MACo Blog Series: Bay TMDL & WIPs (Part 1) – Watershed 101: Q&A About Watershed Implementation Issues

With much attention across Maryland, including the county community, focusing on Watershed Implementation Plans (WIPs), MACo seeks to help better inform these discussions with some information and analysis relevant to their ongoing implementation. This item seeks to lay out some of the basics of current watershed issues, provide helpful links to sources for more exhaustive information, and to set up some more detailed treatment in the weeks ahead.

Q: What is a Watershed Implementation Plan, and who has to comply with it?

The plan is part of a “pollution diet” for the Chesapeake Bay area, to reach ambitious targets in reducing the “total maximum daily load” (TMDL) of specific nutrients – nitrogen, phosphorous, and sediment – into the Chesapeake Bay. To comply, the load of these nutrients into the Bay must be substantially reduced in the coming years.

US EPA summary of the Chesapeake Bay TMDL and WIP
Maryland Department of the Environment – “How Maryland Will Implement The WIP”

Q: How did all this get started?

The U.S. Clean Water Act of 1972 (expanding and consolidating a variety of preceding regulations) was the main federal legislation empowering the United States Environmental Protection Agency (US EPA) to monitor and regulate a variety of water issues, including making declarations of impaired waterways.

US EPA – Summary and information about the Clean Water Act
US EPA – Overview of the Regulatory Process

Q: What happened more recently?

Amidst a variety of consent decrees arising from stakeholders in several Bay watershed states, the US EPA issued a declaration of the Chesapeake Bay TMDL in December of 2010. That finding, essentially that the Bay constituted an impaired waterway, placed its watershed under much greater scrutiny by the federal government’s rule-making powers.

December 2010 TMDL Document (93 pages)
Executive Summary of TMDL (14 pages)
May 2009 Executive Order

Q: Is Maryland the only state affected?

No, the Bay TMDL affects six states (New York, Pennsylvania, West Virginia, Maryland, Delaware, and Virginia) and the District of Columbia, all of whom at least partially lie within the Chesapeake Bay’s 64,000 square mile watershed. This is the largest geographical area that the US EPA has subjected to a TMDL limitation.

Maryland, along with each other affected jurisdiction, is required to comply with the EPA’s assigned targets for nutrient reduction under the TMDL.

US EPA – TMDL Document, Watershed Description
US EPA – Implementation Letter, November 2009

Q: Why is this arising as an issue in each county, rather than statewide?

The Maryland Department of the Environment (MDE) developed an overall strategy calling for a state plan to target governmental facilities and state-controlled resources, but then delegated to each county its own targets for nutrient reduction. This process, stalled at several points by difficulties with data and modeling systems, has yielded aggressive goals for each county to address nutrient loads from its territory. No state legislation was passed to govern or direct this administrative process.

Local Government Advisory Committee Report, July 2011
Maryland Department of the Environment – Bay TMDL Site
Maryland Department of the Environment – Phase II WIP Development Support

Q: What is the total timetable for the effort?

Each affected state is required by US EPA to meet its targets for 2025, with an interim check (generally intended to have made 60% progress toward reduction goals) in 2017. The US EPA also intends to develop two-year progress milestones.

US EPA Timeline
Feedback on Maryland’s First Two-Year Milestone Report, February 2012

Q: What are the deadlines facing the counties?

Counties were asked for WIP Phase II plans by 2012. Many counties have submitted final or tentative documents, and others are still undertaking a review process.

Maryland Department of the Environment – County WIP Phase II Documents (may not be fully updated)

Q: What is the concern about this implementation?

While counties, and nearly all stakeholders, agree with the goals of water quality and Bay cleanup, the potential costs of implementing the full WIPs have been staggering for many jurisdictions. Even under optimistic cost estimates, many individual counties face potential costs in the billions, with statewide implementation potentially totaling $20-40 billion. Technical and timing concerns with the available data, modeling systems used to generate nutrient load estimates, and measuring results have also clouded the progress on these fronts.

U.S. Representative Andy Harris Letter to MACo, July 2012
Frederick County WIP Costs Estimate Over $1 Billion
Baltimore Sun – County WIP Costs, December 2011

Q: What happens if the county is unable to meet the targets in its plan?

US EPA asserts wide authority to engage a variety of enforcement actions – ranging from the redirection of federal funding to the outright denial of state-issued permits. The EPA website includes this statement: “EPA’s goal is for jurisdictions to successfully implement their WIPs, but the agency is prepared to take necessary actions in all jurisdictions for insufficient WIP implementation or pollution reductions. Federal actions can be taken at any time, although EPA will engage particularly during two-year milestones and refining the TMDL in 2012 and 2017.”

US EPA “Ensuring Results” Webpage
Maryland Department of the Environment – Implementation Framework, June 2010

Q: Have MACo and the counties been involved in this issue?

MACo has submitted formal comments and letters to all the actors involved, dating back to the inception of this effort, raising multiple points about implementation costs and the need for maximum local flexibility. Watershed issues have been a staple offering at each MACo conference for the duration of the TMDL development. Individual counties have routinely raised their own implementation concerns, especially as estimates of local costs have been developed.

MACo January 23 Letter to Senator Mikulski and Maryland Congressional Delegation
MACo 2012 Summer Conference coverage
MACo Land Use Retreat, June 2012
MDE/MACo Exchange, February 2012
MACo Comments on WIP Phase I, November 2008

In the weeks ahead, MACo seeks to write further about the ongoing process of planning and implementing these complex and ambitious programs.

Michael Sanderson

Executive Director Maryland Association of Counties

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