2018

NEPA

August 20, 2018

Submitted via Regulations.gov

Mary B. Neumayr
Chief of Staff
Council on Environmental Quality
730 Jackson Place, N.W.
Washington, DC  20503

Re:      Docket No. CEQ-2018-0001, Advanced Notice of Proposed Rulemaking (ANPRM), Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act

Dear Ms. Neumayr:

The undersigned members of the Choose Clean Water Coalition urge the Council on Environmental Quality (CEQ) to withdraw the ANPRM and retain the existing CEQ regulations implementing the National Environmental Policy Act (NEPA). The CEQ regulations establish common sense procedures and definitions that continue to serve the Chesapeake Bay watershed and the nation well. Changes to the regulations are unnecessary and would create significant inefficiencies and delays by upending decades of well-settled requirements and approaches.  

The Choose Clean Water Coalition spans the six states, Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia that make up the Chesapeake Bay watershed. 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 to uphold bedrock environmental laws that protect our waterways, including NEPA.

 

The Choose Clean Water Coalition has a key interest in ensuring that the NEPA environmental review process works well. NEPA is the fundamental tool for ensuring proper vetting of the impacts of major federal projects on waterways and communities, for identifying less environmentally damaging alternatives, and for giving the public a voice on impactful federal actions. NEPA improves project planning, including reducing adverse environmental impacts of federal actions and by improving the quality of federal restoration projects. In this vein, we urge CEQ to withdraw the ANPRM.  Instead of considering or conducting a rewrite of the NEPA regulations, CEQ should instead undertake a systematic initiative to enforce the existing regulations. CEQ should also use its leadership role to ensure that agencies have the resources, training, and leadership needed to properly implement NEPA.

Comments

The existing NEPA regulations establish a uniform approach to efficiently implementing NEPA’s important goals and requirements through common sense procedures and definitions that, among other things, ensure meaningful opportunities to engage the public and other federal, state, tribal and local agencies in the NEPA process. Congress enacted NEPA to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.”[1]

These regulations were carefully developed with significant public input; they were the product of extensive public involvement and receptivity to the concerns of all involved segments of American society. When finalized in 1978, they were greeted with praise from a range of stakeholders, from the U.S. Chamber of Commerce to the National Governors Association to the Natural Resources Defense Council and the Sierra Club.[2] That inclusive process is in part responsible for the regulations having existed for four decades and through the administrations of seven Presidents with only one substantive amendment to one section.

Because of this, changes to the existing CEQ NEPA regulations are unnecessary. Any such changes would also be unwise. They would undermine the efficiency of the NEPA process by upending decades of well-settled requirements and approaches. NEPA has existed for forty years, wherein it has faced judicial review that militates in favor of keeping changes to the regulations to necessary minimums. There exists nationwide judicial experience with the law and the regulations which substantive changes can only undo. New provisions can only lead to new and expanded litigation. Several courts have stated the importance of NEPA, like “NEPA is more than a technical statute of administrative procedure. It is a commitment to the preservation of our natural environment. The statute’s language conveys the urgency of that task.”[3] Further, any amendments that are made must be adopted through the Administrative Procedures Act (APA) notice and comment provisions so as to preserve the “substantial deference” which the Supreme Court has accorded them.[4]

CEQ developed the regulations to provide a uniform approach to promote decision-making that reflects the policies set forth in NEPA and to include the public and other federal, state, tribal and local agencies in that process. The regulations reflect decades of case law developed through the federal courts, as discussed above. Additionally, the regulations reflect a concerted effort to expedite the process without losing either substantive value or public involvement. Because of this concerted effort, we believe that changes to any of the CEQ NEPA regulations are unwarranted. We highlight in particular the following three regulations that should remain intact because they are fundamental to the importance of NEPA:

  • Actions causing environmental impact should not be exempted from NEPA.

    • The Supreme Court has found that the preparation of an environmental impact statement promotes NEPA’s broad environmental objectives in two primary ways: “It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision.”[5]

  • The requirement to fully examine alternatives should not be eliminated.

    • The statute calls for a consideration of alternatives, stressing its importance as NEPA is not intended to just be an accounting of the impacts of something proposed, but an examination of other ways to meet a purpose and need that could have fewer impacts and often lower economic costs. The regulation (§ 1502.14) regarding alternatives has, since its promulgation, been central in ensuring that agencies rigorously explore reasonable alternatives and make informed choices. It is thorough and effective and should not be changed. Altering it would almost certainly weaken NEPA and have a deleterious impact on wildlife and the environment by allowing agencies to avoid adequately and rigorously exploring less impactful ways to meet the purpose and need and to avoid asking the critically important and basic question of whether no action would be a wiser course of action.

  • The public’s input into the NEPA process should not be reduced.

    • It is important to note that “[C]onsideration of the impacts of proposed government actions on the quality of the human environment is essential to responsible government decision-making. Government projects and programs have effects on the environment with important consequences for every American, and those impacts should be carefully weighed by public officials before taking action. Environmental impact analysis is thus not an impediment to responsible government action; it is a prerequisite for it.[6]

Last, the NEPA review process has been a critical component to the protection of the Chesapeake Bay over the last forty years. Numerous organizations - and members of the public - have actively engaged in the NEPA processes for the Intercounty Connector, Chesapeake Bay Crossing Study (a two-tiered Environmental Impact Statement) and countless other Environmental Impact Statements for major federal actions affecting the Bay. 

In 2008, the Mid-Atlantic Power Pathway (MAPP) was proposed by Pepco. This 152-mile extra-high voltage transmission line would have extended from Possum Point, VA to Southern Maryland under the Chesapeake Bay, and across the lower Eastern Shore into Southern Delaware. There were major environmental concerns related to this project as MAPP would have been the first time transmission cables crossed the Chesapeake Bay from shore to shore, impacting fish species and causing other disturbances to the Bay. When Pepco filed for a loan from the federal government, this triggered the need for an Environmental Impact Statement under NEPA. There were public hearings where residents voiced their concerns and also proposed alternatives to this project. As the public became more and more opposed to the project, elected officials began to ask questions and Pepco reneged. The project was cancelled in 2012.[7

Most recently, our members have been engaged in the various environmental review processes for the Atlantic Coast Pipeline. This project will cross more than 300 miles in the State, with over 890 crossings of rivers and streams that will lead to erosion and sedimentation in those waterbodies. The construction of the pipeline will require Dominion to clear 5,000 acres of land, including 3,000 acres of forest and 300 acres of wetlands. Additionally, much of the construction will traverse rugged terrain through steep slopes and karst geology characterized by sinkholes and caves that are hydrologically interconnected underground, threatening those water resources.[8] The environmental impacts associated with this project are substantial and a full and robust NEPA process is required to ensure that the agencies involved conduct a complete analysis of these impacts.

We anticipate other major federal actions in the years to come that will impact the Chesapeake Bay watershed. 

The existing CEQ NEPA regulations effectively address the objectives identified in the many questions posed by the ANPRM. We urge CEQ to withdraw the ANPRM and retain the existing CEQ regulations implementing NEPA.    

We thank you for the opportunity to comment on this important action.

                                              

Sincerely,

American Chestnut Land Trust INC

Anacostia Watershed Society

Audubon Naturalist Society

Baltimore Tree Trust

Blue Water Baltimore

Capital Region Land Conservancy

Chesapeake Bay Foundation

Chesapeake Conservancy

Clean Fairfax Council

Coalition for Smarter Growth

Conservation Voters of PA

Delaware Nature Society

Earthworks

FracTracker Alliance

Friends of Dyke Marsh

Friends of Quincy Run Watershed

Friends of the Nanticoke River

Friends of the North Fork of the Shenandoah River

Friends of the Rappahannock

Interfaith Power & Light (DC.MD.NoVA)

Lancaster County Conservancy

Maryland League of Conservation Voters

Mattawoman Watershed Society

Mid-Atlantic Youth Anglers & Outdoors Partners

Nature Abounds

PennFuture

Pennsylvania Council of Churches

Piedmont Environmental Council

Potomac Riverkeeper Network

Rachel Carson Council

Richmond Audubon

Rivertown Coalition for Clean Air & Water

Rock Creek Conservancy

Savage River Watershed Association

Severn River Association

Shenandoah Valley Network

Sleepy Creek Watershed Association

Southern Maryland Audubon Society

St. Mary's River Watershed Association

The Downstream Project

Virginia Conservation Network

Waterkeepers Chesapeake

West Virginia Environmental Council, Inc.

West Virginia Highlands Conservancy

West Virginia Rivers Coalition

 

[1] 42 U.S.C. § 4321. 

[2] See: “Streamlining NEPA—an Environmental Success Story,” 9 B.C. Envtl. Aff. L. Rev. 507 (1981-1982). 

[3] Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (S.C.R.A.P.), 422 U.S. 289, 331 (1975) (Douglas J., dissenting).

[4]  Andrus v. Sierra Club, 442 U.S. 347 (1979).

[5] Methow Valley Citizens Council, 490 U.S. at 349.

[6] September 19, 2005 Letter to the Honorable Cathy McMorris, Chair of the Task Force on Improving the National Environmental Policy Act from Russell E. Train (CEQ Chair 1970-1973), Russell W. Peterson (CEQ Chair 1973-1976), John Busterud (CEQ Chair 1976-1977), Charles W. Warren (CEQ Chair 1977-1979), J. Gustave Speth (CEQ Chair 1979-1981), Michael R. Deland (CEQ Chair 1989-1993), Kathleen A. McGinty (CEQ Chair 1995-1998), George T. Frampton Jr. (CEQ Chair 1998-2001), Gary Widman (CEQ General Counsel 1974-1976), Nick Yost (CEQ General Counsel 1977-1981) (emphasis added).

[7] Protect NEPA, Buried Cables: The MAPP Transmission Project (Feb. 27, 2018), https://protectnepa.org/mapp-pepco-utility-lines/.

[8] Chesapeake Bay Foundation, Atlantic Coast Pipeline Natural Gas Pipeline, http://www.cbf.org/about-cbf/locations/virginia/issues/atlantic-coast-natural-gas-pipeline.html (last visited Aug. 10, 2018).

Improving the Phase III WIP process and local government engagement

May 8, 2018

Mr. Benjamin Grumbles, Secretary
Maryland Department of the Environment
Montgomery Park Business Center
1800 Washington Blvd.
Baltimore, MD 21230

Re: Improving the Phase III WIP process and local government engagement

Dear Secretary Grumbles,

Thank you for the opportunity to provide input regarding the structure and content of local participation in Maryland’s Phase III Watershed Implementation Plan (WIP). A subset of Choose Clean Water Coalition members and other concerned partners appreciate the ongoing in-person and in-depth discussions with Maryland Department of the Environment, led by Lee Currey and your other colleagues on this topic. This letter follows those discussions. The undersigned members of the Choose Clean Water Coalition are pleased to present these detailed recommendations in pursuit of a successful process for Phase III WIP local engagement.

This letter, informed by significant outreach with advocates and local government representatives, is based on shared belief that in most cases local Phase II WIPs remain relevant and instructive. As such, we do not believe that the best value lies in asking local jurisdictions to “reinvent the wheel” by producing entirely new, separate Phase III WIP documents. Instead, we recommend that MDE, and its Cabinet member partners:

  • Develop numeric planning targets at the county level;

  • Assist local governments in undertaking an assessment that adapts their local Phase II WIPs to meet remaining challenges;

  • Strengthen incentives, permits and technical assistance to urgently and effectively address lagging stormwater and septic loads;

  • Outline an alternative implementation plan if local targets are not achieved;

  • Encourage cross-sector collaboration as much as possible, particularly between urban sources and agriculture; and

  • Fulfill EPA expectations to account for future growth and ensure robust BMP maintenance and verification.

Maryland took significant steps to plan for pollution reduction in the Phase II WIP, but Maryland is currently projected to fall short of reaching its 2025 goals. Moreover, we understand that wastewater treatment plants are no longer expected to close the remaining gap. This increases the urgency of accelerating progress in the non-point source pollution sectors: stormwater runoff, septic systems, and agriculture. Maryland can build on the progress made in the Phase II WIP and make changes in the Phase III WIP process in order to close the gap of pollution reduction by 2025. The Phase III WIP program evaluation and planning process provides counties with an opportunity to revise their WIPs to ensure they reach their pollution reduction targets by 2025. For counties that did not fully participate in the

Phase II WIP process, the midpoint assessment presents a fresh opportunity to join local and regional efforts to reduce pollution and to develop a viable plan for doing so.

In order for Maryland to achieve its 2025 goals, the state must establish a clear understanding of who is accountable for which targets and pounds of pollution reduction. We recommend an involved and collaborative approach with local governments, notably counties, to reach identified local targets and identified measures to hold every level of government accountable and provide reasonable assurance that targets will be achieved. The following provides specific points of analysis and recommendations.


SECTION 1. CONTEXT FOR RECOMMENDED ACTIONS
Maryland’s investment in the development of the Phase II WIP produced important results. WIP teams convened by state agency representatives and informed by key data enabled a diverse set of stakeholders to recommend WIP implementation measures that were relevant, applicable, and feasible at local and regional scales. County pollution reduction targets included during that process stimulated interest and creativity around proposed work and helped focus energy on discrete sets of programmatic and implementation actions. Although several recommended actions remain undelivered, they continue to have significant potential to underpin and motivate activity in the WIP’s third phase. There was also healthy diversity among participants, which should be maintained.

Recognizing the vital importance of local government investment in water quality improvement, NGO partners recently sought to better understand the value and results of various local accountability measures included in Phase II. In 2017, the Choose Clean Water Coalition held two round table meetings to review the performance of Phase II elements including county targets, milestone expectations, and progress reporting. Local government and NGO representatives in attendance heard updates relayed from MDE staff and discussed what the Phase III process should look like. Meeting participants laid out different options and assessed their pros and cons in making recommendations.

Through this process, we found that local governments were generally agreed that more direction from MDE would be helpful. While local governments are typically apprehensive to accept new regulatory proposals, many said that accountability played a key role in clarifying expectations, substantiating local investment, and generating interest from elected leaders. A number of local government representatives said that local targets are helpful and that continued support and direction from the state would be useful in Phase III.

SECTION 2. RECOMMENDED ACTIONS



SUMMARY

This letter will enumerate several recommendations for MDE to ensure the Phase III WIP process accomplishes the goal that EPA and Marylanders are counting on to close the gap between county level Phase II WIPs and our 2025 goals. Our engagement, dialogue, and experience partnering with local governments leads us to propose the following eight strategies as critical elements of a successful local engagement effort in the Phase III WIP planning process, and we encourage MDE to implement them:

I) County program assessment and Phase III gap strategy

  • Provide county governments with a template to complete a program assessment that identifies what has worked, what has not, and what is most needed to increase capacity for pollution reduction between now and 2025.

  • Based on this assessment, encourage county governments to update their local Phase II plans to provide a roadmap to reach 2025 goals.

II) County planning targets

  • Based on the state’s gap analysis and the local program assessment, collaboratively develop numeric county planning targets and clear lines of accountability and transparency for achieving them.

III) Enhanced milestone framework

  • Align state water quality funding sources to more fully support achievement of local milestones.

IV) Tools and technical assistance

  • Create ombudsmen positions and increase staff resources available to local governments to plan, prioritize, design, and secure funding for local milestone projects.

  • Refine optimization tools and develop a “lite” version of CAST to assist local scenario planning.

V) State implementation alternatives

  • Include in the Phase III WIP those regulatory, fiscal, or programmatic actions the state would need to take to make up for any implementation shortfalls associated with county planning targets.

VI) Alignment with permit requirements

  • Ensure consistency between restoration requirements in MS4 permits and county and statewide nutrient load reduction requirements in the Phase III WIP. See the Choose Clean Water Coalition letter sent to MDE on August 25, 2017 for more details.

VII) BMP Verification and Maintenance

  • Provide training to help counties participate in the state’s BMP verification protocols.

  • Establish an independent verification team to review BMP reporting and recommend improvements to tracking and maintenance protocols.

VIII) Accounting for Growth

  • In consultation with local governments, the development industry, environmental groups, and other stakeholders, adopt a robust Accounting for Growth policy that minimizes new or expanded pollutant discharges to the maximum feasible extent and fully offsets the remainder to ensure that it does not result in an overall net increase in pollution.

Process

  • Consider offering data resources and collaborative stakeholder opportunities like those undertaken by Pennsylvania and Virginia.

  • Target state resources to support partnerships and facilitate cross-sector discussion and implementation where appropriate.

  • Form a Local Working Group to advise MDE on local engagement in the Phase III WIP, including the program assessment, local gap strategies, resource needs, and the development of county planning targets.


DETAILED DISCUSSION


(I) COUNTY PROGRAM ASSESSMENT AND PHASE III GAP STRATEGY
Many of the undersigned organizations find that the Phase II WIPs provide valuable information about local conditions, local capacity to reduce pollution, and expected levels of BMP implementation over the Phase II planning period. Many local plans also identified specific opportunities to increase the rate of progress. Our experience working with local governments since that time has demonstrated that the local Phase II WIPs remain relevant and instructive. The central challenge in most jurisdictions at this time is not planning, but instead creating the conditions necessary to accomplish these plans.

As such, we do not believe that the best value lies in asking local jurisdictions to “reinvent the wheel” by producing entirely new, separate Phase III WIP documents. Instead, we recommend that MDE request counties to undertake a program assessment that builds on their local Phase II WIPs as the first step in local Phase III WIP planning. This assessment should lead to the development of a strategy to close any projected capacity or implementation gaps identified for the 2018-2025 timeframe.

Specifically, the program assessment should identify what worked and what was not accomplished during the Phase II implementation period. The assessment should flag areas where the plan is off track, and evaluate prospective changes that can be made to programs, regulations, and budgets to accelerate progress related to programmatic capacity and BMP implementation. To have reasonable assurance that sufficient progress occurs going forward, MDE should encourage that the capacity enhancing measures included in the assessment are designed to achieve anticipated pollution reductions and clearly identify the resources needed for the enhancements to occur.

At the conclusion of this process, existing county WIPs should be updated to reflect the concrete strategies selected by the local jurisdiction to help close pollution reduction gaps identified in the Phase III WIP. MDE should provide a template for county governments to use in evaluating their programs and provide feedback to the Department. We recommend that the template include the following prompts and request feedback with any associated materials in writing:

MD letter.PNG


The template should solicit descriptive information in objective and measurable terms wherever possible. Much of this evaluation could be facilitated and enhanced by integrating or cross-referencing other local planning documents, watershed restoration action strategies, and county budgets. For example, indicators of a county government’s capacity to implement projects could include an account of dedicated funding and staffing, program administration commitments, or local rules and regulations. Capacity can also be defined in terms of the factors that produce measurable progress toward milestone commitments or explicit support from county elected leadership. The gap strategy is an opportunity to highlight locally-dominant nutrient or sediment sources, as well as practices or procedures that have high potential to reduce pollution. To enable sufficient progress to be made going forward, planned actions must be specific about resource needs, increased budgets, and the methods intended to meet those needs.

While some sectors need substantial help, a focus on sector activity alone will not be sufficient. Maryland should encourage cost effectiveness to get the most pounds of pollution reduction for every dollar spent while also ensuring equity in responsibility and shared benefits. It is critical that MDE increase its local engagement around the Phase III process to ensure localities understand how important their role is in identifying opportunities to reduce costs and accelerate project delivery in pursuit of 2025 goals. As such, the local program assessment should also prompt conversations with other sectors participating in the Phase III WIP. Specifically, the template should prompt discussion and report on:

  • Coordination between county government and agricultural representatives to identify collaborative projects or cost-sharing/savings strategies;

  • Coordination between county government and municipalities to evaluate potential partnership on stormwater projects, sewer infrastructure, and other BMPs;

  • Expected capacity of local and regional non-governmental institutions and organizations to implement BMPs within the jurisdiction; and

  • A preferred structure for ongoing communication between sectors and stakeholders during WIP implementation.

Proposed schedule:
We recommend that MDE provide local jurisdictions with guidance for conducting a program assessment by the middle of June 2018 and request responses by the middle of August 2018. This would provide MDE with valuable information to help finalize local area planning targets, as discussed below. Furthermore:

  • Regional WIP meetings (scheduled for May-June 2018): survey and brainstorm to refine program assessment template;

  • County program assessments (June-August): counties complete template, which includes the program assessment and a preliminary gap strategy;

  • Regional WIP meetings (we propose September 2018): synthesize results & reflect to stakeholders;

  • County targets (November 2018): MDE provides county targets as discussed below; and

  • County gap strategies (February 2019): counties finalize gap strategies based on local planning targets for inclusion in the draft Phase III WIP. This step should include a specific opportunity for public input prior to submitting the final strategy.

(II) NUMERIC COUNTY PLANNING TARGETS
The Phase III WIP should include numeric county planning targets that clearly define the pollution reduction responsibility attributed to each sector, including agriculture. County targets should be developed through a collaborative process and be provided jointly to the county governing body and the local Soil Conservation District to leverage the strengths of these institutions and maximize effectiveness and collaboration. Through the program assessment phase, counties provide key background information and local context that supports the development of planning targets and establishes critical interest in actions that result in targets being achieved.

We expect that county targets will not require that local jurisdictions close the entire remaining statewide gap on their own, but should, together with measures by the state and other permit holders and soil conservation districts, represent a fair-share effort towards achieving the total caps. This must be connected to, but go beyond, stormwater practices in MS4 counties.

Focusing the Chesapeake Bay partnership’s effort at a small scale was identified as one of the biggest capacity needs during the Phase II WIP. EPA’s interim expectations for the development of Phase III clarify that the Phase III WIP should include measurable planning goals below the major-basin scale.

Local area planning targets at the county scale are therefore critical to the success of Phase III and are necessary to demonstrate reasonable assurance that the Chesapeake Bay TMDL will be achieved. It is imperative that numeric pollution reduction goals match the scale of decision-making authority and existing structures for project delivery that reside with local governments. In Maryland, most stormwater facilities, septic systems, and small wastewater treatment plants are managed by county and municipal authorities. Implementation of agricultural BMPs is coordinated by local Soil Conservation Districts. While some cooperative regional structures exist, most are largely unequipped and in many cases lack experience to implement a comprehensive watershed restoration program.

Many local government partners report that concern with local targets in the Phase II WIP was rooted in the inability of the Chesapeake Bay Model to provide reliable estimates and projections at a detailed geography at that time. The current model contains greatly improved land use information that has been reviewed and endorsed by the Bay Program partners.

In addition, some counties felt that Maryland’s process for allocating loads advanced without proportionality between the responsibility to reduce loads and the available capacity and most cost-effective opportunities to do so. Since then, the Chesapeake Bay Program partnership has improved the capabilities of the Model and convened a Task Force that has recommended viable methods for arriving at local planning targets. In December of 2016, the Task Force informally called for local goals to be U.S. Environmental Protection Agency’s Interim Expectations for the Phase III Watershed Implementation Plans (Interim Version – January 19, 2017) established in partnership with local and regional partners, stakeholders, and federal and state facilities going forward, at a scale below the state-major river basin.

For Phase III, we recommend that MDE provide counties with numeric local area planning targets that represent attainable but accelerated goals for enhancing program capacity and implementation. The goals should be defined in terms of actions that provide MDE reasonable assurance pollution load allocations will be met overall. A county goal can facilitate an increase in coordinated action across sectors and across county lines, and prompt a focused effort on priority action while ensuring that reported progress is accounted for and validated to reach the total 2025 goal.

Under the current allocation framework, requiring local jurisdictions to close the entire remaining gap for non-point sources is expected to be very difficult. In general terms, Maryland’s Phase III WIP strategy should be the sum of reductions already achieved, reductions expected under current programs, and a combination of enhanced state and local strategies to close the remaining gap.

This means that, rather than setting an expectation that the county planning target requires local jurisdictions to close the entire remaining gap for non-point sources, county targets should instead represent a well-defined expectation for a substantial increase in local capacity to deliver BMPs. In other words, for sectors that are off track at the midpoint assessment, we would expect the local target to reflect an increase in the pace of implementation that is greater than current level of effort but less than the total sector burden. This, in combination with state stormwater and septic strategies, plus other sector allocations, should result in a plan to close the remaining gap.
The magnitude and fitness of a goal at the local level could be based on:

  • The gap remaining after expected or proposed statewide strategies are applied;

  • Work by the Chesapeake Bay Program to identify the “reducible” load within a county;

  • Information that identifies the locally dominant nutrient or sediment sources;

  • Information on the cost and benefits of BMPs suited to a particular jurisdiction;

  • The program assessment that examines local progress, capacity, and feasibility of implementation actions; and

  • Opportunities for collaboration with municipal governments, soil conservation districts and NGO partners.

There are differences of opinion over exactly how sector boundaries should be defined and if and to what extent they should be used within the local planning target framework. Several rural jurisdiction representatives felt they had no control or exact data on the largest pollution sources in their county -- namely agriculture. We understand the potential for cost savings and faster implementation that comes with such flexibility; however, a single planning target that is everybody’s responsibility could quickly become nobody’s responsibility without shared accountability measures in place. If provided by sector, the magnitude of these targets could still be balanced among counties across the state to focus the majority of a specific county’s effort on the most pressing and potentially cost-effective solutions within that jurisdiction.3 Knowing and evaluating progress across sectors and better understanding who is responsible for each piece of a pollution reduction plan will be very useful. In no case should local targets reduce or rescind a load reduction required in an existing permit. Regardless, Maryland needs to ensure there are clear lines of accountability for who is ultimately responsible for pollution reduction.

(III) ENHANCED MILESTONE FRAMEWORK
Feedback from local staff and elected officials at the roundtables last fall highlighted the value of local milestones in maintaining focus and effort towards pollution reduction goals. In short, county milestones for planning and implementation provide focus and coordination for restoration activity at the local level.

We believe that MDE should continue this accountability structure in Phase III and better coordinate the deployment of financial resources and technical assistance with achievement of local milestones. Doing so would increase the incentives that encourage localities to actively participate in the Phase III WIP process. Maryland should invest more funds in county resources, particularly to encourage and reward attaining milestones.

As a first step, we recommend that MDE and DNR increase the proportion of state funding that flows through the Local Milestone Implementation Grant program. We also recommend that these agencies adjust the scoring systems of the Bay Restoration Fund and the Trust Fund to support projects proposed by local jurisdictions that are actively pursuing local milestone commitments. Specifically, MDE should consider refining its Integrated Project Priority System in order to steer funding toward these jurisdictions and projects.

Moving forward, the state should allocate more funding to MDE and relevant agencies to properly administer this enhanced milestone framework. For example, Maryland’s capital budget for water programs has been reduced to well below the historic average in recent years. It would be counterproductive to continue these deficient levels of capital support given the tremendous need for restoring our water infrastructure systems and accelerating progress to meet our 2025 TMDL targets. Instead, we recommend that MDE propose to increase capital spending for pollution reduction programs administered by the Water Quality Financing Administration. Additionally, we hope DNR and the Bay Cabinet will consider engaging in discussions on how to set aside or increase similar incentive funds from the Chesapeake and Atlantic Coastal Bays 2010 Trust Fund to reward strong local performance. MDE will have to balance the use of incentives with the need to place investments where they can be done in the most cost-effective way.

(IV) TOOLS AND TECHNICAL ASSISTANCE
Local jurisdictions will require additional resources in order to meet the goals as defined in this phase of the Bay TMDL. MDE can play a valuable role in supplying tools and technical assistance that better prepare localities to accomplish what the state asks of them.
Based on our understanding of local needs, we suggest that MDE place a priority on refining tools for local scenario planning and optimization. Specifically, MDE could:

  • Update and promote Center for Watershed Protection’s optimization tool

  • Develop a “lite” version of CAST and provide training to county staff and/or retain MDE staff or consultants to help run scenarios at county request

Another investment that MDE should consider is the placement of ombudsmen with local jurisdictions to assist those areas with planning and implementation of BMPs for the purpose of WIP implementation. Ombudsmen may assist with identifying, prioritizing, permitting, and securing funding for projects. This may also offer an alternate way to address when jurisdictions fail to reach acreage requirements in nonpoint source MS4 permits.

With a full cycle of MS4 permits to evaluate, it has become clear that adequate investment in the supporting tasks of project identification, prioritization and permitting is a key driver of progress. For example, Anne Arundel invested in stream assessments for the 10 years prior to the latest MS4 permit and as such, has a backlog and priority of projects. It has streamlined its permitting process and while not perfect, it is moving forward and making progress. In contrast, in some other urban jurisdictions there is no backlog because the projects that have been identified have not been prioritized and the permit process is still overly cumbersome.
On the Eastern Shore, MDE is partnering with an NGO and local jurisdictions to leverage funds from EPA that are enabling investment in a technical service provider that is shared by multiple localities. The pilot project will help unregulated and Phase II MS4 jurisdictions in this region maximize limited resources with a goal of planning, prioritizing, and streamlining delivery of projects for WIP credit. Models similar to this could be replicated in other rural regions of Maryland where under-resourced localities that are not subject to a stormwater permit face significant capacity constraints. The location of an ombudsman position like the one being piloted on the Shore could be determined in part by the degree to which presiding jurisdictions are investing in closing the gap to meet their 2025 goals.

Maryland is fortunate to have several technical service delivery structures already in place that could be refined or enhanced to support a statewide local ombudsmen program. MDE could reinvest in staff resources directly to support this work. The Watershed Assistance Collaborative and the University of Maryland Sea Grant Extension supply restoration specialists to support local projects and priorities. MDA’s Soil Conservation Districts and Resource Conservation and Development offices both contain seasoned and skilled stormwater management practitioners. Regional Councils offer key services to multiple counties with similar needs. These entities, with modest additional investment or reprioritization, could be leveraged to increase staff capacity to support WIP obligations.

Staffing vacancies at MDE should also be filled and assigned to support local jurisdictions with their water quality improvement efforts. Funding for technical assistance could come from a variety of sources. State agencies could apply as-yet unused legislative appropriations for staffing. The Trust Fund could provide measured outlays for technical assistance. An ombudsmen program may also be funded by leveraging resources from multiple partners who share in the cost of the program’s delivery. The Eastern Shore pilot offers an attractive model where partnering local jurisdictions, MDE, and EPA through the National Fish and Wildlife Foundation share in the cost of the ombudsman position that serves six localities. Other funding partners could include the Rural Maryland Prosperity Investment Fund, which has been receiving a growing allocation from the Maryland General Assembly and could be tapped to further diversify and minimize financial commitments from any single entity.

The ombudsman and other forms of technical assistance should help not only accelerate progress towards nutrient reduction and optimization of cost effective measures, but also ensure projects and BMPs create multiple benefits through Green Infrastructure (GI) and other innovative strategies. State and local Phase III WIP planning should project how proposed project will reduce other pollutants of local and regional concern, and preference should be given to strategies that address multiple pollutants. In many cases, projects and activities can be chosen to reduce nitrogen, phosphorous and sediment while also removing other pollutants. For example, EPA studies on Green Infrastructure bioretention systems show that they can also effectively remove significant heavy metals.4 Green Infrastructure projects tend to remove or treat other pollutants and provide multiple benefits while helping to meet nitrogen, phosphorous and sediment goals. Riparian buffers, for example, can also provide several benefits. While the three main pollutants should remain the main focus of the Phase III WIPs, MDE should explore ways to encourage other non-nutrient TMDLs into the Phase III WIPs. We also approve of MDE’s incorporation of salt and deicing in the new MS4 draft templates.

(V) IMPLEMENTATION ALTERNATIVES
Our organizations believe that the Phase III WIP will best be positioned for success when state and local reduction commitments, policies, and investments are coordinated and working together. However, we are cognizant that a variety of factors could result in counties, soil conservation districts, and permitted entities falling behind local pollution reduction targets. In this regard, it is imperative that MDE outline in the Phase III WIP the specific actions that it will need to take to maintain a suitable 2025 trajectory if regulatory or programmatic changes are not made as expected in local permits and Phase III WIP gap strategies. This “second pathway” or “contingency plan” to achieving the 2025 goals could help Maryland’s Phase III WIP meet the reasonable assurance standard in the Clean Water Act and clarify expectations and alternatives for all stakeholders. This contingency plan should be included as a section in the Phase III WIP.

For permitted entities, corrective actions should accelerate pollution reduction work that is in non-compliance or behind schedule to maintain the pollution reduction timetables outlined in the WIP. Corrective actions in noncompliant jurisdictions may include increasing pollution reduction activity or responsibility, hiring of additional staff or ombudsman to perform technical assistance and add capacity, or withholding of other funding. Any deadline extensions should not push back work anticipated by the WIP under a future permit; instead, these responsibilities must be cumulative and be satisfied concurrently. MDE should also promote public transparency in their compliance programs, in line with the practices of many neighboring states.

For unregulated sectors and jurisdictions, MDE should outline those state policies that would be needed to fill any gaps in achievement of local targets. For example, the state may find it necessary to require Best Available Technology on new or replacement septic systems beyond the Critical Area in jurisdictions that are unable to make progress in that sector through other means. Or as a fiscal example, the state may need to reallocate local distributions of the Bay Restoration Fund to tackle the most significant local sources of pollution.

For both regulated and non-regulated entities, MDE and MDA should consider use of a third party to assess the activity in a jurisdiction that is determined to be off track with pollution reduction targets. This third party could provide independent recommendations for increasing capacity or efficiency that could help improve the rate at which projects are implemented during the permit lifecycle or other relevant schedule. The third party could be sourced from EPA, the Chesapeake Bay Program, or an authorized technical service provider.

(VI) ALIGNMENT WITH MS4 PERMIT REQUIREMENTS
Improvements in water quality are directly tied to the amount of pollution from upland sources that surface waters receive. In the wastewater sector, EPA and MDE regulate point source dischargers based on levels of nitrogen and phosphorus leaving the permitted facility. This regulatory structure has proven effective at ensuring damaging pollutants are adequately controlled. Permitted dischargers of stormwater should similarly be required to treat polluted runoff on a direct water quality basis rather than solely on a water quantity basis.
The MS4 permit program must continue providing a strong regulatory framework for all jurisdictions to meet Clean Water Act requirements. Recent conversations with MDE have suggested that the agency may make multiple changes to the program that, in our view, would represent backsliding compared to current requirements, including expectations outlined in the Phase II WIP. Ongoing enforcement and technical assistance from MDE are both necessary to ensure MS4 jurisdictions continue working to address their stormwater challenges. Lack of funding, permitting timelines, budgetary cuts, or waiting for nutrient trading markets are not acceptable excuses for missing MS4 permit deadlines.

Phase III WIP restoration methodology and metrics should directly connect MS4 permits to the amount of pollution a water body can safely assimilate based on the applicable TMDL. For the next generation of Phase I MS4 permits, Waste Load Allocation (WLA) reduction requirements should be combined with durable Green Infrastructure restoration requirements to meet the Chesapeake Bay TMDL, local TMDLs, and stormwater volumetric reductions. The inclusion of a requirement to meet WLAs with a minimum GI requirement will support both water quality improvements and runoff reduction for local waterways and the Chesapeake Bay.

Establishing the WLA as the ultimate reduction target sets a clear and transparent standard for pollution reduction. By establishing GI targets in permits, regulated dischargers would be compelled to implement the most efficient and cost-effective pollution control technology available, providing confidence that projects on the ground will achieve water quality targets. Under this methodology, the GI requirement in a 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 come from projects and practices with efficiencies approved for credit by the Chesapeake Bay Program. A GI standard tied to water quality in permits would enable MDE to demonstrate greater assurance to EPA that stormwater pollution reduction targets are being met. Moreover, while green infrastructure and many stormwater BMPs are often deemed as not “cost-effective” they are, in fact, economically efficient options given the plethora of health, environmental, climate, and economic benefits. MDE should help local governments use the Bay Program’s new “optimization engine” and tools as a way to prioritize such multi-benefit BMPs. Additional details on our recommendations for MS4 permits are included in the Choose Clean Water Coalition letter sent to MDE on August 25, 2017.

(VII) BMP VERIFICATION AND MAINTENANCE
The importance of strengthening verification protocols in Maryland at this point in time cannot be overstated. In order to meet Bay TMDL goals, MDE and local jurisdictions need to accelerate the pace of projects, as well as provide proper verification that leads to well-maintained BMPs throughout their life cycle. As stated by the Validation Panel of the Chesapeake Bay Program, assuring transparent and accurate BMP meets definition verification was, and remains, critical to achieving true long-term improvements in water quality and establishing public trust.
Verification and validation are of utmost importance. Especially since non-validated BMPs and programs will no longer get any credit under the new Bay model, outreach to localities to ensure they have proper monitoring, evaluation, maintenance and compliance assurance procedures in place is paramount. Otherwise, localities may be surprised and discouraged by progress that is less than expected towards the 2025 cleanup goals.
According to surveys of six counties in 2015, only 42% of BMPs were in good condition. Another 25% are failing in ways that negate most aquatic resource protection benefits and the remaining 33% are in need of maintenance.5 When BMPs are not maintained properly, they are not effectively performing the pollution reduction that was designed and counted. Maintaining existing BMPs is one of the most cost effective methods of maximizing the results of local efforts to reduce pollution. Supporting agencies in improving compliance is usually the quickest, least costly, way of dramatically improving water quality.
Maryland would benefit from an independent verification team and more funding to execute the protocols. To improve practices, verification needs to be carried out in conjunction with on-the-ground assessment and technical assistance as much as possible, especially in non-regulated sectors such as agriculture, stormwater facilities in rural jurisdictions and forestry.
MDE and other agencies in Maryland need greater capacity to ensure the verification plan is fully executed. We commend MDA for proposing to establish a BMP Verification task force, but we have not received further information on the establishment of the group or its work. If this proposal has been carried forth, the state should consider expanding the task force to supplement verification activities across BMP sectors, not just agriculture. Additional funds should be allocated to MDE, DNR and MDA in order to spearhead this verification task force.

(VIII) ACCOUNTING FOR GROWTH
The Phase III WIP process must incorporate the means to account for any increases in pollution loads created by growth in the urban stormwater, wastewater, and agricultural sectors. For example, Maryland is losing nearly 2,000 acres of forest land per year to development. According to Chesapeake Bay Program loading rates, this conversion can result in a four-fold or more increase in pollution on a per-acre basis.
EPA is placing a priority on growth offsets in the Phase III WIP. In its January 2017 Interim Expectations, EPA states:
Gaps in programmatic capacity the jurisdictions will need to address in the 2018-2025 timeframe through their Phase III WIPs include...Building the programmatic infrastructure, tracking systems, policies, legislation, and regulations necessary for fully accounting for growth, and offsetting all resultant new or increased pollutant loads through 2025. (p 2)
MDE should make certain that counties have the information needed to plan in ways that do not jeopardize or counteract the pollution reduction progress they are making. The Phase III WIP must include a viable policy that quantifies the amount of new pollution created from growth and ensure that these loads are fully offset. Specifically, the policy must ensure that any activity within its jurisdiction that will produce a new or expanded discharge of nitrogen, phosphorus, or sediment will be reduced or met by offsets. The discharger of the increased pollutant must be required to mitigate the increase at the source or secure one or more legally enforceable offsets before that activity may commence. This is required under the Clean Water Act and EPA’s implementing regulations.
SECTION 3. COLLABORATION DURING PHASE III WIP DEVELOPMENT
There is no need to start from scratch in the Phase III WIP. But this does not mean MDE should refrain from actively engaging and supporting local government action between now and 2025. The momentum and water quality improvements accomplished through local participation in Phase II need continued structure, support, and accountability. We urge MDE and the full Bay Cabinet to move forward rather than step back from its leadership role in fostering a coordinated state and local response to the water quality challenges facing the Bay and local waters.
MDE should prioritize stakeholder support in the process and give direction to all of the parties that will be executing WIP plans. There has been significant turnover of staff and leadership in some local jurisdictions. This often means that, even in jurisdictions with a strong Phase II WIP, local elected officials and staff would benefit from outside knowledge and expertise to properly structure and execute a gap strategy as part of the phase III WIP. Our experience is that many local governments welcome more guidance and education. Pennsylvania has had informational and financing workgroups meet on a biweekly basis since the fall. Pennsylvania also has created a toolbox that includes GIS modeling and monitoring data. Maryland might explore using these workgroups and tools as a model.
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Virginia is also engaging Planning Districts and Soil Conservation Districts in regional engagement and collaboration.
Partnerships
The Phase III WIP is a prime opportunity to focus support on partnerships that can get more done faster and for less money. While capacity assessments and pollution reduction goals can prepare local government partners to increase the performance of actions taken in Phase III, non-government organization (NGO) and public and private technical service providers can provide additional capacity to close remaining pollution reduction gaps.
The undersigned organizations and our partners work diligently with local governments to provide value in accelerating the progress of pollution reduction as well as educating elected officials, policymakers, and the public in localities. There is great interest in engaging nonprofit organizations to help educate the public and policymakers about the importance of pollution reduction policies. In addition, many Foundations are actively providing financial support for local government outreach, financing options, and other implementation tools. Because much of the low hanging fruit has been picked, nonprofits and businesses can be helpful in continuing to accelerate the progress of projects. However, to be more effective, we recommend that the state target more funding and resources to encourage these public-private partnerships.

There are also several opportunities for collaboration between agriculture and urban/wastewater sectors. More exchange of information such as progress reports and collaboration between Soil Conservation Districts and local government could produce cost-effective opportunities for pollution reduction. This is especially the case in non-regulated or newly-regulated jurisdictions. A diversity of agencies and sectors can also bring different elements to the table that make partnerships powerful synergistic forces. For example, SCDs bring experience and expertise in the design and delivery of projects. Local governments have an administrative structure, public land, and a method for engaging private property owners in placing BMPs on their land. Discussions facilitated by the program assessment and ombudsman role outlined earlier in this letter could aid in facilitating these local partnerships.

Local Working Group
MDE should initiate regular meetings with local governments and other stakeholders to communicate expectations and solicit feedback associated with the Phase III WIP as soon as possible. Local elected officials in particular need ongoing education on this process. In addition to outreach, we recommend creating a standing working group for local engagement in Phase III WIPs. The working group would advise on matters related to local engagement and provide an open forum in which to develop county planning targets. This body could also inform other outstanding issues related to the Phase III WIP, such as sector allocations. At a minimum, workgroup membership should include representatives from:
 Urban and rural, county and municipal stakeholders, including elected leaders and staff
 Soil Conservation Districts
 Bay Cabinet agencies
 Agricultural sector
 Private-sector water quality restoration professionals and businesses
 Chesapeake Bay Commission
 The NGO community

SECTION 4. CONCLUSION
The final push to 2025 has begun and Maryland must apply every effort to accelerate progress toward that goal line. In order to reach it, MDE will have to do more to assist localities, magnify engagement, create incentives for exceptional performance, provide more resources, and maintain effective transparency and accountability—including enforcing corrective actions when needed. The recommendations above are intended to provide a framework for local engagement that can be leveraged to address other issues that EPA and Bay Program partners expect to tackle in the Phase III WIP. For example, we understand that MDE plans to take climate change into account as the letter sent last year from the Choose Clean Water Coalition recommends. We urge MDE to help engage localities to ensure they know how climate change will affect them and how it should be incorporated into their planning and Phase III WIPs.
In closing, we view the challenges ahead as MDE’s best opportunity to reaffirm and invest in a holistic and comprehensive water quality restoration approach that ensures more nonpoint source pollution projects go into the ground faster and remain well maintained. Reaching the Chesapeake Bay TMDL 2025 goals will require a Phase III WIP process that allows all partners to share clear expectations and accountability for progress along with the tools and support needed to get the job done.
If you have any questions, please contact Ben Alexandro, Maryland League of Conservation Voters, at balexandro@mdlcv.org and Erik Fisher, Chesapeake Bay Foundation, at EFisher@cbf.org.


Sincerely,
1000 Friends of Maryland
Alliance for the Chesapeake Bay
Anacostia Watershed Society
Annapolis Green
Audubon Maryland-DC
Audubon Naturalist Society
Back Creek Conservancy
Back River Restoration Committee
Baltimore Tree Trust
Blue Water Baltimore
Center for Progressive Reform
Chesapeake Bay Environmental Center
Chesapeake Bay Foundation
Clean Bread and Cheese Creek
Clean Water Action
Conservation Montgomery
Corsica River Conservancy
Dorchester Citizens for Planned Growth
Ducks Unlimited
Earth Forum of Howard County
EcoLatinos
Friends of Sligo Creek
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Friends of the Bohemia, Inc
Friends of the Nanticoke River
Little Falls Watershed Alliance
Lower Susquehanna Riverkeeper Association
Maritimas
Maryland Conservation Council
Maryland Environmental Health Network
Maryland League of Conservation Voters
Mattawoman Watershed Society
Montgomery Countryside Alliance
Nature Abounds
Natural Resource Defense Council
Neighbors of Northwest Branch
Oyster Recovery Partnership
Potomac Conservancy
Queen Anne's Conservation Association
Rachel Carson Council
Rock Creek Conservancy
Savage River Watershed Association
Severn River Association
Severn Riverkeeper
Shore Rivers
Sierra Club- Maryland Chapter
Southern Maryland Audubon Society
South River Federation
Sparks Glencoe Community Planning Council
St. Mary's River Watershed Association
Talbot Preservation Alliance
Waterkeepers Chesapeake
West & Rhode Riverkeeper
Wicomico Environmental Trust
cc:
D. Lee Currey, MDE State of Maryland Bay Cabinet
EPA Region 3 Chesapeake Bay Program partners Maryland Department of Agriculture Maryland Department of Planning Maryland Department of Natural Resources Maryland Association of Counties Maryland Municipal League

Letter to PSC on Climate/Ammonia

PDF Version

February 23, 2018

 

The Honorable Ben Grumbles, Chairman

Principals’ Staff Committee Secretary

Maryland Department of the Environment

1800 Washington Blvd. Baltimore, MD 21230 ben.grumbles@maryland.gov 

 

Dear Secretary Grumbles:

 

The undersigned members of the Choose Clean Water Coalition want to express their thoughts on two key issues that will be discussed at the Principals’ Staff Committee (PSC) meeting in March. First, is the decision regarding inclusion of the model results of climate change in the Phase III Watershed Implementation Plans (WIPs). Second, is the approach being used to help satisfy West Virginia and New York’s “special case” allocations.  

 

Inclusion of Climate Change in Phase III WIPs

Members of the Coalition are deeply concerned and disappointed to learn that the PSC was unable to come to a consensus on whether to communicate the Bay modeling estimates of the effects of climate change in the Phase III WIPs. This decision is short-sighted. Inclusion of the model estimates would be an important public acknowledgement of the challenges ahead, could inform near-term strategies for qualitatively addressing climate change impacts in the Phase III WIPs, and would set the stage for future actions. 

In addition, in the absence of a definitive commitment to address pollution loads attributable to climate change, it is imperative that the Bay Program partners commit the resources necessary to refine the climate modeling and assessment framework that is needed to support final decision-making in 2022 on how to address climate-attributable pollution loads. In the near term, the Bay Program partners must also commit the resources necessary to investigate the climate resilience and climate co-benefits of restoration practices and to use this information when developing their Phase III WIPs.

 

Closing the Gap on the “Special Cases”

We also want to express our concern about the approach currently being considered to help close the gap for the “special case” allocations for New York (NY) and West Virginia (WV).  Our issue is not with the additional allocations, per se, as we believe that NY and WV are justified in their request that the agreement reached in 2009, regarding additional allocations, be honored.  Our concern stems from: (1) the reliance on additional NOx reductions that are expected to occur by 2030; and (2) the absence of any consideration that increases in ammonia emissions since 2009 should be offset.  

 

Reliance on Projected NOx Reductions from State and Federal CAA Regulatory Programs

According to the February 12, 2018 presentation to the Water Quality Goal Implementation Team1 an additional 1.6 million pounds of nitrogen reductions, almost entirely from NOx reductions, is projected to be available by 2030. These modeled reductions are based on expected benefits from the implementation of state and federal Clean Air Act (CAA) regulatory programs.  

These expected reductions are far from certain.  The Environmental Protection Agency (EPA) has recently proposed to repeal several national regulations, some of which are being relied upon for these reductions. According to the October 31, 2017 webinar hosted by the Chesapeake Bay Program,2 the future air modeling includes the benefits of the “CAFE Rule” and implementation of the 2015 ozone standard of 70 ppb, among others. Since there was no specific definition given for the “CAFE Rule”, we are interpreting it to apply to regulations that improve automobile fuel economy standards and reduce greenhouse gases. 

On August 17, 2017 EPA announced their Reconsideration of Final Determination on the Appropriateness of the Model Year 2022-2025 (and 2021) Light Duty Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation.3  EPA is reconsidering whether the lightduty vehicle greenhouse gas (GHG) standards previously established for Model Year 20222025 are appropriate under Section 202 (a) of the Clean Air Act (CAA) and whether the lightduty GHG standards established for Model Year 2021 remain appropriate.   In addition, on November 16, 2017, EPA proposed to repeal the emission requirements for glider vehicles, glider engines, and glider kits from GHG standards for heavy-duty trucks.4 Glider vehicles are new truck bodies that contain older engines. The proposed rule would remove the requirement for these engines to meet emission standards applicable in the year of assembly of the new glider vehicle.  

Failure to implement the Light Duty Vehicle GHG standards and to regulate the glider industry under EPA’s Phase 2 rule could result in the failure to achieve millions of pounds of NOx reductions nationwide and will affect modeled nitrogen reductions in the Chesapeake Watershed. 

The EPA has also indicated interest in revisions to the New Source Review rule for power plants.5 This rule has been a major driver in the significant NOx reductions in the past ten years and changes to the rule could mean expected reductions will not occur. Finally, the implementation of the 2015 ozone standard is also in jeopardy, as EPA missed deadlines for promulgating the initial area of designations related to NAAQS for ozone and final agency action by EPA remains unclear.6 

These actions, taken together, indicate that the reliance on projected NOx reductions from state and federal CAA regulatory programs is, at best, now in question. It is worth noting that these actions will also result in more emissions of greenhouse gases that contribute to climate change, further exacerbating our Bay restoration challenges.

                                          

 1 https://www.chesapeakebay.net/channel_files/25896/attachment_c1_update_on_bay_assimilation_analysis_for_ ny__wv_special_cases.pdf  2 https://www.chesapeakebay.net/channel_files/25651/atmo_dep_webinar_draft_11-1-17.pdf  3 https://www.gpo.gov/fdsys/pkg/FR-2017-08-21/pdf/2017-17419.pdf 4 https://www.gpo.gov/fdsys/pkg/FR-2017-11-16/pdf/2017-24884.pdf 5 https://www.utilitydive.com/news/epa-to-drop-key-new-source-review-enforcement-provision/512825/ 6 https://www.epa.gov/ozone-designations/ozone-designations-regulatory-actions

 

Increased Ammonia Emissions and Deposition

One reason for the shortfall in expected nitrogen reductions from atmospheric deposition projected during the development of the Chesapeake Bay Total Maximum Daily Load is increases in ammonia emissions and deposition (see figure below taken from slide 39 in the October 31, 2017 air webinar). These increases are due, in part, to increases in ammonia emissions from agriculture (see slide 58). To that end, we note there have been substantial increases in poultry production in several states in the Chesapeake Watershed since 2010 (see table below) and poultry production is a known source of ammonia. Any additional nitrogen loads that resulted from these increases in poultry production should be offset by the states where the increases occurred, in accordance with Appendix S of the Bay TMDL and EPA expectations regarding state procedures to account for new and expanded sources of pollution loads. These additional reductions could be used to help close the gap on the special cases for NY and WV.  

Additional nitrogen loads associated with ammonia from animal operations that occur between 2009 and 2025 could be modeled using a similar approach as that used to estimate NOx benefits. The states responsible for these additional loads would receive a smaller allocation to offset these new loads.  

We sincerely thank you and the rest of the Principals’ Staff Committee for your leadership on Bay restoration and thoughtful consideration of our input.  In addition, we welcome the opportunity to work with you and the other Chesapeake Bay Program partners in the coming months on the development of quality Phase III WIPs. Please contact Chante Coleman at 443927-8047 or colemanc@nwf.org with any questions or concerns.

 

Sincerely, 

 

Anacostia Watershed Society

Audubon Naturalist Society

Center for Progressive Reform

Chesapeake Bay Foundation 

Coalition for Smarter Growth 

Conservation Voters of Pennsylvania 

Delaware Nature Society

Earth Forum of Howard County

 Friends of Accotink Creek 

Friends of Lower Beaverdam Creek

Friends of St Clements Bay

James River Association

Maryland Conservation Council

Maryland Environmental Health Network

Maryland League of Conservation Voters

Mattawoman Watershed Society

Mid-Atlantic Youth Anglers & Outdoors Partners

National Parks Conservation Association

National Wildlife Federation

Natural Resources Defense Council

Nature Abounds

PennFuture

Pennsylvania Council of Churches

Potomac Conservancy

Rachel Carson Council

Rivertown Coalition for Clean Air & Water

 Savage River Watershed Association

 Shenandoah Valley Network S

leepy Creek Watershed Association

Southern Maryland Audubon Society

St. Mary's River Watershed Association

Virginia Conservation Network

Virginia League of Conservation Voters

Waterkeepers Chesapeake 

West Virginia Rivers Coalition

Wetlands Watch

 

cc:   Members, Principals’ Staff Committee, CBP Jim Edward, Chair, Management Board  James Davis-Martin, Co-Chair, Water Quality Goal Implementation Team Dinorah Dalmasy, Co-Chair, Water Quality Goal Implementation Team  Mark Bennett, Chair, Climate Resiliency Workgroup Rich Batiuk, Associate Director of Science, Analysis and Implementation, CBP

 

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Environmental Justice Act of 2017

PDF Version

March 16, 2018

 

Dear Member of Congress:

The undersigned members of the Choose Clean Water Coalition and the Coalition for the Delaware River Watershed urge you to cosponsor the Environmental Justice Act of 2017 (S. 1996/H.R. 4114). Together, our coalitions represent more than 350 organizations across the Chesapeake Bay watershed and the Delaware River watershed, which cover more than 77,000 square miles and are home to over 25 million residents across 7 states and the District of Columbia. 

 

This bill is essential to ensuring that the most burdened communities throughout the United States receive equitable access to clean air and clean water. For decades, our nation’s communities of color, indigenous, and low-income communities have experienced disproportionate negative environmental and human health impacts. Those living in marginalized communities continue to bear the burden of infrastructure, industrial, and commercial development, yet see few of the benefits. By living in proximity to hazardous sites, these communities face higher risk for exposure to toxic chemicals and associated health impacts like asthma and lead poisoning. The 1994 Executive Order on Environmental Justice (EO 12898) helped to focus federal attention on addressing these inequities, though many gaps remain to better protect all Americans. 

 

The Environmental Justice Act of 2017 would expand and codify EO 12989 including: strengthening coordination among federal agencies to eliminate adversities that promote environmental injustice; improving public access to information and participation in the federal decision making process; and codifying the Council on Environmental Quality’s guidance assisting federal agencies with their National Environmental Policy Act procedures that address environmental justice concerns. This bill would also require the consideration of cumulative impacts for permitting decisions under the Clean Water Act and the Clean Air Act, which would help improve the quality of life for communities in urban and rural areas within close proximity to superfund sites or areas with concentrations of polluting facilities.    This bill would additionally strengthen legal protections against environmental injustice. Communities throughout our watersheds, such as Baltimore, Camden, and Philadelphia could bring statutory claims for damages under common law and request injunctive relief for environmentally caused health crisis events that have severe impacts on children and future generations. Furthermore, this bill would restore the right for individuals to bring actions under the Civil Rights Act against entities engaging in discriminatory practices.   

 The improvements would benefit millions of residents in the Chesapeake Bay and Delaware River watersheds by ensuring that all are protected from harmful and unnecessary exposure to pollutants in the environment. Thank you for reviewing this important request and please consider cosponsoring the Environmental Justice Act of 2017. 

 

 

Sincerely,

 

Action Together NEPA

American Littoral Society 

American Rivers

Aquashicola/Pohopoco Watershed Conservancy

Audubon Naturalist Society 

Audubon Pennsylvania

Baltimore Tree Trust

Basha Kill Area Association

Bertsch-Hokendauqua-Catasauqua Watershed Association

Blue Heron Environmental Network 

Brodhead Chapter of Trout Unlimited

Cacapon Institute 

Coalition for Smarter Growth 

Conservation Voters of Pennsylvania

Darby Creek Valley Association

Delaware Highlands Conservancy

Delaware Nature Society

 Earth Forum of Howard County 

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation

Environment New Jersey

 Friends for the Abbott Marshlands

Friends of Accotink Creek 

Friends of Cherry Valley Friends of Dyke Marsh 

Friends of Lower Beaverdam Creek 

Friends of the North Fork of the Shenandoah River

Friends of the Upper Delaware River

Green Valleys Watershed Association

Interfaith Partners for the Chesapeake 

Isles, Inc.

Lakawanna River Conservation Association 

Lower Susquehanna Riverkeeper Association 

Lutheran Advocacy Ministry in Pennsylvania 

Lynnhaven River NOW

Maryland Conservation Council 

Maryland League of Conservation Voters 

Mattawomen Watershed Society 

Mid-Atlantic Youth Anglers & Outdoor Partners

Musconetcong Watershed Association

National Parks Conservation Association

National Wildlife Federation

Natural Resources Defense Council 

New Jersey Audubon

New Jersey Conservation Foundation

New Jersey Highlands Coalition

New Jersey League of Conservation Voters

New Jersey Outdoor Alliance

New York League of Conservation Voters

Newtown Creek Coalition

PennFuture

Pennsylvania Council of Churches 

Pennsylvania Land Trust Association

Pennypack Ecological Trust

Piedmont Environmental Council 

Pinelands Preservation Alliance

Potomac Conservancy

Rachel Carson Council 

Severn River Association 

Shenandoah Valley Network 

Southern Maryland Audubon Society

 Stony Brook-Millstone Watershed Association 

Tobyhanna Creek/Tunkhannock Creek Watershed Association

Tookany/Tacony-Frankford Watershed Partnership, Inc.

Trash Free Maryland

Trout Unlimited

Upper Delaware Preservation Coalition

Urban Promise Ministries

Valley Creek Restoration Partnership

Virginia Conservation Network 

Waterkeepers Chesapeake 

West Virginia Highlands Conservancy 

West Virginia Rivers Coalition  

Western Pocono Chapter of Trout Unlimited

Willistown Conservation Trust  

Senate CJS Appropriations 2019

PDF Version

March 13, 2018                                                                                                            

The Honorable Richard Shelby, Chairman

Subcommittee on Commerce, Justice, Science and Related Agencies

Room S-128, Capitol U.S Senate Washington, D.C. 20510

 

The Honorable Jeanne Shaheen, Ranking Member

 Subcommittee on Commerce, Justice, Science and Related Agencies

Room S-128, Capitol U.S Senate Washington, D.C. 20510

 

Dear Chairman Shelby and Ranking Member Shaheen:

The undersigned members of the Choose Clean Water Coalition request continued support for programs that are essential to maintaining a healthy and vibrant Chesapeake Bay and a strong regional economy that is dependent on the Bay’s resources. The National Oceanic and Atmospheric Administration (NOAA) has a strong and long term presence in the Chesapeake Bay area, and its Chesapeake Bay Office coordinates their efforts with other federal agencies, state and local partners and users of the resource.

The programs that are run and/or coordinated by NOAA’s Chesapeake Bay Office (NCBO) are critical for the Chesapeake Bay ecosystem and for its users and residents. These programs provide the science and management assistance necessary for those whose livelihood is to ply the Bay’s waters for fish, crabs and oysters and to the hundreds of thousands of people who fish recreationally in the Bay every year and to the millions who boat, kayak, and/or view wildlife in the region.

NCBO is also critical for others, from students learning about science with hands-on experiences to local governments and residents along the shore to have the latest information to prepare for coastal flooding and hurricane emergencies.

Utilizing sound science in the management of Chesapeake Bay resources is critical for our regional economy. We request the following funding levels in Fiscal Year 2019: Department of Commerce

National Oceanic and Atmospheric Administration – Chesapeake Bay Office (NCBO) - $9.25 million

The NCBO was established by Congress in 1992 to provide resources, technical assistance and coordination through its two branches: the Ecosystem Science and Synthesis Program, which focuses on applied research and monitoring in fisheries and aquatic habitats; synthesis, and analysis to describe and predict Bay ecosystem processes; and technical assistance to Chesapeake Bay decision makers.

The second branch is Environmental Literacy and Partnerships Program, which focuses on the development of K-12 and higher education environmental science education programs; strategic partnerships with the Chesapeake Bay Program and other government, university, and nonprofit partners; and delivering NOAA products, services, and programs to targeted audiences.

The Office’s programs play a key role in implementing the voluntary Chesapeake Bay Agreement among the states and is critical to ensuring that commitments are met to:  • restore native oyster habitat and populations in 10 tributaries by the year 2025; • ensure students graduate with the knowledge and skills to protect and restore their local watershed; • sustain a healthy blue crab and striped bass (rockfish) population; and • maintain a coordinated watershed-wide monitoring and research program. The specific breakdown of our request for $9.25 million for the NCBO is as follows: • Oyster Restoration - $4 million The Chesapeake Bay oyster population is less than 1 percent of historic levels and the ecosystem functions associated with oyster reefs, including fish habitat and nitrogen removal, are similarly diminished. NCBO has built on past success to restore entire tributaries, with self-sustaining oyster populations and to measure the resulting ecosystem benefits. NCBO works with federal, state and private partners to plan and implement this tributary-scale restoration in both Maryland and Virginia. Funding for oyster restoration in the Chesapeake was also done through the U.S. Army Corps of Engineers, but they have not received funding in a number of years. Funding for this key program has eroded sharply since FY2010, and without Army Corps funds, NOAA is the only Federal agency left to continue this key restoration program.

 

• Environmental Education and Literacy - $3.5 million NCBO encourages and supports efforts in K-12 and higher education to develop and implement comprehensive environmental literacy programs. NCBO runs the nationally recognized Bay Watershed Education and Training Program (B-WET) - a competitive grant program for hands-on watershed education for students and teacher training to foster stewardship of the Chesapeake Bay. B-WETs funding has steadily eroded since 2010 and should be restored to at least that level.

 

• Fisheries Science and Management - $1 million Recreational and commercial fisheries are among the most valuable economic activities for the coastal communities of the Bay. Fishing pressure, habitat loss, invasive species, degraded water quality, and toxics affect these important fisheries, including striped bass (rockfish), blue crabs, oysters, menhaden and cow-nosed rays. NOAA supports well-managed Chesapeake Bay fisheries and the habitats they depend on by delivering timely ecosystem-based science and forecasts to science and management partners. Historically, the states have looked to NCBO to conduct stock assessments, particularly for blue crabs. Each state

often has its own assessment data, but NOAA’s ability to look at the stocks for the entire Bay is critical. Each stock assessment costs approximately $500,000.

 

• Chesapeake Bay Interpretive Buoy System (CBIBS) - $750,000 The Chesapeake Bay ecosystem is dynamic, and water quality is driven by variable local and regional forces. High quality data is needed to monitor, understand, forecast, and provide information for science-based decisions and needs to be continuously measured and summarized. NCBO maintains the CBIBS, a network of 10 buoys that collects and relays near-real-time data to users. This supports public access to the Bay and boater safety on the water through the Captain John Smith Chesapeake National Historic Trail, administered by the National Park Service.  Thank you for your consideration of these very important requests to maintain funding for programs that are critical to the health of the Chesapeake Bay and its natural resources. 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 the Chesapeake Bay

American Chestnut Land Trust

American Rivers 

Anacostia Watershed Society

Audubon Naturalist Society

Audubon Society of Northern Virginia

Back Creek Conservancy

Baltimore Tree Trust

Blue Heron Environmental Network

Blue Ridge Watershed Coalition

Blue Water Baltimore

Cacapon Institute

Capital Region Land Conservancy

Catskill Mountainkeeper

Center for Progressive Reform

Chapman Forest Foundation

Chesapeake Bay Foundation

Chesapeake Legal Alliance

Chesapeake Wildlife Heritage

Clean Fairfax

Clean Water Action Coalition for Smarter Growth

Conservation Voters of Pennsylvania

Delaware Nature Society Ducks Unlimited

Earth Force

Earth Forum of Howard County

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation

 Elizabeth River Project

Elk Creeks Watershed Association

Environmental Working Group

Friends of Accotink Creek

Friends of Dyke Marsh

Friends of Lower Beaverdam Creek

Friends of Quincy Run

Friends of St. Clements Bay

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

Interfaith Partners for the Chesapeake

James River Association

Lackawanna River Conservation Association

Lancaster Farmland Trust

Lower Susquehanna Riverkeeper

Lutheran Advocacy Ministry in Pennsylvania 

Lynnhaven River NOW

Maryland Conservation Council

Maryland Environmental Health Network

Maryland League of Conservation Voters

Maryland Native Plant Society

Mattawoman Watershed Society

Mehoopany Creek Watershed Association

Mid-Atlantic Council Trout Unlimited

Mid-Atlantic Youth Anglers & Outdoor Partners

Montgomery Countryside Alliance

Muddy Branch Alliance

National Aquarium

National Parks Conservation Association

National Wildlife Federation

Natural Resources Defense Council

Nature Abounds

Neighbors of the Northwest Branch

New York League of Conservation Voters

New York State Council of Trout Unlimited

Otsego County Conservation Association

Otsego Land Trust

PennEnvironment

PennFuture

Pennsylvania Council of Churches

Piedmont Environmental Council

Potomac Conservancy

 Potomac Riverkeeper

Potomac Riverkeeper Network

Prince William Conservation Alliance

Queen Anne’s Conservation Association

Rachel Carson Council

Rivanna Conservation Alliance

Rivertown Coalition for Clean Air and Clean Water

Rock Creek Conservancy

St. Mary's River Watershed Association

Savage River Watershed Association

Severn River Association

Shenandoah Riverkeeper 

Shenandoah Valley Network

ShoreRivers

Sidney Center Improvement Group

Sleepy Creek Watershed Association

South River Federation

Southern Environmental Law Center

Southern Maryland Audubon Society

SouthWings

Sparks-Glencoe Community Planning Council

Susquehanna Heritage

The Downstream Project

Trash Free Maryland

Upper Potomac Riverkeeper 

Upper Susquehanna Coalition

Virginia Conservation Network

Virginia Eastern Shorekeeper

Virginia Interfaith Power and Light

Virginia League of Conservation Voters

Warm Springs Watershed Association

Water Defense

Waterkeepers Chesapeake

West/Rhode Riverkeeper

West Virginia Citizens Action Group

West Virginia Environmental Council

West Virginia Highlands Conservancy

West Virginia Rivers Coalition

Wicomico Environmental Trust

House Interior Appropriations 2019

March 13, 2018

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 2019: 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. At least twothirds of the program’s funds are passed through to the states and local communities for on-theground restoration work through 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 for the past few years. 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, including to family farms. 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 funding levels that Congress has appropriated each year since FY2015, and we urge you to include language similar to the Senate’s Explanatory Statement for the Department of the Interior, Environment, and Related Agencies Appropriations Bill, 2018, which states, “Chesapeake Bay - 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 similar language in the FY 2019 Interior, Environment and Related Agencies Appropriations Bill, for both the overall Chesapeake Bay Program and for the local grant programs. 

Clean Water State Revolving Fund (SRF) --$2.8 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 enhance investments in key water infrastructure projects nationwide, and the Clean Water SRF is the single best mechanism to accomplish that goal. We support doubling the current funding for the Clean Water SRF – and that 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 $2.8 billion funding level that would provide $590 million in low interest loans to local governments in Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia – twice 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 double the funding of the Clean Water SRF from the current funding level. Department of the Interior

U.S. Geological Survey (USGS) -- Chesapeake Bay Studies -- $12.6 million

We support full funding for the USGS to continue 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 monitoring and assessment informs decisions made by the Department of the Interior as well as other federal and state partners on issues related to fisheries and associated water quality, waterfowl and their habitats and land protection.   In FY 2019, USGS is putting a new focus on habitat conditions supporting important recreational fisheries. Habitat conditions from headwater streams to tidal estuaries will be assessed to help focus, and evaluate, restoration and protection efforts. The efforts will include summarizing the factors affecting fish health in the watershed and opportunities to reduce effects from nutrients, sediment, and toxic contaminants. The findings will also inform the development by the states of their Phase III Watershed Implementation Plans. USGS provides the expertise to restore and conserve coastal wetlands that are critical habitat for the more than one million waterfowl that winter in the Chesapeake region. In 2019 studies of black duck habitats will be used by the U.S. Fish and Wildlife Service to adapt practices on national wildlife refuges, and USGS will begin to address shallow water habitats important for additional recreational species.  The USGS will be supplying land-change forecasts to inform land protection. The National Park Service and the Chesapeake Conservation Partnership have requested the USGS to provide forecasts of where development may impact healthy watersheds and vital lands across the watershed.  Finally, 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 is being used by state and federal partners to more effectively focus actions and share available resources. National Park Service -- Chesapeake Regional Programs -- $2.897 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 ($389,000); Chesapeake Bay Gateways and Trails ($2.02 million); and support for coordinating these programs through the National Park Service Chesapeake Bay Office ($488,000). 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 /U.S. Forest Service - Land and Water Conservation Fund Priority Projects in the Chesapeake Bay Watershed - $12.752 million

We strongly support full funding for the Land and Water Conservation Fund. In particular, we support continuation of the strategic use of funds from the Land and Water Conservation Fund for priority projects in the Chesapeake Bay watershed. These efforts target conservation funds for critical priority landscapes throughout the Chesapeake Bay region. The following projects would protect nearly 6,000 acres 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. 

• U.S Fish and Wildlife Service- James River National Wildlife Refuge (VA) –  $1 million • U.S Fish and Wildlife Service – Rappahannock River Valley National Wildlife Refuge (VA) - $2 million • U.S. Forest Service – George Washington and Jefferson National Forests (VA) - $452,000 • U.S. Forest Service – George Washington and Jefferson National Forests (VA) - $2,300,000 • National Park Service – Captain John Smith Chesapeake National Historic Trail (VA) - $4,000,000 • National Park Service –Richmond National Battlefield Park (VA) - $3,000,000 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 the Chesapeake Bay

American Chestnut Land Trust

American Rivers

 Anacostia Watershed Society

Audubon Naturalist Society

Audubon Society of Northern Virginia

Back Creek Conservancy

Baltimore Tree Trust

Blue Heron Environmental Network

 Blue Ridge Watershed Coalition

Blue Water Baltimore

Cacapon Institute

Capital Region Land Conservancy

Catskill Mountainkeeper

Center for Progressive Reform

Chapman Forest Foundation

Chesapeake Bay Foundation

Chesapeake Legal Alliance

 Chesapeake Wildlife Heritage

Clean Fairfax

Clean Water Action

Coalition for Smarter Growth

Conservation Voters of Pennsylvania

Delaware Nature Society

Ducks Unlimited

Earth Force

Earth Forum of Howard County

 Eastern Pennsylvania Coalition for Abandoned Mine Reclamation

 Elizabeth River Project

 Elk Creeks Watershed Association

 Environmental Working Group

Friends of Accotink Creek Friends of Dyke Marsh

 Friends of Lower Beaverdam Creek Friends of Quincy Run

Friends of St. Clements Bay

 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

 Interfaith Partners for the Chesapeake James River Association

 Lackawanna River Conservation Association

 Lancaster Farmland Trust

 Lower Susquehanna Riverkeeper

 Lutheran Advocacy Ministry in Pennsylvania 

Lynnhaven River NOW

Maryland Conservation Council

Maryland Environmental Health Network

Maryland League of Conservation Voters

Maryland Native Plant Society

Mattawoman Watershed Society

Mehoopany Creek Watershed Association

Mid-Atlantic Council Trout Unlimited

 Mid-Atlantic Youth Anglers & Outdoor Partners

Montgomery Countryside Alliance

Muddy Branch Alliance

National Aquarium

National Parks Conservation Association

National Wildlife Federation

 Natural Resources Defense Council

Nature Abounds

Neighbors of the Northwest Branch

New York League of Conservation Voters

New York State Council of Trout Unlimited

 Otsego County Conservation Association

 Otsego Land Trust

PennEnvironment

PennFuture

Pennsylvania Council of Churches

 Piedmont Environmental Council

Potomac Conservancy

 Potomac Riverkeeper

Potomac Riverkeeper Network

Prince William Conservation Alliance

Queen Anne’s Conservation Association

Rachel Carson Council

Rivanna Conservation Alliance

Rivertown Coalition for Clean Air and Clean Water

 Rock Creek Conservancy

 St. Mary's River Watershed Association

Savage River Watershed Association

Severn River Association

Shenandoah Riverkeeper 

Shenandoah Valley Network

 ShoreRivers

Sidney Center Improvement Group

 Sleepy Creek Watershed Association

South River Federation

 Southern Environmental Law Center

Southern Maryland Audubon Society

SouthWings

Sparks-Glencoe Community Planning Council

Susquehanna Heritage

The Downstream Project

Trash Free Maryland

Trout Unlimited

Upper Potomac Riverkeeper 

Upper Susquehanna Coalition

Virginia Conservation Network

Virginia Eastern Shorekeeper

Virginia Interfaith Power and Light

Virginia League of Conservation Voters

Warm Springs Watershed Association

Water Defense

Waterkeepers Chesapeake

West/Rhode Riverkeeper

West Virginia Citizens Action Group

West Virginia Environmental Council

West Virginia Highlands Conservancy

West Virginia Rivers Coalition

Wicomico Environmental Trust

Senate Interior Appropriations 2019

PDF Version

March 13, 2018

The Honorable Lisa Murkowski, Chair

 Subcommittee on Interior, Environment and Related Agencies

S-128 Capitol U.S. Senate Washington, D.C., 20510

 

The Honorable Tom Udall, Ranking Minority Member

Subcommittee on Interior, Environment and Related Agencies

 S-146A Capitol U.S. Senate Washington, D.C., 20510

 

Dear Chair Murkowski and Ranking Member Udall:

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 2019: 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. At least twothirds of the program’s funds are passed through to the states and local communities for on-theground restoration work through 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 for the past few years. 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, including to family farms. 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 funding levels that Congress has appropriated each year since FY2015, and we urge you to include language similar to the Senate’s Explanatory Statement for the Department of the Interior, Environment, and Related Agencies Appropriations Bill, 2018, which states, “Chesapeake Bay - 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 similar language in the FY 2019 Interior, Environment and Related Agencies Appropriations Bill, for both the overall Chesapeake Bay Program and for the local grant programs. 

Clean Water State Revolving Fund (SRF) --$2.8 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 enhance investments in key water infrastructure projects nationwide, and the Clean Water SRF is the single best mechanism to accomplish that goal. We support doubling the current funding for the Clean Water SRF – and that 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 $2.8 billion funding level that would provide $590 million in low interest loans to local governments in Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia – twice 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 double the funding of the Clean Water SRF from the current funding level. Department of the Interior

U.S. Geological Survey (USGS) -- Chesapeake Bay Studies -- $12.6 million

We support full funding for the USGS to continue 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 monitoring and assessment informs decisions made by the Department of the Interior as well as other federal and state partners on issues related to fisheries and associated water quality, waterfowl and their habitats and land protection.   In FY 2019, USGS is putting a new focus on habitat conditions supporting important recreational fisheries. Habitat conditions from headwater streams to tidal estuaries will be assessed to help focus, and evaluate, restoration and protection efforts. The efforts will include summarizing the factors affecting fish health in the watershed and opportunities to reduce effects from nutrients, sediment, and toxic contaminants. The findings will also inform the development by the states of their Phase III Watershed Implementation Plans. USGS provides the expertise to restore and conserve coastal wetlands that are critical habitat for the more than one million waterfowl that winter in the Chesapeake region. In 2019 studies of black duck habitats will be used by the U.S. Fish and Wildlife Service to adapt practices on national wildlife refuges, and USGS will begin to address shallow water habitats important for additional recreational species.  The USGS will be supplying land-change forecasts to inform land protection. The National Park Service and the Chesapeake Conservation Partnership have requested the USGS to provide forecasts of where development may impact healthy watersheds and vital lands across the watershed.  Finally, 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 is being used by state and federal partners to more effectively focus actions and share available resources. National Park Service -- Chesapeake Regional Programs -- $2.897 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 ($389,000); Chesapeake Bay Gateways and Trails ($2.02 million); and support for coordinating these programs through the National Park Service Chesapeake Bay Office ($488,000). 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 /U.S. Forest Service - Land and Water Conservation Fund Priority Projects in the Chesapeake Bay Watershed - $12.752 million

We strongly support full funding for the Land and Water Conservation Fund. In particular, we support continuation of the strategic use of funds from the Land and Water Conservation Fund for priority projects in the Chesapeake Bay watershed. These efforts target conservation funds for critical priority landscapes throughout the Chesapeake Bay region. The following projects would protect nearly 6,000 acres 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. 

• U.S Fish and Wildlife Service- James River National Wildlife Refuge (VA) –  $1 million • U.S Fish and Wildlife Service – Rappahannock River Valley National Wildlife Refuge (VA) - $2 million • U.S. Forest Service – George Washington and Jefferson National Forests (VA) - $452,000 • U.S. Forest Service – George Washington and Jefferson National Forests (VA) - $2,300,000 • National Park Service – Captain John Smith Chesapeake National Historic Trail (VA) - $4,000,000 • National Park Service –Richmond National Battlefield Park (VA) - $3,000,000 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 the Chesapeake Bay

American Chestnut Land Trust

American Rivers

Anacostia Watershed Society

Audubon Naturalist Society

Audubon Society of Northern Virginia

Back Creek Conservancy

Baltimore Tree Trust

 Blue Heron Environmental Network

 Blue Ridge Watershed Coalition

Blue Water Baltimore

 Cacapon Institute

Capital Region Land Conservancy

Catskill Mountainkeeper

Center for Progressive Reform

Chapman Forest Foundation

Chesapeake Bay Foundation

Chesapeake Legal Alliance

Chesapeake Wildlife Heritage

Clean Fairfax

Clean Water Action

Coalition for Smarter Growth

Conservation Voters of Pennsylvania

Delaware Nature Society

Ducks Unlimited

Earth Force

Earth Forum of Howard County

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation

Elizabeth River Project

Elk Creeks Watershed Association

Environmental Working Group

Friends of Accotink Creek

Friends of Dyke Marsh

Friends of Lower Beaverdam Creek

Friends of Quincy Run

Friends of St. Clements Bay

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

Interfaith Partners for the Chesapeake

James River Association

 Lackawanna River Conservation Association

Lancaster Farmland Trust

 Lower Susquehanna Riverkeeper

Lutheran Advocacy Ministry in Pennsylvania 

Lynnhaven River NOW

Maryland Conservation Council

Maryland Environmental Health Network

Maryland League of Conservation Voters

Maryland Native Plant Society

Mattawoman Watershed Society

Mehoopany Creek Watershed Association

Mid-Atlantic Council Trout Unlimited

Mid-Atlantic Youth Anglers & Outdoor Partners

Montgomery Countryside Alliance

Muddy Branch Alliance

National Aquarium

National Parks Conservation Association

 National Wildlife Federation

Natural Resources Defense Council

Nature Abounds

Neighbors of the Northwest Branch

New York League of Conservation Voters

 New York State Council of Trout Unlimited

Otsego County Conservation Association

Otsego Land Trust

PennEnvironment

PennFuture

 Pennsylvania Council of Churches

 Piedmont Environmental Council

Potomac Conservancy

 Potomac Riverkeeper

Potomac Riverkeeper Network

Prince William Conservation Alliance

Queen Anne’s Conservation Association

Rachel Carson Council

Rivanna Conservation Alliance

 Rivertown Coalition for Clean Air and Clean Water

 Rock Creek Conservancy

St. Mary's River Watershed Association

Savage River Watershed Association

Severn River Association

 Shenandoah Riverkeeper

 Shenandoah Valley Network

ShoreRivers

Sidney Center Improvement Group

Sleepy Creek Watershed Association

South River Federation

Southern Environmental Law Center

 Southern Maryland Audubon Society

SouthWings

 Sparks-Glencoe Community Planning Council

Susquehanna Heritage

The Downstream Project

 Trash Free Maryland

 Trout Unlimited 

Upper Potomac Riverkeeper

  Upper Susquehanna Coalition

Virginia Conservation Network

Virginia Eastern Shorekeeper

Virginia Interfaith Power and Light

Virginia League of Conservation Voters

Warm Springs Watershed Association

Water Defense

Waterkeepers Chesapeake

West/Rhode Riverkeeper

West Virginia Citizens Action Group

West Virginia Environmental Council

West Virginia Highlands Conservancy

 West Virginia Rivers Coalition

Wicomico Environmental Trust

 

 


 

House CJS Appropriations

PDF Version

March 13, 2018    

The Honorable John Culberson, Chairman

Subcommittee on Commerce, Justice, Science and Related Agencies H-310

The Capitol U.S. House of Representatives Washington, D.C. 20515
 


The Honorable José Serrano, Ranking Minority Member

Subcommittee on Commerce, Justice, Science and Related Agencies

1016 Longworth House Office Building U.S. House of Representatives Washington, D.C. 20515
 


Dear Chairman Culberson and Ranking Member Serrano:


The undersigned members of the Choose Clean Water Coalition request continued support for programs that are essential to maintaining a healthy and vibrant Chesapeake Bay and a strong regional economy that is dependent on the Bay’s resources. The National Oceanic and Atmospheric Administration (NOAA) has a strong and long term presence in the Chesapeake Bay area, and its Chesapeake Bay Office coordinates their efforts with other federal agencies, state and local partners and users of the resource.
The programs that are run and/or coordinated by NOAA’s Chesapeake Bay Office (NCBO) are critical for the Chesapeake Bay ecosystem and for its users and residents. These programs provide the science and management assistance necessary for those whose livelihood is to ply the Bay’s waters for fish, crabs and oysters and to the hundreds of thousands of people who fish recreationally in the Bay every year and to the millions who boat, kayak, and/or view wildlife in the region.
NCBO is also critical for others, from students learning about science with hands-on experiences to local governments and residents along the shore to have the latest information to prepare for coastal flooding and hurricane emergencies.
Utilizing sound science in the management of Chesapeake Bay resources is critical for our regional economy. We request the following funding levels in Fiscal Year 2019: Department of Commerce
National Oceanic and Atmospheric Administration – Chesapeake Bay Office (NCBO) - $9.25 million
The NCBO was established by Congress in 1992 to provide resources, technical assistance and coordination through its two branches: the Ecosystem Science and Synthesis Program, which focuses on applied research and monitoring in fisheries and aquatic habitats; synthesis, and analysis to describe and predict Bay ecosystem processes; and technical assistance to Chesapeake Bay decision makers.
 The second branch is Environmental Literacy and Partnerships Program, which focuses on the development of K-12 and higher education environmental science education programs; strategic partnerships with the Chesapeake Bay Program and other government, university, and nonprofit partners; and delivering NOAA products, services, and programs to targeted audiences.
The Office’s programs play a key role in implementing the voluntary Chesapeake Bay Agreement among the states and is critical to ensuring that commitments are met to:  • restore native oyster habitat and populations in 10 tributaries by the year 2025; • ensure students graduate with the knowledge and skills to protect and restore their local watershed; • sustain a healthy blue crab and striped bass (rockfish) population; and • maintain a coordinated watershed-wide monitoring and research program. The specific breakdown of our request for $9.25 million for the NCBO is as follows: • Oyster Restoration - $4 million The Chesapeake Bay oyster population is less than 1 percent of historic levels and the ecosystem functions associated with oyster reefs, including fish habitat and nitrogen removal, are similarly diminished. NCBO has built on past success to restore entire tributaries, with self-sustaining oyster populations and to measure the resulting ecosystem benefits. NCBO works with federal, state and private partners to plan and implement this tributary-scale restoration in both Maryland and Virginia. Funding for oyster restoration in the Chesapeake was also done through the U.S. Army Corps of Engineers, but they have not received funding in a number of years. Funding for this key program has eroded sharply since FY2010, and without Army Corps funds, NOAA is the only Federal agency left to continue this key restoration program.
 
• Environmental Education and Literacy - $3.5 million NCBO encourages and supports efforts in K-12 and higher education to develop and implement comprehensive environmental literacy programs. NCBO runs the nationally recognized Bay Watershed Education and Training Program (B-WET) - a competitive grant program for hands-on watershed education for students and teacher training to foster stewardship of the Chesapeake Bay. B-WETs funding has steadily eroded since 2010 and should be restored to at least that level.
 
• Fisheries Science and Management - $1 million Recreational and commercial fisheries are among the most valuable economic activities for the coastal communities of the Bay. Fishing pressure, habitat loss, invasive species, degraded water quality, and toxics affect these important fisheries, including striped bass (rockfish), blue crabs, oysters, menhaden and cow-nosed rays. NOAA supports well-managed Chesapeake Bay fisheries and the habitats they depend on by delivering timely ecosystem-based science and forecasts to science and management partners. Historically, the states have looked to NCBO to conduct stock assessments, particularly for blue crabs. Each state
often has its own assessment data, but NOAA’s ability to look at the stocks for the entire Bay is critical. Each stock assessment costs approximately $500,000.
 
• Chesapeake Bay Interpretive Buoy System (CBIBS) - $750,000 The Chesapeake Bay ecosystem is dynamic, and water quality is driven by variable local and regional forces. High quality data is needed to monitor, understand, forecast, and provide information for science-based decisions and needs to be continuously measured and summarized. NCBO maintains the CBIBS, a network of 10 buoys that collects and relays near-real-time data to users. This supports public access to the Bay and boater safety on the water through the Captain John Smith Chesapeake National Historic Trail, administered by the National Park Service.  Thank you for your consideration of these very important requests to maintain funding for programs that are critical to the health of the Chesapeake Bay and its natural resources. 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 the Chesapeake Bay

American Chestnut Land Trust

American Rivers

Anacostia Watershed Society

Audubon Naturalist Society

Audubon Society of Northern Virginia

Back Creek Conservancy

Baltimore Tree Trust

Blue Heron Environmental Network

Blue Ridge Watershed Coalition

Blue Water Baltimore

Cacapon Institute

Capital Region Land Conservancy

Catskill Mountainkeeper

Center for Progressive Reform

Chapman Forest Foundation

Chesapeake Bay Foundation

Chesapeake Legal Alliance

Chesapeake Wildlife Heritage

Clean Fairfax

Clean Water Action

Coalition for Smarter Growth

Conservation Voters of Pennsylvania

Delaware Nature Society

Ducks Unlimited


Earth Force

Earth Forum of Howard County

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation

Elizabeth River Project

Elk Creeks Watershed Association

Environmental Working Group

Friends of Accotink Creek

Friends of Dyke Marsh

Friends of Lower Beaverdam Creek

Friends of Quincy Run

Friends of St. Clements Bay

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

Interfaith Partners for the Chesapeake

James River Association

Lackawanna River Conservation Association

Lancaster Farmland Trust

Lower Susquehanna Riverkeeper

Lutheran Advocacy Ministry in Pennsylvania

Lynnhaven River NOW

Maryland Conservation Council

Maryland Environmental Health Network

Maryland League of Conservation Voters

Maryland Native Plant Society

Mattawoman Watershed Society

Mehoopany Creek Watershed Association

Mid-Atlantic Council Trout Unlimited

Mid-Atlantic Youth Anglers & Outdoor Partners

Montgomery Countryside Alliance

Muddy Branch Alliance

National Aquarium

National Parks Conservation Association

National Wildlife Federation

Natural Resources Defense Council

Nature Abounds

Neighbors of the Northwest Branch

New York League of Conservation Voters

New York State Council of Trout Unlimited

Otsego County Conservation Association

Otsego Land Trust

PennEnvironment

PennFuture

Pennsylvania Council of Churches

Piedmont Environmental Council

Potomac Conservancy

Potomac Riverkeeper

Potomac Riverkeeper Network

Prince William Conservation Alliance

Queen Anne’s Conservation Association

Rachel Carson Council

Rivanna Conservation Alliance

Rivertown Coalition for Clean Air and Clean Water

Rock Creek Conservancy

St. Mary's River Watershed Association

Savage River Watershed Association

Severn River Association

Shenandoah Riverkeeper

Shenandoah Valley Network

ShoreRivers

Sidney Center Improvement Group

Sleepy Creek Watershed Association

South River Federation

Southern Environmental Law Center

Southern Maryland Audubon Society

SouthWings

Sparks-Glencoe Community Planning Council

Susquehanna Heritage

The Downstream Project

Trash Free Maryland

Upper Potomac Riverkeeper

Upper Susquehanna Coalition

Virginia Conservation Network

Virginia Eastern Shorekeeper

Virginia Interfaith Power and Light

Virginia League of Conservation Voters

Warm Springs Watershed Association

Water Defense

Waterkeepers Chesapeake West/Rhode Riverkeeper

West Virginia Citizens Action Group

West Virginia Environmental Council

West Virginia Highlands Conservancy

West Virginia Rivers Coalition

Wicomico Environmental Trust

Offshore Drilling

Comment Letter on Offshore Drilling in the Atlantic

February 27, 2018

The Honorable Ryan Zinke
Secretary of the Interior
Department of the Interior
1849 C Street, NW
Washington, D.C. 20240

Re:      Comments on the 2019-2024 Draft Proposed National Outer Continental Shelf Oil and Gas Leasing Program

Dear Secretary Zinke:

We, the undersigned members of the Choose Clean Water Coalition, urge you to exempt ALL of the states on the Atlantic Coast – not just Florida - from offshore oil and gas drilling and development. This proposal would clearly endanger the nation’s largest and most productive estuary, the Chesapeake Bay, but would also impact valuable estuaries, beaches, fisheries and tourism economies along the entire Atlantic seaboard.

In the Mid-Atlantic, we are keenly aware that any large spill, even one far smaller than the BP Deepwater Horizon disaster, could easily have disastrous consequences for Chesapeake Bay.  For example, Chesapeake Bay is the largest source of blue crabs in the United States. Every year the entire next generation of crabs, in their larval stage, are swept into the Atlantic where they mature before making their way back into the Bay to repopulate the species. An oil spill at this time, when the entire future crab population is vulnerable, could wipe out this valuable economic resource. The crab population is also an integral part of the Bay’s food chain and such an accident could imperil the future of the Bay ecosystem for a generation.

You have exempted Florida from this proposal because of its beaches and estuaries, but we want you to know that it is not unique. Florida is home to four estuaries that have been designated by Congress as having special national significance – though only one is on the Atlantic coastline. However, the rest of the Atlantic Coast, in addition to Chesapeake Bay, has 13 estuaries that are of special national significance and are protected through the National Estuary Program.

The valuable resources – beaches, estuaries, commercial and recreational fisheries, migratory birds and waterfowl, etc. – that abound on the Atlantic Coast are too valuable a resource to endanger by this poorly thought out proposal.  This proposal is opposed by state and local governments up and down the Atlantic coast and local control and deference should lead you to listen to their concerns.

The Chesapeake Bay is also home to two of the largest ports on the East Coast, as well as to Naval Base Norfolk – the largest naval base in the world. Any large-scale offshore oil and gas drilling and development could disrupt commercial shipping from shore-based impacts and impede the readiness of our military - and a catastrophic spill in this area would inhibit the daily functions of this essential military base. The Blue Ribbon Finance Panel established under the Bush Administration concluded that the value of the Chesapeake Bay to the U.S. economy to be worth in excess of a trillion dollars – and that was more than a decade ago. This is a valuable resource and a national treasure that should not be trifled with.

We are very concerned about the potential catastrophic impacts to Chesapeake Bay, and other priceless areas along the Atlantic Coast. We urge you to exempt the entire Atlantic Coast from this shortsighted and dangerous proposal.  Thank you.

 

Anacostia Watershed Society

Audubon Naturalist Society

Baltimore Tree Trust

Blue Heron Environmental Network

Blue Water Baltimore

Chesapeake Climate Action Network

Clean Fairfax Council

Conservation Voters of Pennsylvania

Delaware Nature Society

Earth Forum of Howard County

Friends of Accotink Creek

Friends of Lower Beaverdam Creek

Friends of the Nanticoke River

Interfaith Partners for the Chesapeake

Interfaith Power and Light (DC.MD.NoVa)

Lynnhaven River NOW

Maryland Conservation Council

Maryland Environmental Health Network

Maryland League of Conservation Voters

Mattawoman Watershed Society

Mehoopany Creek Watershed Association

National Parks Conservation Association

National Wildlife Federation

Nature Abounds

Patuxent Tidewater Land Trust

PennFuture

Pennsylvania Council of Churches

Potomac Riverkeeper Network

Rachel Carson Council

Richmond Audubon Society

Rivertown Coalition for Clean Air & Water

Rock Creek Conservancy

Rockbridge Area Conservation Council

Savage River Watershed Association

Severn Riverkeeper

ShoreRivers

Southern Maryland Audubon Society

St. Mary's River Watershed Association

Virginia Conservation Network

Virginia Eastern Shorekeeper

Virginia League of Conservation Voters

Waterkeepers Chesapeake

 

Climate Change and NOx

Climate Change and NOx Letter

February 23, 2018

The Honorable Ben Grumbles
Chairman, Principals’ Staff Committee
Secretary, Maryland Department of the Environment
1800 Washington Blvd.
Baltimore, MD 21230

ben.grumbles@maryland.gov

Via Electronic Mail Only

Dear Secretary Grumbles:

The undersigned members of the Choose Clean Water Coalition want to express their thoughts on two key issues that will be discussed at the Principals’ Staff Committee (PSC) meeting in March. First, is the decision regarding inclusion of the model results of climate change in the Phase III Watershed Implementation Plans (WIPs). Second, is the approach being used to help satisfy West Virginia and New York’s “special case” allocations. 

Inclusion of Climate Change in Phase III WIPs

Members of the Coalition are deeply concerned and disappointed to learn that the PSC was unable to come to a consensus on whether to communicate the Bay modeling estimates of the effects of climate change in the Phase III WIPs. This decision is short-sighted. Inclusion of the model estimates would be an important public acknowledgement of the challenges ahead, could inform near-term strategies for qualitatively addressing climate change impacts in the Phase III WIPs, and would set the stage for future actions.

In addition, in the absence of a definitive commitment to address pollution loads attributable to climate change, it is imperative that the Bay Program partners commit the resources necessary to refine the climate modeling and assessment framework that is needed to support final decision-making in 2022 on how to address climate-attributable pollution loads. In the near term, the Bay Program partners must also commit the resources necessary to investigate the climate resilience and climate co-benefits of restoration practices and to use this information when developing their Phase III WIPs.

Closing the Gap on the “Special Cases”

We also want to express our concern about the approach currently being considered to help close the gap for the “special case” allocations for New York (NY) and West Virginia (WV).  Our issue is not with the additional allocations, per se, as we believe that NY and WV are justified in their request that the agreement reached in 2009, regarding additional allocations, be honored.  Our concern stems from: (1) the reliance on additional NOx reductions that are expected to occur by 2030; and (2) the absence of any consideration that increases in ammonia emissions since 2009 should be offset. 

Reliance on Projected NOx Reductions from State and Federal CAA Regulatory Programs

According to the February 12, 2018 presentation to the Water Quality Goal Implementation Team[1] an additional 1.6 million pounds of nitrogen reductions, almost entirely from NOx reductions, is projected to be available by 2030. These modeled reductions are based on expected benefits from the implementation of state and federal Clean Air Act (CAA) regulatory programs. 

These expected reductions are far from certain.  The Environmental Protection Agency (EPA) has recently proposed to repeal several national regulations, some of which are being relied upon for these reductions. According to the October 31, 2017 webinar hosted by the Chesapeake Bay Program,[2] the future air modeling includes the benefits of the “CAFE Rule” and implementation of the 2015 ozone standard of 70 ppb, among others. Since there was no specific definition given for the “CAFE Rule”, we are interpreting it to apply to regulations that improve automobile fuel economy standards and reduce greenhouse gases.

On August 17, 2017 EPA announced their Reconsideration of Final Determination on the Appropriateness of the Model Year 2022-2025 (and 2021) Light Duty Vehicle Greenhouse Gas Emissions Standards under the Midterm Evaluation.[3]  EPA is reconsidering whether the light-duty vehicle greenhouse gas (GHG) standards previously established for Model Year 2022-2025 are appropriate under Section 202 (a) of the Clean Air Act (CAA) and whether the light-duty GHG standards established for Model Year 2021 remain appropriate. 

In addition, on November 16, 2017, EPA proposed to repeal the emission requirements for glider vehicles, glider engines, and glider kits from GHG standards for heavy-duty trucks.[4] Glider vehicles are new truck bodies that contain older engines. The proposed rule would remove the requirement for these engines to meet emission standards applicable in the year of assembly of the new glider vehicle. 

Failure to implement the Light Duty Vehicle GHG standards and to regulate the glider industry under EPA’s Phase 2 rule could result in the failure to achieve millions of pounds of NOx reductions nationwide and will affect modeled nitrogen reductions in the Chesapeake Watershed.

The EPA has also indicated interest in revisions to the New Source Review rule for power plants.[5] This rule has been a major driver in the significant NOx reductions in the past ten years and changes to the rule could mean expected reductions will not occur. Finally, the implementation of the 2015 ozone standard is also in jeopardy, as EPA missed deadlines for promulgating the initial area of designations related to NAAQS for ozone and final agency action by EPA remains unclear.[6]

These actions, taken together, indicate that the reliance on projected NOx reductions from state and federal CAA regulatory programs is, at best, now in question. It is worth noting that these actions will also result in more emissions of greenhouse gases that contribute to climate change, further exacerbating our Bay restoration challenges.

Increased Ammonia Emissions and Deposition

One reason for the shortfall in expected nitrogen reductions from atmospheric deposition projected during the development of the Chesapeake Bay Total Maximum Daily Load is increases in ammonia emissions and deposition (see figure below taken from slide 39 in the October 31, 2017 air webinar). These increases are due, in part, to increases in ammonia emissions from agriculture (see slide 58). To that end, we note there have been substantial increases in poultry production in several states in the Chesapeake Watershed since 2010 (see table below) and poultry production is a known source of ammonia. Any additional nitrogen loads that resulted from these increases in poultry production should be offset by the states where the increases occurred, in accordance with Appendix S of the Bay TMDL and EPA expectations regarding state procedures to account for new and expanded sources of pollution loads. These additional reductions could be used to help close the gap on the special cases for NY and WV. 

Additional nitrogen loads associated with ammonia from animal operations that occur between 2009 and 2025 could be modeled using a similar approach as that used to estimate NOx benefits. The states responsible for these additional loads would receive a smaller allocation to offset these new loads. 

We sincerely thank you and the rest of the Principals’ Staff Committee for your leadership on Bay restoration and thoughtful consideration of our input.  In addition, we welcome the opportunity to work with you and the other Chesapeake Bay Program partners in the coming months on the development of quality Phase III WIPs. Please contact Chante Coleman at 443-927-8047 or colemanc@nwf.org with any questions or concerns.

Sincerely,

Anacostia Watershed Society

Audubon Naturalist Society

Center for Progressive Reform

Chesapeake Bay Foundation

Coalition for Smarter Growth

Conservation Voters of Pennsylvania

Delaware Nature Society

Earth Forum of Howard County

Friends of Accotink Creek

Friends of Lower Beaverdam Creek

Friends of St Clements Bay

James River Association

Maryland Conservation Council

Maryland Environmental Health Network

Maryland League of Conservation Voters

Mattawoman Watershed Society

Mid-Atlantic Youth Anglers & Outdoors Partners

National Parks Conservation Association

National Wildlife Federation

Natural Resources Defense Council

Nature Abounds

PennFuture

Pennsylvania Council of Churches

Potomac Conservancy

Rachel Carson Council

Rivertown Coalition for Clean Air & Water

Savage River Watershed Association

Shenandoah Valley Network

Sleepy Creek Watershed Association

Southern Maryland Audubon Society

St. Mary's River Watershed Association

Virginia Conservation Network

Virginia League of Conservation Voters

Waterkeepers Chesapeake

West Virginia Rivers Coalition

Wetlands Watch

 

 

 

cc:       Members, Principals’ Staff Committee, CBP

Jim Edward, Chair, Management Board

            James Davis-Martin, Co-Chair, Water Quality Goal Implementation Team

Dinorah Dalmasy, Co-Chair, Water Quality Goal Implementation Team

            Mark Bennett, Chair, Climate Resiliency Workgroup

Rich Batiuk, Associate Director of Science, Analysis and Implementation, CBP

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] https://www.chesapeakebay.net/channel_files/25896/attachment_c1_update_on_bay_assimilation_analysis_for_ny__wv_special_cases.pdf

[2] https://www.chesapeakebay.net/channel_files/25651/atmo_dep_webinar_draft_11-1-17.pdf

[3] https://www.gpo.gov/fdsys/pkg/FR-2017-08-21/pdf/2017-17419.pdf

[4] https://www.gpo.gov/fdsys/pkg/FR-2017-11-16/pdf/2017-24884.pdf

[5] https://www.utilitydive.com/news/epa-to-drop-key-new-source-review-enforcement-provision/512825/

[6] https://www.epa.gov/ozone-designations/ozone-designations-regulatory-actions

Conowingo Hydroelectric Project, Application for Water Quality Certification, Application

PDF Version of Letter

January 15, 2018

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

Ben Grumbles, Secretary
Maryland Department of the Environment
1800 Washington Boulevard
Baltimore, Maryland 21230           

Elder Ghigiarelli, Jr., Deputy Program Administrator
Wetlands and Waterways Program
Maryland Department of the Environment
1800 Washington Boulevard, Suite 430
Baltimore, Maryland 21230

Re: Conowingo Hydroelectric Project, Application for Water Quality Certification, Application # 17-WQC-02

Dear Governor Hogan, Secretary Grumbles, and Deputy Program Administrator Ghigiarelli:

Please accept the following comments from the undersigned members of the Choose Clean Water Coalition on Exelon Generation Company’s (hereafter, Exelon) application for Clean Water Act (CWA) Section 401(a)(1) Water Quality Certification. Exelon is requesting this certification as a necessary precondition of its related application to the Federal Energy Regulatory Commission (FERC) for a new 50-year license for the continued operation of the Conowingo Dam Project. Collectively, our groups represent hundreds of thousands throughout the Chesapeake Bay watershed interested and directly affected by the Maryland Department of the Environment's (MDE) decision to grant water quality certification to Exelon. On behalf of the undersigned members, we urge you to ensure that Exelon plays a large role in mitigating the significant pollution to the Chesapeake Bay that comes from the Susquehanna River and the Conowingo Dam.

We recognize that the Conowingo Dam has played a crucial role in curtailing the sediment pollution that travels down the Susquehanna River and eventually reaches the Bay. However, over time, the Dam’s ability to trap pollution has diminished due to sediment build up behind the Dam. As studies have demonstrated that the Dam itself has the ability to negatively impact water quality, Maryland must ensure that impacts of Conowingo Dam’s operations on downstream water quality are addressed and mitigated as part of the new operating permit. 

Furthermore, Maryland cannot count on FERC to impose conditions needed to prevent or offset Project-induced scouring of sediment and associated nutrients concentrated behind the Dam.[1] Unless Maryland imposes such conditions, its water quality goals and pollution control measures would be undermined by catastrophic sediment and nutrient discharges during one or more predicted high-flow events during the requested license period.[2]

Exelon has failed to provide sufficient information about the current and future effects of the Conowingo facility’s ongoing operation on water quality, and has failed to propose measures to offset those effects. Exelon has also failed to account for the additive effects of climate change upon sediment scouring, and Maryland must consider these impacts in its certification analysis.

We therefore urge Maryland to impose conditions requiring Exelon to participate as a financial partner in a specific plan[3] for large scale pollution reduction projects, on-the-ground restoration projects, best management practices – such as, funding the planting and maintenance of forests and riparian buffers - and other projects to reduce upstream pollution and mitigate downstream impacts in order to maximize the likelihood that applicable water quality standards and other CWA requirements will eventually be met. In addition, as explained below, the permit must include provisions for periodic review to evaluate the progress of these measures, their effects, and the availability of new monitoring data and pollution control technologies. If MDE chooses not to impose strong conditions on this certification, Maryland should deny the application outright due to its deficiencies.                                   

1. Legal Background

Application & Procedure

Section 401 of the CWA gives states the authority to review any federally-permitted or licensed activity that may result in a discharge to navigable waters, and to condition the permit or license upon a certification that any discharge will comply with key provisions of the CWA and appropriate state laws.[4]  These provisions include Sections 301, 302, 303, 306 and 307.[5] This expansive certification authority preserves a substantial role for the states in protecting water quality, even when permitting authority lies solely in federal hands. When Section 401 applies to a project due to a potential discharge, the certification process applies to the “activity as a whole,” relating in any way to the existing or proposed discharge.[6] In the case of a hydroelectric Dam project, for example, a certifying state must apply the certification process to a wide range of actions such as the trapping of nutrients and sediment behind the Dam, changes to stream flow and water temperature, increases in total dissolved gas levels below the Dam, and the release of sediments and nutrients below the Dam during both routine operation and increasingly common storm events.[7]

Section 401(d) of the CWA directs states to include in their certifications any effluent limitations, monitoring requirements, and other limitations and conditions in order to ensure that any discharge will comply with all applicable federal and state water quality laws. Of particular relevance to the license application for the Conowingo Dam are Sections 302 (federal water quality related effluent limitations) and 303 (state water quality standards, implementation plans and total maximum daily loads (TMDLs)), and corresponding provisions of Maryland law.[8]

If a proposed license or project will not comply with the applicable laws, a state must either deny a Section 401 certification, or conditionally grant certification with “any effluent limitations and other limitations, and monitoring requirements necessary to assure” compliance with the law.[9]  If a state denies certification, the federal permit or license for the project may not be issued. In this way, Section 401 grants states the authority to halt projects that illegally harm water quality. Alternatively, in cases where specific permit conditions would ensure compliance with the law, a state may conditionally grant certification and these conditions would become binding limitations on the permit or license.[10]

Scope of Authority to Impose Conditions

States have extensive authority to deny or impose conditions during the Section 401 certification process. As EPA has explained in recent guidance, “[c]onsiderations can be quite broad so long as they relate to water quality,” and “[c]ertification may address concerns related to the integrity of the aquatic resource and need not be specifically tied to a discharge.”[11] In addition to ensuring compliance with the statutorily enumerated provisions of the CWA (Sections 301, 302, 303, 306 and 307), certifying states must assure compliance with “any other appropriate requirement of State law.”[12] Courts have consistently interpreted this provision to mean that all state water quality standards must be satisfied.[13] State water quality standards include designated uses for water bodies,[14] as well as the quantitative (numeric) and qualitative (narrative) criteria needed to achieve the designated uses,[15] and anti-degradation.[16] Therefore, certifying states have the obligation to ensure compliance with both numeric and narrative water quality standards and the TMDLs used to achieve compliance with them, and use designations established to protect recreational uses and aquatic life.[17] Indeed, courts have repeatedly allowed certifying states to deny certifications based on the need to comply with state water quality standards, including non-quantitative standards such as the protection of aquatic life and shellfish habitat.[18]                                     

In the case of Exelon’s application for certification, the legal mandate to expansively enforce all state water quality standards prevents Exelon from simply relying on the Chesapeake Bay TMDL to absolve itself of any obligation to address the sediment pollution from the Dam. The Chesapeake Bay TMDL does not include a wasteload or load allocation to accommodate discharges of sediment or nutrients scoured from behind the Dam, and does not purport to relieve Exelon of its responsibility for such discharges. MDE must instead look beyond the TMDL and independently ensure that the project’s sediment discharges do not interfere with attainment of the Chesapeake Bay TMDL, or with the designated uses which ensure support of estuarine and marine aquatic life and shellfish harvesting.[19] MDE must also ensure compliance with Maryland’s narrative water quality standards, which prohibit pollution by any material in an amount that would “[c]hange the existing color to produce objectionable color for aesthetic purposes” or “[i]nterfere directly or indirectly with designated uses,” among other things.[20] In other words, MDE may not grant Section 401 certification unless it imposes conditions which prevent the violation of all numeric and narrative water quality standards, and all designated uses.

2. MDE Should Either Deny Certification or Establish Conditions on its Certification Sufficient to Offset Project-Induced Effects on Nutrient and Sediment Discharges.

Because the enormous quantity of sediment accumulated behind the Conowingo Dam is subject to massive overflow in the event of major storm events, causing catastrophic damage, there is no way that MDE can issue a certification that operation of the Dam and resulting discharges during the life of the requested operating license will at all times comply with applicable water quality standards, TMDLs and other requirements. Therefore any Section 401 certification for the Conowingo Dam Project should include conditions requiring Exelon to play a role in the cleanup efforts for the Conowingo Reservoir. While it is true that the origin of the sediment and nutrients from behind the Dam is mostly from upstream of Conowingo, the Dam does alter the form of these sediments and nutrients and the timing by which they enter the Chesapeake Bay.[21] For example, the Dam changes the grain size profile of downstream sediments, preferentially passing finer sediments that tend to stay in suspension longer, with potential negative effects on downstream water clarity and underwater grasses. Coarser materials are preferentially retained by the Dam, again with negative downstream impacts as these materials are needed to build and protect desirable habitats, like islands and shorelines, for fish spawning and rearing, mussels and Submerged Aquatic Vegetation. These are all incremental impacts directly, indirectly, or cumulatively caused by Conowingo Dam’s impoundment and artificial release of the Susquehanna River.                                       

In addition to these impacts, scouring events caused by high flows mean more nutrients and sediments will flow downstream than are attributed to upstream sources. The Dam has historically trapped an average of 50-67% of the annual sediment load (1.5 to 2 million tons),[22]  along with the nitrogen and phosphorus attached to the trapped sediment. If not for the Conowingo Dam, this load would have been delivered to the lower Susquehanna River and Chesapeake Bay at normal rates. The Dam and its reservoir have produced an enormous artificial repository of sediment and associated nutrients that can be scoured by high flow events, re-mobilized, and delivered downstream by large storm-induced flows.[23] These scoured loads produce additional pollutant loads at times when the downstream receiving waters are already vulnerable, receiving their heaviest loads of suspended pollution from the Susquehanna River watershed.[24]

A recent study from the University of Maryland Center for Environmental Science (UMCES) shows increased mobilization of harmful nutrients during these scour events.[25] As explained in the study, much of the phosphorus released during scour is, initially, in a form that is not bioavailable (due to binding with iron). However, some particles do settle in the mid-Bay and others are eventually transported there. Under conditions in the mid-Bay, particularly anoxia, this phosphorus can become available for uptake by phytoplankton and, therefore, can contribute to eutrophic conditions, including depressed dissolved oxygen. There is a substantial amount of adsorbed ammonium in the sediments behind the Dam, at concentrations exceeding those in similar sediments downstream. This ammonia will be mobilized during scour events adding nitrogen loads to downstream waters.                              

The threshold flow needed to produce scouring will be surpassed many times during the requested license period.[26] Scoured loads deliver much greater quantities of sediment and nutrients to the Chesapeake Bay than the natural loading that would have occurred during the same flow events had the Project not been in place. Particularly in the case of very large storms – such as 25-year, 50-year, 75-year, and 100-year return interval flow events, for which there is a substantial to reasonable likelihood of occurrence during the requested license period, as discussed below – project- induced scouring could overwhelm pollution reductions undertaken upstream in the lower Susquehanna River watershed.

The effects of climate change will also likely lead to more frequent and severe scouring events at the Project. Over the past century or so, the Northeast (including the Chesapeake Bay region) has experienced increases in the average annual temperature, amount of precipitation, and amount of extreme precipitation events, and these trends are expected to continue and strengthen in the coming years due to climate change.[27] These significant climate-related impacts must be considered by MDE during the certification process because they will likely increase the predicted levels of scouring threshold exceedances that were originally assumed for the Project.                                               

MDE cannot rely on the Chesapeake Bay TMDL to account for the effects of climate change, and must independently analyze the best available climate projections for the region in order to account for these additive impacts. Fundamentally, MDE has a legal obligation to consider more than mere TMDL compliance (or noncompliance) because MDE must also analyze whether the Project as a whole will interfere with the river’s designated uses[28] and narrative water quality standards under the expected climate conditions in the coming decades. The Chesapeake Bay TMDL does not analyze the effects of the Conowingo Dam on Maryland’s state water quality standards under any conditions, much less under the projected future climate in the Northeast, and this climate analysis is an essential component of the state certification process. Furthermore, any increases in nutrient and sediment pollution from the Dam due to climate change were simply not considered in the Chesapeake Bay TMDL.

The TMDL’s assumptions about pollution levels did not account for the additive effects of climate change. In fact, only a very vague and preliminary assessment of climate change was completed for the Chesapeake Bay TMDL as a whole in 2010, due to limitations in the modeling that was available at the time.[29] Although the TMDL’s Midpoint Assessment is incorporating more up-to-date information about the impacts of climate change,[30] it remains unclear precisely how climate change impacts will change the TMDL load allocations, if at all.[31] Moreover, there are no indications the Midpoint Assessment will consider the impacts of climate change on the Conowingo Dam’s specific effects. MDE must complete its own, independent analysis of the effects climate change will likely have on the Conowingo Dam Project’s impacts to Maryland’s water quality standards. This is consistent with the “Goals and Outcomes” in the Chesapeake Watershed Agreement of 2014, p. 14, which call on the Bay Partners to address the need for “climate resiliency.” In the Agreement the Bay Partners committed to, among other things, “pursue, design and construct restoration and protection projects to enhance the resiliency of Bay and aquatic ecosystems from the impacts of coastal erosion, coastal flooding, more intense and frequent storms and sea level rise.” These objectives must be considered by MDE and Exelon in the context of any license renewal for the Conowingo Dam.

Finally, the Lower Susquehanna River Watershed Assessment (LSRWA) had some key findings in terms of the Dam’s effects on dissolved oxygen, water clarity, and chlorophyll a concentrations (See Attachment 1) - as outlined in the attached Comment from the Chesapeake Bay Foundation (See Attachment 2). We also attached a letter from Waterkeepers Chesapeake and an independent third-party review that further discusses this issue in detail (See Attachment 3).

3. Recommendations                                            

Under the CWA, Maryland is responsible for setting forth any effluent limitations or any other conditions or limitations and monitoring requirements that may be necessary to assure compliance with the Act, including applicable water quality standards and the Chesapeake Bay TMDL. In order to preserve the state’s water quality standards, the state must address two separate problems - the sediment that is trapped in the Dam’s reservoir and the sediment now flowing through the Dam due to its inability to trap any more sediment. Any Section 401 certification issued to support a renewed FERC license for the Conowingo Dam Project must include: (1) a number of conditions requiring Exelon to contribute financially to a specific mitigation and cleanup plan; (2) a detailed analysis of the effects of climate change; (3) a detailed analysis of the Conowingo Dam dredging pilot project that considers the potential water quality effects of adsorbed ammonia in Conowingo Reservoir that would be released during dredging; and (4) adaptive management to take into account changing conditions and pollution reduction technologies that will occur during the life of the license, as discussed below.

The mitigation and cleanup plan should include large scale pollution reduction projects, on-the-ground restoration projects, best management practices, and other projects to reduce upstream pollution and mitigate downstream impacts. For instance, measures could include financial assistance for nutrient reduction projects upstream of the Dam, in Maryland, Pennsylvania, and New York such as agricultural conservation practices, wastewater treatment plant upgrades, green infrastructure, and restoration of the system’s “natural filters” (i.e., propagation of freshwater mussels and oyster restoration downstream). The goal is to have mitigation efforts in place to ensure pollution reductions equivalent to the maximum amounts of nutrients estimated to be associated with sediments scoured from behind the Dam and any additional pollution produced as a result of the Dam’s presence and operation.

We recommend that MDE require a number of cleanup actions as a condition on the license because one type of cleanup effort alone will not be enough. In assessing whether to dredge behind Conowingo Dam as one cleanup option, MDE must consider the potential water quality effects of adsorbed ammonia in the reservoir that would be released during dredging. We recommend that additional modeling scenarios be run with the new information from the Conowingo Dam dredging program, along with a review of other recent studies, about the fate, transport, form, and concentrations of nutrients and sediments from the Conowingo Reservoir, to assess the impact on water quality standards attainment. The State must act fast - if Maryland does not deal with the trapped sediment behind the Dam, all of our efforts to clean up the bay and meet the state’s 2025 TMDL goals could be devastated by one major storm. Maryland cannot wait to start these cleanup efforts – Maryland must partner with Exelon and other stakeholders and start the process now. Exelon must contribute financially to a specific plan for removing sediment and must act as a partner in implementing other remedial measures.

Finally, the certification must require that the measures to reduce or eliminate pollution, including sediment overflow that are incorporated into the license reflect the need for adaptive management. Experience in working to restore the Bay and its watershed over the past several decades has taught us that as we proceed, new information becomes available, new pollution control measures will become available, and measures that today seem prohibitively expensive may become cost-effective in the future. For example, if beneficial reuse of dredged material from behind the Dam becomes a possibility, then enormous opportunities to reduce and prevent pollution will become available. Other new technologies not yet known will certainly emerge, and as performance monitoring data becomes available we will become smarter about which measures are most cost-effective. This is why in the Principles laid out on the first page of the Chesapeake Watershed Agreement of 2014 the Partners committed to “[a]daptively manage at all levels of the Partnership to foster continuous improvement” (emphasis in original).

In the context of the 50-year lifetime of the anticipated license renewal for the Conowingo Dam, we recommend that the certification require as a condition of the license that the pollution control strategy be revisited at least every five years at which point the licensee, MDE and other interested parties will conduct a comprehensive assessment of the performance of the pollution control measures then in place, and opportunities to employ new technologies and measures, and accomplish the goals of pollution reduction and prevention as cost-effectively as possible so as to get the greatest environmental protection for the funds expended. Because of the importance of the Dam to the entire community, there should be an opportunity for public participation and opportunity for comment. Universities and other sources of expertise should be included in the review process.

If MDE chooses not to impose strong conditions on this certification, Maryland should deny the application outright due to its deficiencies.[32]

We thank you for the opportunity to comment on this important state action.

Sincerely,

American Canoe Association

American Rivers

Anacostia Watershed Society

Audubon Naturalist Society

Blue Water Baltimore

Coalition for Smarter Growth

Delaware Nature Society

Earth Forum of Howard County

Eastern Pennsylvania Coalition for Abandoned Mine Reclamation

Elk Creeks Watershed Association

Float Fishermen of Virginia

Friends of Accotink Creek

Friends of Lower Beaverdam Creek

Friends of St. Clements Bay

Friends of the Middle River

Friends of the Nanticoke River

Friends of the Rivers of Virginia

Lower Susquehanna Riverkeeper

Maryland Conservation Council

Maryland Environmental Health Network

Maryland League of Conservation Voters

Middle Susquehanna Riverkeeper

Nanticoke Watershed Alliance

National Parks Conservation Association

National Wildlife Federation

Natural Resources Defense Council

Nature Abounds

PennFuture

Pennsylvania Council of Churches

Piedmont Environmental Council

Potomac Conservancy

Potomac Riverkeeper Network

Protecting Our Waters

Rachel Carson Council

Rivertown Coalition

Rockfish Valley Foundation

Savage River Watershed Association

Shenandoah Valley Network

ShoreRivers

Sierra Club - Maryland Chapter

Southwings

St. Mary’s River Watershed Association

Virginia Conservation Network

Virginia League of Conservation Voters 

Waterkeepers Chesapeake

West Virginia Rivers Coalition

 

 

[1] Final Multi-Project Environmental Impact Statement for Hydropower Licenses, Susquehanna River Hydroelectric Projects (March 2015) at 139.        

[2] See USGS, et al., Lower Susquehanna River Watershed Assessment, Maryland and Pennsylvania at 65, Table 4-3 (May 2015) (hereafter “LSRWA”), http://dnr.maryland.gov/waters/bay/Documents/LSRWA/Reports/LSRWAFinalMain20160307.pdf (setting forth the annual exceedance probability for various return interval flow events, with expected flow estimates for the flow gauge at Conowingo Dam).

[3] This plan needs to account for the removal of at least 4 million tons of sediment from the Conowingo reservoir annually until 100 million tons are removed. The same level of sediment must be maintained thereafter.

[4] 33 U.S.C. § 1341(a)(1).

[5] 33 U.S.C. §§ 1311, 1312, 1313, 1316 and 1317. For convenience the Section numbers of the Act, rather than U.S. Code citations, are used.

[6] PUD No. 1 of Jefferson County v. Washington Dept. of Ecology, 511 U.S. 700, 712 (1994).

[7] Due to climate change, it is predicted that all parts of the U.S. will see increases in storm intensities, and the Northeast will also experience a 58% increase in the average number of days with very heavy precipitation. Garfin et al., Assessment of Climate Change in the Southwest United States: A Report Prepared for the National Climate Assessment (2013), at 6, 8, http://www.swcarr.arizona.edu/sites/all/themes/files/SW-NCA-color-FINALweb.pdf; Hall and Stuntz, Climate Change and Great Lakes Water Resources (Nov. 2007) at 6-7, http://online.nwf.org/site/DocServer/Climate_Change_and_Great_Lakes_Water_Resources_Rep ort_FI.pdf.

[8] 33 U.S.C. § 1341(a)(1), (d).

[9] Id. § 1341(d).

[10] Id. § 1341(d), (a)(1).

[11] 33 U.S.C. § 1341(a)(1) (stating that certification is required when an activity “may” result in a discharge); see also U.S. EPA, Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes (2010) at 4, https://www.epa.gov/sites/production/files/2016-11/documents/cwa_401_handbook_2010.pdf (“EPA § 401 Guidance”).          

[12] 33 U.S.C. § 1341(d).

[13] See, e.g., PUD No. 1 of Jefferson Co., 511 U.S. 700 (holding that state water quality standards, including minimum stream flow requirements, should be enforced through § 401 certifications).

[14] 40 C.F.R. § 131.10.

[15] Id. § 131.11.

[16] Id. § 131.12.

[17] Anacostia Riverkeeper Inc. v. Jackson, 798 F. Supp. 2d 210, 238 (D.D.C. 2011) (holding that a state’s total maximum daily loads for a water body must ensure protection of all state water quality standards, including all designated uses and water quality criteria, in order to satisfy the CWA).

[18] See, e.g., AES Sparrows Point LNG v. Wilson, 589 F.3d 721, 733 (4th Cir. 2009); Islander East Pipeline Co., LLC v. McCarthy, 525 F.3d 141 (2d Cir. 2008).

[19] See COMAR 26.08.02.08(B) (designating the Susquehanna as Class I-P and Class II in various segments); COMAR 26.08.02.02 (designating Class II waters as “Support of Estuarine and Marine Aquatic Life and Shellfish Harvesting”).

[20] COMAR 26.08.02.03.                      

[21] Lawrence P. Sanford, Stephanie Barletta, UNCES Horn Point Laboratory, Cambridge, MD, Grace Massey, Kelsey Fall, Virginia Institute of Marine Science, Gloucester Point, VA. The Impacts of Conowingo Particulates on the Chesapeake Bay: Suspended Particle Size, Settling and Transport. UMCES Contribution TS-705-17. Final Report to Exelon Generation and Gomez and Sullivan, July 2017; see also Cornwell, J., M. Owens, H. Perez, and Z. Vulgaropulos. 2017. The Impact of Conowingo Particulates on the Chesapeake Bay: Assessing the Biogeochemistry of Nitrogen and Phosphorus in Reservoirs and the Chesapeake Bay. UMCES Contribution TS-703-17. Final Report to Exelon Generation and Gomez and Sullivan. July 28, 2017.

[22] See Final Study Report: Sediment Introduction and Transport Study: RSP 3.15 (Aug. 2012) at 11, 14-15 (“FSR 3.15”), http://mde.maryland.gov/programs/Water/WetlandsandWaterways/Documents/ExelonMD/FERC /Conowingo-FRSP-3.15.pdf; id. at 58 tbl.3.2-1 (citing Michael J. Langland, Bathymetry and Sediment-Storage Capacity Change in Three Reservoirs on the Lower Susquehanna River, 1996- 2008 (2009) (hereafter “Langland (2009)”): sediment accumulation rate for 1996-2008 was 1.5 million tons/year; for 1959-2008 average rate was 2 million tons/year); see also FSR 3.15 app. F at 5 (Exelon’s bathymetric survey of Conowingo Pond, estimating 1.45-1.69 tons deposited annually based on 2008-2011 average).

[23] See FSR 3.15 at i, 10-11; Michael J. Langland & Robert A. Hainly, Changes in Bottom- Surface Elevations in Three Reservoirs on the Lower Susquehanna River, Pennsylvania and Maryland, Following the January 1996 Flood—Implications for Nutrient and Sediment Loads to Chesapeake Bay (1997) (hereafter, “Langland & Hainly (1997)”); Langland (2009); Robert M. Hirsch, Flux of Nitrogen, Phosphorus, and Suspended Sediment from the Susquehanna River Basin to the Chesapeake Bay during Tropical Storm Lee, September 2011, as an Indicator of the Effects on Reservoir Sedimentation on Water Quality (2012) (hereafter “Hirsch (2012)”).

[24]LSRWA at 78 (noting that proportion of scoured sediment loads increases with higher flows); id. Table 4-7 (Scour and Load Predictions for Various Flows in Conowingo Reservoir).

[25] Cornwell, J., M. Owens, H. Perez, and Z. Vulgaropulos. 2017. The Impact of Conowingo Particulates on the Chesapeake Bay: Assessing the Biogeochemistry of Nitrogen and Phosphorus in Reservoirs and the Chesapeake Bay. UMCES Contribution TS-703-17. Final Report to Exelon Generation and Gomez and Sullivan. July 28, 2017.            

[26]  LSRWA at 65, Table 4-3.

[27] Kunkel, K. E., L. E. Stevens, S. E. Stevens, L. Sun, E. Janssen, D. Wuebbles, and J. G. Dobson, 2013: Regional Climate Trends and Scenarios for the U.S. National Climate Assessment: Part 9. Climate of the Contiguous United States, NOAA Technical Report NESDIS 142-9, available at https://scenarios.globalchange.gov/sites/default/files/NOAA_NESDIS_Tech_Report_142-1- Climate_of_the_Northeast_U.S_1.pdf (“Kunkel et al.”); see also Raymond Najjar, Climate Change in the Northeast U.S.: Past, Present, and Future, The Pennsylvania State University, Chesapeake Climate Projections Workshop, March 7-8, 2016, available at http://www.chesapeake.org/stac/presentations/258_Najjar%20Climate%20Chesapeake.pdf (“Najjar”).

[28] See, e.g., 33 U.S.C. § 1341(d); PUD No. 1 of Jefferson Co. v. Wa. Dep’t of Ecology, 511 U.S. 700 (1994) (holding that state water quality standards, including minimum stream flow requirements, should be enforced through § 401 certifications); Anacostia Riverkeeper Inc. v. Jackson, 798 F.Supp.2d 210, 238 (D.D.C. 2011) (holding that a state’s total maximum daily loads for a water body must ensure protection of all state water quality standards, including all designated uses and water quality criteria, in order to satisfy the CWA); AES Sparrows Point LNG v. Wilson, 589 F.3d 721, 733 (4th Cir. 2009); Islander East Pipeline Co., LLC v. McCarthy, 525 F.3d 141 (2d Cir. 2008); see also supra part I.C of these comments.

[29]EPA, Chesapeake Bay TMDL, App. E, https://www.epa.gov/sites/production/files/2015- 02/documents/appendix_e_climate_change_final.pdf.

[30] EPA, Chesapeake Bay TMDL 2017 Mid-Point Assessment: Guiding Principles and Options for Addressing Climate Change Considerations in the Jurisdictions’ Phase III Watershed Implementation Plans (Dec. 13, 2016), http://www.chesapeakebay.net/channel_files/24456/ii.f._climate_options_for_phase_iii_wips_cr wg_briefing_document_12.13.16.pdf.               

[31] See, e.g., Chesapeake Bay TMDL 2017 Midpoint Assessment Policy Options and Implementation Considerations for Addressing Climate Change in Jurisdictions’ Phase III Watershed Implementation Plans (Sept. 6, 2017) (noting that the relevant committee has not yet decided whether to change the TMDL’s quantitative load allocations to account for the impacts of climate change), available at https://www.chesapeakebay.net/channel_files/25446/mpa_climate_change_policy_option_briefi ng_memo_wqgit_090617.pdf.

[32] See attached comment from Waterkeepers Chesapeake on the application’s deficiencies.