MEETING SUMMARY Joint Meeting: Potomac Shared Tributary Strategy and Potomac TMDL Coordination Workgroups January 16, 2002 Metropolitan Washington Council of Governments The joint meeting of the Shared Potomac Tributary Strategies Workgroup and the Potomac TMDL Coordination Workgroup was scheduled to address the relationship between the Tributary Strategy process and the states' regulatory (TMDL) processes in the tidal and non-tidal Potomac River basin. The meeting was a unique opportunity for state/federal agencies to meet with each other and with local stakeholder groups to answer questions and identify problems related to how the provisions of the Chesapeake 2000 agreement will mesh with those of the TMDL process. The Potomac basin is an excellent place to confront these issues because a) the watershed includes all the Bay Program signatories (plus West Virginia); b) the river is an interstate boundary, and many tributaries have interstate watersheds; c) and both Maryland and the District of Columbia have begun local TMDLs for impairments related to Bay Program concerns (nutrients, sediment, D). Participants at the meeting included more than 50 individuals from federal agencies, state agencies in DC, MD, PA, VA and WV, local governments, agriculture, point source permittees, environmental groups, and consultants. ------- Agenda: The meeting opened with three presentations intended to explain the Chesapeake Bay Program's tributary strategy process from 2000 to 2010 and Maryland and the District's current TMDL programs. Tom Simpson presented the Bay Program process; Bob Summers described MDE's current plans for Maryland local TMDLs; and Jim Collier described DC's TMDL schedule and process. Following those presentations, there was a question and answer session, and then a facilitated discussion in which participants identified potential conflicts between the two programs. At the end of the facilitated discussion, the participants ranked those potential conflicts, and that ranked list will provide a starting point for future discussions or action by the states, EPA, and the CBWQSC. Objective of the Meeting (as presented to the group): To clarify the relationship of the Potomac TMDL programs to the Chesapeake Bay Program driven strategies to reduce nutrients and sediments. Goals for the Day: 1. To clarify for stakeholders the schedules and processes of the two programs. 2. To identify potential conflicts. 3. To identify opportunities for coordination. 4. To identify tasks and actions needed to resolve conflicts and to implement improved coordination. 2 ------- Questions compiled prior to the meeting: Based on comments received prior to the meeting, a number of questions were compiled and posted at the meeting for discussion. These address many of the concerns that stakeholders have concerning the relationship, in the Potomac basin, of the states' list of impaired waterbodies and the Bay Program driven nutrient and sediment reduction strategies (with answers from MD, DC and the EPA in italics). Where marked, "Discussion" reflects clarifying comments received subsequent to the meeting. 1. Why develop a TMDL in advance of the Bay Strategies? Maryland has a 1998 Memorandum of Agreement with EPA that specifies an end date for all its TMDLs as 2008 and specifies the number of TMDLs to be completed each year. The lawsuit under which that MO A was drafted was dismissed. Assuming no successful appeal, there appears to be flexibility for MD to change when, in the overall schedule, particular TMDLs are completed. EPA emphasized that MD needs to maintain a level of production with respect to the number of TMDLs per year, especially focusing on addressing local problems. DC is addressing TMDLs under a court imposed schedule, which requires completion of all TMDLs by 2004. This involves apH TMDL (involving nutrients) for the Washington Channel by 2004. EPA Region 3 indicated that there is no flexibility in the date. Discussion: In subsequent correspondence, Tom Henry of EPA Region 3 stressed EPA 's perspective on "flexibility" regarding Maryland's TMDL schedule. While EPA is prepared to accept flexibility regarding the TMDL schedule, they emphasized the need to "address local problems as soon as possible This raises yet another stakeholder concern: the definition of a "local impairment. " In a recent e-mail to Mr. Henry, Ted Graham suggested that: "I'd argue that any impairment that is on the mainstem of the Potomac that is related to multi-state loads is not local. " In response, Mr. Henry said, "My first reaction to your argument would be that a local problem is defined by where the problem occurs and not where the causes come from. As an example only, if DC finds that a DO problem occurs in the Potomac below the fall line for X number of miles, that's a local problem - a local problem that may be caused by "non-local" sources. There could be local impairments but not necessarily local causes to that impairment in SOME cases. We will delve into this some more and hopefully provide a more detailed 3 ------- discussion of our views on this in the near future. " With respect to schedule flexibility in the District of Columbia, Mr. Henry indicated that the DC Consent Decree requires DC to complete the Potomac TMDL (for pH impairment) by 2004. If DC fails to do so, then EPA must complete one by 2007. So there is some flexibility in the schedule beyond the 2004 date based on the EPA "backstopping" date of2007. 2. What is the basis for listing mainstem Potomac (tidal or nontidal)? In Maryland, there are listings for nutrients and sediments on the mainstem Potomac river, tidal and non-tidal. In DC, the tidal Potomac is listed for pH. There is a possibility (not yet determined) that the pH impairment is the result of excess algae, which might, in turn, be the result of excess nutrients. There are listings for nutrients and sediments based, not on a violation of nutrient standards, but on a presumption that the Potomac mainstem was delivering loads to downstream impairments that needed to be addressed in Tributary Strategies. The current 303(d) list for Maryland (reflecting the list adopted in 1996 and 1998) is based on a presumed contribution to the DO impairment in the mainstem of the Bay, not on a DO impairment in the Potomac. Maryland is collecting more data and may add or remove specific impairments in its next 303 (d) list submission. Maryland's revised draft 303(d) list is scheduled to be releasedfor review in spring 2002. 3. Will TMDLs for mainstem Potomac (tidal or nontidal) be consistent with Water Quality Steering Committee loads? We cannot predict which will be more restrictive: TMDLs for local impairments or Tributary Strategy load limits. It is possible a TMDL will be more restrictive in one area, while a Trib. Strategy assigned limit will be more restrictive in another area. Discussion: This question gets to the heart of one of the potential points of TMDL-Tributary Strategy conflicts. The possibility of different and therefore competing load limits and load allocations introduces concerns about how responsibility for load reductions would be allocated. This is directly linked to concerns about the definition of "local impairments (See discussion under Question #1 above.) 4 ------- 4. Will the Potomac TMDL and the Chesapeake Bay Program Watershed Model be consistent? Is it the correct tool? The WSM was not intended to be used to address small scale impairments and may not be an appropriate tool in such cases. While planned upgrades in the next version of the WSM will provide a much smaller segmentation than in the current version of the model, localized impairments in smaller watersheds may require models that operate at a smaller scale than the WSM. MDE is working closely with the EPA and the USGS on the next version of the WSM and plans to use it as a "framework" for it Potomac basin TMDLs. Where appropriate the upgraded WSM will be used for local TMDLs. Where finer scale models are required those models will be constructed with design assumptions, parameters, and inputs that, when scale dup to the WSM level, are consistent with the WSM. The intent of the teams working on these models is to minimize the potential for conflicting or competing model results. 5. Is the "Potomac Shared Strategy Workgroup" part of the Bay effort only or Bay and Maryland efforts? The Potomac Shared Strategy Workgroup was formed through the Chesapeake Bay Program's Nutrient Subcommittee. It includes representation from all four states and the District of Columbia that make up the Potomac watershed. Tom Simpson Chairs both the workgroup and the subcommittee. 5 ------- Questions not discussed due to time constraints: Following are the remaining questions that were prepared in advance, but not discussed. As important as they were, it was felt that, in the interest of time, the discussion should shift to potential sources of conflict. In general, each one still needs to be addressed and resolved. 6. Is the time-line consistent for mainstem Potomac TMDLs and CBP load allocations? 7. Will mainstem Potomac TMDLs require substantive permit changes before 2011? 8. Will tributary strategies serve as one of the reasonable assurances for any mainstem Potomac TMDLs? 9. How can Chesapeake Bay technical support assist in mainstem Potomac TMDL? 10. What is the stakeholder involvement in both processes? 11. How will the Maryland and DC TMDLs deal with allocation of responsibilities to "upstream" jurisdictional sources? 12. How will the Potomac watershed model and the Potomac tidal water quality model be useful for any local, sub-watershed, TMDLs? 13. How will Potomac TMDL models differentiate between overland and in-stream sediment sources? 14. How can the local governments plan ahead for development and infrastructure when "everything is subject to change": 303(d) list, schedules, priorities, water quality, strategies, etc. 6 ------- 15. Does the "Bay model" model in-stream tributaries and processes or only the tidal Bay? 16. When will there be new Bay criteria, what are the parameters? 17. Related to the "Why develop a TMDL in advance of the Bay strategies?", why can't EPA agree to actively seek to change the MD/EPA MOU to set 2011 as the deadline for all CBP water quality criteria-related TMDLs? This three-year extension for some TMDLs doesn't seem to be a.) unreasonable, or b.) significantly different from the other settlements in Region 3 (per Tom Henry's concerns). It seems that this could be pursued in the WQSC, where EPA is represented by both Region 3 and CBP. 18. Chesapeake 2000 states: We have agreed to the goal of improving water quality in the Bay and its tributaries so that these waters may be removed from the impaired waters list prior to the time when regulatory mechanisms under Section 303 (d) of the Clean Water Act would be applied. A tidal Potomac nutrient TMDL would apply regulatory mechanisms prior to the 2010 date that the WQSC has adopted as part of its integration process. To most observers, this would directly conflict with the decision of the Executive Council reflected in the above provision. What is the basis for MDE's belief that there would be no conflict? 19. What would be the benefits of the regulatory TMDL approach over the non-regulatory approach called for C2K and the integration process? Would these benefits be sufficient to outweigh the additional costs, delays, conflict, and litigation that likely would result? 7 ------- Potential Areas of Conflict The afternoon portion of the meeting focused on identifying potential areas of conflict between TMDLs and Tributary Strategies. The participants combined the areas of conflict and then prioritized them through a structured voting process. The resulting prioritized list is in priority order, with the highest ranked item as number one. These are considered to be those areas that need the most attention in order to reconcile TMDLs with Tributary Strategies for the tidal Potomac River. 1. Mainstem tidal/nontidal TMDLs to be completed before 2010 and basic C2K water quality "Tributary Strategy" commitment process and schedule. Consent orders issued before C2K and in conflict with the C2K schedule. Preparation of tidal Potomac TMDL for nutrients in conflict with C2K. #1 received 31 votes for a score of 201 2. Multi-jurisdictional allocations. TMDL interstate load allocation vs. equity from one or more of the jurisdictions (i.e., Who decides on the load limits and the upstream allocations?. Conflict in recognizing jurisdictions past efforts in load allocation process. #2 received 30 votes, for a score of 196 3. Explanation to public and local governments on two different programs, with their own distinct processes and outcomes, which could have different budget implications, even though they address the same end point. CB process involves stakeholders where as TMDL process is a more top-down (public participation vs. public comment) process. Concern about eroding the stakeholder motivation to participate in the C2K process if the perception is that decisions will occur in a regulatory (TMDL) program. #3 received 34 votes for a score of 182 4. Adequacy of models for TMDL work/conflict between. Model as planning tool vs. allocation tool. Inconsistency in the CB model as compared to actual conditions, for specific tributaries. #4 received 32 votes for a score of 158 5. Range of permitting questions including permit variance. How will TMDLs and CB process 8 ------- impact NPDES permitting, includes storm water? #5 received 22 votes for a score of 133 6. Regulatory and technical processes as explained today yet local government needs to plan growth and infrastructure - How? Anticipated growth with meeting TMDL or/and tributary strategy goals. Lack of integration between land use and development planning and TMDL/nutrient reduction goals. #6 received 22votes for a score of 100 7. Conflict in definition of localized impaired waters. #7 received 22 votes for a score of 97 8. Regulatory (TMDL) vs. voluntary (CBP) programs. #8 received 18 votes for a score of 90 9. Differences in state water quality standards vs. CBP proposed criteria. #9 received 13 votes for a score of 68 10. Can tributary strategies serve as TMDLs implementation plans? #10 received 15 votes for a score of 65 11. Listing and delisting process for impaired waters. #11 received 16 votes for a score of 61 12. Inconsistencies between TMDL and tributary strategy solutions/ allocations (loadings). #12 received 13 votes for a score of 61 13. Integrity and completeness of monitoring data on which loads will be determined. #13 received 10 votes for a score of 56 14. Potential funding sources for stakeholders impacted by load allocations. 9 ------- #14 received 12 votes for a score of 52 15. UAA - potential conflict. #15 received 8 votes for a score of 33 16. Consistent enforcement of any limits that come out of CB driven effort (between states). #16 received 7 votes for a score of 28 17. Future: nutrient criteria in free flowing sections (2004). #17 received 6 votes for a score of 18 18. Equity of allocation vs. ability of parties to pay. #18 received 0 votes for a score of 0 19. Goals/ Loads? Allocation for both processes need further definition. #19 received 0 votes for a score of 0 20. Due to limits of technology will need to revisit goals again - moving target. #20 received 0 votes for a score of 0 21. Possible conflict between phosphorus based limits/ requirements for mainstem nontidal Potomac and ability to achieve in-stream reduction of nitrogen to reach estuary. #21 received 0 votes for a score of 0 10 ------- |