EPA Details Consequences to Hold States, D.C., Accountable to Reduce Pollution

The U.S. Environmental Protection Agency (EPA) has outlined a series of consequences it could impose on the six Chesapeake Bay states and the District of Columbia if the jurisdictions do not make adequate progress reducing pollution to the Bay and its local waterways.

The consequences, listed in a letter from the EPA to the governors of the six states and the mayor of D.C., is a follow-up to a November letter that set the federal agency’s expectations for the jurisdictions to reduce water pollution as part of the developing Chesapeake Bay TMDL.

Federal, state and local officials have been working together to develop the Bay TMDL, a pollution budget that will set limits for sources of nitrogen, phosphorus and sediment to the Bay and its tidal creeks, rivers and bays.

While the six Bay states – Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia – and the District of Columbia have considerable flexibility in how they achieve reductions, the jurisdictions must meet milestones every two years for implementing pollution controls.

If any jurisdiction creates an inadequate cleanup plan or fails to meet its milestones, the EPA may impose a variety of consequences, including:

• Expanding National Pollutant Discharge Elimination System (NPDES) permit coverage to currently unregulated sources. The EPA could use its authority to designate additional discharges of stormwater runoff as requiring NPDES permits. This could happen if the EPA determines that controls are needed for a discharge based on waste load allocations in the Bay TMDL, or if a discharge is a significant source of pollution or contributes to a water quality standard violation. The EPA can also expand individual areas requiring Municipal Separate Storm Sewer System (MS4) permits and individual facilities requiring Concentrated Animal Feeding Operation (CAFO) permits.
• Objecting to NPDES permits and increasing program oversight. The EPA can object to inadequate NPDES permits that do not meet the requirements of the Clean Water Act or the Bay TMDL’s waste load allocations. If a jurisdiction does not renew an NPDES permit in a timely fashion to include sufficient provisions, the EPA can increase of the permit.
• Require net improvement offsets. New or increased point source discharges may require net improvement offsets that do more than merely replace the anticipated new or increased loadings.
• Establish finer-scale waste load and load allocations in the Bay TMDL. The EPA will create more specific allocations in the final December 2010 Bay TMDL than those proposed by the six states and D.C.
• Require additional pollution reductions from point sources. The EPA will revise the final December 2010 Bay TMDL to reallocate pollution load reductions from non-point to point sources of nutrients and sediment, such as wastewater treatment plants.
• Increase and target federal enforcement and compliance assurance in the watershed. This could include both air and water sources of nutrients and sediment.
• Condition or redirect EPA grants. The EPA may incorporate criteria into future Requests for Proposals based on demonstrated progress in meeting Watershed Implementation Plans and/or to yield higher nutrient or sediment load reductions.
• Federal promulgation of local nutrient water quality standards. The EPA will issue standards for nutrient pollution in local waters if a state or the District of Columbia has not developed criteria to protect downstream waters.

Within 60 days of receiving a deliverable – such as a plan, milestone or permit – the EPA will provide an assessment. If EPA finds a deliverable inadequate, the state or D.C. will then have 30 days to respond. EPA will deliver its final assessment and indicate any consequence the agency intends to impose within 120 days of the original submission.

By 2011, the EPA expects the states and D.C. to divide their allocated pollution loads to the local level so that counties, municipalities, conservation districts and watershed organizations understand their role in meeting Bay cleanup goals. The states and D.C. also must offset any increased loads from population growth and land use changes anticipated in the coming decades.

The EPA expects that by 2017, pollution controls will be in place that should result in approximately 60 percent of the required reductions. All measures needed to reach the pollution load limits must be in place no later than 2025.

To help the six states and D.C. improve their pollution control programs, the EPA will provide technical assistance and an additional $11.2 million in grants for fiscal year 2010 – more than double 2009 funding levels. The money will help the states improve permitting, enforcement and other key regulatory activities to reduce pollution.

“President Obama, EPA and the states want real, measurable results to restore and protect the Chesapeake Bay. To get there, EPA is strengthening support for our partners, setting clear standards for progress, and ensuring accountability if those standards aren’t met,” said EPA Administrator Lisa P. Jackson.

Read the full letter from the EPA to the states and D.C. for additional details about the federal consequences.