Senior state officials signaled in June that they would like to accelerate the development of a new cleanup plan for the Bay.
The Bay Program's Principals Staff Committee, which includes state agency heads and senior federal officials, approved a motion directing that a new cleanup plan, known as a Total Maximum Daily Load, be completed by the end of 2010.
They also said the new plan should have better assurances that it will be fully implemented.
State and federal agency officials have been working on a schedule that would complete the plan in May 2011, the date required in a 1999 court agreement.
But Virginia Natural Resources Secretary Preston Bryant said the public was frustrated with the slow pace of the Bay cleanup which, at recent rates, would not achieve its goal for decades, and offered a motion to speed up the planning effort.
In a letter, the Chesapeake Bay Foundation called for faster action, noting that if the region was going to miss its 2010 deadline to clean up the Bay, which was established in the Chesapeake 2000 agreement, it should at least complete its new cleanup plan by that date.
Many members of the committee expressed similar urgency. "It's the sense of this body, generally, to just do it," said Maryland Natural Resources Secretary John Griffin, the committee chair. "People would like to see this expedited."
After the meeting, Roy Hoagland, CBF vice president for environmental protection and restoration, called the vote "a significant shift in how they are dealing with the TMDL."
The action is not necessarily binding, though. The ultimate responsibility for writing the TMDL rests with the EPA, not the Bay Program partnership. Under a 1999 agreement settling a lawsuit, the agency has to complete a TMDL by the May 2011 deadline. Although EPA officials have said they want to incorporate state views in the process, they have maintained that ultimate decisions rest with the agency, which would have to defend the plan in court.
EPA Bay Program Director Jeff Lape said he is supportive of doing what it will take to meet the partners' desired 2010 deadline as long as it is balanced with adequate time for public involvement, especially by local governments, who are likely to have a key role in taking actions to reduce nutrient and sediment loads. Several recent reports have said the Bay Program needs to work more closely with local governments to implement its goals.
"I don't want to see us shortchange the process in a way that undermines its ultimate effectiveness," he said.
Lape also called the meeting a "breakthrough" as the committee showed its desire to become fully engaged in the TMDL development process-something that could speed the plan's development by giving a clear direction to staffers working on the complex issue.
A TMDL is required by the Clean Water Act for water bodies that fail to meet water quality standards. The state-federal Bay Program had committed to meeting standards by 2010, thereby preventing the need for the TMDL deadline set by the court agreement. But long-term, monitoring-based water quality trends and computer model projections show that cleanup goals will be missed by a wide margin.
A TMDL is essentially a budget establishing the maximum amount of pollution that a water body can receive and still attain water quality goals. It then allocates that pollution "load" among its various sources.
No one has ever completed a TMDL for an area as large as the Bay watershed, though, and major issues remain to be resolved. Among them are how detailed the load allocations will be.
Several states, especially Virginia and Maryland, have supported detailed nutrient allocations within the TMDL to individual dischargers and perhaps even individual counties, whereas others, such as Pennsylvania, have sought to have a single nutrient allocation for the state, with sub-allocations left to state officials.
Advocates of local allocations say it increases accountability. But Pennsylvania officials-whose state does not touch any tidal waters-say it could make them more vulnerable to suits from wastewater treatment plants and others.
The committee voted to recognize that different paths for allocation and implementation may be appropriate, with Bryant's motion allowing for more local allocations in some states, but not requiring it. The resolution called for Pennsylvania to demonstrate that its programs would still achieve cleanup goals if it did not have local allocations. Bryant's motion also included a provision that a third party would evaluate the effectiveness of these different approaches.
Finally, Bryant's motion included a recommendation to convene a special group to explore the thorny issue of "reasonable assurance." While TMDLs serve as the basis for discharge limits for wastewater treatment plants or industries with permits, they do not provide direct authority to control sources of runoff, such as agriculture, which are the source of most pollution to the Bay.
EPA guidance calls for the TMDL to provide "reasonable assurance" that those reductions would be met. In reality, many TMDLs provide little such detail. Some-including the CBF-have said that the Bay TMDL should serve as a national model and provide specific information about how runoff will be controlled.
In its letter, the CBF said that could include identifying adequate funds to ensure goals are met; identifying state laws and regulations that could enforce reductions; setting time frames and deadlines for meeting reductions; and other actions.
"The fundamental question is, what is the TMDL going to mean for the Bay?" Hoagland said.
The Bay Program has repeatedly missed past cleanup goals, and committee members agreed that the new plan needed to include better assurances that it will be implemented.
"We don't want a worthless TMDL," said Ann Swanson, executive director of the Chesapeake Bay Commission, which represents state legislatures. "What a waste of time."
The committee called for recommendations on addressing reasonable assurance by its September meeting in preparation for a likely request for endorsement by the Chesapeake Executive Council later in the fall.
Bryant's multi-part motion for advancing the TMDL process was approved by hand vote. There were no apparent dissenters.