farm Bill, including the RCPP, are critical for both farmers and clean water throughout the Chesapeake Bay region and we support full funding for them. These programs are essential for agricultural operations to meet state and federal goals that address both farm health and water quality.

The Agriculture Act of 2014 (the 2014 Farm Bill) replaced several regional programs, including the Chesapeake Bay Watershed Initiative with the RCPP. The RCPP was designed to focus resources on assisting producers to voluntarily apply conservation practices on agricultural working lands to improve water quality in high priority watersheds, such as the Chesapeake watershed. The Choose Clean Water Coalition supported this approach. The entire Chesapeake Bay watershed was designated as one of eight national priority Critical Conservation Areas, and we applauded that decision. However, the amount of RCPP funds that were eventually provided for this effort fell well short of what anyone expected a “priority” area to receive.

The five years of funding for the Chesapeake region under the Chesapeake Bay Watershed Initiative of the 2008 Farm Bill provided an average of $47.6 million every year for conservation practices that benefit water quality. During the first four years of the RCPP, the Natural Resources Conservation Service allocated a total of only $43.18 million to projects all, or partially, in the Chesapeake Bay watershed. In addition, NRCS has taken 25% of each project allocation for “technical assistance and administration”, further reducing the amounts actually available to farmers. While we support using these funds for technical assistance, we do not support taking dollars which Congress intended for conservation and using them instead for “administration” or overhead. Recipients also have to provide a dollar for dollar match for the entire amount prior to the deduction of the 25% administrative fee.

This significantly reduced level of support for conservation has undercut the U.S. Department of Agriculture’s (USDA) commitment to the Chesapeake. The $43.18 million over the first four years of the RCPP has provided 22% of the funds that were previously allocated to conservation in the Chesapeake region under the 2008 Farm Bill – an average of $10.8 million annually. Calculating the 25% for “administration” reduces the annual allocation actually available for conservation in the Chesapeake from the RCPP to $8.1 million annually. This is a much more dramatic cut to efforts by farmers in the Chesapeake Bay watershed to improve water quality and habitat – and is only 17% of the funds delivered to the watershed for conservation under the 2008 Farm Bill.

These large funding reductions under the RCPP, as it has been administered, have resulted in a steep cut to conservation that is critical to maintain and restore clean water to the rivers and streams throughout the Chesapeake Bay region, and for the Bay itself. These programs are essential for the agricultural sector to implement the voluntary projects needed for clean water in our rural areas.

We are deeply disappointed that the RCPP has so shortchanged the Chesapeake region. There had been no shortage of applications by farmers in the six-state Chesapeake Bay watershed to apply for funds under the 2008 Farm Bill, and there is still no shortage of producers and others willing to act under the 2014 Farm Bill.

We strongly urge you to treat the Chesapeake as a true Critical Conservation Area under the 2014 Farm Bill, and to better allocate future funds to reflect that. USDA has an obligation under the voluntary 2014 Chesapeake Watershed Agreement, which USDA signed as a member of the Federal Leadership Committee for the Chesapeake Bay to help meet the goals of the Agreement and the RCPP should be its primary tool to obtain success.

Thank you for your consideration of this important request that is critical to clean water throughout the Chesapeake Bay region. Please contact Peter J. Marx at 410-905-2515 or peter@choosecleanwater.org with any questions or concerns. Thank you.

Sincerely,

1000 Friends of Maryland

Alice Ferguson Foundation

Alliance for Sustainable Communities

Alliance for the Chesapeake Bay

Anacostia Watershed Society

Audubon Naturalist Society

Back Creek Conservancy

Blue Water Baltimore

Cacapon Institute

Capital Region Land Conservancy

Catskill Mountainkeeper

Cecil Land Use Association

Center for Progressive Reform

Chapman Forest Foundation

Chesapeake Legal Alliance

Chesapeake Wildlife Heritage

Chester River Association

Clean Water Action

Coalition for Smarter Growth

Conservation Montgomery

Conservation Voters of Pennsylvania

Delaware Nature Society

Ducks Unlimited

Earth Force

Earth Forum of Howard County

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation

Eastern Shore Land Conservancy

EcoLatinos

Elizabeth River Project

Elk Creeks Watershed Association

Environment America

Environment Maryland

Environment New York

Environment Virginia

Environmental Working Group

Envision Frederick County

Friends of Accotink Creek

Friends of Dyke Marsh

Friends of Lower Beaverdam Creek

Friends of Quincy Run

Friends of the Middle River

Friends of the Nanticoke River

Friends of the North Fork of the Shenandoah River

Friends of the Rappahannock

Goose Creek Association

Interfaith Partners for the Chesapeake

Izaak Walton League of America

James River Association

Lackawanna River Conservation Association

Lancaster Farmland Trust

Little Falls Watershed Alliance

Lower Susquehanna Riverkeeper

Lynnhaven River NOW

Maryland Conservation Council

Maryland League of Conservation Voters

Mattawoman Watershed Society

Mehoopany Creek Watershed Association

Mid-Atlantic Council Trout Unlimited

Middle Susquehanna Riverkeeper

Montgomery Countryside Alliance

National Aquarium

National Parks Conservation Association

National Wildlife Federation

Nature Abounds

New York League of Conservation Voters

New York State Council of Trout Unlimited

Natural Resources Defense Council

Neighbors of the Northwest Branch

Otsego County Conservation Association

Otsego Land Trust

PennEnvironment

PennFuture

Pennsylvania Council of Churches

Piedmont Environmental Council

Potomac Conservancy

Potomac Riverkeeper

Potomac Riverkeeper Network

Queen Anne’s Conservation Association

Rivanna Conservation Alliance

Rock Creek Conservancy

St. Mary's River Watershed Association

Sassafras River Association

Savage River Watershed Association

Severn River Association

Shenandoah Riverkeeper

Shenandoah Valley Network

Sidney Center Improvement Group

Sleepy Creek Watershed Association

South River Federation

SouthWings

Sparks-Glencoe Community Planning Council

Susquehanna Heritage

Trout Unlimited

Upper Potomac Riverkeeper

Upper Susquehanna Coalition

Virginia Conservation Network

Virginia League of Conservation Voters

Waterkeepers Chesapeake

West/Rhode Riverkeeper

West Virginia Citizen Action Group

West Virginia Environmental Council

West Virginia Rivers Coalition

Wetlands Watch

Wicomico Environmental Trust

 

Senate Agriculture Appropriations Letter

PDF Version: Senate Agriculture Appropriations Letter 
 

March 30, 2017

The Honorable John Hoeven, Chairman
Subcommittee on Agriculture, Rural Development, Food and Drug Administration and Related Agencies Committee on Appropriations
S-128 Capitol U.S. Senate
Washington, D.C. 20510

The Honorable Jeff Merkley, Ranking Minority Member Subcommittee on Agriculture, Rural Development, Food and Drug Administration and Related Agencies Committee on Appropriations
S-146A Capitol U.S. Senate
Washington, D.C. 20510

Dear Chairman Hoeven and Ranking Member Merkley:

The undersigned members of the Choose Clean Water Coalition request continued support for clean water in the Chesapeake Bay watershed through the Agricultural Act of 2014’s (2014 Farm Bill’s) conservation programs. There are 87,000 farms in the six-state Chesapeake region; those that are well run protect their water resources and add much to our landscape, environment and economy. We want to ensure that these responsible farms and farmers remain economically viable. Stopping cuts to these conservation programs is critical to maintain and restore clean water to the rivers and streams throughout the Chesapeake Bay region, and for the Bay itself. These programs are essential for regulated agricultural operations to meet federal regulations under the Clean Water Act and help farmers meet state regulations that address both farm health and water quality.

We urge you to maintain full funding for mandatory agricultural conservation programs in Fiscal Year 2018. The 2014 Farm Bill set us on a new path toward clean water in our region, but only if key conservation programs are funded as Congress intended. With the support of much of the conservation community and clean water advocates, the 2014 Farm Bill eliminated nearly a dozen conservation programs (including the Chesapeake Bay Watershed Initiative) and reduced mandatory funding overall to save American taxpayers approximately $6 billion.

Two-thirds of the 18 million people in the Chesapeake region get the water they drink directly from the rivers and streams that flow through the cities, towns and farms throughout our six state, 64,000 square mile watershed. Protecting and restoring clean water is essential for human health and for a robust regional economy. Much of the work and funding necessary to achieve and maintain clean and healthy water in this region would be accomplished through the Farm Bill’s new Regional Conservation Partnership Program (RCPP). We urge you to provide full funding for mandatory conservation programs that are critical to maintaining a fully funded RCPP. In particular, we urge you to fund the Environmental Quality Incentives Program at $1.65 billion to help willing producers implement conservation practices on their farms.

In May 2014, the Chesapeake Bay Watershed was designated as one of eight Critical Conservation Areas under the new RCPP. For the first four years of RCPP funding, the Chesapeake received $43.18 million for projects all, or partially, in the Chesapeake Bay watershed – this is an average of $10.8 million annually. This is a precipitous drop from the five years of funding from the Chesapeake Bay Watershed Initiative where our region’s producers received an average of $47.6 million annually for conservation practices. This is a huge shortfall for conservation in our region and any further cuts to the RCPP will exacerbate this funding drop off. We urge you to maintain the 2014 Farm Bill’s negotiated mandatory funding levels for all conservation programs, including the RCPP.

In order to follow a common sense path to maintain economically viable well run farms and to have healthy local water and a restored Chesapeake Bay, which is critical for our regional economy, we request full funding for all conservation programs in the Farm Bill for Fiscal Year 2018.

Thank you for your consideration on this very important request to maintain funding for these programs which are critical to both our agricultural community and for clean water throughout the mid-Atlantic region. Please contact Peter J. Marx at 410-905-2515 or peter@choosecleanwater.org with any questions or concerns.

Sincerely,

1000 Friends of Maryland

Alice Ferguson Foundation

Alliance for Sustainable Communities

Alliance for the Chesapeake Bay

Anacostia Watershed Society

Audubon Naturalist Society

Back Creek Conservancy

Blue Water Baltimore

Cacapon Institute

Capital Region Land Conservancy

Catskill Mountainkeeper

Cecil Land Use Association

Center for Progressive Reform

Chapman Forest Foundation

Chesapeake Legal Alliance

Chesapeake Wildlife Heritage

Chester River Association

Clean Water Action

Coalition for Smarter Growth

Conservation Montgomery

Conservation Voters of Pennsylvania

Delaware Nature Society

Ducks Unlimited

Earth Force

Earth Forum of Howard County

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation

Eastern Shore Land Conservancy

EcoLatinos

Elizabeth River Project

Elk Creeks Watershed Association

Environment America

Environment Maryland

Environment New York

Environment Virginia

Environmental Working Group

Envision Frederick County

Friends of Accotink Creek

Friends of Dyke Marsh

Friends of Lower Beaverdam Creek

Friends of Quincy Run

Friends of the Middle River

Friends of the Nanticoke River

Friends of the North Fork of the Shenandoah River

Friends of the Rappahannock

Goose Creek Association

Interfaith Partners for the Chesapeake

Izaak Walton League of America

James River Association

Lackawanna River Conservation Association

Lancaster Farmland Trust

Little Falls Watershed Alliance

Lower Susquehanna Riverkeeper

Lynnhaven River NOW

Maryland Conservation Council

Maryland League of Conservation Voters

Mattawoman Watershed Society

Mehoopany Creek Watershed Association

Mid-Atlantic Council Trout Unlimited

Middle Susquehanna Riverkeeper

Montgomery Countryside Alliance

National Aquarium

National Parks Conservation Association

National Wildlife Federation

Nature Abounds

New York League of Conservation Voters

New York State Council of Trout Unlimited

Natural Resources Defense Council

Neighbors of the Northwest Branch

Otsego County Conservation Association

Otsego Land Trust

PennEnvironment

PennFuture

Pennsylvania Council of Churches

Piedmont Environmental Council

Potomac Conservancy

Potomac Riverkeeper

Potomac Riverkeeper Network

Queen Anne’s Conservation Association

Rivanna Conservation Alliance

Rock Creek Conservancy

St. Mary's River Watershed Association

Sassafras River Association

Savage River Watershed Association

Severn River Association

Shenandoah Riverkeeper

Shenandoah Valley Network

Sidney Center Improvement Group

Sleepy Creek Watershed Association

South River Federation

SouthWings

Sparks-Glencoe Community Planning Council

Susquehanna Heritage

Trout Unlimited

Upper Potomac Riverkeeper

Upper Susquehanna Coalition

Virginia Conservation Network

Virginia League of Conservation Voters

Waterkeepers Chesapeake

West/Rhode Riverkeeper

West Virginia Citizen Action Group

West Virginia Environmental Council

West Virginia Rivers Coalition

Wetlands Watch

Wicomico Environmental Trust

 

House Agriculture Appropriations Letter

PDF Version: House Agriculture Appropriations Letter 
 

March 30, 2017

The Honorable Robert Aderholt, Chairman
Subcommittee on Agriculture, Rural Development, Food and Drug Administration and Related Agencies Committee on Appropriations
2362-A Rayburn House Office Building
U.S. House of Representatives
Washington, D.C. 20515

The Honorable Sanford Bishop, Ranking Minority Member Subcommittee on Agriculture, Rural Development, Food and Drug Administration and Related Agencies Committee on Appropriations
1016 Longworth House Office Building
U.S. House of Representatives
Washington, D.C. 20515

Dear Chairman Aderholt and Ranking Member Bishop:

The undersigned members of the Choose Clean Water Coalition request continued support for clean water in the Chesapeake Bay watershed through the Agricultural Act of 2014’s (2014 Farm Bill’s) conservation programs. There are 87,000 farms in the six-state Chesapeake region; those that are well run protect their water resources and add much to our landscape, environment and economy. We want to ensure that these responsible farms and farmers remain economically viable. Stopping cuts to these conservation programs is critical to maintain and restore clean water to the rivers and streams throughout the Chesapeake Bay region, and for the Bay itself. These programs are essential for regulated agricultural operations to meet federal regulations under the Clean Water Act and help farmers meet state regulations that address both farm health and water quality.

We urge you to maintain full funding for mandatory agricultural conservation programs in Fiscal Year 2018. The 2014 Farm Bill set us on a new path toward clean water in our region, but only if key conservation programs are funded as Congress intended. With the support of much of the conservation community and clean water advocates, the 2014 Farm Bill eliminated nearly a dozen conservation programs (including the Chesapeake Bay Watershed Initiative) and reduced mandatory funding overall to save American taxpayers approximately $6 billion.

Two-thirds of the 18 million people in the Chesapeake region get the water they drink directly from the rivers and streams that flow through the cities, towns and farms throughout our six state, 64,000 square mile watershed. Protecting and restoring clean water is essential for human health and for a robust regional economy. Much of the work and funding necessary to achieve and maintain clean and healthy water in this region would be accomplished through the Farm Bill’s new Regional Conservation Partnership Program (RCPP). We urge you to provide full funding for mandatory conservation programs that are critical to maintaining a fully funded RCPP. In particular, we urge you to fund the Environmental Quality Incentives Program at $1.65 billion to help willing producers implement conservation practices on their farms.

In May 2014, the Chesapeake Bay Watershed was designated as one of eight Critical Conservation Areas under the new RCPP. For the first four years of RCPP funding, the Chesapeake received $43.18 million for projects all, or partially, in the Chesapeake Bay watershed – this is an average of $10.8 million annually. This is a precipitous drop from the five years of funding from the Chesapeake Bay Watershed Initiative where our region’s producers received an average of $47.6 million annually for conservation practices. This is a huge shortfall for conservation in our region and any further cuts to the RCPP will exacerbate this funding drop off. We urge you to maintain the 2014 Farm Bill’s negotiated mandatory funding levels for all conservation programs, including the RCPP.

In order to follow a common sense path to maintain economically viable well run farms and to have healthy local water and a restored Chesapeake Bay, which is critical for our regional economy, we request full funding for all conservation programs in the Farm Bill for Fiscal Year 2018.

Thank you for your consideration on this very important request to maintain funding for these programs which are critical to both our agricultural community and for clean water throughout the mid-Atlantic region. Please contact Peter J. Marx at 410-905-2515 or peter@choosecleanwater.org with any questions or concerns.

Sincerely,

1000 Friends of Maryland

Alice Ferguson Foundation

Alliance for Sustainable Communities

Alliance for the Chesapeake Bay

Anacostia Watershed Society

Audubon Naturalist Society

Back Creek Conservancy

Blue Water Baltimore

Cacapon Institute

Capital Region Land Conservancy

Catskill Mountainkeeper

Cecil Land Use Association

Center for Progressive Reform

Chapman Forest Foundation

Chesapeake Legal Alliance

Chesapeake Wildlife Heritage

Chester River Association

Clean Water Action

Coalition for Smarter Growth

Conservation Montgomery

Conservation Voters of Pennsylvania

Delaware Nature Society

Ducks Unlimited

Earth Force

Earth Forum of Howard County

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation

Eastern Shore Land Conservancy

EcoLatinos

Elizabeth River Project

Elk Creeks Watershed Association

Environment America

Environment Maryland

Environment New York

Environment Virginia

Environmental Working Group

Envision Frederick County

Friends of Accotink Creek

Friends of Dyke Marsh

Friends of Lower Beaverdam Creek

Friends of Quincy Run

Friends of the Middle River

Friends of the Nanticoke River

Friends of the North Fork of the Shenandoah River

Friends of the Rappahannock

Goose Creek Association

Interfaith Partners for the Chesapeake

Izaak Walton League of America

James River Association

Lackawanna River Conservation Association

Lancaster Farmland Trust

Little Falls Watershed Alliance

Lower Susquehanna Riverkeeper

Lynnhaven River NOW

Maryland Conservation Council

Maryland League of Conservation Voters

Mattawoman Watershed Society

Mehoopany Creek Watershed Association

Mid-Atlantic Council Trout Unlimited

Middle Susquehanna Riverkeeper

Montgomery Countryside Alliance

National Aquarium

National Parks Conservation Association

National Wildlife Federation

Nature Abounds

New York League of Conservation Voters

New York State Council of Trout Unlimited

Natural Resources Defense Council

Neighbors of the Northwest Branch

Otsego County Conservation Association

Otsego Land Trust

PennEnvironment

PennFuture

Pennsylvania Council of Churches

Piedmont Environmental Council

Potomac Conservancy

Potomac Riverkeeper

Potomac Riverkeeper Network

Queen Anne’s Conservation Association

Rivanna Conservation Alliance

Rock Creek Conservancy

St. Mary's River Watershed Association

Sassafras River Association

Savage River Watershed Association

Severn River Association

Shenandoah Riverkeeper

Shenandoah Valley Network

Sidney Center Improvement Group

Sleepy Creek Watershed Association

South River Federation

SouthWings

Sparks-Glencoe Community Planning Council

Susquehanna Heritage

Trout Unlimited

Upper Potomac Riverkeeper

Upper Susquehanna Coalition

Virginia Conservation Network

Virginia League of Conservation Voters

Waterkeepers Chesapeake

West/Rhode Riverkeeper

West Virginia Citizen Action Group

West Virginia Environmental Council

West Virginia Rivers Coalition

Wetlands Watch

Wicomico Environmental Trust

 

Senate Interior Appropriations Letter

PDF Version: Senate Interior Appropriations Letter

March 23, 2017

The Honorable Ken Calvert, Chairman
Subcommittee on Interior, Environment and Related Agencies
2007 Rayburn House Office Building
U.S. House of Representatives
Washington, D.C. 20515

The Honorable Betty McCollum, Ranking Minority Member
Subcommittee on Interior, Environment and Related Agencies
1016 Longworth House Office Building
U.S. House of Representatives
Washington, D.C. 20515

Dear Chairman Calvert and Ranking Member McCollum:

The undersigned members of the Choose Clean Water Coalition request continued support for programs that are essential to maintaining and restoring clean water to the rivers and streams throughout the Chesapeake Bay region and to the Bay itself. Two-thirds of the 18 million people in this region get the water they drink directly from the rivers and streams that flow through the cities, towns and farms throughout our six state, 64,000 square mile watershed. Protecting and restoring clean water is essential for human health and for a robust regional economy.

The efforts to clean the Chesapeake began under President Reagan in 1983. In his 1984 State of the Union speech, President Reagan said, “Preservation of our environment is not a liberal or conservative challenge, it's common sense.”

To follow a common sense path to maintain healthy local water and restore Chesapeake Bay, which is critical for our regional economy, we request funding for the following programs in Fiscal Year 2018:

U.S. Environmental Protection Agency

Chesapeake Bay Program -- $73.0 million

We support level funding of $73.0 million for the base budget of the Chesapeake Bay Program, which coordinates Chesapeake Bay watershed restoration and protection efforts. The majority of the program’s funds are passed through to the states and local communities for on-the-ground restoration work through programs such as the Small Watershed Grants, Innovative Nutrient and Sediment Reduction Grants, State Implementation Grants, and the Chesapeake Bay Regulatory and Accountability Program grants.

We strongly support the highly successful and popular Chesapeake Small Watershed Grants and the Innovative Nutrient and Sediment Reduction Grants – $6 million each – that Congress appropriated in FY 2016. These are two well-run, competitive grant programs that have contributed significantly to water quality improvements throughout the Chesapeake Bay watershed. These are the Bay Program’s only grants that go directly to on-the-ground restoration efforts by local governments and communities. Without specific Congressional direction, EPA has, in the past, reallocated this grant money for purposes other than local restoration. This is not the time to stop local implementation of restoration work. We strongly support the language in the FY 2016 Consolidated Appropriations Act, where Congress protected these critical local grant programs: “The Committee recommends $73,000,000 for the Chesapeake Bay program. From within the amount provided, $6,000,000 is for nutrient and sediment removal grants and $6,000,000 is for small watershed grants to control polluted runoff from urban, suburban and agricultural lands.” We urge you to retain the same language in the FY 2018 Interior and Related Agencies Appropriations Bill, for both the overall Chesapeake Bay Program and for the local grant programs.

Clean Water State Revolving Fund (SRF) --$4.047 billion

This program is critical to any national initiative to provide a Federal Infrastructure Spending Plan and it provides the lifeblood for the 1,779 local governments throughout the Chesapeake region to secure their water infrastructure. The funding level for this Clean Water SRF has eroded over the years as the clean water needs of local communities have increased dramatically. The Choose Clean Water Coalition supports efforts in both the House and the Senate, and within the Administration, to triple the current funding for the Clean Water SRF – and this is what we are requesting. This will help to close the gap between federal infrastructure investment in clean water and the known need. This will also dramatically improve water quality and protect human health in our region and across the nation. These low interest loans are critical for clean water and for ratepayers in the Chesapeake region and nationwide. We urge you to support the $4.047 billion funding level that would provide $891 million in low interest loans to local governments in Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia – triple the current level of funding. We also strongly support targeting 20 percent of the Clean Water SRF funds for green infrastructure and innovative projects including those to manage stormwater, which helps communities improve water quality while creating green space, mitigating flooding, and enhancing air quality. The Clean Water SRF allocates money to the states based on a set formula, which is then used for low interest loans to local governments for critical capital construction improvement projects to reduce nutrient and sediment pollution from wastewater treatment and stormwater facilities; nonpoint sources of pollution, such as farms and development; and other sources. In addition to the use of these funds on farms and for nonpoint source pollution, it provides assistance for other pollution reduction and prevention activities in rural areas, such as reforestation and forest protection and stream stabilization and restoration. The Clean Water SRF enables local governments in the Chesapeake watershed to take actions to keep their rivers and streams clean. As the list of clean water infrastructure needs in the Chesapeake region continues to expand, we request that Congress triple the funding of the Clean Water SRF from last year’s FY16 levels.

Department of the Interior

U.S. Geological Survey (USGS) -- Chesapeake Bay Studies -- $11.991 million

We support level funding from FY 2016 of $11.991 million for the USGS to provide the critical science necessary for restoration and protection efforts for fish, wildlife and the 18 million people in the Chesapeake Bay watershed. USGS focuses on monitoring and assessing fisheries, waterfowl and the quality of their habitats, which provide economic benefits to the states involved in the Chesapeake restoration effort and represent the priorities of the Department of the Interior.

USGS activities are critical for the restoration of several freshwater fish species, including brook trout, an important recreational fishery. A related activity is identifying chemicals, and their sources, which lead to fish consumption advisories for humans. USGS also provides the expertise to restore and conserve coastal wetlands, critical habitat and food for the more than one million waterfowl that winter in the Chesapeake region. USGS helps to coordinate the collection and assessment of monitoring data collected by the states and USGS. These assessments will help the states focus on areas and types of practices, for more effective approaches toward water quality improvements.

The USGS is leading an effort to map areas where restoration and conservation efforts will contribute to multiple Chesapeake goals - benefiting people in the watershed as well as fish and wildlife. This mapping will help state and federal partners more effectively focus actions and utilize available resources.

National Park Service -- Chesapeake Regional Programs -- $3.0261 million

The National Park Service Chesapeake Bay Office runs a number of small, but very important programs that focus on increasing public access and the use of ecological, cultural and historic resources of the Chesapeake region. Expanding access and public awareness fosters stewardship and protection efforts.

We are requesting level funding for these key programs administered by the National Park Service in the Chesapeake Bay watershed: Captain John Smith Chesapeake National Historic Trail ($385,000); Star Spangled Banner National Historic Trail ($150,600); support for coordinating these programs through the National Park Service Chesapeake Bay Office ($476,500); and the Chesapeake Bay Gateways and Trails ($2.014 million). In addition, as in the Consolidated Appropriations Act of 2016, we urge you to extend the authorization for the Chesapeake Bay Gateways and Trails program for two more years.

Department of the Interior/U.S. Department of Agriculture

National Park Service/U.S. Fish and Wildlife Service/Bureau of Land Management/U.S. Forest Service - Rivers of the Chesapeake Collaborative Landscape Planning Projects – Land and Water Conservation Fund - $30.519 million

We support continuation of the strategic use of funds from the Land and Water Conservation Fund for the Rivers of the Chesapeake Collaborative Landscape Planning initiative. This effort targets conservation funds for priority landscapes throughout the country; the Rivers of the Chesapeake is one such priority area. The collaborative proposal focuses on the great rivers of the Chesapeake and would protect 8,000 acres in the Potomac, Rappahannock, James, Nanticoke and Susquehanna watersheds in Delaware, Maryland, Pennsylvania and Virginia. The areas in the Chesapeake include nationally significant resources, such as migratory bird habitat, spawning areas for economically important fish and shellfish, significant forest resources and projects to enhance public access.

Thank you for your consideration of these very important requests to maintain funding for these programs which are critical to clean water throughout the mid-Atlantic region. Please contact Peter J. Marx at 410-905-2515 or peter@choosecleanwater.org with any questions or concerns.

Sincerely,

1000 Friends of Maryland
Alice Ferguson Foundation
Alliance for Sustainable Communities
Alliance for the Chesapeake Bay
American Rivers
Anacostia Watershed Society
Audubon Naturalist Society
Back Creek Conservancy
Blue Water Baltimore
Cacapon Institute
Capital Region Land Conservancy
Catskill Mountainkeeper
Cecil Land Use Association
Center for Progressive Reform
Chapman Forest Foundation
Chesapeake Legal Alliance
Chesapeake Wildlife Heritage
Chester River Association
Clean Water Action Coalition for Smarter Growth
Conservation Montgomery
Conservation Voters of Pennsylvania
Delaware Nature Society
Ducks Unlimited
Earth Force
Earth Forum of Howard County
Eastern Pennsylvania Coalition for Abandoned Mine Reclamation
Eastern Shore Land Conservancy
EcoLatinos
Elizabeth River Project
Elk Creeks Watershed Association
Environment America
Environment Maryland
Environment New York
Environment Virginia
Environmental Working Group
Envision Frederick County
Friends of Accotink Creek
Friends of Dyke Marsh
Friends of Lower Beaverdam Creek
Friends of Quincy Run
Friends of Sligo Creek
Friends of the Middle River
Friends of the Nanticoke River
Friends of the North Fork of the Shenandoah River
Friends of the Rappahannock
Goose Creek Association
Interfaith Partners for the Chesapeake
Izaak Walton League of America
James River Association
Lackawanna River Conservation Association
Lancaster Farmland Trust
Little Falls Watershed Alliance
Lower Susquehanna Riverkeeper
Lynnhaven River NOW
Maryland Conservation Council
Maryland League of Conservation Voters
Mattawoman Watershed Society
Mehoopany Creek Watershed Association
Mid-Atlantic Council Trout Unlimited
Middle Susquehanna Riverkeeper
Montgomery Countryside Alliance
National Aquarium
National Parks Conservation Association
National Wildlife Federation
Nature Abounds
New York League of Conservation Voters
New York State Council of Trout Unlimited
Natural Resources Defense Council
Neighbors of the Northwest Branch
Otsego County Conservation Association
Otsego Land Trust
PennEnvironment
PennFuture
Pennsylvania Council of Churches
Piedmont Environmental Council
Potomac Conservancy
Potomac Riverkeeper
Potomac Riverkeeper Network
Queen Anne’s Conservation Association
Rivanna Conservation Alliance
Rock Creek Conservancy
St. Mary's River Watershed Association
Sassafras River Association
Savage River Watershed Association
Severn River Association
Shenandoah Riverkeeper
Shenandoah Valley Network
Sidney Center Improvement Group
Sleepy Creek Watershed Association
South River Federation
Southern Environmental Law Center
SouthWings
Sparks-Glencoe Community Planning Council
Susquehanna Heritage
Trout Unlimited
Upper Potomac Riverkeeper
Upper Susquehanna Coalition
Virginia Conservation Network
Virginia League of Conservation Voters
Waterkeepers Chesapeake
West/Rhode Riverkeeper
West Virginia Citizen Action Group
West Virginia Environmental Council
West Virginia Rivers Coalition
Wetlands Watch
Wicomico Environmental Trust

House Interior Appropriations Letter

PDF Version: House Interior Appropriations Letter 

March 23, 2017

The Honorable Ken Calvert, Chairman
Subcommittee on Interior, Environment and Related Agencies
2007 Rayburn House Office Building
U.S. House of Representatives
Washington, D.C. 20515

The Honorable Betty McCollum, Ranking Minority Member
Subcommittee on Interior, Environment and Related Agencies
1016 Longworth House Office Building
U.S. House of Representatives
Washington, D.C. 20515

Dear Chairman Calvert and Ranking Member McCollum:

The undersigned members of the Choose Clean Water Coalition request continued support for programs that are essential to maintaining and restoring clean water to the rivers and streams throughout the Chesapeake Bay region and to the Bay itself. Two-thirds of the 18 million people in this region get the water they drink directly from the rivers and streams that flow through the cities, towns and farms throughout our six state, 64,000 square mile watershed. Protecting and restoring clean water is essential for human health and for a robust regional economy.

The efforts to clean the Chesapeake began under President Reagan in 1983. In his 1984 State of the Union speech, President Reagan said, “Preservation of our environment is not a liberal or conservative challenge, it's common sense.”

To follow a common sense path to maintain healthy local water and restore Chesapeake Bay, which is critical for our regional economy, we request funding for the following programs in Fiscal Year 2018:

U.S. Environmental Protection Agency

Chesapeake Bay Program -- $73.0 million

We support level funding of $73.0 million for the base budget of the Chesapeake Bay Program, which coordinates Chesapeake Bay watershed restoration and protection efforts. The majority of the program’s funds are passed through to the states and local communities for on-the-ground restoration work through programs such as the Small Watershed Grants, Innovative Nutrient and Sediment Reduction Grants, State Implementation Grants, and the Chesapeake Bay Regulatory and Accountability Program grants.

We strongly support the highly successful and popular Chesapeake Small Watershed Grants and the Innovative Nutrient and Sediment Reduction Grants – $6 million each – that Congress appropriated in FY 2016. These are two well-run, competitive grant programs that have contributed significantly to water quality improvements throughout the Chesapeake Bay watershed. These are the Bay Program’s only grants that go directly to on-the-ground restoration efforts by local governments and communities. Without specific Congressional direction, EPA has, in the past, reallocated this grant money for purposes other than local restoration. This is not the time to stop local implementation of restoration work. We strongly support the language in the FY 2016 Consolidated Appropriations Act, where Congress protected these critical local grant programs: “The Committee recommends $73,000,000 for the Chesapeake Bay program. From within the amount provided, $6,000,000 is for nutrient and sediment removal grants and $6,000,000 is for small watershed grants to control polluted runoff from urban, suburban and agricultural lands.” We urge you to retain the same language in the FY 2018 Interior and Related Agencies Appropriations Bill, for both the overall Chesapeake Bay Program and for the local grant programs.

Clean Water State Revolving Fund (SRF) --$4.047 billion

This program is critical to any national initiative to provide a Federal Infrastructure Spending Plan and it provides the lifeblood for the 1,779 local governments throughout the Chesapeake region to secure their water infrastructure. The funding level for this Clean Water SRF has eroded over the years as the clean water needs of local communities have increased dramatically. The Choose Clean Water Coalition supports efforts in both the House and the Senate, and within the Administration, to triple the current funding for the Clean Water SRF – and this is what we are requesting. This will help to close the gap between federal infrastructure investment in clean water and the known need. This will also dramatically improve water quality and protect human health in our region and across the nation. These low interest loans are critical for clean water and for ratepayers in the Chesapeake region and nationwide. We urge you to support the $4.047 billion funding level that would provide $891 million in low interest loans to local governments in Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia – triple the current level of funding. We also strongly support targeting 20 percent of the Clean Water SRF funds for green infrastructure and innovative projects including those to manage stormwater, which helps communities improve water quality while creating green space, mitigating flooding, and enhancing air quality. The Clean Water SRF allocates money to the states based on a set formula, which is then used for low interest loans to local governments for critical capital construction improvement projects to reduce nutrient and sediment pollution from wastewater treatment and stormwater facilities; nonpoint sources of pollution, such as farms and development; and other sources. In addition to the use of these funds on farms and for nonpoint source pollution, it provides assistance for other pollution reduction and prevention activities in rural areas, such as reforestation and forest protection and stream stabilization and restoration. The Clean Water SRF enables local governments in the Chesapeake watershed to take actions to keep their rivers and streams clean. As the list of clean water infrastructure needs in the Chesapeake region continues to expand, we request that Congress triple the funding of the Clean Water SRF from last year’s FY16 levels.

Department of the Interior

U.S. Geological Survey (USGS) -- Chesapeake Bay Studies -- $11.991 million

We support level funding from FY 2016 of $11.991 million for the USGS to provide the critical science necessary for restoration and protection efforts for fish, wildlife and the 18 million people in the Chesapeake Bay watershed. USGS focuses on monitoring and assessing fisheries, waterfowl and the quality of their habitats, which provide economic benefits to the states involved in the Chesapeake restoration effort and represent the priorities of the Department of the Interior.

USGS activities are critical for the restoration of several freshwater fish species, including brook trout, an important recreational fishery. A related activity is identifying chemicals, and their sources, which lead to fish consumption advisories for humans. USGS also provides the expertise to restore and conserve coastal wetlands, critical habitat and food for the more than one million waterfowl that winter in the Chesapeake region. USGS helps to coordinate the collection and assessment of monitoring data collected by the states and USGS. These assessments will help the states focus on areas and types of practices, for more effective approaches toward water quality improvements.

The USGS is leading an effort to map areas where restoration and conservation efforts will contribute to multiple Chesapeake goals - benefiting people in the watershed as well as fish and wildlife. This mapping will help state and federal partners more effectively focus actions and utilize available resources.

National Park Service -- Chesapeake Regional Programs -- $3.0261 million

The National Park Service Chesapeake Bay Office runs a number of small, but very important programs that focus on increasing public access and the use of ecological, cultural and historic resources of the Chesapeake region. Expanding access and public awareness fosters stewardship and protection efforts.

We are requesting level funding for these key programs administered by the National Park Service in the Chesapeake Bay watershed: Captain John Smith Chesapeake National Historic Trail ($385,000); Star Spangled Banner National Historic Trail ($150,600); support for coordinating these programs through the National Park Service Chesapeake Bay Office ($476,500); and the Chesapeake Bay Gateways and Trails ($2.014 million). In addition, as in the Consolidated Appropriations Act of 2016, we urge you to extend the authorization for the Chesapeake Bay Gateways and Trails program for two more years.

Department of the Interior/U.S. Department of Agriculture

National Park Service/U.S. Fish and Wildlife Service/Bureau of Land Management/U.S. Forest Service - Rivers of the Chesapeake Collaborative Landscape Planning Projects – Land and Water Conservation Fund - $30.519 million

We support continuation of the strategic use of funds from the Land and Water Conservation Fund for the Rivers of the Chesapeake Collaborative Landscape Planning initiative. This effort targets conservation funds for priority landscapes throughout the country; the Rivers of the Chesapeake is one such priority area. The collaborative proposal focuses on the great rivers of the Chesapeake and would protect 8,000 acres in the Potomac, Rappahannock, James, Nanticoke and Susquehanna watersheds in Delaware, Maryland, Pennsylvania and Virginia. The areas in the Chesapeake include nationally significant resources, such as migratory bird habitat, spawning areas for economically important fish and shellfish, significant forest resources and projects to enhance public access.

Thank you for your consideration of these very important requests to maintain funding for these programs which are critical to clean water throughout the mid-Atlantic region. Please contact Peter J. Marx at 410-905-2515 or peter@choosecleanwater.org with any questions or concerns.

Sincerely,

1000 Friends of Maryland
Alice Ferguson Foundation
Alliance for Sustainable Communities
Alliance for the Chesapeake Bay
American Rivers
Anacostia Watershed Society
Audubon Naturalist Society
Back Creek Conservancy
Blue Water Baltimore
Cacapon Institute
Capital Region Land Conservancy
Catskill Mountainkeeper
Cecil Land Use Association
Center for Progressive Reform
Chapman Forest Foundation
Chesapeake Legal Alliance
Chesapeake Wildlife Heritage
Chester River Association
Clean Water Action Coalition for Smarter Growth
Conservation Montgomery
Conservation Voters of Pennsylvania
Delaware Nature Society
Ducks Unlimited
Earth Force
Earth Forum of Howard County
Eastern Pennsylvania Coalition for Abandoned Mine Reclamation
Eastern Shore Land Conservancy
EcoLatinos
Elizabeth River Project
Elk Creeks Watershed Association
Environment America
Environment Maryland
Environment New York
Environment Virginia
Environmental Working Group
Envision Frederick County
Friends of Accotink Creek
Friends of Dyke Marsh
Friends of Lower Beaverdam Creek
Friends of Quincy Run
Friends of Sligo Creek
Friends of the Middle River
Friends of the Nanticoke River
Friends of the North Fork of the Shenandoah River
Friends of the Rappahannock
Goose Creek Association
Interfaith Partners for the Chesapeake
Izaak Walton League of America
James River Association
Lackawanna River Conservation Association
Lancaster Farmland Trust
Little Falls Watershed Alliance
Lower Susquehanna Riverkeeper
Lynnhaven River NOW
Maryland Conservation Council
Maryland League of Conservation Voters
Mattawoman Watershed Society
Mehoopany Creek Watershed Association
Mid-Atlantic Council Trout Unlimited
Middle Susquehanna Riverkeeper
Montgomery Countryside Alliance
National Aquarium
National Parks Conservation Association
National Wildlife Federation
Nature Abounds
New York League of Conservation Voters
New York State Council of Trout Unlimited
Natural Resources Defense Council
Neighbors of the Northwest Branch
Otsego County Conservation Association
Otsego Land Trust
PennEnvironment
PennFuture
Pennsylvania Council of Churches
Piedmont Environmental Council
Potomac Conservancy
Potomac Riverkeeper
Potomac Riverkeeper Network
Queen Anne’s Conservation Association
Rivanna Conservation Alliance
Rock Creek Conservancy
St. Mary's River Watershed Association
Sassafras River Association
Savage River Watershed Association
Severn River Association
Shenandoah Riverkeeper
Shenandoah Valley Network
Sidney Center Improvement Group
Sleepy Creek Watershed Association
South River Federation
Southern Environmental Law Center
SouthWings
Sparks-Glencoe Community Planning Council
Susquehanna Heritage
Trout Unlimited
Upper Potomac Riverkeeper
Upper Susquehanna Coalition
Virginia Conservation Network
Virginia League of Conservation Voters
Waterkeepers Chesapeake
West/Rhode Riverkeeper
West Virginia Citizen Action Group
West Virginia Environmental Council
West Virginia Rivers Coalition
Wetlands Watch
Wicomico Environmental Trust

Small MS4 Rule Letter

March 18, 2016

Mr. Greg Schaner
Office of Wastewater Management
Water Permits Division (M4203)
U.S. Environmental Protection Agency
1200 Pennsylvania Ave. NW
Washington, DC 20460
Submitted via www.regulations.gov

Re: Comments on Proposed Rule: National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System General Permit Remand (Docket ID No. EPA-HQ-OW-2015-0671)

Thank you for this opportunity to comment on the proposed changes to the Environmental Protection Agency (EPA) regulations governing small municipal separate storm sewer system (MS4) permits.[1]  This rulemaking is critically important to improve the regulation of stormwater runoff and protect water quality in the 64,000-square-mile Chesapeake Bay watershed, which comprises parts of six states and all of the District of Columbia.

These comments are submitted on behalf of the undersigned members of the Choose Clean Water Coalition.  Our groups are nationwide, regional, and local environmental organizations working to protect and restore water quality in the Chesapeake Bay region through advocacy, enforcement, and education.  Members of these groups use and enjoy waters adversely affected by small MS4 discharges, including the Chesapeake Bay and its tributaries.

We believe that this rulemaking presents the opportunity to strengthen our nation’s regulatory system for municipal stormwater discharges, particularly through the establishment of “clear, specific, and measurable” permit requirements.  A strong rule is needed to end “self-regulation” by MS4s, many of which throughout the Bay watershed have been inappropriately delegated the responsibility of determining for themselves which actions and policies would meet applicable legal standards.

I. Introduction

Pursuant to the ruling by the U.S. Court of Appeals for the Ninth Circuit in Environmental Defense Center v. EPA,[2] EPA must revise the small MS4 regulations so that permitting authorities, not permittees, determine what requirements are needed to reduce pollution to the maximum extent practicable (MEP) and to protect water quality, and so that members of the public have the opportunity to review, submit comments, and request a public hearing on all such requirements.  EPA has proposed three options for complying with this ruling.  Under Option 1, EPA would require permitting authorities to establish within the permit itself all requirements that MS4s must comply with in order to meet legal standards.  Under Option 2, EPA would take a procedural approach, requiring permitting agencies to review all permittees’ proposed pollution control programs to determine their legal sufficiency, along with public comment and the opportunity for a hearing.  Under Option 3, the permitting authority would choose between the first two approaches or implement a combination of the approaches within the same permit.

As an initial matter, we are disappointed that EPA rejected calls to establish substantive requirements for all small MS4 permits through this rulemaking.[3]  In particular, we believe that EPA should have taken this opportunity to establish a nationwide minimum post-construction standard for the on-site retention of stormwater.  The need for such a standard remains great, and we encourage EPA to move forward with establishing one, even if it is through a separate rulemaking.  Within the Bay watershed, post-construction control standards vary from state to state, with differing degrees of stringency and protectiveness.  For example, West Virginia requires on-site retention of 1 inch of rainfall at new development sites and 0.8 inches of rainfall at redevelopment sites.[4]  Maryland, on the other hand, for new development generally requires the capture and treatment (though not necessarily retention) of between one and 2.6 inches of runoff; for redevelopment, Maryland allows either a reduction of existing impervious surfaces by at least 50 percent, or the treatment of runoff from one inch of rainfall for 50 percent of the redeveloped impervious area.[5]  The pending draft permit for Pennsylvania includes a “model ordinance” requiring on-site retention of 1 inch of rainfall at both new development and redevelopment, but only from new impervious surfaces;[6] otherwise, sites must maintain the pre-development runoff volume.[7]  Meanwhile, Virginia takes a different approach, requiring both new development and redevelopment sites to reduce their runoff volume by a unique amount, specific to each site, that will result in compliance with stated phosphorus removal efficiencies.[8]  Instead of this uneven patchwork of varying requirements, a strong uniform standard is needed throughout the watershed so that all jurisdictions do their part to reduce the contributions of urban stormwater runoff to the impairments in the Bay and its tidal tributaries.

As to the proposals that EPA did put forward, our comments follow below.

II. All of the Proposed Options Would Improve the Regulation of Small MS4s in the Chesapeake Bay Watershed.

Compared to current permitting practices, all of the options EPA has proposed would represent an improvement over the status quo in the Chesapeake Bay watershed.  As it stands, none of the Bay watershed states operate small MS4 permitting programs that comply with the Ninth Circuit’s ruling in EDC v. EPA.  (The Bay watershed states with small MS4 general permitting programs are Virginia, Maryland, West Virginia, Pennsylvania, and New York.  Individual MS4 permits are issued in Delaware and the District of Columbia.)

As discussed in more detail below, all of these states’ small MS4 general permits contain many requirements that are vague or broadly worded and delegate discretion to permittees to choose their own pollution control measures.  Yet none of these states’ permits provide for every permittee’s program to be reviewed and affirmatively approved by the state, with full participation by members of the public, to confirm that the permittee’s proposed controls will in fact meet the MEP standard and other legal requirements. 

As acknowledged in the EPA spreadsheet summarizing the current practices of state agencies in administering small MS4 general permits, which was included in the docket for this proposed rule,[9] none of the Bay watershed states provide the opportunity for members of the public to request a hearing on permittees’ notices of intent (NOIs), which describe what the permittee will do in order to comply with the permit.  Only one of the Bay watershed states, New York, even provides the opportunity for members of the public to review NOIs and provide comment to the permitting agency.  And although a few permits, like West Virginia’s, suggest that the state will substantively review NOIs to determine their legal sufficiency, none explicitly confirm outright that all NOIs will indeed be substantively reviewed and approved prior to granting authorization to discharge.  Even if the state agencies were to review NOIs, the requirements for the contents of permittees’ NOIs in all of the watershed states are typically not detailed enough to allow for a full review of what the permittees have proposed to do. 

Consequently, any of the proposed options for this rulemaking would help to end self-regulation by small MS4s in the watershed.  All options would guarantee that the permitting agency, not the permittee, will be the entity who makes the decision about whether the permittee’s pollution control programs comply with the standards established in the Clean Water Act, as required by the EDC ruling.  The options primarily differ with respect to the point in time during the permitting process at which this determination is made.

Under all three proposed options, this rulemaking would also improve small MS4 permitting in the Bay watershed by removing from the current regulations the “guidance” language advising against the inclusion of water quality-based effluent limitations (WQBELs) in small MS4 permits.[10]  We strongly support this proposal.  Water quality-based permit requirements beyond the minimum control measures are necessary throughout the Bay watershed in order to meet the pollutant reductions and deadlines of the Chesapeake Bay Total Maximum Daily Load (TMDL) and to restore impaired waters in the Bay watershed for which TMDLs have not yet been developed.  Years of water quality degradation have proven that the minimum control measures themselves are not strong enough to protect and restore receiving waters. 

Some Bay watershed states (Virginia, Pennsylvania, and New York) have issued small MS4 general permits that include WQBELs for this reason.[11]  As EPA stated in 2010 guidance, following the adoption of the Bay TMDL, “These new reductions of pollutants in stormwater discharges will need to be accomplished, at least partially, through improved effectiveness of MS4 permits.”[12]  Water quality-based requirements in MS4 permits are also specifically mentioned in Bay watershed states’ Watershed Implementation Plans as a key mechanism for achieving the Bay TMDL’s required reductions.[13]  Yet Maryland and West Virginia still lack small MS4 general permits that contain the water quality-based provisions needed to comply with the Bay TMDL.  We strongly support EPA’s decision to delete the “guidance” language from 40 C.F.R. § 122.34(e)(2), making clear that all small MS4 permits must contain requirements more stringent than the minimum control measures when necessary to implement a TMDL or otherwise protect water quality.

III. Under All Proposed Options, EPA Must Clearly Explain How Permitting Authorities Will Determine Whether Requirements Satisfy Legal Standards.

Regardless of the option chosen, pursuant to the ruling in EDC v. EPA the final rule must require the permitting authority to determine which requirements a small MS4 must meet in order to satisfy the regulatory requirement “to reduce the discharge of pollutants from [the] MS4 to the maximum extent practicable, to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act.”[14]  Given that EPA has chosen to allow state permitting agencies to define the level of performance needed to meet the MEP standard and other legal requirements, rather than establishing that definition through this rulemaking, the final rule must ensure that each state makes a rigorous determination.

In the proposed rule preamble, EPA provides a list of factors and sources of information to be considered in making such determinations under Option 1 (i.e., when writing “clear, specific, and measurable” permit language).[15]  This list should be explicitly included in the final rule language.  The final rule should also require permitting agencies to consider the same factors and information sources when making their determinations under Option 2 (i.e., when reviewing permittees’ proposed pollution control programs) or the Option 2 portion of the “hybrid” option (Option 3), if either of those options is adopted in the final rule.

Additionally, the list should be expanded to require permitting agencies to consider the terms of small MS4 general permits in other jurisdictions.  If a more stringent requirement or provision is being implemented in another state, a state’s permitting authority should be required to consider it and either to adopt it or to explain why it would not be practicable within the state.  Such a requirement would help to ensure that permit requirements across the Bay watershed and the country are as consistently strong as possible.  EPA recognizes this potential in the proposed rule preamble, noting that the strategies some states are already implementing could “serve as useful models to those permitting authorities needing advice on how to write their permits under [Option 1],” and further, “as the list of examples of clear, specific, and measurable provisions in general permits grows, presumably other states should be able to take advantage of these ideas for their own permits.”[16]

Because EPA has not previously required states to consider each other’s permits when writing permit conditions or making MEP determinations, Bay watershed states’ small MS4 general permits contain a wide variety of requirements that vary greatly in their specificity and stringency.  For example, Pennsylvania’s pending draft permit will require dry weather outfall screening of each outfall once per permit term (twice if it is the MS4’s first term of permit coverage),[17] and Virginia requires screening of 50 outfalls per year,[18] while West Virginia requires only one “field assessment” (which may include dry weather outfall screening) per year,[19] and Maryland does not establish any required frequency of dry weather outfall screening whatsoever, requiring only that it be conducted “on a consistent basis.”[20] 

Bay watershed states typically do not acknowledge the existence of alternative, potentially stronger permit requirements in other watershed states in their permit fact sheets, much less explain why such requirements could not be incorporated into their own permits.  Adding “other state permits” to the list of factors and information sources that permitting agencies must consider would go a long way to solve this problem.

IV. We Support the Use of Option 1 for Most Permit Requirements.

We believe that Option 1 (the “traditional general permit approach”) is the better choice compared to Option 2 (the “procedural approach”) for most permit requirements, with the exception of requirements to develop watershed-specific pollution reduction plans for attainment of TMDL wasteload allocations (WLAs) and water quality standards, as discussed in more detail below.  Option 1, which would require the permitting agency to establish within the permit what MS4s must do to meet the minimum statutory and regulatory requirements, would help to eliminate the existing disparity among small MS4s’ stormwater programs.  It would also make it easier for citizens and EPA regional offices to weigh in on proposed requirements, as that feedback could be provided once, through comments on the draft permit, rather than dozens or even hundreds of times with regard to individual NOIs.  Finally, permitting agencies’ workload constraints also weigh in favor of Option 1; we believe Option 2 could lead to long delays for approval of permittee programs, or to states failing to perform a truly thorough substantive review of each permittee’s NOI.

We appreciate that, under Option 1, the rule would require permits to “make it clear to all what level of effort is expected of the permittee during the permit term for each permit provision.”[21]  Many requirements in Bay watershed small MS4 permits currently do not meet this standard.

For example:

· The Maryland small MS4 permit contains few requirements that could be described as “clear, specific, and measurable.”  It directs permittees to implement and maintain various programs with almost no objective criteria provided to define the level of effort that is needed to meet legal standards.  For example, the pollution prevention minimum control measure (MCM) requires the use of “runoff controls geared toward fleet yard and building maintenance activities” without any detail whatsoever regarding the types of controls that might satisfy this requirement or the results they must achieve.[22]  And the public education MCM contains no quantifiable requirements such as the frequency of communication with members of the public or the number of people that must be targeted through such communications.[23]

·The pending draft Pennsylvania permit requires permittees to “provide adequate public notice and opportunities for public review, input, and feedback” on ordinances, plans, and reports.[24]  The qualifier “adequate” is the type of “caveat” permit language that EPA specifically calls out in the preamble as language that lacks “the type of detail that would be needed under the proposed rule.”  In another example, the draft permit requires the development of “measures … to encourage retrofitting LID into existing development.”[25]  This provision does not include any specific or measurable requirements, but rather gives the permittee unbridled discretion to choose its own “measures,” without any associated performance metrics.

· West Virginia’s permit requires MS4s to “create opportunities for the public to participate in the decision making processes for developing, implementing and updating the SWMP.”[26]  This requirement lacks any quantifiable metrics, such as the frequency of participation opportunities, or specific details about the acceptable forms the opportunities could take (whether comment opportunities, public hearings, or something else).

·The Virginia small MS4 permit’s illicit discharge detection and elimination MCM requires MS4s to develop a “time frame upon which to conduct an investigation or investigations to identify and locate the source of any observed continuous or intermittent nonstormwater discharge.”[27]  The permit then provides some instructions for how MS4s should prioritize their investigations, but no criteria by which the adequacy of the permittee’s proposed time frame can be assessed (e.g. a maximum number of days within which an investigation must be initiated).

· Throughout, New York’s permit directs permittees to “select and implement appropriate BMPs and measurable goals” to meet the MEP standard.[28]  Many of its requirements for particular MCMs are vague and lack specific performance metrics, such as a good housekeeping MCM provision requiring “an employee prevention and good housekeeping training program [that] ensures that staff receive and utilize training,” without specifying how much training or what topics should be covered.[29]  Another example is the post-construction MCM requirement to “ensure[] adequate long-term operation and maintenance of management practices . . . , including inspection to ensure that practices are performing properly,” which lacks any objective criteria for the frequency of such inspections.[30]

It is clear that all of these examples would fail to comply with EPA’s proposed Option 1, and the same is true of many other terms within these five permits.  As a result, applying Option 1 to the MCM components of these permits would significantly strengthen stormwater permitting within the Chesapeake Bay watershed.

In contrast to the examples listed above, we would like to highlight some examples of permit terms that we believe would meet the “clear, specific, measurable” standard that EPA did not include in the materials released along with the proposed rule:

·Pennsylvania’s pending draft permit contains some quantifiable, objective requirements for several of the MCMs.  Its public outreach provisions require MS4s to “annually publish at least one issue of a newsletter, a pamphlet, a flyer, or a website.”[31]  Its public involvement MCM requires permittees to “conduct at least one public meeting per year to solicit public involvement and participation from target audience groups on the implementation of the SWMP.”[32]  As mentioned above, its illicit discharge detection and elimination (IDDE) section requires dry weather screening of each outfall once per permit term, or annually if past problems have been reported.[33]

 

·Virginia’s permit requires MS4s to “participate, through promotion, sponsorship, or other involvement, in a minimum of four local activities annually (e.g., stream cleanups; hazardous waste cleanup days; and meetings with watershed associations, environmental advisory committees, and other environmental organizations that operate within proximity to the operator’s small MS4).”[34]  Its post-construction MCM requires all stormwater management practices to be inspected every five years.[35]  And, as discussed above, its IDDE provisions require that “(i) if the total number of outfalls in the small MS4 is less than 50, all outfalls shall be screened annually or (ii) if the small MS4 has 50 or more total outfalls, a minimum of 50 outfalls shall be screened annually.”[36]

These examples illustrate what our groups believe to be sufficiently specific and detailed to “make it clear to all what level of effort is expected of the permittee during the permit term.”  (We do not, however, concede that all of these examples necessarily meet the MEP standard in that their “clear, specific, measurable” requirements represent the maximum effort that an MS4 can practicably undertake.  We urge EPA to make this distinction in future communications about the “clear, specific, measurable” standard.)  Critically, these examples show that “clear, specific, measurable” permit requirements can practicably be integrated into the MCM provisions of small MS4 general permits throughout the Bay watershed and nationwide.

Another aspect of Option 1 that we support is the proposed requirement for permitting agencies to re-establish the requirements for meeting MEP in each successive permit term (i.e., every five years), by reviewing information relating to permittees’ progress over the previous permit term, compliance problems, effectiveness of activities being implemented, and changes in receiving water quality.[37]  As we have seen in the Bay watershed, in the absence of such a requirement, some permit terms tend to remain relatively static from permit term to permit term rather than growing more effective over time.

Further, we strongly support the proposal under Option 1 to require that “the administrative record [for each permit] would explain the rationale for [the permitting authority’s] determination” that the permit’s requirements meet all applicable Clean Water Act requirements.  This type of explanation is frequently absent from permitting agency fact sheets that accompany MS4 permits in the Chesapeake Bay region.  EPA should incorporate this requirement directly into the text of the final small MS4 rule, rather than including it only in the preamble.  (EPA should also impose the same requirement under Option 2, if that option is selected; permitting agencies should have to provide an administrative record documenting their rationale for approving permittee-proposed pollution controls.)

V.  Option 2 Suffers from Certain Disadvantages, and It Must Be Strengthened If EPA Chooses It.

We do not support the use of Option 2 for most permit requirements, and we believe that this approach should be permitted only in the context of permittee-developed, watershed-specific plans to attain TMDL WLAs and water quality standards (as discussed below in connection with Option 3).

In the Chesapeake Bay watershed, no states clearly require in their small MS4 general permit that proposed control measures must be approved by the permitting agency prior to granting authorization to discharge, with the exception of some permittee plans developed in compliance with WQBELs.  We are not confident that state permitting agencies in the watershed have the staff capacity to perform a thorough review of every MS4’s proposed pollution control program in a timely fashion.  Moreover, many of our own groups lack the capacity to review and comment on every MS4’s NOI or stormwater management plan.  It would be much more efficient both for our groups and for state agencies to consider pollution reduction programs implementing the Minimum Control Measures at the state level within the general permit itself.  As discussed above, this is one reason why we prefer Option 1 for the MCMs.

If EPA chooses Option 2, certain aspects of the proposal must be strengthened.  The preamble to the proposed rule states that under Option 2, the permitting authority “would have the opportunity to require changes” to a permittee’s proposed program before authorizing discharge.[38]  EPA must be clear that the permitting authority has the obligation to require changes to an MS4’s proposed controls if they do not meet MEP and other legal standards.  The preamble separately states that, if proposed management programs are insufficient, the “permitting authority would request supplemental information or revisions as necessary to ensure that the submission satisfies the regulatory requirements.”[39]  Again, EPA should use mandatory language and clarify that the permitting authority must request such revisions in this case.

The proposed rule preamble also states that under Option 2, MS4s would be required to submit NOIs but not full stormwater management plans (SWMPs) in order to gain coverage under a permit.[40]  EPA should require that existing permittees applying for renewed coverage submit their full SWMPs to enable a more thorough review of ongoing and proposed programs.  At minimum, EPA must ensure that the NOI is detailed and robust enough to enable the permitting agency to make an informed determination about whether each MS4’s proposed controls meet legal standards.  To that end, EPA should apply the same “clear, specific, measurable” standard to the contents of NOIs that has proposed to apply to permit terms themselves in the context of Option 1.

If Option 2 is selected, it will require states in the Bay watershed to request significantly more information from permittees in order to determine the adequacy of their proposed programs:

· New York’s NOI is a simple form, consisting primarily of a bare-bones checklist, which demands virtually no detail about MS4’s pollution control measures beyond the vague terms set forth in the permit itself.[41]  The substantive portion of the NOI form (i.e., apart from pages seeking basic identifying information about the submitter) paraphrases items (selectively) from the permit’s MCM sections and instructs each MS4 to “[c]heck the management practices that you have selected to meet the requirements for each Minimum Control Measure.”  It requests no narrative explanations, except for a one-third of a page space, for each of the six minimum measures, where the form instructs the MS4 to provide a narrative description of the measurable goals, with start and end dates, that will be used for each best management practice.  Consequently, this form does not request sufficient information to determine the adequacy of an MS4’s pollution control measures, even if the state were to substantively review it prior to granting authorization to discharge.

 

· Similarly, the NOI form that Pennsylvania has proposed to use along with its pending draft MS4 permit requires permittees to describe their plans for implementing the permit’s requirements in tiny boxes that could not realistically provide sufficient information to support a permitting agency’s substantive review.[42]

 

·         Maryland and Virginia simply instruct permittees to submit NOIs (or, as Virginia calls them, “registration statements”) containing narratives describing their proposed control measures.[43]  It is difficult to know whether this broad requirement yields NOIs with sufficient information to determine whether an MS4’s proposed program meets MEP and other standards, given that neither state makes NOIs publicly available.

 

· West Virginia’s NOI form requires no information at all to be submitted in order to gain authorization to discharge.[44]  Permittees are required to submit their SWMPs within six months, but the state does not substantively review those plans before granting coverage under the permit.

 

If EPA selects Option 2 in the final rule, it should ensure that all states in the Bay watershed and nationwide must revise their NOI forms in order to collect the information needed to make an informed determination about permittees’ proposed management practices and measurable goals.

VI.  We Support a “Hybrid” Approach Under Option 3, Provided That the “Procedural Approach” is Allowed Only for the Implementation of WQBELs.

EPA has proposed a third option in which a permitting authority would be able to choose between Option 1 (the “traditional general permit approach”) and Option 2 (the “procedural approach”), or to implement a combination of these approaches in issuing and authorizing coverage under a general permit.  We do not support allowing a state to choose between the two options at its own discretion because, as discussed above, we believe that Option 1 should be the only allowable approach for the core Minimum Control Measures of small MS4 permits.  However, we do support the use of the procedural Option 2 exclusively within the context of WQBELs that require permittees to develop individualized pollution control plans designed to achieve TMDL WLAs and/or water quality standards in particular receiving water bodies.  The procedural approach is appropriate for these types of requirements because of the highly location-specific nature of watershed-based plans, which are often more effectively developed by permittees (subject to permitting agency approval) because of their detailed knowledge of on-the-ground conditions. 

Thus, if Option 3 is structured as a “hybrid” of Options 1 and 2 within each permit – such that the traditional general permit approach (requiring specific permit terms) is applied to the MCMs, and the procedural approach is allowed exclusively for the implementation of WQBELs – then we would support the selection of Option 3.

Within the Bay watershed, this approach has been used to implement WQBELs in Virginia and Pennsylvania.  If EPA chooses Option 3 to comply with the EDC v. EPA ruling, both states may need to make adjustments to their programs to provide for a full, substantive review of permittee-proposed pollution reduction plans.

· Virginia’s permit imposes different planning requirements for the Chesapeake Bay TMDL, on the one hand, and all other TMDLs on the other.  For the Bay TMDL, MS4s must develop a Chesapeake Bay TMDL Action Plan that is subject to public comment and then submitted to the state agency for its review and approval.  But for all other TMDLs, MS4s’ Action Plans are not required to be submitted to the state or affirmatively approved.[45]  Under a “hybrid” Option 3 in which the procedural approach is applied to WQBELs, both kinds of TMDL Action Plans would need to be subject to public comment and submitted to the state for review and approval.

·Under Pennsylvania’s pending draft general permit, two categories of MS4s are required to develop plans, called Pollutant Reduction Plans, to address water quality impairments: (1) MS4s discharging to receiving waters within the Chesapeake Bay watershed, and (2) MS4s discharging to waters impaired for nutrients and/or sediment but which have not been assigned a wasteload allocation under a TMDL.  These Pollutant Reduction Plans must be submitted to the state along with the permittee’s NOI.[46]  (MS4s with their own WLAs for nutrients and/or sediment must apply for individual permits.)  But the permit does not explicitly provide that the Department of Environmental Protection will substantively review the proposed plans; it only says that a complete NOI, with supporting information, must be submitted in order to gain approval of coverage.  Under a “hybrid” Option 3, the permit would need to clarify that review and affirmative approval of Pollutant Reduction Plans is required.

If EPA selects Option 3, it must clarify that all of the requirements for Option 2, including the necessary strengthening improvements described above, would apply to the WQBEL portions of the permit that are subject to the procedural approach.  In addition, EPA should require a full watershed-based pollution reduction plan designed to implement a WQBEL to be submitted for permitting agency review, not just a summary of such a plan (analogous to an NOI).

Thank you again for the opportunity to provide these comments on the proposed rule.  Please do not hesitate to contact Peter Marx (peter@choosecleanwater.org) or Rebecca Hammer (rhammer@nrdc.org) with any questions.

Respectfully submitted,

American Rivers

Anacostia Watershed Society

Audubon Naturalist Society

Cecil Land Use Association

Chesapeake Bay Foundation

Citizens for Pennsylvania's Future

Coalition for Smarter Growth

Delaware Nature Society

Earth Forum of Howard County

Friends of Accotink Creek

Friends of Lower Beaverdam Creek 

Groundwork Anacostia River DC

Interfaith Partners for the Chesapeake

James River Association

Maryland League of Conversation Voters

Mattawoman Watershed Society

Middle Susquehanna Riverkeeper

Natural Resources Defense Council

Nature Abounds

Pennsylvania Council of Churches

Potomac Conservancy

Prince William Conservation Alliance

Savage River Watershed Association

South River Federation

St. Mary's River Watershed Association

Virginia Conservation Network

Waterkeepers Chesapeake

West Virginia Rivers Coalition

[1] 81 Fed. Reg. 415, Proposed Rule—National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System General Permit Remand (Jan. 6, 2016).

[2] 344 F.3d 832 (9th Cir. 2003).

[3] See “Small MS4 Rulemaking: Pre-Proposal Comments from Environmental Organizations,” letter from 24 environmental organizations to Greg Schaner, EPA (Sept. 29, 2015).

[4] West Virginia Department of Environmental Protection, General NPDES Permit for Stormwater Discharges from Small MS4s, Permit No. WV0116025, at 24 (July 2014), available at http://www.dep.wv.gov/WWE/Programs/stormwater/MS4/permits/Documents/MS4%20GP%202014.pdf.

[5] Maryland Department of the Environment, General Permit for Discharges from Small MS4s, Permit No. MDR055500, at 5 (Apr. 2003), available at http://www.mde.state.md.us/programs/Water/StormwaterManagementProgram/Documents/www.mde.state.md.us/assets/document/NPDES%20Phase%20II%20General%20Permit.pdf (cross-referencing, and requiring compliance with, state statutes and regulations).

[6] For purposes of this calculation, a percentage of existing impervious surface must be considered “meadow in good condition.” 

[7] Pennsylvania Department of Environmental Protection, NPDES Stormwater Discharges from Small MS4s, Model Stormwater Management Ordinance (DRAFT) (May 2015), available at http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-107395/3800-PM-BPNPSM0100j%20Model%20Ordinance%20(Draft).pdf.

[8] Virginia Department of Environmental Quality, General VPDES Permit for Discharges of Stormwater from Small MS4s, Permit No. VAR04, 9 VAC 25-890-40 (permit by rule), at II.B.5.b (July 2013), available at http://lis.virginia.gov/cgi-bin/legp604.exe?000+reg+9VAC25-890-40 (cross-referencing standards established in 9 VAC 25-870-63-66).

[9] EPA, “Current NPDES Authority Practices in Administering Small MS4 General Permits” (spreadsheet) (Jan. 2016), available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2015-0671-0022.

[10] 81 Fed. Reg. at 425.

[11] We do not necessarily concede that these WQBELs are sufficient to comply with all legal requirements.

[12] U.S. EPA Region 3, “Urban Stormwater Approach for the Mid-Atlantic Region and the Chesapeake Bay Watershed” at 4 (July 2010), available at http://www.epa.gov/sites/production/files/2015-07/documents/ms4guider3final07_29_10.pdf.

[13] See, e.g., Commonwealth of Virginia, Chesapeake Bay TMDL Phase I Watershed Implementation Plan, at 91 (Nov. 2010), available at http://www.deq.virginia.gov/Portals/0/DEQ/Water/TMDL/Baywip/vatmdlwipphase1.pdf.

[14] 40 C.F.R. § 122.34(a).

[15] 81 Fed. Reg. at 422.

[16] Id. at 422, 428.

[17] Pennsylvania Department of Environmental Protection, PAG-13 Authorization to Discharge Under NPDES General Permit for Stormwater Discharges from Small MS4s (DRAFT), at 19 (May 2015), available at http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-107389/3800-PM-BPNPSM0100d%20Permit%20(Draft).pdf.

[18] Virginia Small MS4 Permit, supra note 8, at II.B.3.c.1.b.

[19] West Virginia Small MS4 Permit, supra note 4, at 17.

[20] Maryland Small MS4 Permit, supra note 5, at 4.

[21] 81 Fed. Reg. at 421.

[22] Maryland Small MS4 Permit, supra note 5, at 6.

[23] Id. at 3.

[24] Pennsylvania Small MS4 Permit (Draft), supra note 17, at 17.

[25] Id. at 22.

[26] West Virginia Small MS4 Permit, supra note 4, at 13.

[27] Virginia Small MS4 Permit, supra note 8, at II.B.3.c.1.d.

[28] See, e.g., New York State Department of Environmental Conservation, SPDES General Permit for Stormwater Discharges from MS4s, Permit No. GP-0-15-003, at 31, 35, 37, 41, 45, 48 (May 2015, modified Jan. 2015), available at http://www.dec.ny.gov/docs/water_pdf/ms4permit.pdf.

[29] Id. at 48.

[30] Id. at 45.

[31] Pennsylvania Small MS4 Permit (Draft), supra note 17, at 16.

[32] Id. at 17.

[33] Id. at 19.

[34] Virginia Small MS4 Permit, supra note 8, at II.B.2.b.

[35] Id. at II.B.5.c.1.b.

[36] Id. at II.B.3.c.1.b.

[37] 81 Fed. Reg. at 421-22.

[38] 81 Fed. Reg. at 416.

[39] Id. at 426.

[40] Id. at 425-26.

[41] New York State Department of Environmental Conservation, Phase II SPDES General Permit for Storm Water Discharges from MS4s: Notice of Intent, available at http://www.dec.ny.gov/docs/water_pdf/ms4ni.pdf.

[42] Pennsylvania Department of Environmental Protection, PAG-13 Notice of Intent (DRAFT) (May 2015), available at http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-107387/3800-PM-BPNPSM0100b%20NOI%20(Draft).pdf.

[43] Maryland Small MS4 Permit, supra note 5, at Appendix D; Virginia DEQ, General Permit Registration Statement for Stormwater Discharges from Small MS4s (VAR04), available at http://www.deq.virginia.gov/Portals/0/DEQ/Water/Publications/MS4RegistrationStatement.pdf.

[44] West Virginia Small MS4 Permit, supra note 4, at Appendix A.

[45] Virginia Small MS4 Permit, supra note 8, at I.B-C.

[46] Pennsylvania Small MS4 Permit (Draft), supra note 17, at 25, Appendix D-E.

Maryland Fracking Ban

PDF Version: Letter to Governor Larry Hogan 

February 28, 2017

The Honorable Larry Hogan
Governor, State of Maryland
100 State Circle
Annapolis, Maryland 21401

Senators: Bobby Zirkin, Mike Miller, Joan Carter-Conway,
Delegates: David Fraser-Hidalgo, Michael Busch, Kumar Barve

RE:      Support Maryland Fracking Ban Legislation

Dear Governor Hogan:

The undersigned members of the Choose Clean Water Coalition request your support for legislation to protect the waters of Maryland and the Chesapeake Bay. Supporting SB740 and HB1325 to stop hydraulic fracturing, or “fracking,” from beginning in Maryland is critical to protecting the public health of Maryland’s citizens as well as the lifeblood of our state – our clean water and the national treasure that is Chesapeake Bay.

The Choose Clean Water Coalition is a coalition of conservation, sportsmen, faith, and environmental groups working to restore and conserve clean water throughout the entire 64,000 square mile Chesapeake Bay watershed.

The growing body of scientific research on unconventional gas development demonstrates significant risks and harms to human health and to the environment, while providing no evidence that any regulatory framework can adequately protect Maryland residents and the Bay. Marylanders have seen the destructive impact of fracking operations on the quality of water, air, land, and health in communities around the country, including in neighboring Pennsylvania. New York also saw the negative impacts from fracking in its southern neighbor, which led to its statewide fracking ban in 2015. We urge Maryland to do the same.

There are also the economic implications of fracking. A Blue Ribbon Panel on Finance and the Chesapeake Bay was put together by the Bush Administration in 2003 and issued a very extensive and comprehensive report in 2004. This Blue Ribbon Panel estimated that the waters of the Chesapeake Bay are a regional economic engine valued at more than one trillion dollars – and that figure is over a decade old. The locations where fracking has been proposed in Maryland are known for their recreational tourism, a major source of income for local residents. Any damage to the local environment would be devastating to these communities and their local economies. This is an economic risk clearly not worth taking.

Fracking Threatens Safe Drinking Water in Maryland

Fracking is a serious cause of groundwater and surface water pollution.  In 2016, the U.S. Environmental Protection Agency concluded that fracking can contaminate drinking water.[1]  The quality of our drinking water is impacted through leaks and spills of toxic substances, discharges of wastewater that can contain radioactive contaminants, and improper disposal of fracking chemicals or other wastes. [2]

Two-thirds of the 18 million people who live in the Chesapeake Bay watershed get their drinking water from the rivers and streams flowing to the Bay.  The Potomac River stretches across four states (Maryland, Pennsylvania, Virginia, and West Virginia) and the District of Columbia.  It runs from Fairfax Stone, West Virginia directly through Western Maryland to Point Lookout, Maryland for 383 miles.  The lives of more than six-million basin residents, 75 percent of whom live in the Washington metropolitan area, are touched daily by the river, which provides the majority of the region’s drinking water.

The District of Columbia receives 100% of its drinking water from the Potomac River.  If the Potomac River is contaminated by fracking wastewater or other sources, the nation’s capital will be limited to a two-day water supply. 

The Marcellus Shale formation is located in the western Maryland counties of Washington, Allegany, and Garrett.  Hagerstown in Washington County gets its drinking water directly from the Potomac and supplies 90,000 people, including those in Williamsport, Smithsburg, Funkstown, and the I-81 Corridor.  Fracking would be permitted beneath all drinking water reservoirs in Garrett County, as well as Deep Creek Lake.  If the Potomac River is contaminated by fracking wastewater or other pollutants, this will also impact the drinking water supply for tens of thousands of people in western Maryland.

In addition, the Savage River is a significant tributary to the Potomac in western Maryland, and is home to the state’s premier brook trout fishery. There are over 120 miles of interconnected streams in the Savage River watershed and it has, by far, the highest density of native brook trout in the state. This is an important area for hunters and anglers and fracking would imperil this special natural and economic resource.

Allowing fracking in Maryland is an environmental and public health risk not worth taking.

Allowing Fracking to Begin in Maryland will have Negative Regional Impacts

Fracking will have a negative impact on clean water in Maryland and threaten to reverse progress made in cleaning up Chesapeake Bay.  The Bay is the largest estuary in North America, and the Potomac River is the second largest tributary to the Chesapeake.

We are concerned about the damaging impacts from natural gas drilling, including extracting, transporting, and storing. These negative impacts effect our land and water, including contamination of water resources and destruction of habitat.  The watershed would be further jeopardized because fracking is exempt from significant parts of seven major federal environmental laws, including the Safe Drinking Water Act, Clean Water Act, Clean Air Act and hazardous waste disposal standards.

For many of these reasons, New York State outlawed fracking in 2015, as did municipalities throughout our region.  In Maryland, Montgomery and Prince George’s counties, as well as the towns of Friendsville and Mountain Lake Park in western Maryland, have banned fracking. This is not solely a western Maryland issue, as the Taylorsville Basin extends up through southern Maryland and as far north as Prince George’s and Anne Arundel counties.

Proposed Regulations are not Sufficient to Protect Health and Safety of the Public or the Natural Environment

We are not convinced that the regulations will protect the health and safety of the public or the natural environment.

In every state that allows fracking, fracking is regulated. Yet scientific studies have found both surface and sub-surface water contamination. The majority of these environmental impacts from fracking result from cement casing failures.  This is not a technical or practical failure, but a materials failure.  No material can seal the surface between the steel pipes and the earth.  At this point there is no available material that can be used and regulated to ensure that methane and chemicals will be contained during the fracking process. 

Additionally, no regulations can prevent threats to surface and groundwater from accidental spills or from intentional dumping of waste, which has been documented in rural areas on Pennsylvania’s Marcellus shale.

And due to Maryland’s budgetary constraints and lack of knowledge about Maryland’s geology, there is no way to learn how the migration of contaminates will effect individual or municipal water resources, and in turn human health, food supplies, and economies in Maryland communities.

The simple truth is that fracking is far too risky in our small state. We have much more to lose than we have to gain, and any cost-benefit analysis will bear that out.  We request your support for bills SB740 and HB1325 to ban fracking in Maryland.

We are happy to discuss our request.  Please contact Chante Coleman, colemanc@nwf.org, with any questions.

Respectfully submitted,

Alliance for Sustainable Communities

Audubon naturalist society

Blue Water Baltimore

Butternut Valley Alliance

Cecil Land Use Association

Chesapeake Wildlife Heritage

Citizen Shale

Corsica River Conservancy

Dorchester Citizens for Planned Growth

Earth Forum of Howard County

Environment America

Environment Maryland

Environment Virginia

Friends of Frederick County

Friends of the Bohemia

Friends of the Middle River

Friends of the Rappahannock

Goose Creek Association

Gunpowder Riverkeeper

Interfaith partners for the Chesapeake

Laurel Mountain Preservation Association

Little Falls Watershed Alliance

Maryland Conservation Council

Maryland League of Conservation Voters

Maryland Pesticide Education Network

Montgomery Countryside Alliance

Nature Abounds

PennFuture

Pennsylvania Council and Churches

Potomac Riverkeeper

Potomac Riverkeeper Network

Potomac Riverkeeper Network

Savage River Watershed Association

Shenandoah Riverkeeper

Sparks-Glencoe Community Planning Council

Upper Potomac Riverkeeper

Waterkeepers Chesapeake

West Virginia Environmental Council

 

[1] U.S. EPA. Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States (Final Report). U.S. Environmental Protection Agency, Washington, DC, EPA/600/R-16/236F, 2016.(Feb. 09, 2017, 2:48 PM) https://cfpub.epa.gov/ncea/hfstudy/recordisplay.cfm?deid=332990 

[2] Earthworks, Loopholes for Polluters: The oil and gas industry’s exemptions from major environmental laws, (Feb. 09, 2017, 2:38 PM) https://www.earthworksaction.org/files/publications/FS_OilGasExemptions.pdf.

 

West Virginia Rivers Coalition on Draft Environmental Impact Statement for Mountain Valley Pipeline

PDF Version: West Virginia Rivers Coalition on Draft Environmental Impact Statement for Mountain Valley Pipeline 

December 22, 2016

Kimberly D. Bose, Secretary
Federal Energy Regulatory Commission
888 First St. NE, Room 1A
Washington, DC 20426

Re: Draft Environmental Impact Statement, Docket No. CP16-10-000

Dear Secretary Bose,

West Virginia Rivers Coalition, along with the organizations signed below, respectfully submit the following comments on the Draft Environmental Impact Statement (DEIS) for the Mountain Valley Pipeline (MVP), Docket No. CP16-10-000.

We found the DEIS lacking of the critical information needed to fully analyze the significant impacts of the project. Due to the lack of adequate information, we are unable to provide a comprehensive analysis of the DEIS. According to a statement made by a FERC representative at the public meeting in Summersville, WV on November 2, 2016, ”the DEIS is 80% complete”. However, the other 20% is vital to assess the adverse environmental impacts of the project and ensure that the mitigation measures proposed are adequate. Because of this deficiency, we request a revised DEIS to be issued for the proposed project with all the necessary information to meet the requirements of the National Environmental Policy Act (NEPA). Specifically, the regulation explains that “NEPA procedures must ensure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.”

Additionally, we request the following to be addressed in the revised DEIS:

Executive Summary
While the intent of the Executive Summary (ES) is to articulate the main findings of the document. We found several statements within the ES to be misleading, contain contradictory information, and use vague generalizations often marginalizing the impacts of the project.

1. Groundwater, Surface Waterbody Crossings, and Wetlands, page ES-5: The DEIS states, “there will be no net losses of wetlands”; however, on page 4-89 the DEIS states that MVP has not supplied information regarding their proposal to permanently fill 44 wetlands along access roads. This discrepancy must be clarified in the DEIS.

2. Land Use and Visual Resources, page ES-8: The DEIS states, “Most of the facilities are located in rural areas, some distance from residences. This statement is vague and needs to be more descriptive of the actual impacts. The term “most“ should instead be specified as a percentage. “Some distance” should instead list the distance range. The percentage of aboveground facilities and their distance from residences should not be described with such vague generalizations.

3. Land Use and Visual Resources, page ES-8: Visual impacts for the aboveground structures would generally be reduced by topography and vegetation surrounding the sites, which screen the facilities from most viewers.” Visual impacts of aboveground facilities will still be significant in rural areas. Because these rural areas are not industrialized, the impacts will be even more significant. Visual impacts should not be marginalized merely because the area is rural; this statement alludes to larger environmental justice issues in rural areas. The statement should be re-phrased in the DEIS to account for visual impacts in rural areas.

4. Socioeconomics and Transportation, page ES-9: The Environmental Justice analysis is flawed. The DEIS uses county wide poverty rates; however, the proposed route goes through some of the poorest communities in the counties. Using county-level poverty rates skews the data analysis. Instead, demographics should be analyzed by the affected communities along the proposed route.

5. Socioeconomics and Transportation, page ES-9: The DEIS references a study conducted by the industry FERC is tasked with regulating for the effect on property values. “One recent study conducted for the Interstate Natural Gas Association of America found that there was little difference in adjusted sale prices for houses adjacent to a pipeline easement and those further away in the same subdivision.” The DEIS must reference studies conducted by an independent third party before drawing conclusions; referencing a biased report is not a sufficient analysis.

6. Air Quality and Noise, page ES-11: The DEIS states, “Noise from planned or unplanned blowdown events could exceed the noise criteria but would be infrequent and of relatively short duration.” This statement is vague; the frequency of blowdown events based on other compressor station operations should be defined. Additionally, the approximate duration in a measured increment should also be defined.

7. Cumulative Impacts, page ES-13: Cumulative impacts should be assessed for all 12-16 proposed pipeline projects under FERC’s jurisdiction. Examining only two other pipeline projects for cumulative impacts is not adequate, all pipelines under FERC’s jurisdiction must be assessed for cumulative impacts. Impacts should be assessed on a watershed scale.

2.4.4.2 Post-Approval Variance Process

1. We request that public notice and comment period be included in the procedures used for variance requests involving route realignments, shifting or adding new extra workspaces or staging areas, adding additional access roads, or modifications to construction methods that have not been evaluated in the DEIS.

4.1.1.5 Geologic Hazards

1. Soil Liquefaction, page 4-25: Table 4.1.1-9 of the DEIS identifies flood zones crossed by MVP where soil liquefaction due to saturated soils is a potential. Recent flooding in WV raises a great concern and has significant potential to compromise the integrity of the pipeline during flooding. The DEIS must analyze the severity of this issue and require the Class 3 pipe with the thickest walls in these flood prone areas.

2. Karst Topography, page 4-35: The DEIS identifies 94 karst features within the project area and states, “Construction over karst features could result in damage to natural resources, differential settlement, and pipeline instability. Due to underground stream flow, the potential to inadvertently discharge to groundwater exists.” The DEIS must include final route adjustments that avoid karst features.

4.1.2.4 Slopes and Landslide Potential

1. Mountain Valley Project, page 4-47: Because the revised Landslide Mitigation Plan has not been completed and is unavailable for public comment, we request that the Plan be included in a revised DEIS with an additional a 90-day comment period and opportunity for public meetings.

2. Mountain Valley Project, page 4-47: The DEIS states, “Technical experts would be onsite during construction in areas of steep slopes and would be hired based on target skill sets. Mountain Valley would conduct additional analysis of a work area should an inspector document tension cracks, slumping, erosion, or seeps during construction or restoration." With 78% of the pipeline route being highly susceptible to landslides, the DEIS must specify how many technical experts will be hired for each 20-40 mile spread of pipeline to have an expert onsite for each construction area on steep slopes.

3. Mountain Valley Project, page 4-47: The DEIS must also provide an analysis of how landslides will be prevented along fill slopes.

4.1.2.5 Karst Terrain

1. Mountain Valley Project, page 4-48: The DEIS states, “Mitigation of sinkholes would involve reverse gradient backfilling of the sinkhole to stabilize the sinkhole from collapse.” WV Rivers does not agree with this method to mitigate sinkholes. Sinkholes may develop from underground flows or springs. The DEIS should specify a plan for investigating sinkholes to determine if there is flowing water that is associated with the sinkhole. Additional measures may be needed to control the water flow and reroute it to a suitable area to avoid additional erosion.

2. Mountain Valley Project, page 4-48: The DEIS list BMPs associated with the Karst-specific Erosion and Sediment Control Plan. The BMPs listed are either already required sediment and erosion control measures, such as placing BMPs around staging areas, or do not provide adequate protection, such as placing straw bales upslope of karst features. Straw bales are not a suitable form of erosion control. Additional measures above and beyond those already required must be defined to address sediment and erosion control specifically for karst features. If additional measures cannot be identified that minimize impacts, then karst features should be avoided.

4.2.2.1 Soil Limitations

1. Erosion Potential, page 4-65: The DEIS states that MVP would follow BMPs to prevent soil erosion. In table 4.2.1-1 over 5,000 acres have an erosion hazard criteria as severe or very severe; however, the BMPs listed are standard erosion control measures for any soil type. Straw bales are not considered adequate erosion control measures. The DEIS must identify additional measures, above and beyond standard practices, that will be used to control severely erodible soils.

4.3.1 Groundwater

4.3.1.1 Affected Environment

1. Groundwater in Karst Terrain, page 4-73: Table 4.3.1-2 of the DEIS identifies 9 springs and swallets within 500 feet of the project work area. No springs were identified in Monroe County. The information on springs in the DEIS is grossly inadequate. One landowner has identified 11 springs within a one-mile section of the pipeline route on his property alone. A thorough investigation of springs within 500 feet of project work area must be included in a revised DEIS.

4.3.1.2 Environmental Consequences

1. Aquifers, page 4-78: The DEIS states, “If disturbed by construction, wells completed in nearsurface aquifers would typically quickly re-establish equilibrium, and turbidity levels would rapidly subside, such that impacts would be localized and temporary.” The description provided is inadequate using relative terms such as ‘typically quickly re-establish equilibrium’ and ‘rapidly subside’. The DEIS must provide actual data on the time it will take for groundwater to equilibrate and turbidity levels to subside. The DEIS must cite peer-reviewed studies to back up these statements.

2. Karst Terrain, page 4-80: The DEIS does not contain the results of the fracture trace/lineament analysis. This information is necessary to understand the connectivity between the karst terrain and impacts to drinking water sources. The analysis must be included in the revised DEIS. We request a 90-day comment period to have adequate time to review this analysis and additional public meetings to provide ample opportunity for the public to comment on the analysis.

3. Water Supply Wells, Springs, and Swallets, page 4-80: The DEIS does not contain the location of all private domestic water supply wells within 150 feet (500 feet in karst) of the construction work areas. This information must be included in the DEIS. If MVP cannot acquire this information for the DEIS due to lack of access, then a supplemental EIS containing this information must be provided.

4. Water Supply Wells, Springs, and Swallets, page 4-80: The DEIS states, “If suitable potable water is no longer available due to construction-related activities, Mountain Valley and Equitrans would provide adequate quantities of potable water during repair or replacement of the damaged water supply.“ The DEIS must specify how the company plans to replace a damaged water supply.

5. Wellhead and Source Water Protection Areas, page 4-81: The DEIS states in the previous section that “The MVP would be within 0.1 mile of two wells for public supplies: one in Greenbrier County, West Virginia (the Greenbrier County Public Supply District #2) and the other in Pittsylvania County, Virginia (the Robin Court Subdivision).” Then the DEIS states, “The projects would not cross any source water protection areas for groundwater resources, therefore impacts on these resources are not expected.” While the project does not directly cross the source water protection area, it comes within close proximity. The DEIS must provide an analysis of how it comes to the conclusion that impacts to the resources are not expected.

6. Groundwater Use, page 4-83: The DEIS states, “Mountain Valley would obtain water from municipal, surface water, or groundwater sources for dust-control purposes.” The DEIS must specify the exact locations where MVP plans to withdrawal water for dust control.

4.3.2 Surface Water Resources

4.3.2.1 Affected Environment

1. Surface Waters, page 4-89: The DEIS states, ”Mountain Valley is currently evaluating using permanent fill at 44 wetlands along permanent access roads.” The DEIS must include alternatives to avoid and minimize the permanent filling of all wetlands. A detailed mitigation plan for any permanent impacts to wetlands must be included in the DEIS.

2. Surface Water Use Classifications, page 4-89: The DEIS states, “Neither the MVP nor the EEP would cross Tier III waterbodies in West Virginia.” While the MVP may not directly cross Tier III waterbodies, Tier III waterbodies will still be impacted from construction. The DEIS must include an analysis of impacts to Tier III waterbodies in close proximity to MVP AOI, for example where stormwater runoff will enter a Tier III stream. When Tier III streams are identified within the impact area, the DEIS must also identify additional measures to avoid or minimize impacts to Tier III streams.

3. Water Appropriations, page 4-101: Discharges associated with hydrostatic testing water must receive an NPDES permit issued by the WVDEP. The DEIS states, “There are no actionable levels for oil and grease, TSS, or pH.” WVDEP’s NPDES General Permit establishes discharge limitations for permittees, including pH. The DEIS should reflect the discharge limitation for pH.

4. Water Appropriations, page 4-101: The DEIS states, “In the event that a waterbody is not capable of supplying the requisite volume of water, Mountain Valley would purchase water from a municipal source.” There are additional discharge limitations in WVDEP’s NPDES permit if chlorinated potable water is used as the source water for hydrostatic testing. The DEIS must include the additional monitoring and treatment needed for municipal sources.

5. Water Appropriations, page 4-101: The DEIS states, “Mountain Valley has not yet determined whether water for dust control would be obtained from surface water, groundwater, or municipal sources.” The DEIS must identify the sources of water for dust control and the approximate amount of the withdrawal from each water source.

4.3.2.2 Environmental Consequences

1. General Impacts and Mitigation, page 4-109: The DEIS states, “The hydrostatic test water would be discharged through an energy dissipation device, typically in the same watershed as the source from which it was obtained.” Table 4.3.2-10 in the DEIS shows the withdrawal and discharge watersheds for the hydrostatic testing water and identifies at least 7 instances of outof-basin discharges for the 17 testing segments in WV. The term ‘typically’ does not apply in this scenario where almost have of the withdrawals are not ‘typically’ discharged into the same watershed. The impacts of the out-of-basin transfers, where millions of gallons of water are transferred to another watershed, must be analyzed in the DEIS.

2. Wet Open-Cut Crossings of Major Waterbodies, page 4-110: MVP is proposing to cross the Elk, Gauley and Greenbrier using the wet crossing method. The DIES states, “Mountain Valley performed a quantitative modeling assessment for each of the three crossings to quantify the amount of turbidity and sediment that would be expected downstream of the crossings. Results of the assessment estimate that monthly sediment loads would increase by 49 to 81 percent, 15 to 26 percent, and 19 to 52 percent for the Elk River, Gauley River, and Greenbrier River, respectively.” The DEIS contains no analysis of why this is the preferred method of crossing. FERC must require this type of analysis for each crossing method and select the least environmentally damaging method to reduce impacts.

3. Wet Open-Cut Crossings of Major Waterbodies, page 4-110: The DEIS states “Mountain Valley’s analysis does not quantify the duration, extent, or magnitude of estimated turbidity levels”. FERC has requested this information and additional information prior to construction; however, this information is critical for assessing the impacts of this crossing method and must be included in the DEIS.

4. Blasting, page 4-110: The DEIS states, ”Mountain Valley would obtain all necessary permits if blasting were required within streams.” The DEIS must identify streams where blasting is likely to occur based on shallow bedrock. FERC cannot allow blasting in karst streams. All efforts to avoid blasting in karst streams must be specified in the DEIS.

5. Scour, page 4-111: MVP has not provided updated information on the scour analysis. This information is critical when assessing the impact of the stream crossing. The updated analysis must be provided in the DEIS.

6. Surface Water Protection Areas and Public Supply Intakes, page 4-111: The DEIS states, “Due to the short-term nature of construction activities and with the implementation of our recommendation above, impacts on surface water protection areas are not anticipated for the MVP.“ There was no recommendation listed above as to how MVP will avoid impacting the source water for Red Sulphur Public Service District (PSD). Also, there was no mention of the other water systems potentially impacted; Burnsville PSD Craigsville PSD, Summersville PSD Big Bend PSD, Red Sulphur PSD, Sistersville Municipal Water, and Pine Grove Water.

7. Surface Water Protection Areas and Public Supply Intakes, page 4-111: FERC recommends that “Mountain Valley should file with the Secretary contingency plans outlining measures that would be taken to minimize and mitigate potential impacts on public surface water supplies with intakes within 3 miles downstream of the crossing of the MVP pipeline, and ZCC within 0.25 mile of the pipeline. The measures should include, but not be limited to, providing advance notification to water supply owners prior to the commencement of pipeline construction.” We agree with this recommendation with a request for additional information to include a contingency plan in the event of water contamination where the water system is unable to provide water to its customers. MVP and EEP must specify how they plan to provide temporary or permanent alternate water supplies. This information must be included in the DEIS.

8. First-order Streams, page 4-112: The DEIS states, “The Applicants would minimize impacts on first-order streams by adhering to the Mountain Valley and Equitrans Procedures.” This statement does not adequately address the issue. First-order or headwater streams are vitally important to the health of the watershed. The overall health of a watershed is dependent on its network of tributaries. Further analysis is needed to understand the impacts to headwater streams. A project of this magnitude that impacts multiple watersheds must be assessed at a regional scale. The DEIS must contain an analysis on the projects total impacts within each watershed to determine the overall impacts of the project. MVP must provide an analysis for each watershed including information on the number of headwater stream crossings by watershed and the number of stream crossings on each stream if waterbodies are crossed multiple times. At the landscape level, impacts from the ROW are exacerbated by the cumulative impacts of the proposed access roads. There is a negative correlation between road miles within a watershed and water quality. An analysis of the pre-construction vs. postconstruction ratio of roads within a basin must be included in the DEIS to adequately assess the impacts from the proposed project.

9. Modification to the Procedures, page 4-114: In multiple instances the DEIS states that impacts will be minimized by following FERC’s procedures. One of those procedures being that Alternative Temporary Workstations be located at least 50 feet from waterbodies and wetlands. The DEIS states that “366 ATWS that Mountain Valley has proposed within 50 feet of a waterbody and wetland“ and that “We have reviewed these and find them acceptable.” We find this decision unacceptable. These procedures are in place to protect our water resources. Accepting 366 ATWS to be placed within 50 feet of a stream does not minimize impacts. The DEIS should include an analysis of how ATWS have been strategically placed to minimize impacts to streams.

4.3.3 Wetlands

4.3.3.2 Environmental Consequences

1. General Impacts and Mitigation, page 4-127: A wetland function and value that the DEIS fails to mention is water storage for flood prevention. The DEIS must provide an analysis of the disruption of water storage for flood control. The analysis must include watershed-based wetland impacts with details on the acres of impacted wetlands by watershed to determine whether flooding within the watershed has the potential to significantly increase as a result of the loss of wetland functions during construction and operation of the pipeline.

4.3.3.3 Compensatory Mitigation

1. Mitigation Plan, page 4-129: The DEIS mentions that MVP “submitted their compensatory mitigation plan to the COE in February 2016”; however, the plan is not included in the DEIS. The mitigation plan must be included in the DEIS to ensure that the mitigation proposed adequately addresses the impacts from the project. Mitigation must be initiated in the watershed where the impacts occur.

4.6 Fisheries and Aquatic Resources

4.6.1.1 Fisheries of Special Concern

1. Mountain Valley Project, page 4-172: Table 4.6.1-1 of the DEIS should include the Candy Darter and Diamond Darter fish in WV.

2. Mountain Valley Project, page 4-172: The DEIS does not assess impacts on crayfish and methods to avoid impacts. The Cambarus Pauleyi is a new species of crayfish endemic to the high elevation wetlands in the Meadow and Greenbrier River Watersheds in Greenbrier and Monroe counties, West Virginia. Cambarus pauleyi has an extremely narrow geographic distribution and has possibly experienced a significant range reduction due to the conversion of wetlands into pastures, and should be considered "Endangered" according to American Fisheries Society listing criteria. Impacts to this species and avoidance and minimization of impacts must be described within the DEIS.

4.6.2.1 Sedimentation and Turbidity

1. Sedimentation and Turbidity, page 4-176: The DEIS states, “conclusions cannot be drawn regarding the effects of sedimentation and turbidity on fisheries and aquatic resources due to the wet open-cut crossings.” This information is vital for understanding the impacts to aquatic resources. Without this information FERC and the public cannot assess the wet crossing method impacts on aquatic resources. Because of this lack of critical information in the DEIS, we request a revised DEIS to be issued with this information included.

4.6.2.2 Loss of Stream Bank Cover

1. Loss of Stream Bank Cover, page 4-177: The DEIS states, “Mountain Valley and Equitrans would minimize impacts on riparian vegetation by narrowing the width of its standard construction right-of-way at waterbody crossings to 75 feet, and by locating as many ATWS as possible at least 50 feet from waterbody banks.” Previously, it was mentioned that 366 ATWS will be within 50 feet of waterbodies. This increased impact of loss of stream bank cover on aquatic resources should be addressed within the DEIS.

2. Loss of Stream Bank Cover, page 4-178: The DEIS should include an analysis of stream bank cover on a watershed scale to determine the % loss of stream bank cover by watershed to provide a better understanding of the potential impacts of the project.

4.6.2.4 Hydrostatic Testing and Water Withdrawals

1. Hydrostatic Testing and Water Withdrawals, page 4-178: The DEIS does not address the out-of basin water withdrawals and the impact on aquatic life. Permanently removing millions of gallons of water from a watershed may impact aquatic life and should be analyzed within the DEIS.

4.6.2.7 Fisheries of Special Concern

1. Mountain Valley Project, page 4-180: The DEIS should state how MVP plans to adhere to recommended work windows for in-water construction since requesting a work-window modification does not necessarily mean that it will be granted. Requesting work window modifications will increase impacts to aquatic resources and must be avoided.

4.6.2.8 Conclusion

1. Conclusion, page 4-181: The DEIS states, “Based on our review of the potential impacts discussed above, we conclude that constructing and operating the MVP and the EEP would not significantly impact fisheries and aquatic resources”. Based on the issues mentioned above, this conclusion is adequate because it is not drawn with completed information. Until the issues mentioned above are addressed within the DEIS, FERC is unable to draw a conclusion on the impacts to aquatic resources.

4.7.1 Federally Listed Threatened, Endangered, and Other Species of Concern

4.7.1.1 Mountain Valley Project

1. Fish, page 4-187: The DEIS states, “The candy darter, a federal species of concern, is known to occur in a single stream along the MVP in Virginia (Stony Creek).” This statement is incorrect.

The Candy Darter is also known to occur in WV within the New River Watershed and its tributaries, specifically the Gauley and Greenbrier drainages. The DEIS should include reference to this oversight and include these river systems in the construction restriction window.

2. Fish, page 4-187: The DEIS fails to address the Diamond Darter. On July 26, 2013, the United States Fish and Wildlife Service formally designated the diamond darter as an endangered species. As of 2008, the fish is only known to live in the Elk River. An open cut wet crossing is currently proposed for the Elk River. Any potential impacts on the Diamond Darter must be assessed within the DEIS.

4.8 Land Use, Special Interest Areas, and Visual Resources

4.8.1.2 Land Use Types

1. Cathodic Protection, page 4-210: The DEIS states, ”According to alignment sheets filed by Mountain Valley, many of the cathodic protection groundbeds would be located outside of Mountain Valley’s environmental survey corridor.” Water Resource impacts for cathodic beds are not addressed in the DEIS. “Of the 31 locations, 27 would be surface groundbeds that would run perpendicular to the pipeline and require a construction area 25 feet wide and 500 feet long. The remaining four locations would be deep well groundbeds”; the impacts of the surface and deep well groundbeds must be addressed in the DEIS.

4.8.2.4 Recreational and Special Interest Areas

1. Weston and Gauley Bridge Turnpike, page 4-248: The DEIS states, “Mountain Valley has not documented communications with the COE about impacts on the trail.” The DEIS must include consultations with federal agencies with jurisdiction over the project. The consultation with the COE on the Turnpike must be included in the DEIS.

2. Appalachian National Scenic Trail, page 4-249: The DEIS contains conflicting information as to the location of the ANST crossing. In table 4.8.1-10 the crossing is listed as within Monroe County, WV; however, on page 4-249 the crossing is listed as Giles County, VA. The description of the crossing location should be consistent throughout the DEIS. Additionally, visual impacts of the selected crossing location have not been completed. The visual simulations of the crossing must be included in the DEIS.

3. North Bend Rail Trail, page 4-252: The DEIS states, “Mountain Valley has not documented that it provided its North Bend Rail Trail and Highway 50 Crossing Plan to appropriate state agencies for review.” The review and approval of crossing plans by state agencies is critical information and must be included in the DEIS.

4.8.2.6 Land Use on Federal Lands

1. Land Use Impacts on Jefferson National Forest, page 4-259: -The DEIS fails to meet the regulatory standard to justify crossing the Jefferson National Forest. The applicant is required to show that there is no reasonable alternative to crossing Forest Service lands or the request must be denied. The applicant and FERC have given the opinion that the route crossing the Forest is preferable which does not satisfy the law.

2. Proposed Amendment 1, page 4-261: We oppose the amendment to reallocate 186 acres to a 500-foot wide designated utility corridor. The amendment would permanently remove 19 acres of designated Old Growth Forest habitat.

3. Proposed Amendment 2, page 4-262: We oppose the amendment to remove restrictions on soil and riparian corridor conditions. These restrictions are in place to protect the resources within the National Forest and they should be strictly enforced, not removed to accommodate the project.

4. Proposed Amendment 3, page 4-263: We oppose the amendment to allow the removal of old growth trees within the construction corridor. There are only a few places where old growth remains; these areas should be preserved for future generations.

5. Proposed Amendment 4, page 4-264: We oppose the amendment to allow MVP to cross the ANST on Peters Mountain. Peters Mountain is an ecologically sensitive area where groundwater resources are not fully understood. This area should be avoided.

4.9.1.4 Tourism

1. Mountain Valley Project, West Virginia, page 4-277: Table 4.9.1-5 incorrectly lists the Carnifex Ferry Battlefield State Park as the Carbufax Ferry Battlefield State Park. This discrepancy should be corrected in the DEIS.

4.13.1.2 FERC-jurisdictional Natural Gas Interstate Transportation Projects

1. FERC-jurisdictional Natural Gas Interstate Transportation Projects, page 4-495: The cumulative impacts analysis for the FERC-jurisdictional projects should also include the Leach Xpress, the Mountaineer Xpress, Line WB2VA Integrity, Utica Access, Clarington, Monroe to Cornwell, Ohio Valley Connector, and Broad Run Expansion.

In conclusion, for the reasons outlined above, we request a revised DEIS to be issued with complete and accurate information in order to comply with the NEPA requirements. We appreciate the opportunity to submit these comments and look forward to further participation in this proceeding.

Respectfully Submitted,

Angie Rosser & Autumn Crowe

West Virginia Rivers Coalition

 

Local Area Targets Letter of Support

PDF Version: Local Area Targets Letter of Support 
 

Joan Salvati, Co-chair
Lisa Schaefer, Co-chair
Local Area Targets Task Force

Re: Local Area Targets should be required in Phase 3 Watershed Implementation Plans

Dear Local Area Targets Task Force Co-chairs:

The undersigned members of the Choose Clean Water Coalition strongly support the development of Local Area Targets as an integral part of the Phase 3 Watershed Implementation Plans (WIPs). Restoration efforts needed to achieve the load reductions outlined in the Chesapeake Bay Total Maximum Daily Load (TMDL) require planning at many different scales and must incorporate sectors with varying levels of regulatory requirements.

States have already made substantial efforts to outline state-level reductions in nutrient and sediment in their Watershed Implementation Plans (WIPs). These state-level plans have been a critical step towards achieving these goals. In some instances, there has also been a substantial effort to document plans at the local level. However, there is a tremendous amount of planning work that still needs to occur at the local level, particularly related to agriculture and non-MS4 stormwater. We strongly believe there is a need for, and value in, translating these restoration goals down to the local level using local area targets. Most of our members operate at the local level and having a clear target by which to measure progress is critical for garnering public support and resources and prioritizing efforts.

Maryland uniquely issued local targets at the county scale during the Phase 2 WIP process. These local-scale goals provided counties and towns with a clear picture of the jurisdiction’s impact on the Bay system and the level of effort that would be sufficient to meet regional cleanup goals. Local targets were instrumental in the development of county Phase 2 WIP plans, which brought stakeholders together, assessed technical assistance needs at the local level, and often identified hidden opportunities to reduce pollution at low cost.

Since then, a number of towns and counties have leveraged this planning work to develop policies and funding commitments pursuant to local targets. Talbot County has embarked on a targeted roadside ditch enhancement program and invested several hundred thousand dollars in the effort, specifically to help meet the county’s local target. Elsewhere, Queen Anne’s County and Wicomico County have each set aside substantial capital funding dedicated to local WIP implementation. The City of Salisbury and the towns of Oxford and Berlin have adopted stormwater utilities to fund, in part, Best Management Practices for water quality. A number of other jurisdictions are working to develop detailed watershed management plans that will include project lists prioritized to help meet local targets. In each of these cases, local targets have given county staff and elected officials the context they need to make policy and program decisions that support regional cleanup efforts.

In other states, local governments already undertake voluntary efforts such as completing local restoration projects, addressing septic tank issues, and establishing and promoting living shorelines. They also promote Best Management Practices to residents and highlight financial assistance programs such as the Virginia Conservation and Assistances Program, Virginia Clean Water Revolving

Loan Fund, and Chesapeake Bay Implementation Grants. Local Area Targets provide a pathway to describe how these efforts are part of a broader, statewide need and the targets help characterize progress. This capacity will provide an opportunity for local government and local partners to further leverage financial assistance through grant programs and generate other forms of local and regional support.

While these efforts may not be abundantly common, they are already occurring to some extent without Local Area Targets. For instance, in Virginia, several localities (Town of Kilmarnock, Goochland County, Prince George County) have been awarded grants through the Stormwater Local Assistance Fund to reduce nutrient loads. Local Area Targets will help promote voluntary restoration work in unregulated localities and unregulated portions of regulated localities which is a critical remaining obstacle to achieving the necessary pollution reductions throughout the Chesapeake Bay watershed. We recommend that the Local Area Targets Task Force conclude that Phase 3 Watershed Implementation Plans should require Local Area Targets across the entire Chesapeake Bay Watershed. We also recommend that these targets should be directly tied to numeric load reductions consistent with the Bay TMDL. We appreciate the opportunity to provide these comments and ask that you please share them with the entire Local Area Targets Task Force. As stakeholders with a keen interest and role in implementing the WIPs, we would welcome the opportunity to be more fully engaged in the discussion about how to most effectively develop these targets so they are useful planning tools.

Sincerely,

Anacostia Watershed Society

Blue Water Baltimore

Center for Progressive Reform

Chesapeake Bay Foundation

Delaware Nature Society

Friends of Accotink Creek

Friends of Lower Beaverdam Creek

Friends of the Middle River

Friends of the Rappahannock

Interfaith Partners for the Chesapeake

James River Association

Lackawanna River Conservation

Association Maryland Academy of Science

Maryland Conservation Council

Maryland League of Conservation Voters

Middle Susquehanna Riverkeeper

National Wildlife Federation

Natural Resources Defense Council

New York League of Conservation Voters

PennFuture

Pennsylvania Council of Churches

Potomac Conservancy

Potomac Riverkeeper

Potomac Riverkeeper Network

Rock Creek Conservancy

Savage River Watershed Association

Severn River Association

Shenandoah Riverkeeper

Shenandoah Valley Network

Upper Potomac Riverkeeper

Virginia Conservation Network

Waterkeepers Chesapeake

Wicomico Environmental Trus

 

Cc: Nick DiPasquale, Chesapeake Bay Program

Rich Batiuk, Chesapeake Bay Program

Lucinda Power, Chesapeake Bay Program

David Wood, Chesapeake Bay Program

Ann Jennings, Chesapeake Bay Commission

RECLAIM Act Letter of Support

PDF Version: RECLAIM Act Letter of Support 

September 29, 2016

Dear Representative:

The undersigned members of the Choose Clean Water Coalition strongly support the RECLAIM Act, H.R. 4456, introduced by Congressman Hal Rogers (R-KY). We urge you to cosponsor and support this bipartisan bill that has strong support from across the political spectrum.

The RECLAIM Act will help communities hit hard by abandoned mines and layoffs from the coal industry. The bill releases $200 million annually for five years from the Abandoned Mine Lands Fund. These funds are already set aside, as the coal industry paid into the Abandoned Mine Lands Fund to mitigate environmental damage and other impacts to coal communities.

The RECLAIM Act will help the economies of coal communities and the health of its residents. It will also be a boon for clean water in the Chesapeake Bay watershed. The environmental restoration component to this bill will benefit all of the major tributaries to Chesapeake Bay. The states of Maryland, Pennsylvania, Virginia and West Virginia are eligible for benefits from passing the RECLAIM Act, and the Chesapeake Bay will also be a downstream beneficiary. Please cosponsor and support H.R. 4456, the RECLAIM Act.

Thank you.

Sincerely,

Anacostia Watershed Society

Chesapeake Wildlife Heritage

Citizens for Pennsylvania’s Future

Clean Water Action

Earth Force

Earth Forum of Howard County

Earthworks

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation

Elk Creeks Watershed Association

Environment America

Friends of Lower Beaverdam Creek

Friends of the Nanticoke River

James River Association

Lackawanna River Conservation Association

Lancaster Farmland Trust

Maryland Conservation Council

Maryland League of Conservation Voters

Mehoopany Creek Watershed Association

Middle Susquehanna Riverkeeper

Nature Abounds

PennEnvironment

Pennsylvania Council of Churches

Piedmont Environmental Council

Potomac Conservancy

Potomac Riverkeeper

Potomac Riverkeeper Network

Savage River Watershed Association

Shenandoah Riverkeeper

Shenandoah Valley Network

Sierra Club – Pennsylvania

Sleepy Creek Watershed Association

Southern Environmental Law Center

St. Mary’s River Watershed Association

Upper Potomac Riverkeeper

Virginia Conservation Network

Waterkeepers Chesapeake

West & Rhode Riverkeeper

West Virginia Rivers Coalition

Wicomico Environmental Trust

Comments on Environmental Justice Screening Tool (EJSCREEN)

PDF Version: Comments on Environmental Justice Screening Tool 

August 3, 2015

Via electronic mail
Mr. Kevin Olp
Environmental Policy Specialist
U.S. Environmental Protection Agency
Office of Environmental Justice
1200 Pennsylvania Ave, N.W.
Mail Code: 2201A
Washington, DC 20460

Re: Comments on Environmental Justice Screening Tool (EJSCREEN)

Dear Mr. Olp:

The undersigned organizations of the Choose Clean Water Coalition (Coalition) commend you on the release of EJSCREEN. It is an innovative tool that will help our organizations identify the communities that need additional resources and advocacy assistance. The tool is free, web-based, and open to the public giving it an unparalleled ability for widespread use and education. Thanks to the potential of this tool, thousands or even millions of individuals can learn about the environmental issues in their community and organizations can better learn how to protect the people they serve. The Coalition applauds EJSCREEN for its peer reviewed scientific rigor, high resolution data, and applicability in various contexts. The demographic indicators and chosen pollutants are of particular interest to many in the environmental community.

The visual presentation of the tool is also commendable. We like the ability to easily generate reports through a user-friendly web interface. The color coding provides the ability to view different environmental indicators throughout American communities. Allowing the user to toggle between various environmental indicators, demographic indicators, and EJ indices is particularly useful.

EJSCREEN can become even more impactful and user friendly with some minor adjustments:

A. Functionality
The system does not allow users to view multiple map layers at once. For example, users can map ozone or PM 2.5, but not look at both to see what locations have high concentrations of both pollutants. This information is critical to determine cumulative pollution impacts on communities. The same goes for demographic data--you can view low-income or age data, but not at the same time. It would be most useful to layer pollutant and demographic data at the same time to identify low-income areas with high water pollution proximity. If the tool does in fact allow users to do this, the tool should make it clear how this layering of data can be done.

B. Creating a User-Friendly Site
Many novice or casual users might refrain from watching the long webinar or be intimidated by the depth of instructions on the site. The user guide is almost 50 pages long and is quite useful for more technically savvy visitors, but may leave others overwhelmed. Helpful hints on how to use the site and a more condensed “quick-user guide” would be very useful.

Many potential users might not know the meaning of all the acronyms of the indices, such as PM 2.5, TSDF, RMP, etc. We recommend defining these acronyms and classifying them under air, water, or land pollution categories.

The current format provides a link that will open a glossary of terms in another tab. We suggest that a short description of each of the environmental indicators appears when it is hovered over by the cursor. Further, including the glossary in the screening tool (instead of in another tab) will increase the interactivity and functionality of the site.

C. Providing Additional Tools
The tool provides the ability to help the user identify pollutants in their area. Ideally, EJSCREEN should provide tools and methods to help individuals protect their family and community, such as:
1. Provide links to organizations or agencies in the area that could help them.
2. Create “how to” pages on protecting yourself and your communities from these pollutants and link to generated reports.
Last, the EJSCREEN website should provide a forum where users can post and share experiences/lessons-learned using the tool in order to foster continued knowledge and growth throughout the Environmental Justice Community.

D. Other Comments
1. Add more water-related EJ tools than just the Water Discharge facility. EJSCREEN can use data from the Chesapeake Bay Program and others to include information on drinking water quality, fecal coliform bacteria in local streams, water quality levels, and more.
2. Allow a side-by-side comparison of areas in order to compare communities. For example, a user could compare a community in San Francisco with a community in Baltimore. Currently, the bookmark feature allows users to toggle between saved locations to make comparisons. However, side-by-side displays may be more useful.
3. EJSCREEN should be used when funding related projects in these regions.
Overall, EJSCREEN is an important tool that can be used by environmental groups in many ways. It can help us identify areas where we can target investments and community outreach to ensure that overburdened and underserved communities are receiving funding and program opportunities. EJSCREEN is also a necessary tool to help states and funders make decisions about where to fund projects equitably.

We are happy to discuss our comments on EJSCREEN further. Please contact Chante Coleman by phone at 443-927-8047 or by email at colemanc@nwf.org.

Respectfully submitted,

Blue Water Baltimore
Earth Forum of Howard County
Friends of Accotink Creek
Interfaith Partners for the Chesapeake
Maryland League of Conservation Voters
PennFuture
Sleepy Creek Watershed Association
Virginia Conservation Network
Waterkeepers Chesapeake
West Virginia Rivers Coalition