EPA Finalizes Chesapeake Bay Total Maximum Daily Load

On Dec. 30, EPA finalized the largest total maximum daily load (TMDL) or “pollution diet” ever developed by the agency, covering the entire 64,000 square mile Chesapeake Bay watershed. The TMDL set limits on nitrogen, phosphorus, and sediment discharges from construction and other activities into the Chesapeake Bay watershed.  The Chesapeake Bay TMDL is being regarded as a “model” approach to restore waterbodies nationwide. EPA set pollution limits and allocated water basin-specific amounts that each jurisdiction must meet in their individual Chesapeake Bay segments.  The regulated jurisdictions—Delaware, the District of Columbia, Maryland, New York, Pennsylvania, Virginia and West Virginia—have developed Watershed Implementation Plans (WIPs) that outline the measures they will take to reduce pollutants to meet the allocated amounts.  Several actions the jurisdictions plan to undertake will directly impact construction activities:

• Update the construction stormwater permits to include new requirements to help meet the TMDL pollution reduction goals.  In addition, these permits will need to incorporate the new effluent limitation guidelines rule.
• Strengthen their inspection and enforcement activities related to already regulated sectors such as construction.
• Implement post-construction stormwater controls and low impact development (LID) strategies such as riparian buffers, rain gardens, bioswales, green roofs, pervious paving, etc.  To facilitate this, the post-construction rule that EPA is developing is anticipated to include special Chesapeake Bay area requirements.
• Evaluate and potentially expand local green building incentives and mandates.

The Chesapeake Bay TMDL will impact land planning decisions and may slow or stop development as the jurisdictions decide how to manage pollution increases that could be anticipated from new development.  Discussions are now underway on the establishment of a new inter-state allocation trading program and an offset program for new growth. Although this is a local/regional issue, AGC has been reporting on the TMDL and attending stakeholder meetings with EPA in light of the intention to use this TMDL as a model for TMDLs across the nation.  AGC will participate in future meetings with EPA to discuss offsets and best management practices for stormwater control as they pertain to construction projects. The Chesapeake Bay TMDL has been criticized by many, and already the American Farm Bureau Federation and the Pennsylvania Farm Bureau have filed suit against the U.S. EPA (January 10, 2011).  States and industry decry the costs of implementing the program, especially while economic recovery remains slow.  The regulated community will likely bear the brunt of the implementation cost as states strengthen requirements and step up enforcement actions.  EPA also has been charged with using faulty modeling data (which it plans to address while the TMDL is implemented instead of delaying its finalization of the TMDL) and not allowing sufficient time for public comment especially by the thousands of small businesses that will be impacted by the requirements. The final Chesapeake Bay TMDL, fact sheets, and other resources are available at http://www.epa.gov/chesapeakebaytmdl/. About the Watershed Implementation Plans EPA reviews and evaluates the WIPs and will hold each jurisdiction accountable to meet their WIP goals.  Jurisdictions must develop and achieve 2-year milestones and complete 60 percent of the overall pollution control measures by 2017 with all measures in place by 2025.  EPA will maintain ongoing oversight of each jurisdiction’s programs.  It is up to the jurisdictions to implement the WIP activities; however, if progress is insufficient, then EPA will take action including targeted compliance and enforcement activities.  The agency has indicated that it will object to proposed regulations and permits – including any revised construction general permits for stormwater runoff – that are not consistent with the TMDL. Below is a summary of each jurisdiction’s WIP programs that focus on construction stormwater permits.

• Delaware is revising its sediment and stormwater regulations.  The regulation and permit will include the new federal effluent limitation guidelines for the construction and development industry.  Delaware intends 100% of construction sites to obtain stormwater permits with 100% inspected annually by a local delegated agency.  The new regulations will apply to new development and redevelopment projects and will include requirements for both construction site and post-construction stormwater management.
• The District of Columbia also is revising its stormwater management and erosion and sediment control regulations. Construction permits are required for any land-disturbing activity of more than 50 square feet, earth disturbing activities of more than 50 square feet requires an erosion and sediment control plan and any land disturbance over 5,000 square feet requires a stormwater management plan. The District is encouraging LID and green infrastructure strategies to control stormwater onsite. They also have stormwater runoff retention requirements and training for construction site managers.
• Maryland already has stringent stormwater management requirements that it enacted in 2007.  Maryland’s Stormwater Management Law and Regulations requires soil erosion prevention, maintenance of 100% of predevelopment groundwater recharge volume for the site as well as the capture and treatment of stormwater runoff.  Maryland also has developed performance standards that apply to any construction activity disturbing 5,000 or more square feet of earth. Maryland also provides training for construction personnel.
• New York has vowed to increase the frequency of inspections and subsequent follow-up actions.  The 2010 permit exceeds current federal minimums and includes post-construction controls for sites over one acre.  In addition, New York includes requirements in the construction permit for sites to be inspected weekly by the owner using “qualified instructors.”  According to the New York WIP, this requirement provides a backstop of a third-party stormwater professional onsite, preparing reports that are reviewed by state inspectors when they visit a construction site.
• Pennsylvania requires erosion and sediment control best management practices on all earth disturbing activities. Those activities 5,000 square feet or greater require a written erosion and sediment control plan, and those sites with greater than one acre of earth disturbance must submit a plan for approval. Pennsylvania’s stormwater management policy also incorporates post-construction stormwater planning requirements.
• Virginia is revising its general permit for discharges of stormwater from construction activities to reflect the Bay TMDL and the new effluent limitation guidelines.  Currently, permits are required for construction activities disturbing one acre or more.  In those areas covered by the Chesapeake Bay Preservation Act, the threshold is 2,500 square feet or more.  Virginia’s permit covers post construction stormwater management controls as well. Virginia also has a training and certification program required for any person who is in charge of and responsible for land-disturbing activities.
• West Virginia uses a construction general permit to regulate discharges of stormwater associated with the construction activities. That permit is up for renewal in 2017 and does not currently include post-construction stormwater management controls. West Virginia plans to develop post construction controls for projects in the Chesapeake Bay watershed either separately or through the current permit.

EPA’s review of the WIPs, related information and links to each jurisdiction’s WIP are available on EPA’s website. For more information, contact Melinda Tomaino at tomainom@agc.org.