E9-22410. Clean Water Act Section 303(d): Preliminary Notice of Total Maximum Daily Load (TMDL) Development for the Chesapeake Bay

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice and initial request for public input.

SUMMARY:

This notice announces the intent of EPA to establish a Chesapeake Bay-wide Total Maximum Daily Load (TMDL) for nutrients and sediment for all impaired segments in the tidal portion of the Chesapeake Bay watershed. This action is being taken pursuant to section 303(d) of the Clean Water Act (CWA). To provide information to the public regarding the process, approach and implications of this action, EPA will hold a series of public meetings in late 2009 on dates and in locations to be determined. A second public comment period will be held in the summer of 2010 once a draft Chesapeake Bay TMDL is developed. This TMDL is being developed consistent with the requirements of two Consent Decrees settling the following lawsuits: American Canoe Association, Inc. and the American Littoral Society v. EPA, Civil No. 98-979-A (E.D. Va) and Kingman Park Civic Association, et al. v. U.S. Environmental Protection Agency, et al., No. 1:98CV00758 (D.D.C.). By this notice, EPA is soliciting preliminary input from the public on its plans for developing this Chesapeake Bay TMDL. EPA requests that the public provide to EPA any water quality related data and information that may be relevant to the development and calculation of the Chesapeake Bay TMDL by December 18, 2009. EPA will review all data and information submitted during the public comment period and will consider them in the development of the TMDL as appropriate.

DATES:

Comments must be submitted in writing to EPA on or before December 18, 2009. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

ADDRESSES:

You may submit comments on the development of the Chesapeake Bay TMDL by e-mail or U.S. post mail. To submit your comments by e-mail, send them to [e-mail]. To submit your comments by U.S. mail, mark them to the attention of Jennifer Sincock, Environmental Scientist, Water Protection Division, (3WP30), U.S. Environmental Protection Agency Region III, 1650 Arch Street, Philadelphia, PA 19103-2029. Further information on the development of the Chesapeake Bay TMDL may be viewed at http://www.epa.gov/​chesapeakebaytmdl

FOR FURTHER INFORMATION CONTACT:

For additional information, contact Jennifer Sincock at [phone] or fax [phone] or send an e-mail to [e-mail].

SUPPLEMENTARY INFORMATION:

Section 303(d) of the CWA requires that each State identify those waters within its boundaries for which existing technology-based pollution controls required by the CWA are not stringent enough to attain or maintain State water quality standards. States are required to establish TMDLs for those “impaired” waters. TMDLs are pollution budgets designed to identify necessary reductions of pollutant loads to the impaired waters so that the appropriate water quality standards are met, including designated uses like fishing or swimming and water quality criteria for parameters such as dissolved oxygen and water clarity.

Why is a TMDL being developed for the Chesapeake Bay? The Chesapeake Bay is a national treasure constituting the largest estuary in the United States and one of the largest and most biologically productive estuaries in the world. Despite significant efforts by Federal, State, and local governments and other interested parties, water pollution in the Chesapeake Bay prevents the attainment of existing State water quality standards. The pollutants that are largely responsible for impairment of the Chesapeake Bay are nutrients, in the form of nitrogen and phosphorus, and sediment. EPA, in coordination with the Bay watershed jurisdictions of Maryland, Virginia, Pennsylvania, Delaware, West Virginia, New York and the District of Columbia, will establish a nutrient and sediment pollution budget for the Bay consistent with CWA requirements to guide and assist Chesapeake Bay restoration efforts. A primary driver for the schedule to develop the Chesapeake Bay TMDL is the Virginia TMDL Consent Decree settling the lawsuit American Canoe Association, Inc. and the American Littoral Society v. EPA, Civil No. 98-979-A (E.D. Va). Portions of the Chesapeake Bay and its tidal tributaries were identified as impaired for aquatic life uses and exceedance of the numeric criteria for dissolved oxygen caused by nutrient and sediment pollutants on Virginia's 1998 section 303(d) list of impaired waters. Other Bay and tidal tributary segments impaired by nutrients and sediment have been identified on Maryland and the District of Columbia section 303(d) lists. Under the Virginia TMDL Consent Decree, EPA is obligated to establish a TMDL for the Bay's waters identified on the 1998 Virginia list including those aquatic life use impairments caused by the nutrient and sediment pollutants by no later than May 1, 2011, if those waters are not previously removed from the list or if Virginia has not already developed a TMDL for those waters. EPA must establish a TMDL covering the listed Virginia Bay tidal waters by May 1, 2011 because the Virginia segments of the Chesapeake Bay and its tidal tributaries remain on Virginia's 2008 section 303(d) list. Virginia has requested that EPA establish the TMDL for those waters pursuant to the Virginia Consent Decree schedule.

In addition to the Virginia segments identified above, the Potomac River is listed on the District of Columbia's section 303(d) impaired waters list for low pH. The water quality standards exceedances for pH in the Potomac River are the result of algal impacts from excess nutrients. Establishment of a Potomac River pH TMDL is directly linked to the establishment of the Chesapeake Bay TMDL because of their common impairing pollutants (nutrients) and hydrologic connection. Like Virginia, EPA is under a consent decree obligation to establish a pH TMDL for the Potomac by May 1, 2011 if the District of Columbia does not develop that TMDL (Kingman Park Civic Association, et al. v. U.S. Environmental Protection Agency, et al., No. 1:98CV00758 (D.D.C.)). Like Virginia, DC has asked EPA to establish the Potomac River pH TMDL. Finally, Maryland has also requested that EPA develop TMDLs on the same schedule to address Maryland Bay and tidal tributary waters identified on its current section 303(d) list as impaired for aquatic life uses caused by nutrient and sediment pollutants.

When will the Chesapeake Bay TMDL be completed? The Chesapeake Bay Program's Principals' Staff Committee has requested an accelerated schedule for EPA to complete the Chesapeake Bay TMDL by December 31, 2010. EPA will undertake its best efforts to issue a final Chesapeake Bay TMDL for nutrients and or sediment by this date. In June 2010, EPA intends to propose a draft Chesapeake Bay TMDL for public review and comment. EPA intends to collect public comments on the draft TMDL between June and September 2010. EPA will undertake its best efforts to establish the final TMDL by December 31, 2010 and no later than May 1, 2011.

Who is developing the Bay TMDL? EPA Region III Water Protection Division has assumed primary responsibility for the establishment of the Bay TMDL, pursuant to the two Consent Decrees discussed above, and at the request of the six Chesapeake Bay watershed States (Virginia, Maryland, Delaware, West Virginia, Pennsylvania, and New York) and the District of Columbia. The Chesapeake Bay Program Office in EPA Region III has modeling and water quality expertise that is critical to the TMDL development process. EPA Region II is also providing guidance and technical support to Region III and will cosign the final TMDL because New York State is included in the Chesapeake Bay watershed, and sources in New York State (like the other States) contribute nutrients and sediment to the Bay. The Chesapeake Bay Program committee structure is being used to engage the watershed States fully in the development of the TMDL. EPA is working through the Chesapeake Bay Water Quality Goal Implementation Team (formerly the Water Quality Steering Committee and Nutrient Subcommittee), which is comprised of all Bay jurisdictions including Virginia, Maryland, the District of Columbia, Delaware, Pennsylvania, West Virginia, and New York; the Chesapeake Bay Commission; and EPA Regions II and III, to inform EPA's TMDL decisions and attempt to reach consensus on the TMDL's targets and goals. Major policy decisions are made by the Chesapeake Bay Program Principals' Staff Committee (Bay State and District of Columbia Secretaries, the Chesapeake Bay Commission, and the EPA Region III Regional Administrator) and Executive Council (Bay State Governors, Mayor of District of Columbia, the Chesapeake Bay Commission, and the EPA Administrator). Where consensus cannot be reached on key decision points, EPA has the ultimate responsibility to make the final decisions.

What is the scope of the Bay TMDL? EPA expects the Chesapeake Bay TMDL to address all segments of the Chesapeake Bay and its tidal tributaries that are identified on the Bay States' 2008 section 303(d) lists of impaired waters as impaired by nitrogen, phosphorus and sediment. EPA estimates that the Bay TMDL will address up to 92 impaired Bay and tidal tributary segments, and therefore will consist of up to 92 TMDLs—one for each impaired segment. EPA intends that the Bay TMDL will be established at a level necessary to ensure attainment of water quality standards in each of these impaired segments. EPA also expects that the TMDL will identify the aggregate watershed pollutant loading cap for nitrogen, phosphorus and sediment necessary to achieve the Chesapeake Bay's water quality standards. This aggregate watershed loading cap would be subdivided among the Bay States and major tributary basins. In addition, individual and (as appropriate) aggregate maximum daily allowable point source and nonpoint source loadings, called wasteload allocations (WLAs) and load allocations (LAs), respectively, would be identified across all jurisdictions within the Bay watershed. When completed, the Chesapeake Bay TMDL will be the largest, most complex TMDL in the country, covering a 64,000 square mile area in six States and the District of Columbia.

How will the TMDL promote nitrogen, phosphorus and sediment reductions? Under the CWA, the TMDL will establish the watershed pollution budget for nutrients and sediment necessary to meet water quality standards in the Bay. Other provisions of the CWA are intended to implement the TMDL.

Most notable of these provisions is the National Pollutant Discharge Elimination System (NPDES) permit program. Under this program, permits are issued to point sources. These are sources discharging to waterbodies through a pipe or other discrete conveyance. Examples include municipal wastewater treatment plants, industrial facilities, municipal stormwater systems, and combined animal feeding operations. NPDES permits for these point sources contain effluent limits that control the amount of nutrients and sediment allowed in their discharge. Under the CWA, these permit effluent limits must be written consistent with the assumptions and requirements of the wasteload allocations in an EPA-approved TMDL. 40 CFR 122.44 (d)(1)(vii)(B).

Under the CWA, nonpoint sources (any source that is not a point source, e.g., certain agricultural and other unchanneled stormwater runoff) are generally not regulated under the NPDES permit program. Instead, pollutant controls for nonpoint sources are promoted through Federal grant programs like CWA section 319. In addition to the CWA section 319 grant program, there are other Federal assistance programs such as the Environmental Quality Incentives Program (EQIP) provided through the U.S. Department of Agriculture. Each State also has a variety of regulatory and non-regulatory programs that provide important measures or incentives to control nonpoint sources of pollution. Because EPA's ability under the CWA to influence nonpoint source pollutant reductions solely through grant-related programs is not expected to fully address nonpoint source reduction needs, EPA is working with our partner jurisdictions to develop innovative approaches to achieving nonpoint source reductions of nutrients and sediment.

During TMDL development, EPA will work with its partner States and the District of Columbia to develop individual Watershed Implementation Plans (WIPs) and an overall TMDL implementation framework. Those plans and framework would be part of the TMDL Record of Decision and help provide reasonable assurance that the necessary nutrient and sediment reductions from point and nonpoint sources identified in the TMDL will be achieved. The WIPs will identify specific nutrient and sediment reduction targets by geographic location and sector to achieve allowable loadings, as well as a description and schedule of actions that the States, DC, and local decision-makers will take to achieve these reductions. Informed by the TMDL, EPA, the States and the District of Columbia will also provide two-year milestone commitments specifying what source controls will be taken to reduce nitrogen, phosphorus and sediment during that period. EPA is working with the States to develop an adaptive management approach with greater accountability including contingencies and consequences that would be implemented if a State or the District does not achieve its two-year milestone commitments or the TMDL's nutrient and sediment reduction and implementation targets.

In May 2009, the Chesapeake Bay Program's Executive Council set new short-term goals to reduce pollution to the Bay and dramatically accelerate the pace of restoration in the Bay and its rivers. Instead of pursuing a distant deadline, the seven Bay jurisdictions will now focus on shorter, two-year milestones. The first sets of milestones, announced at the Executive Council meeting, are scheduled to be met by December 31, 2011. By meeting these and future milestones, the Bay jurisdictions expect to put in place all pollution control measures necessary for a restored Bay no later than 2025.

On May 12, 2009, President Obama signed an Executive Order entitled “Chesapeake Bay Protection and Restoration.” The Executive Order calls on the Federal government to take a leadership role in protecting and restoring the Bay. Pursuant to the Order, a number of Federal agencies, including EPA, are developing reports making recommendations to the President for restoring the Bay, including achieving its water quality standards. Draft reports are to be submitted to the Federal Leadership Committee, chaired by EPA, by mid-September 2009. The Federal Leadership Committee will then integrate these agency reports into a draft Strategy for coordinated implementation of Federal efforts to restore and protect the Bay. That draft Strategy will be published for public comment in November 2009 and released as a final document in May 2010. EPA expects to integrate the Bay TMDL fully into the set of recommendations it proposes pursuant to the Executive Order.

Paperwork Reduction Act: The Office of Management and Budget (OMB) has previously approved the information collection requirements for developing TMDLs pursuant to section 303(d) of the CWA under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2040-0071. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

EPA Seeks Preliminary Comment on the Development of a Nutrient and Sediment TMDL for the Chesapeake Bay

By this notice, EPA is seeking preliminary comment on the development of a TMDL for phosphorus, nitrogen, and sediment in the impaired tidal segments of the Chesapeake Bay. Further information on the Chesapeake Bay TMDL development may be viewed at http://www.epa.gov/​chesapeakebaytmdl.

EPA will hold a series of public meetings between November and December 2009 to provide information and to solicit input from the public on the preliminary development of this nutrient and sediment TMDL for the Chesapeake Bay. EPA intends to hold a second public comment period between June and September 2010 after the draft Chesapeake Bay TMDL is published.

EPA requests that the public provide to EPA any water quality related data and information that may be relevant to the development and calculation of the Chesapeake Bay TMDL by December 18, 2009. EPA will review all data and information submitted during the public comment period and will incorporate it into the TMDL as appropriate.

EPA also requests that the public provide any additional information and comment regarding the design and establishment of the Chesapeake Bay TMDL and accompanying implementation plans so that EPA can incorporate these ideas into the TMDL development process.

Dated: August 31, 2009.

Tai-Ming Chang,

Acting Director, Water Protection Division, Region III.