Chesapeake Bay Tributary Strategy Update
The Department of Environmental Protection provided two new guidance documents to assist in the implementation of the Chesapeake Bay Tributary Strategy. The following is a link to DEP's website which has links to the two new policies: http://www.depweb.state.pa.us/chesapeake/cwp/view.asp?a=3&Q=442886&chesa
The first new policy relates to DEP's implementation plan for sewage facilities planning. The plan for sewage facilities planning is significant in that it directs municipal governments and permittees to design for compliance with new cap loads for nitrogen and phosphorus as well as zero net load increases beyond the current design flow of existing systems. Facilities will need to perform an alternatives analysis for all alternatives identified in sewage facilties planning for compliance with applicable water quality standards, including the NPDES permit limits to be placed in NPDES permits issued within the Bay watershed going forward. This requirement will apply to existing base plans as well as new land development plans. The policy does not spell out the terms by which existing POTWs should handle the long term requirement for the purchase of credits, which together with the limited number of credits currently availibility, causes some concerns about the adequacy of planning and potential problems with compliance. The policy also sets out new information regarding the credits to be obtained by retiring existing on-lot systems. The Department also forshadowed the possibility of regulating the TP and TN loadings from on-lot systems which are currently exempt under the existing policy.
The second new policy relates to NPDES permitting, it breaks down the five phase implementation schedule DEP has adopted. This first phase is already underway. Phase 1 addressess the largest 168 treatment plants located in the Bay watershed. The compliance deadline for these facilities is 10/1/2010, though the Department has indicated in the policy that it intends to negotiate Consent Order and Agreements with faclities that can not meet that deadline, however, the plan is to wait until non-compliance occurs, rather than address the issue at the permitting stage. Clearly there are real risks associated with this approach from the perspective of the permittees. Each of the next four phases address increasingly smaller facilities and extends the compliance deadline through 10/1/2013.
Barley Snyder has assisted its clients in negotiating one of the first nutrient trades to be approved by the DEP and has also represented two clients in appeals to the Environmental Hearing Board relating to DEP's December 20, 2006 directive to submit plans for compliance with DEP's proposed effluent loads, as addressed in correspondence from the Department and the draft NPDES permits which were issued in January 2007. The December 20 letters directed the 168 largest facilities to submit plans for compliance with the new cap loads within 180 days of the date of the letters. Those plans are due in late June.
