EPA officials in early December were reviewing final state Watershed Implementation Plans, which offer new details about how each jurisdiction intends to achieve nutrient and sediment reduction goals needed to restore Chesapeake Bay water quality.

EPA officials had only begun to look at the lengthy documents as the Bay Journal went to press. Two states, Maryland and New York, missed the Nov. 29 deadline but indicated they would file their plans shortly.

Virginia submitted its plan on time, but said last-minute computer model runs unexpectedly revealed a nitrogen shortfall of more than 1 million pounds, and that state officials were working with EPA representatives to close the gap.

The EPA has teams of experts assigned to review the plans, known as WIPs. It intends to complete its final cleanup plan, known as a Total Maximum Daily Load, by the end of the year based on information in the plans. The WIPs, and the TMDL, are intended to provide an enforceable roadmap that ensures all actions are in place to meet nutrient reduction goals by the end of 2025.

EPA officials said they would review the plans to see whether they outline enough nutrient control actions to meet the goals, and to see if states have the programs and resources to carry out and enforce the proposed actions.

"It's not just, 'can you meet the numbers?'" said Katherine Antos, EPA water quality coordinator. "It is 'can you give us assurance of how you are going to meet the numbers?'"

In particular, the EPA is looking for states to demonstrate they have adequate financial, regulatory or other programs that provide "reasonable assurance" that nutrient reductions are achieved from largely unregulated sources such as runoff from agricultural fields, suburban lawns and small stormwater systems. If the agency deems programs outlined in state WIPs are not adequate, it has indicated it will require greater "backstop" nutrient reductions from sources where it does have regulatory authority: wastewater and industrial treatment plants, large stormwater systems and large animal feedlots.

Further reductions from those sources would be hugely expensive, and the EPA has received many comments that were sharply critical of the use of any such backstops.

"EPA would greatly prefer to have the TMDL be driven by state and DC watershed implementation plans with as little federal backstopping as possible, or no federal backstopping if that is possible." Antos said.

In its evaluation of draft WIPs submitted in early September, the EPA concluded that Delaware's, New York's, Pennsylvania's, Virginia's and West Virginia's plans all had "serious deficiencies," while Maryland's and the District of Columbia's had "some deficiencies."

Some of the people who reviewed the revised plans characterized them as being greatly improved. The Chesapeake Bay Foundation commended Virginia's plan for seeking to achieve up to 6 million more pounds of nitrogen reductions from wastewater treatment plants than its September draft, though the group said the state's agricultural programs still fell short.

"Unlike the clear commitments to reductions from the wastewater sector, Virginia has not provided the same reasonable assurance from the agriculture sector," said Ann Jennings, CBF Virginia executive director. "Because of this shortcoming, we anticipate that EPA will have no choice but to impose backstop TMDL measures, which could result in increased EPA oversight in order to comply with the Clean Water Act."

Similarly, the Center for Progressive Reform said the Virginia plan has "significant improvements" but that the plan still failed to provide adequate detail about the level of funding needed to implement the plan, or where those funds would come from.

Matthew Ehrhart, CBF Pennsylvania executive director, said Pennsylvania had "made significant improvements" to its plan since its first draft, but still came up short in explaining how it would deal with stormwater.

"Despite the plan's positive proposals to address stormwater pollution, such as an intention to increase technical staff, legislation aimed at limiting pollution from lawn fertilizers, and a commitment to develop a 'compliance and enforcement' strategy, it continues to lack fundamental details on how these and other stormwater commitments will be achieved," he said.

Some states, meanwhile, continued to express concerns about the EPA's TMDL process. In a cover letter, Virginia Natural Resources Secretary Douglas Domenech described the 133-page WIP as a "good amended plan that addresses the issues raised by EPA" with the earlier draft. But, he added, "We must reiterate Virginia's concerns about the process, cost, legality, allocations and compressed timing in the development of this plan."

He said full funding of the plan would cost the state $7 billion beyond what it already spends on Chesapeake-related programs, but said "as a show of good faith," Gov. Robert McDonnell would include $36.4 million in new funding to the state's 2011 budget for the Bay.

New York, which was late in submitting a plan, had filed comments with the EPA in November that were harshly critical of the nutrient and sediment goals assigned to the state and the quality of the computer models EPA used in making the calculations. The state also questioned the EPA's legal authority to include New York in the Bay TMDL.

Terms to Know

  • TMDL: The Clean Water Act requires a plan known as a Total Maximum Daily Load for all water bodies that fail to meet water quality standards designed to support aquatic life. The plan calculates the maximum amount of pollution a water body can receive and still meet its water quality standards.
  • Watershed Implementation Plans: The EPA has required states to write these plans, nicknamed WIPs, that explain how they will achieve nutrient and sediment goals. Those plans must show the amount of pollution reductions from various sectors (wastewater, stormwater, agriculture, septic tanks, etc.), and demonstrate that adequate financial, regulatory or other programs are in place to ensure those goals are achieved.
  • Backstops: If the EPA deems that state WIPs fall short, it will incorporate backstop actions in the final TMDL. Backstop actions essentially require greater reductions than proposed by the state from regulated sources, such as wastewater treatment plants, large stormwater systems or animal feedlots. The sources targeted for backstop actions are those which the EPA has authority to regulate; it does not have power to regulate some sources, such as agricultural runoff.