Clean Water Act and Safe Drinking Water Act Programs --- and Forests

1. Clean Water Act and Safe Drinking Water Act Programs --- and Forests Chesapeake Bay Program Forestry Work Group November 28, 2006 Katharine Dowell Acting Land, Growth and Stewardship Coordinator

2. Potential Water Regulatory Drivers Affecting Forest Conservation • TMDLs • Stormwater NPDES Permits (MS4s) • Source Water Protection

3. Clean Water Act – Total Maximum Daily Loads (TMDLs) • State water quality standards (WQS) are designed to protect, restore, and preserve water quality. • WQS are usually in the form of numeric criteria established to achieve beneficial uses, such as protection of biota, recreation, or drinking water supplies. • When a lake, river, stream or other water body fails to meet water quality criteria, the CWA requires that states place it on a list of impaired water bodies (known as the “303(d) list”), • and to prepare an analysis called a Total Maximum Daily Load (TMDL) for the pollutant or pollutants causing the impairment(s). • TMDL = quantitative assessment of the extent of the water quality problem(s) and the pollutant sources

4. TMDL objectives 1. Protection: Prevent the degradation of healthy waters 2. Restoration: Develop and execute plans to reduce pollution 3. Maintenance of Reductions: Institutionalize technical and administrative processes to offset the introduction of new pollutants. G. Tracy Mehan, former AA for Water: “A strength of the TMDL Program is its ability to support development of information-based, water quality management strategies.”

5. TMDLs offer… • Common understanding of impaired waters – a TMDL diagnoses problem pollutants and sources • Action plan with measurable goals -- a catalyst (roadmap) for improving overall watershed health • Water quality trading opportunities – potential production and brokering of point or nonpoint source credits to achieve or maintain caps

6. . TMDL Components • Wasteload allocation -- the pollutant comes from a discrete source (referred to as a point source) such as an industrial facility’s discharge pipe, that facility’s share of the loading capacity. Note: In addition, EPA requires urban stormwater sources managed under an NPDES permit (municipal and industrial) to be classified as waste load allocations (point sources) for the purpose of TMDL analyses. • Load allocation -- the pollutant is associated with a diffuse source (referred to as a nonpoint source) such as surface water runoff • Reasonable assurance: The TMDL documentation includes a section that explains how the nonpoint source allocation will be attained.

7. Offsetting Loads • Offsetting future loads is implicit in federal law requiring TMDLs, which place a loading cap on impairing substances. Federal regulations prohibit issuing NPDES permits that would increase pollutant loads causing or contributing to an existing violation of water quality standards. • TMDLs may help drive water quality offsets that involve forests to help reduce or maintain cap loads, e.g., by • consideration of the need to offset increases in pollutant loads that accompany deforestation • identifying potential areas for reforestation in an amount of acreage estimated to offset pollutant loads from existing sources or proposed development areas.

8. Forests could be Offset Opportunities • For example, a local jurisdiction might decide to set aside certain forested land in perpetuity to use for future spray irrigation of municipal wastewater. • This would accommodate future growth in a way that is consistent with TMDLs. • And, by making use of public sewer systems it would avoid pollutant loads associated with septic systems, promoting more efficient growth principles, thereby preserving the rural character of the surrounding countryside and help ensure the economic viability of local agriculture and/or forestry.

9. Note: Some TMDLs are directly linked to riparian forest cover: temperature • There are a number of temperature (shade-related) TMDLs within the Pacific Northwest. For example, • Water monitoring data on the Colville National Forest, Washington, showed several streams did not meet fecal coliform bacteria (grazing impacts) and temperature standards. • The TMDL temperature assessment used percent effective shade as a surrogate measure of solar shortwave radiation leading to elevated water temperatures. It allocated the level of effective shade necessary to reduce water temperatures to meet the 16 degree C water quality criteria. • The percent increase needed in shade by stream segment is the reforestation target.

10. NPDES Urban Stormwater Permits • Large municipal separate storm sewer systems (MS4s) are covered under Phase I. The Stormwater Phase II rule generally requires operators of small MS4s to develop and implement a stormwater management program that addresses six minimum control measures.. • In addition, construction activity disturbing between 1 and 5 acres of land is subject to the Phase II rule. • Implementing these minimum control measures typically requires the application of one or more BMPs.

11. Nonstructural Stormwater BMPs • Under the stormwater permit program, nonstructural, site-based BMPs can include buffer strip and riparian zone preservation, minimization of disturbance and imperviousness, and maximization of open space. • EPA’s list forest-related BMPs includes, e.g., • Protection of Natural Areas • Reforestation • Riparian Forested Buffer • Urban Forestry • Promoting Low Impact Development • For example: Maryland’s Stormwater Design Manual encourages as a nonstructural practice, “Natural Area Conservation” to helps to retain pre- development hydrologic and water quality characteristics

12. Source Water Assessments • Every state has an approved source water assessment program and has completed source water assessments for most public water systems. • Each assessment identifies the area of land that most directly contributes the raw water used for drinking water (source water delineation) and evaluates the risk of contamination of the water system. • Some states also have mandatory requirements for wellhead protection at the local level.

13. Source Water Delineations • For a community that uses surface water from a stream, river, lake or reservoir, the land area in the watershed upstream of the intake is identified on the map. • For ground water supplies, states commonly use information about the flow of underground water to delineate source water assessment boundaries where protection and groundwater recharge are especially important. • Communities are encouraged (but not required) to use a wide array of different source water protection methods to prevent contamination of their drinking water supplies, including protecting valuable forests.

14. Forward thinking communities • “More than a century ago, many of America’s fastest growing cities, such as Boston and New York, bought land in their source areas to provide lasting protection of water resources critical for sustaining their populations into the future. To this day, these cities, some of the largest in the country, have relatively clean source waters that require minimal treatment.”

15. Cost-Effectiveness of Forests for Drinking Water • “Protecting forests – which reduces erosion and sediment, improves water purity and in some cases captures and stores water – is a cost-effective way to provide clean drinking water….operating treatment costs decreased as forest cover in a source area increased.” • Given that some Bay communities are already undergoing conflict over growth and water supplies (e.g., Carroll and Frederick Counties, MD), and the expected population growth in the Bay watershed, protection of forests to help provide drinking water could be key. “For many cities, time is running out…Protecting forests around water catchment areas is no longer a luxury but a necessity”.

16. Source Water Protection and Forests • States may use Drinking Water State Revolving Funds (DWSRFs) to provide loans to water systems for either land acquisition or conservation easements. • However, since the DWSRF program is managed by the states, project funding varies according to the priorities, policies, and laws within each state. States develop annual Intended Use Plans (IUPs) that describe how they will use funds in the program.

17. Sources of funding for forest conservation easements or acquisition • DRSRF loans for land acquisition and conservation easements and source water protection measures can only be made to public water systems. • However, land trusts and other organizations can facilitate source water protection by providing technical assistance to water suppliers in identifying properties that qualify for funding or offering expertise in negotiating land acquisitions or conservation easements with willing sellers.

18. Acknowledgements • TMDL offsets discussion -- MDE’s 2006 TMDL Implementation Guidance for Local Governments. • Quotations regarding source water protection -- Caryn Ernst, Richard Guilick, and Kirk Nixon. “Protecting the Source: Conserving Forests to Protect Water”, Vol. 30, No. 5, May 2004 American Water Works Association journal “Opflow”

19. Discussion • Opportunities? • TMDLs • Stormwater permits • Source water