Chesapeake Bay Program Partnership

25 Years and Still a Long Way to Go:

Why We Must Go a More Regulatory Route and What’s Going

to be DifferentFebruary 20, 2009

All The ‘State of the Bay’ Reports Have the Same Bottom-line

“…the Bay’s health remains degraded.”

Sources: UMCES 2008, CBP 2008, CBF 2007

Impaired Water

In 2002, over 90% of the Bay and its tidal rivers were impaired due to low dissolved oxygen levels and poor water clarity, all related to nutrient and sediment pollution.

Without oxygen and grasses, the Bay’s crabs, oysters, and fish cannot survive and thrive.

Source: U.S. EPA 2002

2007 Bay Health Summary

• Most of the Bay’s waters are degraded—less than one-third of Bay water quality goals are being met.

• The Bay’s critical habitats and food webs are currently at about a third of desired levels.

• Many of the Bay’s fish and shellfish populations are below historic levels.

Source: CBP 2008

Extensive low to no dissolved

oxygen conditions persist throughout

the Chesapeake Bay and its Tidal

Tributaries

Source: www.chesapeakebay.net/data

Bay Restoration: About 50% of Actions

Taken

Source: CBP 2008

0

50

100

150

200

250

300

350

400

1985 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

TN

(M

illi

on

LB

S/Y

R)

Cap Load Allocation

At Current Rate of Implementation, We are Not Going to Achieve Our WQ Goals by 2010

Source: CBPO 2008

Nitrogen Loads to the Bay Still Above the 175 Million Lbs Basinwide Loading Cap

Nitrogen Cap Load

Monitoring-based estimates for major rivers and below fall-line wastewater treatment facilities plus model-based estimates for coastal plain portion of watershed.

Phosphorus Loads to the Bay Still Above the12.8 Million Lbs Basinwide Loading Cap

Phosphorus Cap Load

Monitoring-based estimates for major rivers and below fall-line wastewater treatment facilities plus model-based estimates for coastal plain portion of watershed.

Our Rivers are Running Cleaner…But Still Aren’t Clean Enough

Source: CBP 2008

So, Why a Bay TMDL Now?• Impaired waters: over 90% of Bay and tidal rivers

– EPA Policy requires development of a TMDL within 8-13 years of listing waterbody as impaired

– Bay waters and tidal tributaries were listed as impaired on 303(d) lists in 1998 by MD, VA, DE, DC

• Legal obligations: Lawsuit settlements (consent decrees) with VA and DC and MOU between MD and EPA resulted in 2010/2011 deadlines

• Accelerate implementation: use latest science and increased accountability to expand implementation and speed up Bay restoration

TMDL 101: Required Elements

TMDL = WLA + LA + MOS

– WLA = Waste Load Allocation to Point Sources and NPDES-regulated Stormwater Discharges

– LA = Load Allocation to Nonpoint Sources

– MOS = Margin of Safety against uncertainties

TMDLs must also:

– Address critical conditions and seasonality

– Include public review and participation

– Be designed to achieve applicable Water Quality Standards

Sorry, but this just ain’t like your Mama’s

TMDL!

So What’s Different?• Scope

• Allocation Scale

• Accountability

• Consequences

• Adaptive

• Implementation-focused

What’s the Scope of the Bay TMDL?

• Entire watershed

• Nutrients, sediments

• All sources

• Oxygen, clarity/Bay grasses, algae

• All impaired tidal water segments

• Clean Water Act requires a TMDL for each impaired waterbody

• States, DC have listed Bay tidal waters on the basis of designated use by tidal Bay segments

Impaired Segments

• Maryland will have 51 TMDLs –one for each impaired tidal segment

• Each TMDL will address all sources within the watershed directly draining into the impaired tidal Bay segment

Who’s Developing the Bay TMDL?• EPA: given interstate waterbody, watershed

– Six state watershed with four jurisdictions sharing tidal waters

– Ex. NY loads influence MD and VA bay water quality conditions

• Watershed jurisdictions are all at the table actively contributing, providing input at each step

• Local governments and interested public have a key role in crafting next generation of implementation plans and helping ensure future reduction actions can meet states’ Bay water quality standards

Major River Basin

Major River Basin by

Jurisdiction

Jurisdiction Tributary

Strategy Basin

Agreed to by the Chesapeake Bay Program Partners

Scale of allocations: 2003

Partners’ Decision

County

Impaired Segment

State

County Segment

Tributary Basin

Starting point from Bay watershed model…

…leading to various aggregations of county segments.

Airshed Model Watershed Model Estuary Model

Chesapeake Bay Program Past Modeling Structure

Do we have the right scale of data?

Airshed Model Watershed Model Estuary Model

New Generation of the Partnership’s Bay Models

Yes We Do…

… and Then Some

Phase 4 Watershed Model Phase 5 Watershed Model

Assurance Reductions Can be Made

TMDL Document:•Set long-term restoration goals•Set total nutrient and sediment caps•Wasteload and load allocations•Possible allocations at finer scales•Reference other parts of package

Short-term and intermediate benchmarksto assess progress and inform adaptive management

Annual or biennialaccountability assessment with contingencies for not meeting benchmarks

Bay Program partner commitments through compact, MOU or other vehicle to implement restoration measures and impose contingencies as needed

Transparency through publicly-accessible system that identifies goals and tracks implementation

Effectiveness monitoringto verify compliance and assess implementation actions

Revised tributary strategieswith new caps, inventory of current implementation capacity, gap analysis, and possible subdivision of allocations

TMDL Document:•Set long-term restoration goals•Set total nutrient and sediment caps•Wasteload and load allocations•Possible allocations at finer scales•Reference other parts of package

Short-term and intermediate benchmarksto assess progress and inform adaptive management

Annual or biennialaccountability assessment with contingencies for not meeting benchmarks

Bay Program partner commitments through compact, MOU or other vehicle to implement restoration measures and impose contingencies as needed

Transparency through publicly-accessible system that identifies goals and tracks implementation

Effectiveness monitoringto verify compliance and assess implementation actions

Revised tributary strategieswith new caps, inventory of current implementation capacity, gap analysis, and possible subdivision of allocations

Four Key Questions:

• What needs to be done?

• Who will be doing it at the state and local scale?

• How will it be done?

• By when will it be done?

Answers in the next generation implementation plans!

What Consequences?• Built into the reasonable assurance

framework– To be spelled out by EPA within the Bay TMDL– Asking for contingencies—what’s plan B– Driving an adaptive approach—discard what’s

not working and ramp up to the next level

• Integral component of the 2-year milestones– Must make up for what’s not achieved and

make mid-course changes to implementation

We Gotta Adapt!

Select Areas

To Enhance Actions

IdentifyPartner

Activities and

Resources

OptimizeActions

Understand Change to

Adjust Actions

Monitor Change

andAssess

Progress

ReviewObjectives

and Strategies

• Factor in new, more local data

• Develop/apply new tools

• Update implementation plans

• Amend the Bay TMDL

Implementation or Bust!

• Fair share = new allocation methodology

• Assign responsibility for taking actions = local allocations

• All hands on deck = allocations to source sectors

Implementation or Bust!

• Need for accountability for inaction = consequences/contingencies

• Adapt or fail = commitment to change as we learn more

• The devil is in the details = next generation implementation plans

What’s Up Next?• February 2009 – EPA publishes Notice of Intent to Develop Bay

TMDL in Federal Register

• May 2009 – Governors/Mayor announce draft refined cap loads, caps by states and the District, new deadline for implementation and 2-year milestones

• June 2009-May 2010 – Local governments, local implementors engaged in revising implementation plans, exploring new approaches to closing gaps on what’s needed to restore individual impaired tidal waters

• June 2009 – Coordinated EPA/States public outreach begins

• May-October 2009 – States allocate nutrient and sediment caps within Bay segments, tributary basins

What’s Up Next?• Nov 2009 – States provide recommended nutrient and sediment

allocations to EPA for verification of achievement of states’ Bay water quality standards

• Feb-Dec 2010 – States, locals revise tributary strategies to reflect draft allocations

• May 2010 – Governors, Mayor announce formal public review of the draft Bay TMDL

• June-Sept 2010 – Approximate public comment period for draft TMDL report

• Oct-Nov 2010 – Partners’ approval of final Bay TMDL

• Dec. 31, 2010 – EPA establishes TMDL by accelerated deadline

No Surprises this Time!• Going to more difficult to reach cap loads and

achieve water quality standards this time

• Facing the possibility of expanded Bay water quality standards restoration variances

• Need to talk about implementation means and mechanisms beyond what exists today including more mandated efforts, new authorities/resources/tools needed

• Focused on Bay water quality restoration goals

• Jurisdiction-specific milestones could be rolled up into a single, basin-wide summary

• Possible milestones outcomes include:Acres of practices implementedPounds of pollution reducedAdoption of new regulations, legislation,

policies

• Common set of milestone attributes will ensure consistency, accountability and ease of communications

• Milestones will be based on the new Bay cleanup deadline

2-Year Milestones Guidelines

• Measurable, trackable, reportable and related to the end goal (cap load allocations)

• Translate or relate actions and resources to Bay water quality endpoints Using ‘common currency’ (e.g., delivered load to tidal

waters)Applying ‘translator tools’ (e.g., Bay watershed model)

• Not just limited to ‘pounds reduced’ and ‘acres implemented’Need to get at the means for accelerating implementationCould set milestones for seeking funding, new authorities

(e.g., regulation, legislation, policies)

Milestone Attributes

Cleanup deadline is:

“The date by which all the actions required to achieve the jurisdiction-specific and basinwide cap load allocations have been fully implemented on the ground”

Cleanup Deadline Guiding Principle

Initial Evaluation to Full Implementation

• Based on 2000-2008 implementation rates, estimated the jurisdictions would full achieve their nitrogen cap loads by:– 2014: DC

– 2020: New York

– 2012: Delaware

– 2024: West Virginia

– 2032 Pennsylvania

– 2037: Maryland

– 2044: Virginia

Analysis conducted for the PSC-October 2008

Initial Evaluation to Full Implementation

• Based on doubling of current implementation rates:– DC, New York, Delaware and West Virginia

would achieve their nitrogen loading caps by 2020

– Pennsylvania would be at 96% of achievement

– Maryland at 93%

– Virginia at 81%

Setting the New Deadline

• Based on implementation rates used by states’ to set 2-year milestones and anticipated future implementation rates

• Factor in projected growth in loads over next two decades

• Determine whether to set overall basinwide deadline or jurisdiction-specific deadlines

For PSC April Retreat• Proposed new Bay cleanup deadline

• Proposed jurisdictional 2-year milestones

• New draft basinwide nutrient/sediment load caps (full attainment of states’ Bay WQ standards)

• New draft nutrient/sediment cap load allocations by major tributary basin by jurisdiction

For PSC April Retreat (Con’t)• Information on Bay water quality response to

incremental load reductions from current down to draft basinwide caps

• Information on maximum feasible implementation levels and resultant loads and Bay WQ response

• Information on how the allocations were derived

• Explanation of basis for a likely new Bay UAA

For PSC April Retreat (Con’t)

• Implications for states’ existing WQ standard regulations and the Bay TMDL under a Bay UAA

• Proposed schedule/process leading to December 2010 and Bay TMDL adoption

– Local government/ public stakeholder engagement post the May 2009 Executive Council meeting

– Continued development of the Bay TMDL and more source sector and geographic specific allocations

Questions for CAC

• Does CAC agree with the key components of the Bay TMDL as currently envisioned: local allocations, reasonable assurance, contigencies/consequences, revised implementation plans

• Would you recommend the Executive Council announce the draft allocations at the May meeting to start the public engagement process?

Questions for CAC

• How do we best engage the public on what’s feasible and the possible trade-off with Bay water quality?

• Does the approach to setting the new deadline make sense to CAC?

• How do we best communicate the new deadline?

Questions for CAC

• How can CAC help ensure the jurisdictions’ 2-year milestones are “a stretch yet achievable”?

• Does CAC envision taking on a proactive advisory role at the April PSC retreat?

• What roles can CAC take on during the 19 months following the May EC meeting up through final adoption of the Bay TMDL in December 2010?

Contact Information

Rich Batiuk

Associate Director for ScienceU.S. Environmental Protection Agency

Chesapeake Bay Program Office 410 Severn Avenue, Suite 109

Annapolis, MD  21403

410-267-5731

batiuk.richard@epa.gov

www.chesapeakebay.net