Representatives from several states expressed misgivings about the time frame for developing a new Bay cleanup plan at a recent meeting of high-level officials, but EPA representatives insisted the agency will stick to its schedule to complete a new strategy by the end of the year.
Technical issues have mounted in the development of the plan, known as a Total Maximum Daily Load, particularly with the updated computer models used to estimate the amount of pollution reductions needed from each state and river to clean the Bay.
States originally were to have received nitrogen and phosphorus goals in April. Now, those figures aren't expected until July.
Several state officials said the new timetable allows too little time to craft their EPA-mandated Watershed Implementation Plans, which must show how they will achieve the nutrient and sediment reduction goals. Originally, the initial versions of those plans were to be completed by June 1-a month before they will now get their pollution goals.
Under terms resolving a 1999 suit, the EPA is not legally required to finish the TMDL until May 2011. But the state-federal Bay Program has been widely criticized for repeatedly missing deadlines, including its Chesapeake 2000 agreement pledge to clean the Bay by the end of this year.
With that milestone missed, the Bay Executive Council-which includes state governors and the EPA administrator-said they would at least complete the TMDL by the end of the year, and EPA Region III Administrator Shawn Garvin insisted at the meeting that there was "no other date on our calendar" except Dec. 31 for completing the plan. The EPA also committed to that goal as part of an executive order from President Barack Obama.
"It's what this body and the Executive Council and the Executive Order committed to," said Garvin, who chairs the Bay Program's Principals' Staff Committee, which includes senior federal officials and state agency department heads. "I think it's important that we do everything in our power to meet those commitments."
One casualty could be the opportunity for extended public comment. The EPA had originally called for a 60-day comment period. Now-although the EPA calls the Bay TMDL the largest and most complex of more than 40,000 TMDLs written across the nation-public comment may be restricted to 30 days.
"With all the stakeholders that we have involved, I don't think we can have a credible public comment period in 30 days," said David Paylor, director of the Virginia Department of Environmental Quality.
Some state officials expressed frustration with the inability of the EPA to deliver final, and in some cases consistent, nutrient reduction goals to them. "My numbers are going all over the place," said James Tierney, assistant commissioner for water resources with the New York Department of Conservation.
Even though the EPA is now promising to deliver nutrient reduction goals to states in July, officials acknowledged that some lingering model issues pertaining to such items as nutrient management on farmland and the amount of urban land use in the watershed will not be fully resolved.
As a result, officials said they would add a margin of safety to the July numbers to guarantee the nutrient reductions are adequate. That would allow the states to proceed with writing their Watershed Implementation Plans. Given concern over model uncertainty and time frames, the EPA has also agreed to give states more flexibility to adjust nutrient and sediment allocations next year, when more detailed WIPs are scheduled.
John Hanger, secretary of the Pennsylvania Department of Environmental Protection, said lingering issues about how the model estimates the effects of nutrient management could have a huge impact in his state, where nutrient pollution is overwhelmingly from agriculture. "My sense is, those changes in the model could lead to significant changes in the allocations," he said.
But others agreed with keeping the current end-of-the-year TMDL deadline. "We can't keep missing deadlines," said John Griffin, secretary of the Maryland Department of Natural Resources, citing sagging Bay Program credibility with the public. "The frustration level is going to grow and grow."
Evident at the meeting was one significant change. The Bay Program historically has worked cooperatively, seeking consensus on decisions. But completion of the TMDL is a legal obligation for the EPA, and agency officials have insisted that final decisions are theirs-not the states. At one point during the meeting, Garvin noted, "there is no vote item on this agenda."
The Chesapeake TMDL Process
The EPA this year will establish a cleanup plan known as a Total Maximum Load that establishes the maximum nitrogen, phosphorus and sediment loads that can enter the Bay from each state and from each major tributary.
By the end of the year, states must also have Watershed Implementation Plans approved by the EPA showing how they will achieve those nutrient and sediment reductions. States must submit preliminary Watershed Implementation Plans to the EPA that subdivide nutrient and sediment goals by sector, such as wastewater treatment plants, municipal stormwater, animal feedlots, septic systems and construction sites. Those plans must estimate the nitrogen and phosphorus reductions that states expect to achieve from each sector, and evaluate whether existing state programs-and funding sources-can achieve those goals. The plans must explain how states would address such program shortfalls.
By summer 2011, states have to go a step further and allocate nutrient reduction goals to counties or small watersheds.
By the end of 2011, states must set the first in a series of Two-Year Milestones outlining the specific cleanup actions they will take during 2012 and 2013, as well as the backup measures they will implement if those actions fall short of goals.
The Watershed Implementation Plans and Two-Year Milestones must achieve 60 percent of the needed Baywide nutrient and sediment reductions by the end of 2017
The EPA has threatened to impose potentially severe consequences on states that fail to show adequate cleanup progress.
Key schedule changes
Old: The EPA was to provide final nutrient and sediment goals for states and rivers in April.
New: Nutrient goals are expected July 1, and sediment goals Aug. 15. A "safety margin" will be added to the goals to address model uncertainty.
Old: Public comments accepted from Aug. 15 until Oct. 15.
New: TMDLs and Watershed Implementation Plans submitted for 30 days of comment on Oct. 1.
Watershed Implementation Plans
Old: States were to submit preliminary WIPs by June 1 showing how they would subdivide nutrient goals by sector, such as wastewater treatment plants, animal feed lots, farms, septic systems, stormwater and so on. The plans would have to estimate the amount of nutrient and sediment reductions that would be achieved from each source and review whether programs were adequate to achieve those reductions.
New: States must submit draft WIPs to the EPA by Sept. 1.
Phase II Watershed Plans
Old: Draft Phase II WIPs that further subdivide allocations by sector down to the county or "small watershed" scale must be submitted to the EPA by June 1, with a final submitted by Nov 1.
New: The dates remain the same, but states may adjust allocations by sector based on new model results, and in some cases the total state or river allocations may change. The safety margin added to allocations this year will be removed as numbers are finalized. Changes will be subject to a 30-day public comment
The final Bay TMDL will be issued by the end of this year. But it may be amended with new allocation figures at the end of 2011 if necessary.