Submission of the milestones comes a week after the Chesapeake Bay Foundation issued a report finding that environmental regulations do not hurt the economy. Entitled “Debunking the ‘Job Killer’ Myth, How Pollution Limits Encourage Jobs in the Chesapeake Bay Region,” the report offers a counter-point to well-publicized criticism of the Bay TMDL and stringent EPA requirements, which, to date, have asserted that current Bay cleanup requirements are too expensive to implement, and are detrimental to localities and private enterprises already struggling in a down economy.

The Bay Foundation report, compiled through data from state and federal environmental agencies, published studies and reports as well as through interviews with economic experts, business owners and workers, likens current concerns that environmental regulations will be bad for business to similar claims made by critics of the clean air and fuel-efficiency standards in the 1970s and, later, the 1990 federal Clean Air Act Amendments.

The report presents several examples of job creation areas and foresees an increase in such jobs in the Chesapeake region because of water-pollution limits. The jobs include environmental clean-up and monitoring jobs (primarily generated by sewage and water system improvement projects), construction and engineering jobs necessary for stormwater pollution control, and sewage plant upgrade projects. Jobs in the agricultural sector were also identified related to the construction of facilities to reduce manure and farm-runoff, as were job increases in the more traditional areas of fishing, processing, packing, restaurants and tourism. The report also posits that new environmental regulations will encourage innovation and necessitate new jobs for new technologies.

If the Bay Foundation’s report is an accurate forecast of the economic benefits to cleaning up the Bay, and if the milestones submitted to EPA reflect effective first steps in meeting the Bay TMDL, then 2012 is off to a good start. What do you think?

Related articles

• Chesapeake Bay Foundation study refutes ‘job-killer’ myth (pennlive.com)
• Report: How Pollution Limits Encourage Jobs in the Chesapeake Bay Region (bespacific.com)

While the Draft Plan does not include the specific local strategies needed to meet the Bay TMDL requirements, it does describe the process Virginia is using to implement the Phase II planning process. In his cover letter to the Regional Administrator of EPA Region 3, Virginia Secretary of Natural Resources Doug Domenech explained that the Draft Plan does not contain results of the state’s “local engagement efforts” because “the time frame provided by EPA to convey the model information related to the revised EPA planning targets to the localities was far too short for the Planning District Commissions (“PDCs”) and localities to develop strategies and gain endorsements from stakeholders and elected officials.” Secretary Domenech indicated that local strategies are expected to be received by the state by February 1, 2012. Virginia is required to submit its final Phase II WIP to EPA by March 30, 2012.

On October 5, 2011, EPA advised that it expected draft Phase II WIP submissions to contain:

• An explanation of how jurisdictions are working with local partners;
• Evidence that critical local partners are aware of their role in meeting the TMDL allocations and the Phase I WIP commitments;
• As appropriate, identification of targets or actions that local and federal partners would take to fulfill their role. These targets could be expressed as programmatic actions (e.g., adopting ordinances) rather than model inputs or outputs (e.g., pounds reduced, pounds per acre);
• Any changes or updates to Phase I WIP strategies based on work with local partners;
• One input deck for processing through Phase 5.3.2 that meets the Phase II WIP planning targets for the major basins in each jurisdiction. This deck could be based largely on Phase I WIP input decks plus any requested changes to wasteload and load allocations.

Did Virginia give EPA what it wanted? We will have to wait and see if it a Thank You note is forthcoming.

To those of you who have read my blog in 2011, I do say “Thank You.” I hope you have found it informative and have been able to utilize the links provided, and appreciated the commentary. I look forward to continuing to discuss and comment on issues (and to read your comments right here!) in the forefront of Environmental Law in Virginia, in 2012. Happy Holidays!

Butch Joyce and Lee Hill of Joyce Engineering, Joe Maroon of Maroon Consulting and Joan Salvati of the Department of Conservation and Recreation were with us among the two sessions and gave terrific information and explanations about the source and intent of the new regulations, Virginia’s WIP, as well as implications for the implementation period through 2024.

If you did not get a chance to attend, or if you have thoughts and questions, just use the comments field below to let us know, and our Virginia environmental lawyers will respond. If you’d like a link to the replay of these webinars, we’d be happy to provide that, as well as handouts.

Construction Runoff Fence via Wikipedia

The model that EPA uses to determine the parameters of the Bay’s “Pollution Diet” at the state and now local level has been question by many stakeholders throughout the TMDL and WIP preparation process. Many have questioned whether the important and expensive steps and sacrifices that are being asked of Virginians to reduce pollution levels in the Bay are indeed based on sound science. For its part, EPA acknowleges that the models are not perfect, but believes too much focus is being placed on the hard numbers as opposed to clean-up strategies.

These pervasive Bay model questions follow our own first webinar session on Virginia’s strategies to reduce nutrients and sediment in the Bay, focusing particularly on regulated and unregulated stormwater. Virginia’s strategies, as set forth in the state’s watershed implementation plan (WIP) are based largely on the EPA model data. The accurancy of the data has been a question throughout the TMDL and WIP process, and was again called into question in August of this year when revised model data shifted nutrient reduction goals, changed land use classifications, and called into questions accepted conclusions about the effectivness of nutrient management plans on agriculture, among other things.

Our next webinar (November 30) will address the new Stormwater Regulations in Virginia, and focus on new program and regulatory requirements that are now incorporated into Virginia’s WIP strategies.

It seems clear from the continuing refinements in the EPA computer models, that we can’t say for sure whether model-driven reductions will actually yield the water quality goals that the Bay states, including Virginia, are required to meet. However, it seems equally clear that a reduction in pollution, at any level, is another step closer to better water quality.

While local and state officials may not ever be convinced that pollutant load allocations are based on “sound science,” they will still be charged with revising and implementing new ordinances, programs, and infrastructure to meet EPA’s bay mandates. It seems quite a lot for Virginians’ to “take on faith.” Even if the result is a cleaner Bay.

What is your opinion of the EPA’s models?

Image via Wikipedia

On Wednesday, October 19 at 10:00 a.m., I will join presenters from Joyce Engineering plus present and past state environmental leaders for the first of two 2-hour online sessions covering the current Stormwater regulatory environment and what it means to Virginia localities in required improvements and potential expenses. We invite our readers to take the plunge with us.

You can find out more and register here. http://www.sandsanderson.com/news-events/event/stormwater-webinars-2011.html

All you need is your computer connected to the internet and speakers. If you have no audio, we will provide a toll-free phone number so that you can listen in.

In these two sessions, we will be covering the new stormwater requirements under the Chesapeake Bay TMDL and the recently amended Virginia Stormwater Regulations, although some final decisions still remain to be promulgated. You’ll get the up-to-the-minute information and we’ll take your questions, too.

Or if you have some questions on your mind now you’d like us to cover, just place them in the comments below and I’ll be glad to circulate to our presenters. The sessions are sponsored by Sands Anderson, Joyce Engineering, the Virginia Association of Counties, Virginia Municipal League and PlanVirginia.

Earlier this month, the state’s Chesapeake Bay TMDL Stakeholders Advisory Group (“SAG”) considered the effect of EPA’s revised model data on Virginia’s ability to effectively implement Phase II of the state’s Watershed Implementation Plan. While the revised data decreased Virginia’s basin-wide reduction target for nitrogen (from 53.42 million pounds per year to 52.46), it increased the target for phosphorus from 5.36 million pounds per year to 6.46 million. These changes come as the state and local governments, along with stakeholders, are trying to identify strategies to meet these goal reductions. A hard enough undertaking without a moving target.

The revised model data also updated land use to include more complete urban coverage and revised rates for nutrient management versus non-nutrient management applications of fertilizer. These changes raised questions and more than a few concerns as to how the revised model data was developed, but state officials indicated that they were unable to get a clear explanation from EPA as to how the methodology was derived.

It appears that unless and until EPA can substantiate the accuracy and reliability of its revised model data, the ongoing WIP process will be stymied by continued concerns that the data is flawed. To successfully address the infrastructure challenges (see our post here) and costs (see our post here), localities will need to take aim at a single and discrete set of goals. With these goals ever-changing, and ever-questioned, efforts to develop Phase II, and then Phase III of the WIP will likely be even more difficult.

This SAG plans a follow up meeting this October. Around that time, we will be holding a set of webinars with Joyce Engineering, for clients, local governments, professions and other stakeholders to talk about the development and implementation of the TDML. We’ll make sure that we include a recap of the latest discussions and include possible solutions for some of the issues raised by the new TMDL requirements. Watch our blog, website and your email for a notice of the sessions, registration will be free. If you think we might not know your email address, please send us a comment below.

Up in Pennsylvania, the American and Pennsylvania Farm Bureaus are taking the position that the limits will idle thousands of acres of farmland, drive up produce market costs and eliminate agricultural jobs. They have sued the EPA alleging that the agency is deliberately circumventing Congress’s decision to leave the local controls over the Bay watershed to the states through the Clean Water Act.

The National Association of Homebuilders took the same tack in a suit it filed, also in Pennsylvania. They claim that the limits will make residential and commercial building permits more difficult to obtain, constrain land use and further hobble the construction industry. Action in both cases is pending.

While Virginians may disagree as to the validity of the claims made by her northern brethren, it cannot be denied that, notwithstanding the efforts of all of the Bay States and the District of Columbia, this summer the Bay has shown the largest dead zone ever – one which is traced back to the same pollutants that the EPA is trying to restrict.

Virginia’s been no cakewalk for the EPA either, with charges from both Governor McDonnell and Attorney General Cucinelli that the agency has used sloppy data and over-reaching regulation to interfere with and alarm state residents. Even so, the Governor embraced the recent EPA assertions that the state was meeting its goals from 2009, made at a meeting of the Chesapeake Executive Council held last month at Maymont.

It remains to be seen if these legal challenges will manage to blunt the efforts of the EPA. What do you think of these challenges to the EPA’s authority and mandates? Should Virginia do the same?

Related articles

• Home builders group sues EPA over new Chesapeake Bay pollution regulations  (pennlive.com) 
• Alarming ‘dead zone’ grows in the Chesapeake (gcvconservation.wordpress.com)
• Protecting the bay: Program aims to reduce waste flowing into the Chesapeake (pennlive.com)

Image by eutrophication&hypoxia via Flickr

This month, the Chesapeake Bay Executive Council met in Richmond to discuss, among things, progress being made on efforts to clean up the Chesapeake Bay. Data released that same day indicates that Virginia is on target to meet interim cleanup goals set in 2009. Virginia appears ahead of schedule or on schedule in planting pollution-limiting cover crops, planting grasses that help keep pollution from running off farms, and restoring wetlands. At the same time, Virginia efforts to fence cattle from streams are falling behind, and discharges of phosphorus to Bay tributaries have increased due to the construction of sewage treatment plant improvements. Sounds like good news.

However, recently, 120 local government officials attended a one-day seminar in Hanover County on Chesapeake Bay Restoration, jointly hosted by the Virginia Association of Counties and Virginia Municipal League. We were there to hear, among other things, what implementation of Phase II of the state’s WIP would mean to and might cost, local governments throughout Virginia. The news was not so good.

There seems to be consensus that the Chesapeake Bay’s “pollution diet” will likely affect local budgets, land use policies, and other local programs. The question is, “how much?” The approved Virginia WIP cites the potential cost as $7 billion for the state. However, engineers with the environmental consulting firm Malcolm Pirnie, advised that urban stormwater retrofit costs alone could exceed this cost. Costs that might be around $20,000 per impervious acre for ponds might soar to nearly $300,000 per acre in small “ultra urban” areas where heavy infrastructure improvements will be necessary for compliance. Affected localities were cautioned that easier retrofit sites will be very limited and their density will vary by locality.

While implementation of Phase II will vary jurisdiction by jurisdiction, for those that must undertake them, urban retrofits are the least cost-effective solution. On the other hand, they are one of the few means through which the state can force local reductions in pollutant laden stormwater. While there may be other less costly ways to reduce pollution (like the fencing of cattle), will the Phase II process be able to recognize these strategies and is there enough political will to make them happen?

Approval of the Regulations brings to end a process that began over seven years ago. In that time, the Regulations were revised, approved, suspended, revised again, and are now approved in final form. We’ve been following the regulatory process in prior posts. The final approved regulations are a comproromise that most stakeholders appear to be able to accept, but some may still call inadequate or onerous.

At the adoption, David Dowling, policy and planning director for the state Department of Conservation and Recreation said the rules will “benefit water quality throughout the state.”

The action on Wednesday sets the clock for the McDonnell administration to review the regulations for 60 days before they are submitted for publication in the Register and take effect in October for implementation in 2014.

What steps do you expect to take as the implementation of these new regulations approaches? Let’s talk!

Phase II of Virginia’s Watershed Implementation Plan:
Where are we now, where are we heading, and how do we get there?

Work on Virginia’s Watershed Implementation Plan (“WIP”), specifically, the required implementation of Phase II, has begun…sort of.

Phase I of the WIP, which was completed by the state and approved by EPA late last year, charts out actions deemed necessary and achievable by the Commonwealth, to achieve the Chesapeake Bay TMDL allocations between now and 2025. Phase I establishes an allocation process for the various source sectors that contribute nutrients and sediment to the Chesapeake Bay. These allocations are part of the “pollution diet.”  Phase II of the process now seeks to implement these sector allocations at the local level. Virginia’s draft Phase II plan must be submitted to EPA by December 1, 2011.

Given the short timeframe, the Virginia Department of Conservation and Recreation is moving quickly to initiate the Phase II process. Anthony Moore, the state’s Assistant Secretary for Chesapeake Bay Restoration, outlined the course of action this way:

• Phase II
• Local Engagement Process
• Key Points

Based on comments expressed during the most recent Stakeholders Advisory Group on the implementation of Phase II, it is clear that Virginia has a long way to go, and a short time to get there. How we get there is still fairly up in the air, and whether we get there at all or in time remains to be seen. However, looking back, the Phase I process was also met with skepticism and Virginia got it done. Will we achieve the same success in Phase II? What do you think?

Contact him at lland@vaco.org or (804) 343-2504.
Yes, we all agree that it is time to undertake the challenging work of restoring the health of the Chesapeake Bay and its vast 64,000-square-mile system of tributaries that reach as far north as New York and as far south as southern Virginia. The recent Times Dispatch poll demonstrated there’s no disagreement about the value of a healthy Chesapeake Bay and how its tributaries add to Virginia’s economy and quality of life. We all want to see the Bay’s full restoration — as an abundant source for food, as spiritual and artistic inspiration and as a place of family enjoyment.

Efforts to substantially improve Bay waters will not succeed unless major economic realities addressed through the development and effective implementation of cooperative financial strategies. And these strategies should not overburden the citizens of the six states (and the District of Columbia) that fall within the Chesapeake Bay watershed.

Late last year, the EPA finalized the first phase of its renewed initiative for improving water quality in the Chesapeake Bay, a subject discussed on this blog here and here. Gov. Bob McDonnell‘s administration estimated that Virginia’s full costs of complying with this initiative would be approximately $7 billion between 2011 and 2025. But EPA’s new rules come at a time when many local governments, just like the federal government, find it necessary to drastically reduce their budgets during the upcoming fiscal year.

2004’s Chesapeake Bay Watershed Blue Ribbon Finance Panel chaired by former Gov. Gerald L. Baliles reported that “the most up-to-date cost of implementing all actions identified in the (Chesapeake Bay restoration) strategies (for the entire six-state watershed) is $28 billion in total upfront capital costs, including some items that are primarily for the benefit of local waters, not the Bay itself.”

The panel recommended the creation of a $15 billion interstate Chesapeake Bay Financing Authority, of which $12 billion would be capitalized through federal appropriations. The remaining $3 billion would be pooled through contributions from the six states in the Chesapeake Bay basin.

No action was ever taken on the panel’s recommendations even though the panel’s efforts represented the most comprehensive attempt in the Chesapeake Bay program’s 30-year history to seriously evaluate long-term program costs and how these costs should be shared among federal, state and local governments. There is now an urgent need to for a revival of these discussions.

What do you think would be an acceptable and adequate mechanism for funding the improvements necessary to finally bring about a healthier Chesapeake Bay?

As someone who has been discussing and following the creation and implementation of the Bay TMDL and state WIPS (here and here), and the new Stormwater Regulations (here), I was interested in detailed discussions presented on both topics. Of particular interest were discussions about the costs of these programs, and how they will be paid for. After a truly informative session outlining how Phase II of the WIP is expected to be developed, questions remained as to what the financial impact will be on localities, and how communities will pay for required sector reductions in pollutants. For example, localites will be required to develop their own Community Conservation Profiles to meet sector load allocations, but modelling information used to calculate the cost of expanding or adopting new programs that might be included in such profiles is not yet available. Until such information is provided, it will difficult for localites to implement Phase II in a meaningful way.

Other thoughts from attendees? Any additional issues from Symposium that you would like to share?

Also, a quick shout out and thank you to the Virginia State Bar’s Environmental Law Section (of which I am a proud member of its Board of Governors), for an excellent CLE prior to the Symposium on the topic of “Checks and Balances: Implementaion of Federally Delegated Environmental Programs in Virginia.” The topic could not have been more timely.

These are the regulations which were adopted by the 2010 Virginia General Assembly after a long and at times very contentious vetting, and then were immediately suspended until amendments were devised.

We have been following these developments, which you can read about here and here. The suspension and amendments were required, in part, because it was unclear to what extent the regulations might need to be modified once the Environmental Protection Agency established new Total Maximum Daily Load (TMDL) targets for the Chesapeake Bay. The General Assembly gave regulators 280 days to finalize the regulations after the TMDL was established by EPA. EPA did so on December 29, 2010.

During the RAP’s meeting, David A. Johnson, the Director of DCR,
noted, that while close, “we’re not at the finish line yet.” Issues that the RAP went on to discuss included proposed modifications to existing water quantity standards, and the extent to which certain erosion and sediment control criteria should be incorporated into the stormwater regulations. A final draft of the proposed regulations are scheduled to be published in the Virginia Register on March 28, 2011, which date also begins a 30-day public comment period. Draft regulations are available here.

Here’s the anticipated schedule:

• March 28, 2011, Publication of notice in Virginia Register and beginning of 30-day public comment period
• April 27, 2011, Close of 30-day public comment period (staff will summarize comments and modify regulations accordingly)
• May 17, 2011, Target mailing to Board of Conservation and Recreation
• May 24, 2011, Board of Conservation and Recreation adopts final regulations
• June 10, 2011 thru August 5, 2011 (about 60-days), Review by the Administration
• August 10, 2011, Deadline for submittal of regulatory materials to the Registrar
  for publication
• August 29, 2011, Publication in Virginia Register (30-day final adoption period)
• September 28, 2011, End of 30-day final adoption period
• October 5, 2011, Statutory Effective Date Target (280 days)

The rules would then be in force as of July 1, 2014.

Are there still concerns with the proposed Stormwater Regulations? Or have other requirements to clean-up the Chesapeake Bay taken center stage?

With Phase I now complete, it is time for local governments and stakeholders throughout Virginia to begin working on Phase II. Phase II must identify local area targets where pollution reduction strategies set forth in Phase I will be implemented. While the implementation of Phase II may seem a daunting task, there is help out there for local governments beginning the process. The Piedmont Regional Pilot Project for the Chesapeake Bay TMDL (PRPP) is one of two pilot projects nominated by Virginia and selected by EPS to be one of the seven Phase II pilot projects in the Bay watershed. The purpose of the PRPP was to “develop a commonly accepted commitment to strategies that key stakeholders have bought into, that are innovative, and that accomplish TMDL goals.” PRPP recently released its Final Report recommended a number of strategies for local government engagement during Phase II. Those strategies include the following:

1. Providing dedicated funding for watershed implementation planning.
2. Acknowledging and highlighting the importance of local water quality to encourage buy-in by local governments and affected stakeholders.
3. Providing a mechanism for using local water quality, land use, and other data in the development and implementation of local and regional pollution reduction strategies.
4. Providing accurate and timely information from EPA and the state agencies about the process of developing the Bay TMDL and state WIP.
5. Engaging the proper units of local and regional governance during the development of Phase II WIPs.
6. Providing sufficient opportunities for cross-sector understanding and problem solving.
7. Taking measures to ensure that implementation of the Bay TMDL takes advantage of local efforts to maintain existing healthy streams and restore compromised ecosystems.

A second component of the PRPP was to attempt to evaluate how load reductions of nutrients and sediment required by existing local TMDLs would compare to anticipated target loads during Phase II planning. This modeling was called difficult to achieve given the state of flux of the Bay watershed models at the time, and because local TMDL models are different from Bay models. A full copy of the PRPP report can be found at their website.

Completion of Phase I was a grueling process to be sure. We’ve talked about that before right here on this blog. Can we expect anything less for Phase II? Given the ever present conflicts between stakeholder groups, and the recognized cost associated with this meeting TMDL goals, will Phase II turn out to be even more difficult? What do you think and do you have any additional strategies to recommend?

However, even when a really and truly final plan is submitted, it will remain to be seen whether the state’s WIP will be enough to satisfy EPA such that it removes the threatened “backstops” that the agency stated might be imposed if the state did not do more to reduce pollution in the Chesapeake Bay.

While the current WIP calls for, among other things, significant pollutant load reductions from wastewater treatment plants, increased reductions in urban stormwater runoff, and the implementation of “resource management plans” to further reduce runoff from Virginia farmland, critics believe the plan does not go far enough.

In a press release issued yesterday, Ann F. Jennings, the Executive Director of the Chesapeake Bay Foundation, characterized the revised plan as “includ[ing] many more promising ideas” particularly in regards to agriculture runoff pollution, but lacking “commitments that such reductions will actually be achieved.” Ms. Jennings stated that given this “shortcoming,” the Foundation anticipates that “EPA will have not choice by to impose backstop TMDL measures which could result in increased EPA oversight in order to comply with the Clean Water Act.”

For its part, the state seems to be poised for a fight if EPA does refuse to remove the threatened backstops. In his transmittal letter to EPA, Secretary Domenech reiterated Virginia’s concerns about “the process, cost, legality, allocations and compressed timing in the development of this plan.” (Emphasis mine.) Domenech points out that Virginia was not a party to the case which established a deadline of May 1, 2011 for EPA to create TMDLs for certain Virginia waters and pollutants, if Virginia had not done so by that time. He also called into question the precision of the Bay modeling upon which the load allocations are based, and criticized its failing to consider economic consequences as part of the plan process.

So what happens next? Who will blink first? There has been much written about the cost of clean-up. There has also been much written about the cost of not cleaning up the Bay. Viewed against the backdrop of a weak economy and equally grim state and local budgets, can we even afford to do more?

On September 24, 2010, the Enviornmental Protection Agency (EPA) released its draft Chesapeake Bay Total Maximum Daily Load (“TMDL”), aka, the “Pollution Diet” by which the Chesapeake Bay and its contributory waterways are hoped to be restored.

The draft TMDL includes the pollution limits set for nitrogen and phosphorus on July 1, 2010, and the range of allowable sediment pollution levels established on August 13, 2010. After these pollution limits were set, they were divided by jurisdiction and major river basin and were required to be incorporated in each Bay states watershed implementation plan (“WIP”). We’ve covered the regulatory discussions here and here.

Virginia’s WIP was completed and submitted to EPA on September 3, 2010, which we covered here. However, in the draft TMDL, EPA found “serious deficiences” in Virginia’s WIP and incorporated federal backstop measures to tighten federal controls on point sources of pollution, such as wastewater treatment plants (“WWTP”), large animal agricultural operations and municipal stormwater systems (“MS4s”). These backstop measures include additional retrofitting/redevelopment for MS4s, for construction, erosion and sediment control on all lands subject to Construction General Permit greater restrictions on WWTPs, additional requirements for certain animal feeding operations (including waste management, barnyard runoof control, mortality composting, precision feed management for all animals), and additional adjustment to agriculture nonpoint sources.

EPA found a number of overall deficiencies in Virginia’s WIP, including those related to the state’s proposal to achieve nutrient reduction through an expanded Nutrient Credit Exchange. EPA faulted this approach finding that while septic systems and urban stormwater were relied upon to purchse credits, there was no regulatory driver to create a timeline for credit demand. In addition, EPA stated the WIP was “not transparent” and questioned the extent to which the credits would be purchased. In addition, EPA faulted Virginis’s WIP for failing to include legislative and regulatory changes that would support high implementation rates, and for failing to meet the nitrogen and phosphorus allocation in the James River necessary to meet current chlorophyll-a standard and for failing to meet the interim 2017 target.

Serious Deficiencies were also specifically noted in the areas of Agriculture, Stormwater, and Wastewater. The draft TMDL including its evaluation of Virginia’s WIP can be found at http://www.epa.gov/chesapeakebaytmdl.

It is now up to the Commonwealth to revise and strengthen its WIP if it wants to replace EPA’s backstop allocations with state commitments. It appears this very difficult process has just become even more difficult. Do you think the state, and the stakeholders, will be able to dig even deeper and agree on greater cuts? Where should such cuts come from?

The deadline for Virginia’s WIP submittal came as a result of an Executive Order issued in May 2009, by President Obama. In conjunction with the required WIPs, EPA will hold public meetings this fall to discuss the draft Chesapeake Bay Total Maximum Daily Load (TMDL), the strict “pollution diet” to restore local waters and the Chesapeake Bay. The draft Bay TMDL will be issued on Sept. 24, 2010. The public meetings in Virginia are scheduled for:

• Harrisonburg, Virginia, October 4, 6 p.m. – 8 p.m.
• Annandale, Virginia, October 5, 6 p.m. – 8 p.m.
• Richmond, Virginia, October 6, 6 p.m. – 8 p.m.
• Webinar, October 7, 1 p.m. – 3 p.m.
• Hampton, Virginia, October 7, 6 p.m. – 8 p.m.

Complete information on the meetings, including venues, directions and webinar registration links, can be found on the Bay TMDL web site.

The draft Bay TMDL will establish proposed limits on nitrogen, phosphorus and sediment pollution that will be applicable throughout the 64,000-square-mile watershed. The restrictions are intended to establish clean water standards for the Bay and its tidal tributaries, and are intended to help restore local rivers and streams. The EPA wants to ensure that by 2025, all practices that are necessary to fully restore the bay are in place, with 60 percent of these actions occurring by 2017.

The EPA will also receive comments and answer questions from the public as part of an official 45-day public comment period on the draft Bay TMDL, ending November 8, 2010. Instructions for submitting formal written comments to EPA will be included on the Bay TMDL web site and contained in an upcoming Federal Register Notice.

A final Bay TMDL will be established by Dec. 31, 2010.

Any comments so far on the potential benefits and/or weaknesses of Virginia’s WIP? Does it go too far? Does it go far enough? Are the proper sectors impacted?

As with many things in life, there’s the good news, and the bad news. The good news is that more than 430 waters have been removed from the impaired waters list because they now fully meet water quality standards. And an additional 600 waters have been removed for a least one impairment. The bad news – DEQ added about 1,400 miles of streams and rivers, and 2,500 acres of lakes to the impaired waters list.

So while some of Virginia’s waters are being restored, others seem to be degrading just as quickly. The Report provides detailed information on more than 1,200 watersheds in the Commonwealth, and includes assessment information from January 2003 to December 2008. How the state’s waters have fared since 2008 remains unknown. Also unknown is what effect the states’ new stormwater regulations and Watershed Implementation Plans (topics previously discussed in our blog) may have on some of these water sources in the future. We will have to wait and see.

You can find a copy of the draft report here. DEQ is encouraging public comment on the contents of the report until September 24, 2010, at 5 p.m. Those comments must be submitted in writing by letter or email attachment. A webinar summarizing the findings in the report will be held on the Internet on August 26, 2010, from 11 a.m. to noon. Those interested must register in advance at https://www1.gotomeeting.com/register/267343337. Questions about the report may be submitted online during the webinar.

Even with the report only in draft stage, what seems crystal clear is that for land owners, localities, and major contributors whose activities may be impacting and degrading Virginia’s waters, close scrutiny and additional restrictions are just around the bend. Virginia’s environmental lawyers such as our team at Sands Anderson, are looking for workable solutions for clients who have the responsibility to improve and maintain the quality of our state’s waters. What solutions do you think might be workable in this challenging effort to keep Virginia’s waters clean?

While EPA has provided this final piece of the “pollution diet”, the real challenge will be in determining how the diet will be implemented in Virginia. Nobody likes to diet. And since the nutrient allocations were disclosed in July, some state officials and lawmakers have voiced concern that the limitations go too far. David K. Paylor, director of the Virginia Department of Environmental Quality, was quoted by the Richmond Times-Dispatch as stating that the state wanted to make sure the pollution reductions were “justified.” . The Governor’s Secretary of Natural Resources, Doug Domenech, has been more pointed saying “[s]ome in the environmental community appear to not care if people lose their jobs, or they don’t care if taxes have to be raised on everybody to pay for this clean up.”

Currently, representatives of stakeholder groups from across Virginia are working together with state officials to develop the required WIP. Represented sectors include wastewater, agriculture, urban storm water and onsite-septic. Materials from the work group meets are available here. But while the stakeholders clearly have their own interests to protect, for us as Virginia environmental lawyers it was gratifying to hear expressed, during the Stakeholder Advisory Group meeting on June 16, 2010, an overriding interest by participants that the WIP process not deteriorate into an exercise of self-preservation, with members looking to others to “pollute less.” We will see what is produced on September 1, 2010 when Virginia’s WIP is unveiled Until then, we can continue to hope that the stakeholders, state officials, and legislators alike will keep the process moving forward and from becoming, as cautioned by Wilmer Stoneman of the Virginia Farm Bureau , “economic-sector civil war.”

What many might not know, however, is that the environmental movement in Virginia began long before April 22, 1970. Almost a quarter century before mainstream environmentalism hit the streets, Virginia adopted the State Water Control Law, one of the first comprehensive statewide efforts to control water pollution in the country. Becoming effective on July 1, 1946, the law established the State Water Control Board, which was tasked with a mission to “protect existing water quality, to reduce and prevent water pollution, and to restore and maintain state water to a quality that w[ill] protect human health and aquatic life.”

In 1966, Virginia adopted the Air Pollution Control Law and established the Air Pollution Control Board. The Council on the Environment (a precursor to the Virginia Department of Environmental Quality) was established in 1970, and the regulation of solid waste by the Virginia Board of Health began in 1971.

On July 1, 1971, Article 11 of the Virginia Constitution became effective, making it the policy of the Commonwealth to “conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings and protect its atmosphere, lands, and waters from pollution impairment or destruction, for the benefit, enjoyment and general welfare of the people of the Commonwealth.” Virginia was one of the first states to include the protection of natural resources in its constitution.

Since then, Virginia has taken great strides in trying to clean up the Chesapeake Bay and its watersheds, to reduce air pollution, and to protect our natural resources. There may still be much work to do, and with new federal mandates for both water and air quality having recently been implemented by EPA, some might think it will be hard for Virginia to keep up. But, fear not, here in the Old Dominion, we have always led the way.

Happy Earth Day!

(Hat tip to the Virginia Department of Environmental Quality for their informative Web site.)