I am writing on behalf on the Virginia Association of Municipal Wastewater Agencies in response to Bill Matuszeski’s Notes from Bayside commentary that appeared in the September issue of the Bay Journal. VAMWA is compelled to write because the commentary is factually inaccurate and misleading.

Before responding to Mr. Matuszeski’s article, we want to point out a fact that Mr. Matuszeski failed to mention; namely, that VAMWA’s members in the Chesapeake Bay watershed have been leaders in nutrient reduction in Virginia. Between 1985 and 1998, VAMWA members achieved annual nitrogen and phosphorus reductions totaling approximately 10.4 million pounds and 3.2 million pounds, respectively. These reductions were achieved voluntarily with expenditures totaling hundreds of millions of local dollars and NO state grant funding.

Nutrient control projects currently planned or under design and construction at VAMWA member plants in the Chesapeake Bay watershed will achieve additional annual nitrogen and phosphorus reductions totaling approximately 5.2 million pounds and 49,000 pounds, respectively, at a cost of approximately $145 million, not including perpetual operation and maintenance costs. Although state grant funding will pay for almost 50 percent of the capital cost of these additional projects, the state grants are only a very small percentage of the total cost, because many of these projects include related facilities that are not grant eligible.

We now turn to the specifics of Mr. Matuszeski’s commentary.

First, the Virginia Water Quality Improvement Fund, which provides 50 percent grant funding for water quality projects, was enacted with the leadership of Delegate W. Tayloe Murphy and the active support of a broad-based coalition of environmental groups, local governments, industry and state agencies. Although the Fund’s initial priority is point and non-point source nutrient reduction in the Chesapeake Bay watershed, the Fund can be used for other water quality projects, provided that there is sufficient money in the Fund to fulfill its initial priority. VAMWA was pleased to be a part of the coalition supporting this legislation, but, contrary to Mr. Matuszeski’s assertion, it was not created specifically for VAMWA or anyone else.

Second, VAMWA never said it would not participate in the Fund grants program without guarantees that performance requirements would not be placed in permits. VAMWA has urged Virginia and the EPA not to impose nutrient limits in permits until the Chesapeake Bay Program been has given a fair chance to achieve its goals, because we believe the Bay Program can achieve greater nutrient reductions from a wider range of sources in less time and at lower cost than can be achieved with federal mandates. Neither VAMWA nor anyone else has ever received any guarantees, and the fact that VAMWA’s members are actively participating in the grants program speaks for itself. That participation involves the execution of grant agreements that contain numeric limits on the discharge of nitrogen with significant penalties for non-compliance. No such penalty provisions exist in Maryland.

Third, VAMWA has never claimed the money going to the Fund was insufficient as Mr. Matuszeski contends, nor has the governor or the General Assembly increased the amount of money going to the Fund. The 1999 legislation that established the Fund sets the amount of the budget surplus going to the Fund each year. Moreover, contrary to Mr. Matuszeski’s contention, the Fund eligibilities have never been “widened” to include non-nutrient projects. In fact, the legislation was amended during the 1999 General Assembly to prohibit the use of the Fund for projects other than nutrient control in the Chesapeake Bay watershed unless the director of the Virginia Department of Environ-mental Quality first certifies that the Fund contains sufficient money to implement the Chesapeake Bay tributaries strategies.

Fourth, VAMWA has never claimed that the James River tributary strategy was flawed nor has it “complained” about any proposal by others participating in the process. What VAMWA has done is point out that since 1985, its James River members have achieved nitrogen and phosphorus reductions totaling 40 percent and 60 percent, respectively (without grant funding or a final tributary plan), while reductions from other sources have been minimal. VAMWA simply asked that its members not be capped at their 1998 loads until other sources achieved meaningful reductions. In return, VAMWA committed that its members would install additional nutrient reductions with any plant expansions, which should maintain the nutrient reductions achieved to date.

Finally, we are truly puzzled by Mr. Matuszeski’s suggestion that VAMWA’s objection to the EPA’s listing decision is a “gambit” to avoid giving the Chesapeake Bay Program a chance to work because we fear it will fail, resulting in regulation. VAMWA has been one of the Bay Program’s staunchest defenders when others (with the exception of Virginia, the Maryland Association of Municipal Wastewater Agencies, Washing Water and Sewage Authority and Metropolitan Washington Council of Governments) seemed unwilling to give the Bay Program a chance to succeed before replacing it with TMDLs. In fact, Secretary John Paul Woodley appealed to the Bay Program leadership to “save the Bay Program” at the urging of VAMWA and others who want the Bay Program preserved.

Notwithstanding Mr. Matuszeski’s assertions, our concerns are legitimate, and we are not engaging in fear tactics when we forecast that the listing decision could cost Virginia localities more than a billion dollars and double the rates of some publicly owned treatment works (POTWs). Let me add that we would willingly spend the money and incur these kinds of financial impacts if we thought it was necessary to achieve scientifically based nutrient criteria.

The nutrient TMDL for Rehoboth Bay, which calls for the elimination of all point sources, leads us to conclude that limit of technology is inevitable for point sources should nutrient TMDLs be implemented for the Bay. VAMWA believes that scientifically based nutrient-related and sediment-related criteria and a fair allocation of the nutrient and sediment reduction responsibilities among all sources will avoid the need for limit of technology for nutrient control at all POTWs.

The billion-dollar cost estimate referred to by Mr. Matuszeski is our estimate of the difference in cost between limit of technology for all Virginia POTWs in the Chesapeake Bay watershed and less stringent controls (5–8 mg/l nitrogen) that we believe would generally be associated with the Chesapeake Bay Program. This estimate also takes into account the additional cost of meeting permit limits expressed as weekly and monthly average limits authorized under the Chesapeake Bay Program. Further, it accounts for the additional cost of conservative designs necessitated by the threat of significant civil and criminal sanctions under the Clean Water Act. It does not include the hundreds of millions of additional dollars that would be incurred by point sources in the Bay states.

VAMWA will undertake an appeal of the EPA’s listing decision only as a last resort. Our preference is to secure reasonable assurance that the EPA will, in fact, give the Bay Program a chance to work without litigation. It is for that reason that we are following up on Secretary Woodley’s initiative and preparing a proposal to the EPA that will memorialize tasks and deadlines to develop and implement new Bay criteria and thereby avoid the need to establish and implement TMDLs for the Bay. We urge those who want Bay Program to succeed to support this proposal.