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More Federal Involvement in Agriculture and Stormwater Sectors Likely as a Result of Recent EPA Activity

Last week, the federal Environmental Protection Agency (EPA) released an evaluation of Pennsylvania’s progress toward its Chesapeake Bay pollution reduction goals under the Chesapeake Bay TMDL (which stands for “Total Maximum Daily Loads”).  According to the agency, Pennsylvania has its work cut out for it.  While Pennsylvania has made progress toward its goals, not all of its milestone commitments were met, and the agriculture sector, in particular, will now be more heavily scrutinized by EPA.

The Chesapeake Bay TMDL is a federally-created and enforced tool that sets forth the maximum amount of certain pollutants (nitrogen, phosphorus, and sediment are the three pollutants applicable to the Bay TMDL) that a body of water may receive from all sources, including industrial dischargers, wastewater treatment plants, and stormwater from lawns, streets, and farms.  Pennsylvania, like each of the six states and the District of Columbia in the Chesapeake Bay watershed, is required to show EPA how it plans to meet the requirements of the TMDL by controlling pollution from all sources through a Watershed Implementation Plan (WIP).  Implementing the WIP is primarily the responsibility of the state, but EPA has significant authority to take action if the state’s efforts fall short.  Each state must provide regular updates to EPA to show how much progress has been made.  The recent evaluation by EPA is based on its review of Pennsylvania’s progress toward its 2012-2013 milestones as well as its commitments for 2014-2015.

Among other deficiencies, EPA found that Pennsylvania significantly missed its goals on its implementation of certain agricultural Best Management Practices (BMPs) that the Commonwealth is relying upon heavily in its overall plan to hit its reduction targets.  In addition, the EPA determined that Pennsylvania was not conducting enough inspections of agricultural operations.  As a result, EPA downgraded the agriculture sector to a “Backstop Action Level,” the highest level of scrutiny, indicating that the agency believes the state is not only missing the mark, but may not have adequate plans to get back on track.  EPA is calling for Pennsylvania to put more emphasis on compliance – more inspections and enforcement to ensure farms have manure management plans, erosion and sedimentation plans, and conservation plans, as necessary – and better tracking and reporting of BMPs being implemented.  Agricultural producers should expect more site visits and inspections, and a renewed focus on compliance as a result of the change to the Backstop category.

Urban and suburban stormwater control remains at the Backstop Action Level for Pennsylvania, and the EPA noted that the state is substantially off track for its planned reduction in nitrogen for 2015.  EPA is recommending that Pennsylvania provide more guidance to MS4-regulated municipalities and determine if upgrades are needed to stormwater BMP tracking and reporting procedures.  Overall, EPA’s recommendations imply that Pennsylvania municipalities are not meeting their expected goals on stormwater control, and worse, may not even be receiving the tools they need to do so.  It is hoped that MS4 municipalities will be provided much needed information and guidance shortly.  However, such municipalities should understand that with more guidance will likely come heightened expectations for tracking and reporting.

In contrast to agriculture and stormwater, Pennsylvania achieved almost all milestones in the sewage and wastewater treatment sector.  However, EPA noted that if other sectors cannot be proven to achieve their planned reductions, further reductions may be necessary from the wastewater sector.

EPA’s evaluation came just a few days after the agency announced it was ordering 85 Pennsylvania municipalities in the northcentral and northeast part of the state to implement, improve, and correct deficiencies in their MS4 stormwater management programs.

Moving forward, expect more, not less, EPA involvement in regulated activity in Pennsylvania.  If reductions in nutrient and sediment pollution are not made, EPA will continue to increase enforcement, increase regulatory requirements, and expand the universe of activities, facilities, and municipalities requiring federal permits.  For more information on how EPA’s evaluation and enforcement actions will affect your business or municipality, call the environmental attorneys at Stock and Leader at 717-846-9800.

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