Chesapeake Bay Program Reevaluation Technical Workgroup Meeting April 10, 2008 SUMMARY OF DECISIONS, ACTIONS AND ISSUES Welcome and Review of the Agenda and Decisions Requested Rich Batiuk, EPA/CBPO, welcomed everyone to the meeting and initiated introductions. Jennifer Sincock, EPA Region 3 Water Protection Division's TMDL Program, is replacing Sue McDowell as the chair of the Reevaluation Technical Workgroup. Ensuring the Bay TMDL Supports/Strengthens the Jurisdictions' Implementation Efforts Rich Batiuk led a discussion with the Reevaluation Technical Workgroup members to discuss how we can use the TMDL to help implementation efforts and not counteract current programs and activities. At the beginning of the discussion, it was agreed that all ideas, recommendations, issues and concerns raised would be recorded without attribution to an individual state or agency to encourage a free exchange of ideas. Member Comments on Potential Bay TMDL Benefits/Concerns ¦ One state is looking at developing some new programs to address nutrient standards, particularly for phosphorus in headwater streams. It is an area where the TMDL could help or hurt depending on how it plays out and the timing of the state initiative. ¦ There is concern that a TMDL could cause conflicts with differing state standards and permits. ¦ The nutrient loading reductions being driven to meet the states' Bay water quality standards could be less stringent than state standards for the free flowing streams and rivers in the watershed. ¦ The Bay TMDL may prescribe a set of requirements for traditional point sources that is a lot cleaner than what might come from nutrient criteria for NPDES permits. ¦ Factor in these considerations into the waste load allocation (WLA) process. ¦ The partners need to clearly communicate that these allocations are for far field water quality impairments and recognize that the states' nutrient criteria will drive near field reductions. ¦ Existing local TMDLs addressing nutrients can more stringent than the reductions called for in the jurisdictions' Tributary Strategies but are directed towards addressing localized problems. All of these parts—localized TMDLs, Tributary Strategies, Bay TMDLs, etc.—must fit together. ¦ There is an opportunity to share lessons learned with the Mississippi River/Gulf of Mexico partnership which includes a few states that have nutrient criteria. ¦ The partners need to figure out how to incorporate existing state regulations, including trading programs, into the Bay TMDL. ------- ¦ Tracking every facility is not practical so we have to be prudent to capture WLAs in a discernable way. We need to make sure we do not get lost in the details of the large number of sources. ¦ We need to figure out how to address lower Virginia tidal tributaries that are not as affected by 'up-Bay' nutrient sources and, in turn, have little effect on up-Bay tidal waterbodies due to the Bay's circulation patterns. ¦ We need to consider tracking changes in data and circumstances very carefully; it is not a static process. ¦ We need to determine the best way to account for continued development and MS4 issues within the Bay TMDL. ¦ Aggregating individual sources could be a solution, but we must figure out how to meet the reasonable assurance requirement to demonstrate that the TMDL can actually be implemented. ¦ States whose waters are not impaired by excessive nitrogen—termed 'the nitrogen disconnect'—will have a difficult time selling required nitrogen reductions to the local sources due to the lack of a local water quality benefit. ¦ Further, it will be a challenge to communicate locally why localities must make water quality improvements beyond what is needed for their local tributary. Technical support from EPA and the partners is critical, particularly to local governments, to bridge the connection between their local actions and the Chesapeake Bay. ¦ It is important to connect, support, and justify the permits through the Bay TMDL. ¦ We must maintain equity between jurisdictions and between sources. ¦ It is necessary to keep the legal challenges out of the state court for the Bay TMDL. ¦ Legal requirements should addressed be first and foremost, and then we can work towards equity. ¦ We must encourage creative and flexible approaches that are still legally defensible in developing and implementing the Bay TMDL. ¦ An unambiguous TMDL with a clearly defined loading number for regulated point sources would be the greatest opportunity, and most expedient way, to accelerate nutrient reductions. Resolution of the Scope of the Bay TMDL Rich Batiuk reviewed previous decisions that were made by the Reevaluation Technical Workgroup in regard to the scope of the Bay TMDL. The Workgroup decided to recommend to the Water Quality Steering Committee that all states would complete their 2008 303(d) list work, EPA will then use the states' 2008 303(d) lists to identify those impaired waters to be addressed by the Bay TMDL. Further, the Workgroup decided to recommend that the full suite of CBP models should be used to develop pollutant load allocations for only those segments/designated uses/criteria associated with nutrients and sediments necessary to meet aquatic life uses. The Workgroup is now being asked to agree on the geographic extent of the Bay TMDL and the resultant allocations. Geographic scope options for the TMDL include: ¦ Option 1: All regulated point sources with direct dischargers into the tidally influenced waters or to free-flowing waters within the Phase 5 Watershed Model 2 ------- segment directly draining into the impaired CBP segment. TMDL = WLA + LA + MOS + Background (Boundary Conditions). ¦ Option 2: All regulated point sources discharging to those portions of the Chesapeake Bay watershed which contribute to the water quality impairment f the impaired CBP segment. Discussion ¦ Bill Brown, PA DEP, noted that uncertainty in the Bay watershed model increases as you move further up into the headwaters. The strength of the models must be taken into account in deciding on the scope of the Bay TMDL and the resultant allocations. o Lewis Linker clarified that all of Phase 5 segmentation and the underlying input data are fully consistent through the six-state watershed, much more uniform than the Phase 4.3 watershed model so we cannot say that uncertainty increases further up into the watershed headwaters. ¦ Bill Brown clarified that the yellow section on the illustration of Option 1 would be considered a gross load allocation. A load allocation can be given at the border between two states and it would be up to the state to assign the allocations. ¦ There was agreement among workgroup members that the waste load allocations (WLAs) and load allocations (LAs) are state decisions. ¦ Nauth Panday, MDE, pointed out that they just did a local TMDL where they assigned Pennsylvania 90 percent of the load reduction at the state boundary line. How Pennsylvania met that load reduction requirement was up to them. ¦ Pat Buckley, PA DEP, clarified that Pennsylvania is committed to reducing their loads. Their facilities are being regulated consistently with the Tributary Strategy. Specific WLAs and LAs are not necessary to effectively regulate sources. ¦ In the individual tributary basins, each jurisdiction would decide how to meet their allocations accordingly. ¦ Chris Day stated if states are assigned a gross allocation and states assign the WLAs and LAs, the federal government would ratify their actions to avoid the risk of states being sued in state court given the interstate nature of the Bay TMDL. ¦ John Kennedy, VA DEQ, raised the concern that if there were an attempt to develop a WLA and a LA for the James River basin, assigned to individual segments that drain into tidal waters below the fall line, it may not allow owners to take advantage of the existing nutrient credit exchange program. Virginia's state regulations allow facilities' loads to apply in aggregate even though they have individual WLAs. o NPDES permit limits wouldn't have to be exactly equal with the TMDL allocations. ¦ Hassan Mirsajadi, DE DNREC, pointed out that bulk load allocations may not address local water quality in the case of Delaware which includes both headwaters' to Maryland as well as Bay tributary tidal waters. o Pat Buckley countered that the Bay TMDL is not a local TMDL. There are other local TMDLs to address local impairments. Issues to Address ¦ Need to play through the issue of possible lawsuits being tried in state versus federal court under an EPA-issued Bay TMDL. 3 ------- ¦ Need to continue to work through issue of assignment of WLAs and LAs versus strictly assigning boundary loads. ¦ Need to build the states' trading programs into Option 2 and work towards using the Bay TMDL to further enhance the states' trading programs by bringing other sources under caps and adding market value to their nutrient and sediment reductions. ¦ Need to continue to work how to best balance individual source allocations and aggregate multiple source allocations. Presentation to the Water Quality Steering Committee ¦ We will build off of the 2003 nutrient and sediment cap loads allocated by major tributary basin by jurisdiction. Boundary load allocations will at least be made at the major tributary basin/jurisdiction level consistent with the level of allocations within the 2003 cap load allocations. The Steering Committee will need to take on the policy responsibility to look at how to allocate further than that, balancing the legal requirements and state flexibility. ¦ We need to tell the Steering Committee what more is needed and what else is involved for each of the options. ¦ We will explain to the Steering Committee what is legally required and then present options for going further. ¦ The Steering Committee will decide if and how to incrementally allocate beyond major tributary basin by jurisdiction load allocations. ¦ Pennsylvania would like to make further allocations beyond the "at the state boundary" load (if necessary) after the Bay TMDL as part of revisions to their Tributary Strategy. DECISION: The Reevaluation Technical Workgroup agreed to recommend to the Water Quality Steering Committee Option A as the smallest geographic scope of the Bay and resultant allocations that is legally defensible. (The Workgroup could not reach consensus on a definition of scope of the Bay TMDL beyond Option A.) The Workgroup agree to present their decision as a baseline from which the Water Quality Steering Committee will decide if/how additional allocations will be made up into the watershed. The presentation to the Water Quality Steering Committee will include an explanation of what is legally required, the desire for state flexibility, and what the various options for moving forward entail. Review/Approval of the Revised Margin of Safety Recommendation Lewis Linker presented, "Bay TMDL Margin of Safety: Requests for Water Quality Steering Committee Decisions." The Workgroup was asked to agree on a set of margin of safety recommendations to be presented to the Water Quality Steering Committee on April 22nd and 23rd. ¦ The Workgroup previously agreed to use a blend of different implicit assumptions for the margin of safety (MOS) TMDL requirement. Implicit assumptions include: o There are a number of implicit assumptions already built into the analysis system that will be used for the Bay TMDL. 4 ------- o The TMDL Bay scenarios for wastewater treatment facilities have inherent implicit conservative assumptions, o The TMDL is built on a foundation of more than two decades of modeling and assessment in the Bay, atypical for most TMDLs. The suite of CBP models reduces the need for an overly large MOS for the TMDL. Discussion ¦ Nauth Panday did not see how the suite of models ensured conservatism. o Dave Montali, WV DEP, pointed out that the MOS may be less than for other TMDLs because of the advanced nature of the suite of Bay models. ¦ Mike Haire, EPA HQ, added that he has not seen any other group apply as much scrutiny in regard to determining an appropriate MOS as the Bay Program partnership has. ¦ John Kennedy suggested that the recommendation be reworded to say that we are recommending an implicit MOS with various conservative assumptions. A "blended" TMDL implied to some workgroup members that it was a combination of an implicit and explicit MOS. DECISION: The Reevaluation Technical Workgroup agreed to recommend an implicit margin of safety with various conservative assumptions to the Water Quality Steering Committee. Phase 5.0 Chesapeake Bay Watershed Model Sensitivity Model Scenario Findings Gary Shenk presented, "Watershed Model Phase 5.0 and Scoping Scenarios." ¦ Phase 5.0 is a temporary development version. There are still some important data inputs still missing. ¦ Phase 5.1 will be developed over the next few months with the final calibration to be completed in early July. The Phase 5.1 calibration will have some new capabilities and information, including a 12 km CMAQ grid further improving the nitrogen atmospheric deposition input data, thousands of small wastewater discharges added to the input deck, improved validation methods recommended by the STAC independent scientific peer review team, and BMPs with variable efficiencies, again, recommended by the STAC review team. ¦ Phase 5.0 was approved by the Modeling Subcommittee for scenarios at the April 8 Modeling Quarterly Review. ¦ The Phase 5.0 calibrations and scenarios will be presented to the Water Quality Steering Committee at their April 22-23 meeting. ¦ There are a few known issues with scenarios: Susquehanna total nitrogen loads are very low, Eastern Shore sensitivities are off, the input data are not final, and there is limited quality assurance. ¦ The Phase 5 model is consistent with Phase 4.3 in a relative sense but not in an absolute sense when it comes to meeting static goals. ¦ The Water Quality Steering Committee will see Phase 5.0 scenarios, load by major tributary basin by jurisdiction, and anything else the Workgroup thinks they should see. 5 ------- Discussion ¦ John Kennedy mentioned that if the reduction target remains unchanged, we may be closer to the goal than we thought. Until we see the link with the Water Quality Model, we cannot draw too many conclusions. o Mike Haire pointed out that even if the reduction targets are similar, the way the loads are achieved may differ. ¦ The model can provide some degree of feedback about management action relationships with responses in water quality. ¦ Kenn Pattison stated that we cannot say that the Tributary Strategies are not working until we see the loads. The strategies will have roughly the same effect in the Bay model. ¦ John Kennedy suggested we compare Phase 4.3 and Phase 5.0 Tributary Strategies scenarios. ¦ Mike Haire suggested we first present the total loads and how much we thought we needed to reduce them to meet standards, explaining the concepts. But we cannot tell what is needed to meet standards without the Water Quality Model. From there, we can examine one basin at a time. ¦ Gary Shenk clarified that we cannot yet say whether or not the Tributary Strategies will still work, but likely they will work if we reallocate. ¦ Lewis Linker clarified that we have an analysis system that includes a loading model and a decision model. We cannot look at either one of them in isolation and draw conclusions. ¦ The calibration status of the Chesapeake Bay Water Quality Sediment Transport Model will be reviewed by the Modeling Subcommittee at its April 28th and 29th Modeling Quarterly Review. The Modeling Subcommittee expects to review next to last calibration at that time, with the final calibration planned to be presented at the July 1-2 Modeling Quarterly Review. Depending on the state of Bay Water Quality and Sediment Transport Model calibration is at the end of the month, the Modeling Team may be able to start scoping scenarios. Discussion on Recommended Sequence of Management-oriented Scenarios What scenarios do Workgroup members want to see run and presented to the Workgroup in the coming months? ¦ We need to first decide on the year that will form the basis for the changes to the allocation. ¦ We should start with nailing down the overall cap load we need to meet the states' Bay water quality standards and work back into the allocations. ¦ We need to confirm what is going to be the driving criteria/pollutants—nutrients or sediments—and where. ¦ We may like to know what it will take to meet each impaired segment because we may get to one more quickly than others. ¦ We need to run the set of allocation scenarios for the selected baseline year, including all-forested watershed and no-action scenarios. ¦ We need to run a Tributary Strategy scenario. ¦ We need to run the Watershed Model through a series ranging scenarios. 6 ------- o Include an "everyone, everywhere, everything" scenario as part of that set of ranging scenarios. ¦ Caution was expressed against running management scenarios that do not contain existing state regulations, such as the regulated WLA cap for permitted facilities. ¦ Run a scenario to reflecting the percentage reduction from what was in the 2003 allocation. ¦ Run a 2030 scenario. ¦ Run a set of scenarios laying out high levels of selected nonpoint source practices. Review of Proposed Workgroup Schedule for Addressing the Next Round of Technical Issues Rich Batiuk and Jennifer Sincock led the group in reviewing the proposed set of issues for the Workgroup to address in the near future. The Workgroup was asked if the right set of issues were listed in Attachment D, if the issues were in the proper sequence, which issues are interconnected, and when will these issues could/should resolved by the Workgroup for review by the Water Quality Steering Committee. ¦ Selection of a methodology for determining daily loads was added to the list of technical issues. o For daily loads, there are fairly simplistic calculations that can be done to come up with the daily allowable load, so this issue should not require a lot of attention. ¦ Attachment D, which listed the technical issues for resolution by the Workgroup, was updated during the meeting to fill in connected issues and additional information needed for each technical issue. ACTION: Rich Batiuk and Jennifer Sincock will further refine the Attachment D matrix based on the Workgroup's feedback and distribute the revised version to Workgroup members. The revised matrix will be presented to the Water Quality Steering Committee at their April 22nd and 23rd. Workgroup Approval of the Proposed 2008-2011 Schedule Discussion ¦ Pennsylvania does not support revision of the Tributary Strategies prior to the publication of the Bay TMDL. ¦ Pennsylvania asked that a decision point on whether a UAA was required be added to the schedule. DECISION: The Reevaluation Technical Workgroup agreed to recommend the proposed 2008-2011 Bay TMDL schedule to the Water Quality Steering Committee at their April 22nd and 23rd. Participants Rich Batiuk EPA/CBPO batiuk.richard@epa.gov Jennifer Sincock EPA Region 3 sincock.i ennifer@epa. gov 7 ------- Sara Parr CRC/CBPO Russ Perkinson VADCR Hassan Mirsajadi DEDNREC Dinorah Dalmasy MDE Nauth Panday MDE Tom Thornton MDE Bill Brown PA DEP Kenn Pattison PA DEP Pat Buckley PA DEP Francoise Brasier EPA HQ Mike Haire EPA HQ Charles Martin VADEQ Dave Montali WV DEP Arthur Butt VADEQ Lewis Linker EPA/CBPO Gary Shenk EPA/CBPO Andrew Parker Tetra Tech Clint Boschen Tetra Tech John Kennedy VADEQ On the Phone: Ed Reilly NY DEC Chris Day EPA Region sparr@chesapeakebav.net russ.perkinson@dcr.virginia.gov hassan.mirsaiadi@state.de.us ddalmasv@mde. state, md. us npandav@mde.state.md.us tthornton@mde. state.md.us willbrown@state.pa.us kpattison@state.pa.us pbucklev@state.pa.us brasier.francoise@epa.gov haire.michael@epa.gov chmartin@deq .Virginia, gov dmontali@wvdep. org aibutt@deq .Virginia, gov llinker@chesapeakebav.net gshenk@chesapeakebav.net Andrew. parker@tetratech. com clint.boschen@tetratech.com imkennedv@deq.virginia.gov exreilly@gw.dec.state.ny.us christopher.dav@epa.gov 8 ------- |