Update on Chesapeake Bay Watershed Clean-up Efforts, Potential Impact on Future Construction

The U.S. Environmental Protection Agency (EPA) released for public comment a draft Chesapeake Bay "pollution diet" on September 24. The pollution diet, called a total maximum daily load (TMDL), establishes pollution discharge limits for nitrogen, phosphorous and sediment-including sediment runoff from construction sites-entering the Chesapeake Bay and its tributaries. The Chesapeake Bay watershed is 64,000 square miles and encompasses portions of six states and the District of Columbia. EPA will accept public comment on the draft TMDL until November 8, 2010.  Other states with water quality concerns may look to the Chesapeake Bay TMDL as a guide or model for developing their own discharge pollution limits. The CWA requires TMDLs for all waterbodies that do not meet their water quality standards (i.e., impaired waterways). The Bay and its tributaries were placed on the impaired waters list in 1988 for nitrogen, phosphorus, and sediment. A lawsuit is now forcing the prompt development and implementation of a Bay-wide TMDL.  The Bay TMDL also  is "a keystone commitment in the strategy developed by federal agencies to meet the President's [Chesapeake Bay] Executive Order" (EO 13508, May 12, 2009 at http://executiveorder.chesapeakebay.net/) and requires states to develop watershed implementation plans (WIPs) to reduce pollutants from nonpoint (e.g., agricultural runoff) and point sources (e.g., construction site runoff). In brief, the Bay TMDL sets the limit for the amount of allowable pollution that can enter the Bay.  It assigns an annual "cap" on nitrogen, phosphorous and sediment discharges to each of the states in the Bay watershed and those states are working to write their own unique WIPs on how they will meet those limits. States submitted to EPA their draft plans in September. The Agency recently released evaluations of the draft WIPs from Maryland, Virginia, Pennsylvania, Delaware, New York, West Virginia and the District of Columbia. EPA found all draft plans deficient. The states are to submit to EPA their revised plans in November, and the final TMDL is expected in December 2010. Impact on Future Construction Once completed, the Bay TMDL will contain binding water quality standards that must be incorporated into all of the NPDES permits that authorize dischargers to the Bay watershed (e.g., construction general [stormwater] permits).  Construction contractors who discharge stormwater to the Bay will be required to meet the TMDL limits in their permits. Because EPA has identified development and developed land (including stormwater runoff from construction sites) as a contributor to the poor water quality of the Chesapeake Bay, the Bay TMDL will likely impact new construction in the Bay area in the future. For example, the West Virginia draft WIP places a cap on the acres of disturbed soils due to construction, and steadily lower the cap from the current 14,000 acres now, down to about 7,600 acres in 2025.  To this end, the draft state WIPs all reference erosion and sedimentation controls and some also include low impact development strategies and post-construction stormwater controls. States may heighten their inspection and enforcement activities. Implementation of the plans will be expensive and some states are entertaining stormwater fees and pollution trading schemes to pay for the TMDL. Contractors are encouraged to get involved at the local level as states will likely look at individual tributaries and the surrounding areas when identifying ways to curtail pollutants from entering the Bay. To access the draft TMDL, EPA's evaluation of state WIPs, a schedule of public meetings and webinars and additional resources, go to http://www.epa.gov/chesapeakebaytmdl/. This website also has instructions for submitting formal written comments to EPA on the draft Bay TMDL.