CPR Submits Comments to States on Chesapeake Bay Restoration Plans

Today CPR President Rena Steinzor and I submitted comments to EPA and each Chesapeake Bay Watershed jurisdiction regarding their draft Phase I Watershed Implementation Plans. The states, we find, need to improve their plans significantly.

After more than 20 years of haplessly stumbling toward restoration, often in fits and starts, EPA and the Bay jurisdictions—Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia—have finally agreed on a final destination: the Bay TMDL (Total Maximum Daily Load). Achieving the pollutant allocations in the Bay TMDL will make the Bay once again healthy enough to sustain oyster and blue crab populations and the local economies that depend on them, provide nursery habitat in its grasses, and allow safe recreation for the millions of people who live and work in the Bay Watershed. Establishing the destination goes hand-in-hand with determining the route, which is where the WIPs come into play. The WIPs should represent a clear, defined roadmap and itinerary—with mile-markers, gas stops, and scenic overlooks—to demonstrate how the Bay jurisdictions will achieve their pollutant allocations under the Bay TMDL. Instead, the draft WIPs the Chesapeake Bay jurisdictions submitted in September list, in essence, only the means of transportation—By Rollerblades! By trains! By SUV!—and a list of sights along the way, without committing to any specific route.

In August, we developed a set of metrics by which to grade the WIPs, setting out what we see as necessary characteristics to make the plans successful (we'll be releasing evaluations on the final WIPs, which are due November 29th). The metrics focus on two broad categories: (1) the transparency of information in the WIPs in providing key information about mandatory and voluntary pollutant control programs and (2) the strength of these programs in making actual pollutant reductions. Overall, the Bay jurisdictions’ draft Phase I WIPs do not provide an adequately clear or defined roadmap to achieving the Bay TMDL. The draft WIPs tend to list with varying degrees of specificity the state programs related to achieving the Bay TMDL without explicitly committing to strengthening existing programs or implementing new actions to make actual pollutant reductions. The extent to which states disclosed information for the transparency of information evaluation necessarily determines the ability to evaluate the strength of the programs.

Some highlights and lowlights from the submissions:

• Delaware. The Delaware draft WIP says that the state has nearly 100 percent permitting and compliance rates, which if true is remarkable. However, the WIP does not provide any information to substantiate these rates and does not disclose which facilities have up-to-date permits and which have expired or administratively continued permits. The draft WIP does not contain any schedules or commitments for updating expired permits, nor does it disclose when all permits will be made consistent with the Bay TMDL.
• District of Columbia. The District of Columbia is unique among Bay jurisdictions because all of its pollutant reductions will be achieved by the point sources (namely the Blue Plains Wastewater Treatment Plan and stormwater permits), and nonpoint sources represent a relatively small amount of the District’s total discharge. As long as EPA and the District can ensure compliance with the permits, the District should meet its allocations under the Bay TMDL.
• Maryland. Unlike any of the other Bay jurisdictions, Maryland has a state law requiring annual disclosure of enforcement and compliance activities related to permitting programs under the Clean Water Act. This annual report provides crucial baseline information, and all Bay jurisdictions should consider the Maryland law as a model. This law, in other words, means that Maryland starts out somewhat ahead on transparency, though much of the baseline information was not included in the draft WIP. Another major gap is Maryland’s failure in its draft WIP to commit funding or any other concrete steps to implementing pollutant controls.
• New York. New York has adopted a hostile posture toward the TMDL process, noting that the “submission of this draft Phase I WIP should not be interpreted as New York’s acceptance of these draft allocations.” Nonetheless, New York appears to have a strong CAFO program in its draft that covers more facilities than required by federal regulations. For its contingencies, New York intends to rely on increased enforcement actions but fails to provide baseline enforcement information to demonstrate how this contingency would improve current compliance rates.
• Pennsylvania. The draft WIP includes a detailed recitation of the state’s programs to control pollutants, but fails to provide specific numbers on the effectiveness and scope of these programs. The transparency of information is uneven across the major sectors, and the strength of its programs is average. For example, in 2008 the state's Department of Environmental Protection and conservation districts conducted over 10,000 compliance inspections in the stormwater program, but it is unclear whether these inspections were physical, on-site inspections or simply reviews of self-submitted paperwork. They investigated 1,439 citizen complaints and collected $135,000 in penalties, a paltry sum.
• Virginia. The WIP relies heavily on an expanded nutrient trading program to achieve its pollutant reductions under the Bay TMDL, but the plan fails to specify what laws, regulations, funding, and other resources are needed to ensure that the trading program is functional and effective and results in actual pollutant reductions rather than simply paper trades. Virginia also fails to identify specific contingencies, which are particularly important given serious concerns about the effectiveness of trading.
• West Virginia. West Virginia disclosed a significant amount of specific information related to its current programs and capacities but, like the other draft WIPs, failed to commit to specific actions to achieve pollutant allocations under the Bay TMDL. This lack of specific actions makes it difficult to have confidence that the state will achieve its pollution reduction requirements. West Virginia also appears to rely on mostly voluntary programs to reduce pollutant discharges from its nonpoint sources but does not provide any information to assess the effectiveness of and compliance with these programs.

In the final Phase I WIPs, all Bay jurisdictions need to provide the specific numbers and amounts of resources available and needed to form a baseline of information to enable comparisons of future progress. EPA expects all Bay jurisdictions to make specific commitments, demonstrated by establishing timelines and milestones, to improve existing programs or implement new programs to achieve the allocations under the Bay TMDL. The Phase I WIPs should amount to more than an inventory of state programs; they should constitute a defined roadmap to which EPA and the public can hold the Bay jurisdictions accountable.