The EPA gave generally high marks to the latest state plans to clean up the Chesapeake, but remained critical of portions of the submissions from Pennsylvania and Virginia.
And, it provided a hint that it will act against states that fail to live up to expectations. The agency withheld hundreds of thousands of dollars of grant money from New York, which didn't submit its draft Phase II Watershed Implementation Plan until Jan. 31. It was due Dec. 15.
"From an overall standpoint, we're pleased, but some jurisdictions clearly did a better job than others," said Jim Edward, deputy director of the EPA's Chesapeake Bay Program Office.
The agency publicly released its evaluations of the draft plans Feb. 17. The evaluations showed that Maryland, Delaware and the District of Columbia continued to provide the strongest, most detailed plans.
The EPA also praised West Virginia for "significant improvements."
Some plans need work
Virginia's plan, while improved, still had shortcomings which could lead to federal actions. Pennsylvania's plan needed the most work, according to the EPA's review.
If shortcomings in the Virginia and Pennsylvania plans are not fixed in final plans due March 30, the EPA may exert "enhanced oversight" over some programs, including such actions as a greater federal role in monitoring and enforcing permits.
EPA officials had not completed a review of New York's plan, but agency officials said they hoped to complete it soon, and regardless of the state's delay, expected it to meet the March 30 deadline for a final submission.
This was not the first time New York was late submitting a required plan. Edward said the EPA decided to withhold a third of the $1 million grant that the state was to get to improve the regulatory and accountability aspects of its nutrient control programs. "We may ultimately give them that funding, depending on what their final plan looks like," he added.
An accountability framework
The Phase II Watershed Implementation Plans are part of what the EPA considers its accountability framework - a strategy to ensure that the states stay on course to meet the cleanup deadlines. States are to fully implement their Bay pollution control programs by 2025, and are to accomplish 60 percent of the required nutrient and sediment reductions by 2017.
The intent is to ensure that the Chesapeake Bay Total Maximum Daily Load, or pollution diet, is achieved on time, unlike a series of earlier commitments dating to 1987. The pollution diet was adopted in December 2010 and set the maximum amount of nutrients and sediment allowed to reach the Chesapeake from each state and major tributary.
Overall, it would require roughly a 25 percent reduction in nitrogen, 24 percent reduction in phosphorus and 20 percent reduction in sediment from 2009 levels. According to computer model estimates, that would be enough to clear the Bay's algae-stained surface waters and eliminate the widespread oxygen-starved dead zones that choke aquatic life each summer. The task is expected to cost billions of dollars.
The TMDL gives the EPA new regulatory authority which it has used over the last two years to require a series of increasingly detailed cleanup plans from states showing how those goals would be met. Unlike the non-binding plans written for previous cleanup goals, which sometimes included wildly unattainable actions but were never subject to any formal review, the EPA is using its authority under the TMDL to prod states into providing more explicit detail about programs, regulations and other tools they would use to meet the goals.
More oversight possible
When the first Phase I Watershed Implementation Plans were submitted in December 2010, the EPA warned that portions of the Virginia, Pennsylvania, West Virginia and New York plans failed to provide adequate assurances that nutrient reduction goals would be met, and that failure could result in greater federal oversight of the states' programs.
With the new Phase II plans, all of the states were given a chance to provide new details about how they would staff, fund and otherwise provide more certainty that their goals would be met. The Phase II plans were also intended to involve local governments in plan development to ensure they were aware of their Bay-related pollution control commitments.
The EPA's review of the draft Phase II WIPs was primarily focused on whether states provided a convincing level of detail that they would meet their 2017 nutrient reduction goals for the main nutrient-generating sectors - agriculture, wastewater and stormwater.
As was the case with Phase I plans, the EPA indicated that Maryland, Delaware and the District of Columbia all delivered strong plans that required no "enhanced oversight" - ie., stepped-up federal action in the state - although the EPA offered a number of suggestions for improvements.
The agency found that West Virginia - which had previously faced enhanced oversight, or "federal backstops," for all three sectors after its Phase I plan - had dramatically improved its new plan. As a result, the threat of federal action has been removed from its stormwater and wastewater programs. The EPA still called for enhanced oversight of the agricultural sector, but indicated the state's agricultural plan was dramatically improved and - unlike the case with shortfalls in other states - did not list any potential actions it could take.
The EPA's review found the greatest shortcomings with Pennsylvania's plan, saying it failed to provide enough detail about how its programs would meet goals for any of the three major sectors - agriculture, stormwater or wastewater - and called for enhanced federal oversight of each.
In the case of agriculture, the EPA said that Pennsylvania provided less assurance that some programs would meet goals than it did in its Phase I plan. In part, that's because the earlier plan counted on costly manure-to-energy programs as a major part of its nutrient control program, but the Phase II plan provided no detail about how those efforts would be funded, EPA said.
The EPA also questioned the state's plan for counting on Conservation Districts to take on a greater compliance role without providing assurance that districts were willing or able to take on that responsibility. Part of the state's plan for meeting its nutrient reduction goal was to count previously unreported nutrient control efforts, but the EPA said that Pennsylvania had provided little information about how it would track and verify such practices were in place.
Pennsylvania and the EPA have long disagreed on the scope of stormwater regulations, and that continues. The EPA contends the state failed to provide evidence of how it would achieve its stormwater nutrient goals. It set out a list of improvements it said the state needed to address, including details showing adequate funding levels, how practices are reported and verified, and a schedule for training staff and local officials to ensure they are up to date with Bay-related requirements.
The review also found a series of shortcomings in the state's wastewater programs, including the need to better account for increases in wastewater from other sources such as septic tanks. It also raised concerns about the adequacy of the state's trading program, which is used by some facilities to meet permit goals.
The EPA called for enhanced oversight for all of those programs, which could result in such actions as objecting to new wastewater or animal feedlot permits, stepping up enforcement of permits, dictating how grant money is used by the state, or requiring more staff training.
A Pennsylvania Department of Environmental Protection spokesman said the agency was reviewing the EPA's comments.
In its draft Phase II WIP, the state had strongly argued that its stormwater program - where EPA called for the greatest level of oversight - was sufficient. It also said the EPA's oversight approach to the WIPs was "legally suspect."
VA warned on stormwater
In Virginia, the EPA said the state's Phase II WIP failed to provide clear details about how it would meet its stormwater goals and work through a backlog of pending permits. The EPA called for enhanced oversight of the state's stormwater programs, which could include actions such as objecting to permits, ramping up enforcement, providing more training, or altering grants if improvements are not made in the final strategy.
Virginia also failed to provide data needed to assess the overall level of nutrient and sediment reductions that would be achieved by its plan.
Edward said it was the EPA's hope that states would show improvements in the final WIPs submitted March 30 that would allow the threats of enhanced oversight to be removed.
EPA-identified shortfalls did not necessarily mean that state programs would not meet their goals, he said. Rather, they showed where more information was needed "to increase our level of certainty that something was going to happen," Edward said.
If that detail is still lacking, the agency will weigh which - if any - of the oversight actions listed in its review it might initiate. But at this point, Edward acknowledged, "not many people have thought past March 30."
Local involvement varied
Part of the goal of Phase II plans was to engage local governments in the planning process. States differed widely on the level of local involvement. Some, like Maryland, had each county submit its own plans. Others relied primarily on meetings.
"We are concerned about the lack of engagement of local governments in some jurisdictions," the Choose Clean Water Coalition said in a letter to the EPA. The coalition of environmental groups from around the watershed said local engagement was originally the primary purpose of the Phase II plans, to help make sure local governments understood their responsibilities toward meeting Bay goals.
In its comments, the EPA pressed states to continue local engagement. But ultimately, Edward said, the agency determined that the level of local involvement in developing Phase II plans "wasn't something that we were going to take federal action on."
But, he added, a poor level of local involvement could contribute to weaker plans that could lead to enhanced oversight for some sectors.
When the final Phase II WIPs are submitted, it will largely mark the end of intense TMDL-related plan writing by the states that has spanned two years. The focus will shift to achieving 60 percent of the nutrient and sediment reductions required by 2017, at which point the states will write a final round of plans to guide efforts until the cleanup deadline of 2025.
The states will also focus on implementing a series of two-year milestones spelling out specific actions they will take every two years. In January, the states submitted the first milestones under the TMDL, which cover 2012â€“13; New York submitted its milestones in February.
Exact figures about the nutrient and sediment reductions that would be achieved under the milestones were not available but EPA officials said they were generally on track to achieve 60 percent of the reductions needed by 2017.
In their milestones, states also spelled out specific actions they would take during the next two years, such as initiating regulatory changes, launching pilot programs and other actions needed to keep the nutrient reduction timetable on track.
The EPA reviewed the milestones and offered a number of suggestions for revisions to make the milestones and WIPs consistent. Revised milestones will be submitted with the final Phase II WIPs.
The Draft Phase II WIPs, and the EPA's reviews, can be found on the EPA Chesapeake Bay TMDL website www.epa.gov/chesapeakebaytmdl/.