[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Pages 47792-47794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22410]




Clean Water Act Section 303(d): Preliminary Notice of Total 
Maximum Daily Load (TMDL) Development for the Chesapeake Bay

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice and initial request for public input.


SUMMARY: This notice announces the intent of EPA to establish a 
Chesapeake Bay-wide Total Maximum Daily Load (TMDL) for nutrients and 
sediment for all impaired segments in the tidal portion of the 
Chesapeake Bay watershed. This action is being taken pursuant to 
section 303(d) of the Clean Water Act (CWA). To provide information to 
the public regarding the process, approach and implications of this 
action, EPA will hold a series of public meetings in late 2009 on dates 
and in locations to be determined. A second public comment period will 
be held in the summer of 2010 once a draft Chesapeake Bay TMDL is 
developed. This TMDL is being developed consistent with the 
requirements of two Consent Decrees settling the following lawsuits: 
American Canoe Association, Inc. and the American Littoral Society v. 
EPA, Civil No. 98-979-A (E.D. Va) and Kingman Park Civic Association, 
et al. v. U.S. Environmental Protection Agency, et al., No. 1:98CV00758 
(D.D.C.). By this notice, EPA is soliciting preliminary input from the 
public on its plans for developing this Chesapeake Bay TMDL. EPA 
requests that the public provide to EPA any water quality related data 
and information that may be relevant to the development and calculation 
of the Chesapeake Bay TMDL by December 18, 2009. EPA will review all 
data and information submitted during the public comment period and 
will consider them in the development of the TMDL as appropriate.

DATES: Comments must be submitted in writing to EPA on or before 
December 18, 2009. If you anticipate that you will be submitting 
comments, but find it difficult to do so within the period of time 
allowed by this notice, you should advise the contact listed below as 
soon as possible.

ADDRESSES: You may submit comments on the development of the Chesapeake 
Bay TMDL by e-mail or U.S. post mail. To submit your comments by e-
mail, send them to [email protected]. To submit your comments by 
U.S. mail, mark them to the attention of Jennifer Sincock, 
Environmental Scientist, Water Protection Division, (3WP30), U.S. 
Environmental Protection Agency Region III, 1650 Arch Street, 
Philadelphia, PA 19103-2029. Further information on the development of 
the Chesapeake Bay TMDL may be viewed at http://www.epa.gov/chesapeakebaytmdl

FOR FURTHER INFORMATION CONTACT: For additional information, contact 
Jennifer Sincock at (215) 814-5766 or fax 215-814-2318 or send an e-
mail to [email protected].

SUPPLEMENTARY INFORMATION: Section 303(d) of the CWA requires that each 
State identify those waters within its boundaries for which existing 
technology-based pollution controls required by the CWA are not 
stringent enough to attain or maintain State water quality standards. 
States are required to establish TMDLs for those ``impaired'' waters. 
TMDLs are pollution budgets designed to identify necessary reductions 
of pollutant loads to the impaired waters so that the appropriate water 
quality standards are met, including designated uses like fishing or 
swimming and water quality criteria for parameters such as dissolved 
oxygen and water clarity.
    Why is a TMDL being developed for the Chesapeake Bay? The 
Chesapeake Bay is a national treasure constituting the largest estuary 
in the United States and one of the largest and most biologically 
productive estuaries in the world. Despite significant efforts by 
Federal, State, and local governments and other interested parties, 
water pollution in the Chesapeake Bay prevents the attainment of 
existing State water quality standards. The pollutants that are largely 
responsible for impairment of the Chesapeake Bay are nutrients, in the 
form of nitrogen and phosphorus, and sediment. EPA, in coordination 
with the Bay watershed jurisdictions of Maryland, Virginia, 
Pennsylvania, Delaware, West Virginia, New York and the District of 
Columbia, will establish a nutrient and sediment pollution budget for 
the Bay consistent with CWA requirements to guide and assist Chesapeake 
Bay restoration efforts. A primary driver for the schedule to develop 
the Chesapeake Bay TMDL is the Virginia TMDL Consent Decree settling 
the lawsuit American Canoe Association, Inc. and the American Littoral 
Society v. EPA, Civil No. 98-979-A (E.D. Va). Portions of the 
Chesapeake Bay and its tidal tributaries were identified as impaired 
for aquatic life uses and exceedance of the numeric criteria for 
dissolved oxygen caused by nutrient and sediment pollutants on 
Virginia's 1998 section 303(d) list of impaired waters. Other Bay and 
tidal tributary segments impaired by nutrients and sediment have been 
identified on Maryland and the District of Columbia section 303(d) 
lists. Under the Virginia TMDL Consent Decree, EPA is obligated to 
establish a TMDL for the Bay's waters identified on the 1998 Virginia 
list including those aquatic life use impairments caused by the 
nutrient and sediment pollutants by no later than May 1, 2011, if those 
waters are not previously removed from the list or if

[[Page 47793]]

Virginia has not already developed a TMDL for those waters. EPA must 
establish a TMDL covering the listed Virginia Bay tidal waters by May 
1, 2011 because the Virginia segments of the Chesapeake Bay and its 
tidal tributaries remain on Virginia's 2008 section 303(d) list. 
Virginia has requested that EPA establish the TMDL for those waters 
pursuant to the Virginia Consent Decree schedule.
    In addition to the Virginia segments identified above, the Potomac 
River is listed on the District of Columbia's section 303(d) impaired 
waters list for low pH. The water quality standards exceedances for pH 
in the Potomac River are the result of algal impacts from excess 
nutrients. Establishment of a Potomac River pH TMDL is directly linked 
to the establishment of the Chesapeake Bay TMDL because of their common 
impairing pollutants (nutrients) and hydrologic connection. Like 
Virginia, EPA is under a consent decree obligation to establish a pH 
TMDL for the Potomac by May 1, 2011 if the District of Columbia does 
not develop that TMDL (Kingman Park Civic Association, et al. v. U.S. 
Environmental Protection Agency, et al., No. 1:98CV00758 (D.D.C.)). 
Like Virginia, DC has asked EPA to establish the Potomac River pH TMDL. 
Finally, Maryland has also requested that EPA develop TMDLs on the same 
schedule to address Maryland Bay and tidal tributary waters identified 
on its current section 303(d) list as impaired for aquatic life uses 
caused by nutrient and sediment pollutants.
    When will the Chesapeake Bay TMDL be completed? The Chesapeake Bay 
Program's Principals' Staff Committee has requested an accelerated 
schedule for EPA to complete the Chesapeake Bay TMDL by December 31, 
2010. EPA will undertake its best efforts to issue a final Chesapeake 
Bay TMDL for nutrients and or sediment by this date. In June 2010, EPA 
intends to propose a draft Chesapeake Bay TMDL for public review and 
comment. EPA intends to collect public comments on the draft TMDL 
between June and September 2010. EPA will undertake its best efforts to 
establish the final TMDL by December 31, 2010 and no later than May 1, 
    Who is developing the Bay TMDL? EPA Region III Water Protection 
Division has assumed primary responsibility for the establishment of 
the Bay TMDL, pursuant to the two Consent Decrees discussed above, and 
at the request of the six Chesapeake Bay watershed States (Virginia, 
Maryland, Delaware, West Virginia, Pennsylvania, and New York) and the 
District of Columbia. The Chesapeake Bay Program Office in EPA Region 
III has modeling and water quality expertise that is critical to the 
TMDL development process. EPA Region II is also providing guidance and 
technical support to Region III and will cosign the final TMDL because 
New York State is included in the Chesapeake Bay watershed, and sources 
in New York State (like the other States) contribute nutrients and 
sediment to the Bay. The Chesapeake Bay Program committee structure is 
being used to engage the watershed States fully in the development of 
the TMDL. EPA is working through the Chesapeake Bay Water Quality Goal 
Implementation Team (formerly the Water Quality Steering Committee and 
Nutrient Subcommittee), which is comprised of all Bay jurisdictions 
including Virginia, Maryland, the District of Columbia, Delaware, 
Pennsylvania, West Virginia, and New York; the Chesapeake Bay 
Commission; and EPA Regions II and III, to inform EPA's TMDL decisions 
and attempt to reach consensus on the TMDL's targets and goals. Major 
policy decisions are made by the Chesapeake Bay Program Principals' 
Staff Committee (Bay State and District of Columbia Secretaries, the 
Chesapeake Bay Commission, and the EPA Region III Regional 
Administrator) and Executive Council (Bay State Governors, Mayor of 
District of Columbia, the Chesapeake Bay Commission, and the EPA 
Administrator). Where consensus cannot be reached on key decision 
points, EPA has the ultimate responsibility to make the final 
    What is the scope of the Bay TMDL? EPA expects the Chesapeake Bay 
TMDL to address all segments of the Chesapeake Bay and its tidal 
tributaries that are identified on the Bay States' 2008 section 303(d) 
lists of impaired waters as impaired by nitrogen, phosphorus and 
sediment. EPA estimates that the Bay TMDL will address up to 92 
impaired Bay and tidal tributary segments, and therefore will consist 
of up to 92 TMDLs--one for each impaired segment. EPA intends that the 
Bay TMDL will be established at a level necessary to ensure attainment 
of water quality standards in each of these impaired segments. EPA also 
expects that the TMDL will identify the aggregate watershed pollutant 
loading cap for nitrogen, phosphorus and sediment necessary to achieve 
the Chesapeake Bay's water quality standards. This aggregate watershed 
loading cap would be subdivided among the Bay States and major 
tributary basins. In addition, individual and (as appropriate) 
aggregate maximum daily allowable point source and nonpoint source 
loadings, called wasteload allocations (WLAs) and load allocations 
(LAs), respectively, would be identified across all jurisdictions 
within the Bay watershed. When completed, the Chesapeake Bay TMDL will 
be the largest, most complex TMDL in the country, covering a 64,000 
square mile area in six States and the District of Columbia.
    How will the TMDL promote nitrogen, phosphorus and sediment 
reductions? Under the CWA, the TMDL will establish the watershed 
pollution budget for nutrients and sediment necessary to meet water 
quality standards in the Bay. Other provisions of the CWA are intended 
to implement the TMDL.
    Most notable of these provisions is the National Pollutant 
Discharge Elimination System (NPDES) permit program. Under this 
program, permits are issued to point sources. These are sources 
discharging to waterbodies through a pipe or other discrete conveyance. 
Examples include municipal wastewater treatment plants, industrial 
facilities, municipal stormwater systems, and combined animal feeding 
operations. NPDES permits for these point sources contain effluent 
limits that control the amount of nutrients and sediment allowed in 
their discharge. Under the CWA, these permit effluent limits must be 
written consistent with the assumptions and requirements of the 
wasteload allocations in an EPA-approved TMDL. 40 CFR 122.44 
    Under the CWA, nonpoint sources (any source that is not a point 
source, e.g., certain agricultural and other unchanneled stormwater 
runoff) are generally not regulated under the NPDES permit program. 
Instead, pollutant controls for nonpoint sources are promoted through 
Federal grant programs like CWA section 319. In addition to the CWA 
section 319 grant program, there are other Federal assistance programs 
such as the Environmental Quality Incentives Program (EQIP) provided 
through the U.S. Department of Agriculture. Each State also has a 
variety of regulatory and non-regulatory programs that provide 
important measures or incentives to control nonpoint sources of 
pollution. Because EPA's ability under the CWA to influence nonpoint 
source pollutant reductions solely through grant-related programs is 
not expected to fully address nonpoint source reduction needs, EPA is 
working with our partner jurisdictions to develop innovative

[[Page 47794]]

approaches to achieving nonpoint source reductions of nutrients and 
    During TMDL development, EPA will work with its partner States and 
the District of Columbia to develop individual Watershed Implementation 
Plans (WIPs) and an overall TMDL implementation framework. Those plans 
and framework would be part of the TMDL Record of Decision and help 
provide reasonable assurance that the necessary nutrient and sediment 
reductions from point and nonpoint sources identified in the TMDL will 
be achieved. The WIPs will identify specific nutrient and sediment 
reduction targets by geographic location and sector to achieve 
allowable loadings, as well as a description and schedule of actions 
that the States, DC, and local decision-makers will take to achieve 
these reductions. Informed by the TMDL, EPA, the States and the 
District of Columbia will also provide two-year milestone commitments 
specifying what source controls will be taken to reduce nitrogen, 
phosphorus and sediment during that period. EPA is working with the 
States to develop an adaptive management approach with greater 
accountability including contingencies and consequences that would be 
implemented if a State or the District does not achieve its two-year 
milestone commitments or the TMDL's nutrient and sediment reduction and 
implementation targets.
    In May 2009, the Chesapeake Bay Program's Executive Council set new 
short-term goals to reduce pollution to the Bay and dramatically 
accelerate the pace of restoration in the Bay and its rivers. Instead 
of pursuing a distant deadline, the seven Bay jurisdictions will now 
focus on shorter, two-year milestones. The first sets of milestones, 
announced at the Executive Council meeting, are scheduled to be met by 
December 31, 2011. By meeting these and future milestones, the Bay 
jurisdictions expect to put in place all pollution control measures 
necessary for a restored Bay no later than 2025.
    On May 12, 2009, President Obama signed an Executive Order entitled 
``Chesapeake Bay Protection and Restoration.'' The Executive Order 
calls on the Federal government to take a leadership role in protecting 
and restoring the Bay. Pursuant to the Order, a number of Federal 
agencies, including EPA, are developing reports making recommendations 
to the President for restoring the Bay, including achieving its water 
quality standards. Draft reports are to be submitted to the Federal 
Leadership Committee, chaired by EPA, by mid-September 2009. The 
Federal Leadership Committee will then integrate these agency reports 
into a draft Strategy for coordinated implementation of Federal efforts 
to restore and protect the Bay. That draft Strategy will be published 
for public comment in November 2009 and released as a final document in 
May 2010. EPA expects to integrate the Bay TMDL fully into the set of 
recommendations it proposes pursuant to the Executive Order.
    Paperwork Reduction Act: The Office of Management and Budget (OMB) 
has previously approved the information collection requirements for 
developing TMDLs pursuant to section 303(d) of the CWA under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2040-0071. The OMB control numbers for 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

EPA Seeks Preliminary Comment on the Development of a Nutrient and 
Sediment TMDL for the Chesapeake Bay

    By this notice, EPA is seeking preliminary comment on the 
development of a TMDL for phosphorus, nitrogen, and sediment in the 
impaired tidal segments of the Chesapeake Bay. Further information on 
the Chesapeake Bay TMDL development may be viewed at http://www.epa.gov/chesapeakebaytmdl.
    EPA will hold a series of public meetings between November and 
December 2009 to provide information and to solicit input from the 
public on the preliminary development of this nutrient and sediment 
TMDL for the Chesapeake Bay. EPA intends to hold a second public 
comment period between June and September 2010 after the draft 
Chesapeake Bay TMDL is published.
    EPA requests that the public provide to EPA any water quality 
related data and information that may be relevant to the development 
and calculation of the Chesapeake Bay TMDL by December 18, 2009. EPA 
will review all data and information submitted during the public 
comment period and will incorporate it into the TMDL as appropriate.
    EPA also requests that the public provide any additional 
information and comment regarding the design and establishment of the 
Chesapeake Bay TMDL and accompanying implementation plans so that EPA 
can incorporate these ideas into the TMDL development process.

    Dated: August 31, 2009.
Tai-Ming Chang,
Acting Director, Water Protection Division, Region III.
[FR Doc. E9-22410 Filed 9-16-09; 8:45 am]