The Virginia Bar Association October 22, 2009 Richmond, Virginia Reginald Parrish U.S. Environmental Protection Agency Chesapeake Bay Program Update on regulatory actions related to Executive Order and the bay TMDL

Discussion Points Background/Challenges Stormwater and the Bay TMDL Stormwater and the President’s Executive Order for the Bay Timelines How to get information and get involved

Chesapeake Bay Ecosystem Largest U.S. estuary Six-state, 64,000 square mile watershed 10,000 miles of shoreline (longer then entire U.S. west coast) Over 3,600 species of plants, fish and other animals Average depth: 21 feet $750 million contribution annually to local economies Home to 17 million people (and counting) 77,000 principally family farms Declared “national treasure” by President Obama Source:

Priority Areas Summary: 2008 Bay Health Assessment Not quantified in relation to a goal Data and Methods: 48% of Goals Achieved Fish & Shellfish Habitats & Lower Food Web 45% of Goals Achieved Water Quality 21% of Goals Achieved Not quantified in relation to a goal Restored Bay

Main Sources of Pollution Agriculture – animal manure, commercial fertilizer Urban/suburban runoff – a growing problem Air pollution – tailpipes, power plants Wastewater – sewage treatment plants

New Approach to Restoration Performance and Accountability Total Maximum Daily Load (TMDL): Mandatory ‘pollution diet’ Chesapeake Bay Executive Order: New era of federal leadership Two-Year Milestones: State/local commitments to action Consequences: Federal monitoring; consequences for lagging progress

What is a TMDL? Regulatory tool of the Clean Water Act, Section 303(d) Identifies pollutant limit a clean waterbody can sustain. Includes: –‘Point sources’ like sewage treatment plants –‘Nonpoint sources’ like polluted runoff from land –Margin of safety

Chesapeake Bay TMDL EPA sets pollution diet and oversees its achievement Restrictions on nitrogen, phosphorus and sediment Limits sufficient to meet states’ Bay clean water standards

The Bay science supports local pollution diets… Phase 4 Watershed Model Phase 5 Watershed Model

Pollution Diet for Each Impaired Tidal Water Segment Clean Water Act requires a TMDL for each impaired waterbody MD, VA, DE, DC have listed most of the Bay’s 92 tidal water segments as impaired All 6 watershed states must be part of reaching the prescribed diet for each of these Bay tidal water segments

Watersheds Draining to Virginia’s 35 Tidal Bay Segments

Counties Overlaying the Watersheds Draining to Virginia’s 35 Tidal Bay Segments

Stormwater and Wasteload Allocations Urban Workgroup working with states to identify approach for assigning allocations Must provide specificity to local governments MD and VA considering approach to determine regulated vs unregulated land uses VA land use data lacking Significant issues related to MS4 designations and boundaries R3 and CBPO working on efforts to refine MS4 permit database and collect industrial permits data Permits data to will be available for state and local WLA’s

Stormwater Permits and Wasteload Allocations (WLA’s) Most states update regulations and programs VA regulations under review – important to establish performance std protective of water quality and anticipate TMDL State programs should incorporate actions into permits that achieve WLA Provide accountability and certainty

Mandatory Pollution Diet at Work

Watershed Implementation Plan Expectations Identify reductions by river basin, tidal segment watershed, county, source sector Identify gaps and strategy for building local capacity Commit to develop 2-year milestones at the county scale Develop contingencies

EPA Consequences Will be outlined in EPA letter this fall. May include: –Assigning more stringent pollution reductions to point sources –Objecting to state-issued NPDES permits –Limiting or prohibiting new or expanded discharges of nutrients and sediment –Withholding, conditioning or reallocating federal grant funds

President Obama’s Executive Order Signed May 12, 2009 Designates Bay as national treasure Directs federal activities to create new generation of tools, accountability, and cooperation in restoring Bay Stormwater addressed in 202(a) and 202(c)

Draft Report 202(a) Summary of EPA’s Proposed Approach EPA would implement a three-part strategy to reduce nutrient and sediment pollution, two of the most widespread and long-standing water quality problems affecting the Bay EPA’s strategy guided by four themes: –Increased accountability and performance at all levels of government –Expanded use of regulatory authorities to assure reductions in pollution –Intensively targeting resources where they are needed the most –Harnessing the latest innovations to make leaps in progress

202 (a) Part One -- Create a new accountability program to guide federal and state efforts to restore the Bay Chesapeake Bay TMDL process will provide states and DC with draft loading reduction targets for nitrogen (N), phosphorus (P) and sediment in Fall 2009 States and DC to provide EPA with “reasonable assurance” that nonpoint source (NPS) loading reductions will be achieved before EPA establishes final TMDL in Dec Clean Water Accountability programs in each state and DC –Achieve pollutant reductions from all sources – including nonpoint sources -- via regs, permits, or enforceable agreements* –Include commitments to dates for needed regulations or other instruments to be established and implemented to achieve TMDL allocations Series of 2-year milestones of near-term goals to evaluate progress toward water quality goals *enforceable nonpoint source programs expected in MD, VA, PA and DC -- the Chesapeake 2000 Agreement signatory jurisdictions. WV, DE and NY have committed to water quality goals through a Memorandum of Understanding and would not have to adopt enforceable programs if they commit to alternative programs that EPA can be assured will result in necessary reductions and demonstrate progress through 2-year milestones

202(a) Strategy New accountability to guide federal and state actions to reduce nutrients and sediments. Consequences: - permits objections - limit new or expanded discharges New rulemakings/actions under the CWA, the CAA, and other authorities - CAFOs - Stormwater - New and expanding sources Enhanced partnership between USDA and EPA

202(a) and Stormwater 1) Additional requirements to address stormwater from new and redevelopment 2) Requiring retrofits in areas served by MS4s 3) Expanding universe of areas covered under MS4 programs

202(a) and Stormwater Additional requirements to address stormwater from new and redevelopment Complete retention of runoff from 95 percentile storm event Infiltrate, evapotranspirate, use/reuse inches in Cbay Watershed Per draft guidance, option 2 calculate predevelopment hydrology Offsets, fee in lieu as off-ramp for unmet portion

202(a) and Stormwater Requiring retrofits in areas served by MS4s Necessary to meet local and bay water quality Establish goals by permit cycle Consider broad definition of retrofit Goals my differ based on land use (e.g large commercial, institutional) Residential incentives

202(a) and Stormwater Expanding the universe of areas regulated under NPDES Use of residual designation if necessary New census and urban areas Target areas of growth and impervious cover May target key impaired hotspots Residual designation may include individual facilities, jurisdictions, etc

Stormwater Rulemaking Options National rule vs Bay specific rule National rule w/ Bay specific provisions Coordinate with Construction and Development Effluent Guideline (12/09) Work in concert with states to make revisions Others?

202(c) and Stormwater Stormwater on Federal Facilities Fully implement EISA Section 438 New development and redevelopment projects retain runoff from 95 th percentile storm event (projects 5000 square feet of more) Facilities establish compliance targets for retrofit Led by DOD EPA to establish SW best practices guide

How, When and Where to Get Involved Major basin jurisdiction loading targets Oct year milestones, reporting, modeling, monitoring Starting 2011 Divide Target Loads among Watersheds, Counties, Sources Watershed Implementation Plans: November 2009 – March 2010 Final TMDL Established Public Review And Comment June- September 2010 Dec 2010 Program Capacity/Gap Evaluation Bay TMDL Public Meetings November- December 2009

Executive Order Next steps, timelines November 9 th release 180 day report for public comment Agency continues to explore Stormwater regulatory options Consult with White House CEQ and other partners Begin rulemaking based on comments Final report May 12, 2010