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United States Environmental Protection Agency’s (EPA) Chesapeake Bay Protection

Introduction

In conjunction with the federal Clean Water Act of 1972 (CWA) and the Water Quality Act of 1987 (WQA), the six Chesapeake Bay watershed states and the District of Columbia were required to identify waterways that did not meet water quality standards. In June 2000, the Bay watershed partners signed the voluntary Chesapeake 2000 Agreement to identify action items and commitments required to achieve water quality standards for the Chesapeake Bay. With this agreement came the understanding that if these voluntary actions were not fully successful in achieving the required water quality standards, the U.S. Environmental Protection Agency (EPA) would step in and prepare and complete a multi-jurisdictional Total Maximum Daily Load (TMDL) for the Chesapeake Bay. A TMDL dictates the maximum amount of pollution that the receiving waters can withstand while still meeting federal water quality standards. In May 2009, President Obama issued Executive Order 13508: Chesapeake Bay Protection and Restoration that grants the EPA the authority to implement the TDML with a goal of restoring the Chesapeake Bay to adequate water quality standards by 2025. At the present time, EPA is actively working with the seven jurisdictions within the Chesapeake Bay watershed (Maryland, Virginia, Pennsylvania, New York, West Virginia, Delaware, and the District of Columbia) in crafting the TMDL, which will be implemented by December 31, 2010.

Chesapeake Bay TMDL

The purpose of the TMDL is to restore water quality standards for dissolved oxygen, clarity, chlorophyll-a, and submerged aquatic vegetation (SAV) to tidal segments of the Chesapeake Bay and its tidal tributaries and embayments that are currently listed as impaired under the criteria outlined in Section 303(d) of the CWA due to the pollutants of excess nutrients and sediment from the watershed runoff. The source of these pollutants can include discharge from the end of a wastewater pipe (point sources) or from regulated stormwater runoff, agricultural sources, septic systems, surface runoff, and groundwater flows (non-point sources). The TMDL outlines maximum specific target loadings, or allocations, of nutrients and sediment allowed to be delivered to the Chesapeake Bay from all sources throughout the watershed, including atmospheric deposition of nitrogen to the subject waterways. It is essentially a “pollution diet” for the Chesapeake Bay. The EPA has stipulated that “reasonable assurance of implementation” will be made as part of this TMDL. “Reasonable assurance” is a demonstration by the six states and the District of Columbia that the determined goals for load reductions, as set forth by the TMDL going into effect at the end of this year, can be reasonably achieved through each state’s and the District’s respective commitments, policies, and resources.

Process of Developing the TMDL

Step one of developing the TMDL was identifying which waterways were impaired—thus not meeting water quality standards. This step involved assessing the implementation of water monitoring and the establishment of an overall water model analysis. If a waterway segment was considered unimpaired, then the water model analysis determined how much additional pollutant loading the waterway could assimilate without violating water quality standards. Upon completion of the water model analysis, a maximum pollutant load (TMDL) is established and allocated amongst point and non-point sources throughout the Chesapeake Bay watershed.

As part of the “reasonable assurance of implementation” demonstration, each state within the Bay watershed and the District of Columbia is currently establishing their own respective Watershed Implementation Plans (WIPs). The WIPs contribute to a fair and transparent wasteload and load allocation process for nutrients and sediment (i.e. phosphorus, nitrogen, sediment) among various pollution source sectors and in different geographical areas. The WIP development process consists of three distinct phases. Phase 1 WIP (Draft) for each state and the District of Columbia is currently available on Maryland Department of the Environment’s website for review. The Phase 1 WIP outlines a description of the authorities, actions, and possible control measures, which may be implemented to achieve point source and non-point source target loads and TMDL allocations. In the future, the final Phase 1 WIP will include information for the permit writers to issue future permits for point sources that are consistent with wasteload allocations (WLAs). Phase 1 WIPs will establish a tracking program to verify if control practices are effective and will create certain specific jurisdiction milestones (2 year increments). These milestones will describe the reduction of loading required to meet the interim target TMDL goals (60% total reduction by 2017 based on current loads / 70% for Maryland) and final TMDL goals (100% reduction by 2025 / 2020 for Maryland). The jurisdictions will factor for their respective future growth and may distribute allocations accordingly based on their planned growth. Currently, Phase 1 WIPs are under a public comment period through November 8, 2010, with final Phase 1 WIPs being submitted to the EPA on November 29, 2010. The EPA shall establish the final TMDL on December 31, 2010.

The Chesapeake Bay watershed states and District of Columbia will develop draft Phase 2 WIPs, which will be submitted in draft and final formats on June 1, 2011 and November 1, 2011 respectively. The Phase 2 WIPs shall further distribute non-point source finer-scale load allocations and any aggregate point source wasteload allocations into smaller geographic areas, waterways, or sources where appropriate. The states shall coordinate with the agencies at the local level (ie: County, City, Soil Conservation Districts) to develop more specific nutrient and sediment target loads. The Phase 2 WIPs shall identify specific controls and practices that will be implemented no later than 2017 to meet the interim TMDL water quality goals.

Phase 3 WIPs from the Bay watershed states and District of Columbia will then be submitted to the EPA in 2017 with further refined control measures, based upon the outcome of the 2017 interim TMDL milestone assessment, to implement controls between 2018 and 2025 to achieve TMDL water quality standards.

Impacts on Land Development Projects

Currently, the Chesapeake Bay watershed states and the District of Columbia are working to establish methods for controlling nutrient and sediment loadings into the Chesapeake Bay as part of the WIP process. It is evident that due to the pending TMDL, changes to the current permitting processes are forthcoming and will impact the land development community. Although the overall nutrient and sediment load impacts to the Chesapeake Bay from “new” construction is minimal in comparison to the impacts associated with agriculture and existing urban/suburban development runoff (a large portion of which was developed prior to the mid-1980s before stormwater management regulations and sediment and erosion control regulations), loading from new construction and redevelopment projects can be easily enforced through the issuance of permits. It seems apparent that permitting changes (i.e. stormwater management, sediment and erosion control, NPDES) associated with achieving the target goals for the TMDL may have some significant effects on land development projects. These effects may include:

  • New restrictions on nitrogen, phosphorus, and sediment discharges reflected on all new NPDES permits within the Chesapeake Bay watershed.
  • Establishing a goal of “no net discharge” for new development projects through the implementation of low impact development (LID) or environmental site design (ESD) techniques, which may increase construction costs.
  • Project requirements stating open space needs to be increased and/or parking areas decreased respectively, due to LID/ESD stormwater implementation that may have negative impact on the allowable densities for projects as more physical land area is being devoted to stormwater management.
  • Redevelopment Projects to require between 30% to 50% retrofitting for stormwater management to reduce impacts from existing impervious surfaces not currently being managed. The WIPs have not finalized the specific percentage requirement; however, it will be determined before the end of 2010. This requirement will further increase construction/development costs for redevelopment projects within urban areas.
  • Post construction monitoring/testing of site discharged runoff to determine pollutant levels of sediment, nitrogen and phosphorus. These pollutant levels will be evaluated against the required pollutant allocations established by the issued permit.
  • Sediment and Erosion Control requirements for limits on the maximum allowable areas of disturbance, for providing vegetative buffers outside of silt fences/limits of disturbance, and for shortening timeframes for the implementation of stabilization of disturbed areas.
  • Proposing that all new and failed residential septic systems within 1,000 feet of tidal waters install denitrification systems (Cost: $8K to $11K per system).
  • Strengthening the requirements of the Forest Conservation regulations to achieve a “No Net Loss of Forest” through utilization of more forest mitigation banks and eliminating the fee-in-lieu option.
  • Reduction in the usage of commercial fertilizers found in urban/suburban runoff.
  • An increase in engineering design budgets for projects associated with stormwater management and sediment and erosion control.
  • An increase in the overall time process associated with obtaining permits through the regulatory agencies.
  • An increase in overall construction costs with regard to stormwater management and sediment and erosion control.
  • An increase in stormwater management maintenance costs, which most likely will be passed to the commercial user and/or residential user (HOA).

How Soltesz Can Assist

Soltesz has been actively following the process of the EPA’s establishment of the upcoming Chesapeake Bay TMDL. Soltesz’s staff is well-versed with the imminent changes to the land development process that will be approaching in the next several months, from the institution of the Watershed Implementation Plans to the establishment of the final TMDL. Soltesz has been and remains in the forefront with regards to the revisions of the latest stormwater management, sediment and erosion control, and NPDES regulations and has extensive knowledge on how these regulations may be applied to the new Chesapeake Bay TMDL and, ultimately, how these regulations may affect your projects. Our vast knowledge of these latest changes in regulations, combined with our distinguished reputation as a consulting leader in site/civil design, allows Soltesz the ability to offer exceptional professional services to our clients while meeting their respective project goals on time and within budget.