The Virginia Department of Conservation and Recreation (DCR) is supplementing the formal comment period by working with its partners to hold a series of public meetings on the Phase II WIP across the state. These will aim to provide a brief update on the status of the Phase II WIP, the next steps in the Chesapeake Bay TMDL planning process and to provide local governments, planning district commissions, soil and water conservation districts and stakeholders with a convenient and mostly local opportunity to comment on the Phase II WIP.

Here’s the schedule:

A copy of Virginia’s Phase II WIP is available here.   If you have questions, concerns or, perhaps, want to support its goals and strategies, I know that our friends at the DCR want to hear from you. And so would I.  Let me know what you think.

As the state’s new stormwater permitting regime for construction projects shifts to the local level, the many different components of these programs, from the ordinances that will establish them, to the staff that will administer and enforce them, to the funds that will pay for them, are currently being developed at break-neck pace. All of these complexities in the development of local programs, and more, were discussed yesterday during the second meeting of the Department of Conservation and Recreations’ Stormwater Local Government Advisory Committee meeting. The group is trying to identify issues and processes that will lead to a successful transition of the current state administered program, to the local level.

For some localities, this may just mean modifying existing programs. For others however, particularly those west of I-95 where stormwater programs and Chesapeake Bay Act criteria have not been imposed, adoption of such programs is a wholesale change to the way development has been regulated at the local level. Localities have until July 1, 2014, to have such programs in place. This means local staff will need to be trained, ordinances will need to be developed and debated, and funding sources for program implantation identified. That is a lot of work to do in a very short time. Additionally, because those charged with training local staff are still receiving necessary training themselves, and because local funding will not be considered until the next fiscal year budget cycle beginning June 1, 2013, two of the most important components of such programs are essentially at a stand-still.

That being said, much work is being done on program checklists and a model ordinance for localities to adopt. Having been asked by DCR to assist in reviewing this ordinance, I am particularly hopeful that this program component can reach local governments sooner, rather than later.

So if you are involved in land development projects in Virginia, now is the time to get involved. Any advice to DCR or to local governments as they charge forth? Any specific concerns? If so, let me know.

The theme this year was “Collaboration Innovation Results,” and tracks focused on Getting to Zero Waste, the Chesapeake Bay WIP Phase II, Sustainability in Higher Education, Land and Conservation, Air Quality and Water Supply, and Stormwater, Water Quality and Dam Safety.

For those of us who have been following the new, and seemingly ever-changing, stormwater regulations (our posts are here), the day long sessions entitled “Stormwater Toolbox for Municipalities” included presentations from the Virginia Department of Conservation and Recreation (DCR), Stafford County, and the Center for Wetlands Protection, on a variety of stormwater topics. These featured an overview of the new regulations, implementation at the local level, tools to make keeping up with all these new requirements easier (aka “e-permitting”), and an explanation of the runoff reduction methodology that will soon be utilized to measure pollutant reductions in Virginia.

The symposium also included a truly engaging session entitled “Solutions for Top Environmental Challenges,” which was hosted by Virginia’s current Secretary of Natural Resources Doug Domenech, and whose panel included former Secretaries of Natural Resources, L. Preston Bryant., Jr., Beck Norton Dunlop. W. Tayloe Murphy, and John Paul Woodley, Jr. The Secretaries each spoke of the environmental achievements (and their regrets), while their administration was in office, and agreed that ensuring an adequate water supply and cleaning up the Chesapeake Bay are among Virginia’s greatest challenges going forward. (Kudos to Tayloe Murphy for calling on legislators to focus less on partisan politics and more on collaborative efforts to solve the problems facing Virginia and the environment, and to the audience for their echoing applause.)

The discussions yesterday on the status and implementation of Virginia’s Watershed Implementation Plan, Phase II (our posts are here) were also informative, and this year included highly focused discussions recognizing the challenges faced by local governments in identifying and financing strategies to reduce pollutants as required by the TMDL.

Of particular note was the announcement by Clyde Cristman, Legislative Fiscal Analyst with the Virginia Senate Finance Committee, that the new state budget will include approximately $87.6 million in cash for the DEQ Water Quality Improvement Fund. Other important information I can pass on included the National Fish and Wildlife’s announcement that it will provide “walk-up” technical assistance to all local governments on an as-needed basis to assist in developing strategies to meet local Chesapeake TMDL.

For me, this year’s symposium emphasized that the effort, in Virginia, to protect the environment and preserve our state’s natural resources has always involved, and continues to involve, so many hard working and dedicated individuals. As a lifelong Virginian, I thank you all.

And thank you, again, VMI for a great conference, to the speakers for a wealth of information, and for the sponsors for their support.

Not surprisingly, when EPA issued its comments to Virginia’s draft Phase II plan and milestones, on February 15, 2012, it stated concerns that the plan “lack[ed] important detail pending local input…” and requested that “Virginia provide some of these local plans prior to the submission of the final Phase II WIP in order to give EPA a sense of the local input.”

In the Final Phase II WIP, while Secretary Domenech again faulted the timeframe provided by EPA for localities to finalize and gain approval from governing bodies on potentially expensive strategies and approvals, he stated that 95% of Bay watershed localities actively participated in the Phase II planning process and submitted some level of strategies, information or data in support of the Final Phase II Plan. To collect this information, localities were briefed on how land uses and current best management practices were shown in EPA’s watershed model, which is used to develop reduction goals for the TMDL process. They were asked to review the data and offer updates to provide the model with more accurate information. They were also asked to develop local reduction strategies and to provide a list of resources needed. The information collected was then aggregated by the state, and local strategies for agriculture, urban/suburban stormwater, wastewater, forest lands and resource extraction are all included in the Final Plan. Final Plan at Appendix B-F.

Now that the Final Plan is submitted, the public gets its turn to comment on Virginia’s efforts. The state is providing an additional 60-day period for public comment. Comments or questions should be sent to vabaytmdl@dcr.virginia.gov. Written comments and inquires should include the name, address and phone number of the person submitting the comments. Comments must be received by 5 p.m., May 31, 2012.

A copy of the plan as submitted to EPA can be viewed at www.dcr.virginia.gov/vabaytmdl/index.shtml.

Take a look. What do you think? Are the local strategies enough? Too much? How did Virginia do overall?

Related articles

• Protecting the Chesapeake Bay while preserving agriculture and local economies (thehill.com)

Consolidating programs intended to control water degradation, Senate Bill 407 (Hanger)[companion to House Bill 1065 (Sherwood)] integrates elements of the existing Erosion and Sediment Control Act, the Stormwater Act, and Chesapeake Bay Preservation Act so that these regulatory programs can be implemented in a consolidated and consistent manner. The new regulatory process is intended to result in greater efficiencies, i.e., “one-stop shopping,” for those regulated. The bill eliminates the Chesapeake Bay Local Assistance Board and places its responsibilities with the Virginia Soil and Water Conservation Board. The bill also makes adoption of a local stormwater management program (“VSMP”) mandatory for all localities in Virginia (excluding non-MS4 towns), not just those in the Tidewater Area as defined by the Chesapeake Bay Protection Act, or designated as an MS4.

In expanding Virginia’s use of nutrient credits, House Bill 176 (Knight) and Senate Bill 77 (Watkins) enlarged Virginia’s existing nutrient trading provisions as anticipated in Virginia’s Watershed Implementation Plan, and as recommended by an Advisory Committee to the Virginia Secretary of Natural Resources. The Nutrient Trading Act (the “NTA”) calls for the Virginia Department of Conservation and Recreation (“DCR”) to adopt regulations for certifying credits, including those that may be generated from agricultural and urban stormwater BMPs, use or management of manures, managed turf, land use conversion, stream or wetlands projects, and other appropriate methods of nutrient control or removal, and then to allow credits to be used or traded by regulated MS4s, developers, industrial stormwater sources, and confined animal feeding operations, in accordance with the NTA. Once credits have been certified, they will be posted to an online public registry, also to be developed by DCR.

While both legislative actions will mean significant changes to the way stormwater management is regulated in Virginia, these changes have been a long time coming and likely took few by surprise. Whether they will result in the desired efficiencies and overall reductions in water degradation remains to be seen, and as with prior actions “the Devil is likely to be in the details.” Keeping our fingers crossed here. What about you?

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?