Commission on Energy and Environment
November 22, 2010
chair, called the meeting to order and introduced the members. Presentations
made to the Commission can be found on the Commission’s website
and Status of Virginia’ Watershed Implementation Plan
Anthony Moore, Assistant Secretary of Natural Resources
Moore provided the Commission with an overview of the historical timeline
on efforts to clean the Chesapeake Bay and the process being followed
to develop the Total Maximum Daily Load (TMDL). The administration’s
goal is to allow flexibility in implementation to ensure that cost-effective
practices are given priority and to take into consideration the current
economic conditions and the economic impacts of the TMDL. The U.S. Environmental
Protection Agency (EPA) will be relying on input from each of the states
in the Chesapeake Bay Watershed provided through a Watershed Implementation
Plan (WIP). Mr. Moore states that the revised WIP meets 2017 target loads
for all basins through management actions, plus use of existing nutrient
credits achieve those target loads; proposes a broad expansion of the
existing nutrient credit exchange; and includes a plan for the James River
to provide an additional study of the current chlorophyll standard.
A primary feature
of the revised WIP is the expansion of the nutrient credit exchange program.
Mr. Moore suggests that the administration will request that the proposed
expansion be studied over the next year and expects that such a study
request will be introduced in the General Assembly. Other primary features
of the revised WIP include:
- A strategy to
address the chlorophyll criteria for the James River.
- Offsets for new
small wastewater facilities and dischargers.
- Tax credits and
other incentives to reduce nitrogen from septic systems.
of resource management plans for agricultural areas.
- Stormwater retrofits.
- A ban on phosphorus
about the process of resource management plans and voluntary practices
in the agricultural sector as it relates to milestones. Mr. Moore stated
that there would be sufficient time to determine whether such voluntary
practices have become effective prior to the implementation of mandatory
in the Chesapeake Bay Restoration Efforts
Environmental Protection Agency
Corbin discussed the process at the EPA for reviewing the WIPs and developing
the TMDL. Mr. Corbin noted the numerous meetings and communications between
the EPA and stakeholders in Virginia. In particular, he reviewed the problems
noted in the initial WIP submitted by Virginia and the consequences if
such deficiencies are not resolved. For stormwater, the EPA had a number
of concerns including:
- The lack of contingency
actions if the new regulations are not adopted on schedule.
- The lack of strong
- The lack of a
strong, detailed retrofit program with aggressive performance standards.
- The vague assurances
regarding the operations of the expanded nutrient credit exchange program.
the EPA’s concerns included:
- The lack of assurance
that there would be increased implementation or priority practices.
detail on the procedures for ensuring compliance.
- Failure to address
the additional need on water quality impacts from animal feeding operations.
- A limited commitment
to address high phosphorus content in soils and related excess manure.
If such deficiencies
are not resolved, the EPA might seek certain “backstops” or
federal actions intended to mitigate the lack of assurance by the state.
The backstops are restricted to those actions over which the federal government
exercises jurisdiction and might include additional reductions from regulated
point sources, finer-scale allocations for headwater states, expanded
NPDES permit coverage to currently unregulated sources, increased permit
oversight, increased federal enforcement, conditioned or redirected federal
grants, and adoption of local nutrient standards.
A member commended
Mr. Corbin on the outreach and communications between EPA and stakeholders
in Virginia, but expressed concern about the lack of transparency demonstrated
by the EPA’s evaluation of the WIPs.
Hershner, Director, Center for Coastal Resources Management, Virginia
Institute of Marine Science
Hershner discussed the scientific model used to develop the TMDL. The
model is actually a suite of models that measure and predict numerous
hydrologic forces. As an overall tool and as it is currently used, the
model is robust and a leading example of a large-scale demonstration of
the influences on the Bay’s health and the ability to predict how
individual actions impact the Bay. However, the model is not a suitable
tool to provide precise information on a fine scale as might be required
in the future. Dr. Hershner noted that many of the backstop actions at
the disposal of the EPA will lead to a concrete effect on water quality.
However, a number of the actions discussed as best management practices
for nutrient management, such as stream buffers, have not yet shown measurable
water quality improvements. As previously suggested by Mr. Moore, the
process over the next decade will be adaptive and require an ongoing cost-benefit
review of practices and policies.
Questions were asked
about the limitations of the study and the ongoing usefulness of the tool
as the process continues. Dr. Hershner continued to stress the importance
of measuring and modeling the effectiveness of practices that are adopted.
A member asked further about the results of studies on agricultural best
management practices. Dr. Hershner said research and monitoring shows
that there are no absolute determinations on the success of such practices,
which are in effect interdependent in each case on factors such as the
slope of the land, the quality of the soils, and the skill of the farmer.
Rolband, Wetland Studies and Solutions, Inc.
Rolband reviewed the analysis of impervious surfaces in the model. The
determination of those surfaces that are impervious and pervious are critical
because loads attributed to the urban sector are directly related to the
impervious surface area. Consequently, EPA backstops are based on retrofitting
a percentage of impervious area and, as such, the cost to do so. Mr. Rolband
observed that the current stakeholder process is beginning to resemble
sector warfare. He suggests that the WIP is modified through:
- An upgrade of
all significant discharger wastewater treatment plants.
- The establishment
of urban fertilizer regulations.
- The expansion
of the five-year on-site septic pump out requirement.
- The improvement
of erosion and sediment control training and specifications.
- The establishment
of a “Nutrient Trading Fund” for non-BAT septic users and
- New construction
with on-site sewage disposal that exceeds NSF/ANSI standards.
- Development exceeding
the allowable WIP loads that is allowed to contribute to the nutrient
Virginia Farm Bureau
Stoneman spoke of the agricultural role in the process to develop the
WIP. He expressed his concern about stretching the model to its limits
and the role of the EPA in any potential enforcement actions. He stressed
the financial impact to agriculture and the cost of those practices that
farmers might be required to implement. For instance, the cost to fence
streams on an average farm with livestock in Virginia would be $40,000.
Overall, the Virginia Farm Bureau estimates that the cost of implementation,
not including critical technical assistance, will reach into the billions
for farmers in Virginia. Mr. Stoneman noted his confidence of current
programs, such as the Agricultural Stewardship Act (a voluntary reporting
and complaint program), in providing a check on enforcement.
Abraham, Vectre Corporation, for the Virginia Association for Commercial
Abraham spoke to his concerns about the short time frames for development
of the WIP and for public comment on those documents. He hopes that there
is a one-year delay in the adoption of the TMDL to provide a better scheme
for regulation. He has concerns about the availability of offsets to private
developers and hopes that the administration’s goal of expanding
the nutrient trading program is achieved. He further emphasizes the staggering
costs associated with urban retrofits, especially as compared to wastewater
treatment, and that the same set of persons, urban residents, will pay
in both scenarios. Mr. Abraham supports banning phosphorus in residential
fertilizers. He also stressed that policymakers should review any mandates
requiring certain percentages of open space and weigh the impact on redevelopment
projects as compared to sprawl.
Virginia Municipal League
Mr. Lerch expressed his concern with the James River strategy.
His organization strongly supports the nutrient credit exchange program.
Mr. Lerch asks that any legislative proposals impacting the costs of local
government operation be referred to the Commission on Local Government.
Chesapeake Bay Foundation
Ms. Jennings shared the poll results with the members that show the vast
majority of Virginians feel strongly about clean water and disagree that
cleaning the Chesapeake Bay would prevent the state’s economic recovery.
She expressed her disappointment that despite the popularity of such positions,
the Chesapeake Bay has remained polluted for 30 years. She hopes that
the process is not disrupted by unfounded complaints and that Virginia
does not put forth an inadequate WIP requiring the EPA to implement unpopular
backstop efforts. Ms. Jennings also discussed the cost of a polluted Chesapeake
Bay in contrast to the costs of restoring the Chesapeake Bay. Ms. Jennings
recommended that the legislature review measures to reduce phosphorus
content in fertilizer and to permit farmers to transfer tax credits earned
for best management practices.
and answer period
The chair asked Mr.
Stoneman about the effectiveness of the Agricultural Stewardship Program
and whether farmers have been turning their colleagues in. Mr. Stoneman
replied that there were a fair amount of complaints, but that more resources
were needed for publication of the program and follow-up enforcement.
The importance of training available for erosion and sediment control
efforts and enforcement was discussed.
Dr. Schulz, a member
of the Commission, spoke to the panelists about courage and asked if each
could recommend a bold step that would represent a courageous act on their
constituents’ behalf. Mr. Stoneman stated that farmers should be
operating with a nutrient management plan and that is a policy of member
organizations. He qualified his support for this effort by noting that
the conservation plans should be achievable and economically feasible,
where appropriate. He states that boldness, without a reasonable plan
for accomplishment could prove empty. Mr. Lerch suggested that a clean
up is not always the best thing to do and that perhaps doing a study prior
to spending the funds for a clean up is necessary. Mr. Abraham noted that
his organization would accept a 15 percent reduction in phosphorus runoff
and an 11 percent reduction in nitrogen runoff. Ms. Jennings noted that
the conservation community might consider an approach that would hold
a farmer harmless if the farmer has a conservation plan with clear performance
measures and if that farmer is otherwise in compliance with state laws.
A member asked how
legislators should balance the efforts to clean the Bay with their responsibility
to keep taxes low. Ms. Jennings noted that many communities and sectors
have already paid with their livelihoods as a result of a polluted Bay.
Furthermore, cleaning the Bay itself will generate jobs.
Due to the late hour
of the day, the Commission decided to review the list of potential legislative
initiatives privately and request drafts directly from staff. The Commission
will review such drafts at a final meeting prior to the General Assembly
The Hon. Mary Whipple
Ellen Porter, DLS
of Legislative Services > Legislative
Record > 2010