They Doth Protest Too Much...?

The weakest WIPs were submitted by West Virginia, Pennsylvania, New York, and Delaware. Virginia’s WIP requires moderate amounts of adjustments, while Maryland and Washington, DC need only minor modification to attain the standards expected by the EPA. Across the board, the deficits reflect a lack of commitment to enforcement and unwillingness to devise a strategy to promote improvements. The weak states rely heavily on pollution trading (where one factory eliminates more than its share of pollutants and applies its excess ‘credits’ to another factory which cannot meet the minimum requirements) but provide no viable regulation to measure, track or enforce these trades. The language used in the WIPs was also vague and nebulous, with no dates or processes specified. In some instances, the WIP indicates a strategy on which the EPA requires clarification, because the implementation outlined doesn’t jive with the plan as defined according to EPA representatives at the Washington, DC public meeting.

In the slide show presented at the public meetings/webinars, Rich Batiuk, Chesapeake Bay Program Associate Director for Science and Bob Koroncai, Chesapeake Bay TMDL Manager repeatedly emphasize why the EPA is implementing the TMDL and how much they want the DC, Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia (the States) to be full contributors to the development of the TMDL. This is not some pet project that they have undertaken on a whim. They are legally obliged to pursue this project by the Clean Water Act, Chesapeake 2000, a consent order from Washington, DC and Virginia, and a lawsuit settlement between EPA and the Chesapeake Bay Foundation as well as the recent Presidential Executive Order. Many people are questioning the timing; why pursue such an aggressive project in such a short time frame during a time of economic uncertainty? As to timing, having the TMDL on the books by December 31, 2010 is simply the starting point. The EPA is trying to create a comprehensive roadmap that will lead the States from the present into a future with less pollution. There are two-year milestones by which progress will be measured, and the document will be reviewed in 2011 to ensure that it is meeting the needs of the States and their constituents. The deadlines in place were agreed upon years ago, and most of the states have been collecting data that is pertinent to formulating the TMDL for decades.

Meeting the requirements is not an unreasonable request, and opponents who say the EPA is bullying them into submission are overlooking the fact they have every opportunity to contribute in order to be represented. Farmers are citing that EPA isn’t taking all the factors into account. They need to get a hold of their state’s DEP to ensure that the ‘missing’ information is being presented to the EPA. One state’s WIP didn’t include a full list of Waste Water Treatment Plants (WWTP), a major point-source contributor to any waterbody. Koroncai defended the need for full disclosure by reminding the attendees that if a WWTP (or other problematic area) is discovered after the TMDL is implemented, that source may be held to stricter regulations because it will be considered “new,” whereas existing structures get a little bit of leniency based on when they were built and what regulations get grandfathered over from previous mitigations. Some responsibility needs to fall on the shoulders of the individuals to ensure that they are not being misrepresented in the official document.



A view of the Atlantic Ocean from Ocean City, MD.
Photographer: S. Kiernan



The basic premise that the EPA is operating under is “The more you impair, the more you repair.” They want to be fair in their regulations, for the benefit of everyone in the watershed. It’s not just about the Chesapeake Bay, though that is the unifying factor. Enjoyment of clean water is a privilege taken for granted by Americans on a daily, if not hourly, basis. Last spring, a local water main broke, leaving me and thousands of my neighbors without running water for over 48 hours. With an infant to care for, I was instantaneously more sympathetic to the millions of people across the world who don’t have running water, or if they do, can’t trust its quality. Clean water sources provide more than sanitation and hydration, however. Swimming, fishing, crabbing, clamming, canoeing, kayaking, sailing, jet skiing, even just sitting on a beach: these are recreational activities which we rely on to improve our quality of life, all of which depend on clean water, and these privileges are enjoyed by average citizens, in whose interest the government is supposed to act.



The National Aquarium in Baltimore, across Baltimore Harbor
from a park in the pleasant Federal Hill neighborhood.
Photographer: S. Kiernan



After attending two public meetings via webinar, I have been surprised by two facts and been supported in my initial supposition that there are factors even more powerful than ignorance and laziness to oppose the TMDL on principle. First off, the impact of air pollution on the Chesapeake Bay was something I had never considered. EPA is currently tightening up the regulations on air pollution as well, and has already factored it into the TMDL. I was also surprised to see what a proportionately massive impact Maryland contributes to pollution in the Bay. Geographically, it’s such a small area; I didn’t take into account the dense population and heavy agricultural use of the remaining open space.

Based on the questions posed by attendees at the webinars, I continue to predict that the greatest opposition to the TMDL will come from representatives of the agriculture industry, and propose the following hard line approach to address several problems simultaneously. The EPA found all the States’ WIPs to be lacking in funding strategy. No one seems to be able to come up with a way to fund new implementation strategies or expand existing programs that are already making a difference. In New Zealand (which has a much more ag-based economy than the US), they did away with government farm subsidies in 1984, against great opposition at first. Farmers adapted, changed their techniques, diversified their crops, created niche markets and are now more profitable than they were before. Well, the USDA hands out $10-30 billion in subsidies to farmers annually in various forms of payments, loans, and insurance.  But who is actually getting this money?

Originally intended to help small farmers and support rural communities in times of hardship, agriculture subsidies have become yet another vehicle to drive money to the banks of the wealthy. It has the same flaws as the welfare system: designed to help out in a pinch, people have discovered how to make a living off it without making any attempt to return to self-sufficiency. Should we do away with the entire system? I don’t think so, as there are people who just need a hand every now and then. But there are certainly loopholes that need to be investigated and closed, or alternatives to explore that are more sustainable and more environmentally friendly, to boot. Reporters from The Washington Post identified $15 billion in wasteful government spending on the agriculture industry. I say we put that money into funding the initiatives in the TMDL. Even if it doesn’t cover everything (as there is currently no cost estimates for the program), it would be a significant contribution to the kitty.

Save the Bay Rally

I just RSVP'd to attend a rally for the Chesapeake Bay TONIGHT AT 6pm in Baltimore. This fall we have an unprecedented opportunity to clean up our water and our communities. Come join me and help urge Gov. O'Malley to give our children a better future: water that is safe to drink and swim in and seafood that is safe to eat throughout the region. http://www.environmentmaryland.org/ourbay?id4=tafsent

Put Up (your pollution controls) or Shut Up (your whining)!

Supporters of the EPA project are pleased with the draft TMDL released this week, and urge congress to pass the current changes to the Chesapeake Clean Water Act in order to further support future clean-up efforts. The states that received the harshest criticisms from the EPA are, of course, complaining the most that the TMDL is unfair. Virginia, for example, skirted the issue of funding in their WIP, while the official summary of the Chesapeake Clean Water Act dictates allotments of funds to implementation grants, technical assistance to foresters and agriculture producers, and stewardship grants. Opponents are calling it a “hostile agenda aimed securely at rural America” and saying this process has been too “rushed”, to which I have to say they’ve had almost 30 years to take care of their own chore lists—they have no right to bitch now because mom is tightening the screws. 



Please note the brief foray the river makes into Maryland....
Photo courtesy of the Susquehanna River Basin Commission



One argument for leniency that I might make is in favor of the Maryland WIP, one of two (out of seven) to be accepted by the EPA as relatively complete. The EPA seems to think that Maryland should put more emphasis on regulating the Susquehanna, along with two other rivers.  The Patuxent and the Choptank are both primarily located in Maryland; they should certainly be addressed accordingly.  The Susquehanna, on the other hand is located mostly in Pennsylvania, with a significant chunk in New York.  The mouth of the river is in Maryland, but the bulk of the problem nutrients and sediment are accumulating upstream. It's ridiculous to expect Maryland to be able to regulate that effectively.

The TMDL is not a bid for power by the EPA. As they continually remind us, they are federally mandated to produce the TMDL because of the “insufficient restoration progress over the last several decades in the Bay” on the part of the bay states, and the timetable was agreed upon by the governors of said states two years ago (granted, some of those governors are no longer representing their states). The development of the TMDL consisted of three major steps: the EPA set limits for pollutants, the states and DC based their Watershed Implementation Plans on those limits, and then the EPA drafted the TMDL, defining “backstop allocations” where the WIPs were insufficient. Those backstops are what all the opponents are protesting as too heavy handed.

These are not dictates by the EPA--I'm sure they would much rather have the jurisdictions do their part of the work and come up with more constituent-friendly options, but that is the responsibility of the localities in question! It’s much easier, more visually supportable, and just more popular to attack open sewer pipes and defend the poor, subjugated farming and construction industries that couldn’t possibly afford to minimize their impact on their neighbors, immediate or remote. The deficient states seem to be relying on the general public to fear the involvement of federal government more than they fear the looming (but less imminent) environmental disaster that is developing in our nation’s water. The TMDL and related legislation may be landmark cases in future water quality conflicts. "If EPA can't make it work here, they can't make it work anywhere," said Oliver Houck, an environmental-law expert at Tulane University told The Washington Post.

Public opinion seems to be negatively influenced by the faulty reasoning that if you can’t see the Chesapeake from your balcony, you have no reason to be interested in its upkeep. Residents in Loudon County, VA (through which runs Loudon Creek, a secondary tributary of the Chesapeake) recently protested additional zoning to regulate construction sites near waterways, claiming they were too intrusive and expensive. County Supervisor Kelly Burk told The Washington Post that people felt that they didn’t “have an impact on the bay.” All the parties who feel threatened by the TMDL language cite the cost of implementing pollution regulation. No one seems willing to look at the big picture, to see past their profit margins to recognize the long term impacts of the Chesapeake Bay turning into China’s Yellow River.



Pollution-driven algal blooms in Norfolk, Virginia, starve the Bay of oxygen, creating ‘dead zones’ where nothing can live.  Photo by Morgan Heim, part of R.A.V.E. exhibit in DC. (http://www.cbf.org/Page.aspx?pid=2040)

Dead zones continue to impact fishing and shellfish industries, and not only in the Chesapeake: the US coast now has hundreds of these blemishes. The 2010 oyster harvest in Maryland was 96 percent lower than that in 1983 (the FIRST year in which the bay states missed the deadline for cleaning up the Chesapeake Bay), and the previously bay-reliant economy of small towns like St. Michael’s, MD, are becoming more and more focused on tourism for their income. Who’s going to visit (or build/buy homes or raise families or found businesses in) these towns when they overlook a morass of sludge, speckled with dead fish and overflown by majestic vultures instead of the ospreys and eagles that are so much more aesthetically pleasing?

The Chesapeake Photo Review

If you're in DC, try to take a moment next week to view this exhibit of photos documenting the Chesapeake Bay and its watershed. The exhibit is free and open to the public from September 20-24, and is located in the Rotunda of the Russell Senate Office Building at Constitution Avenue and 1st Street, N.E.,Washington, D.C. The pictures truly illustrate the classic man vs. nature conflict at play in the Bay states.

Less Theory, More Action Items, Please!

On review of the Watershed Implementation Plan (WIP) drafts submitted earlier this month, the general consensus thus far indicates a lack of concrete goals forming actual plans, little to no consideration of implementation funding, and an overall lack of commitment to the project on behalf of the states involved. The documents contain good theories and lists of existing programs, but no one seems to have really stepped up to the plate and aggressively addressed the issue of mandated pollution reduction aiming at achieving consistency with the Federal Clean Water Act which has been more or less ignored when convenient since 1972 when it was organized into its current incarnation.

Organizations and individual states have been trying to improve the Chesapeake Bay for decades, but making slow, irregular progress. A study by the USGS released September 15th proves that a unified effort is needed to make true positive headway towards clean water. New methods of analysis show that improvement in some rivers is negated by decline in others. If all the parties responsible are regularly informed of their neighbors’ processes and all parties are held to the same standards by a higher authority, then and only then will Bay water become substantially less of a risk and more of a resource.

In press releases, the Chesapeake Bay Foundation (CBF) offers some criticism of the existing WIPs and encourages the public to take part in the open comment period, which will last from September 24 to November 8. There is a definite theme in the comments. In her review of the MD WIP, Jenn Aiosa, Senior Scientist at the CBF Maryland Office praises strengthening requirements for stormwater permits, but cites “lack of clear delineation of the changes in practices and programs necessary to guarantee that pollution reductions will occur.” From the CBF Pennsylvania Office, Matthew Ehrhart, Executive Director, chastises the PA WIP as “largely a summary of programs and initiatives that already exist.” He continues to exhort PA (and the rest of the involved parties) to work together in an attempt to remedy the damage civilization has inflicted on the Bay. Ehrhart reminds the states of their responsibility to contribute to a solution and of the potential consequences to be faced by those who shirk their duty.

The Virginia Office of CBF says some good theories are presented in the VA WIP, but calls the plan “stunningly deficient” in offering up any practical applications to execute said theories. Even before the Bay TMDL is finalized, laws are being proposed and debated that will impact the effectiveness of the document. The VA Farm Bureau is even now planning to send representatives to protest Senate Bill 1816, proposed modifications to the Chesapeake Clean Water and Ecosystem Restoration Act of 2009, legislation that obviously relates to the Chesapeake Bay TMDL. According to WTVR CBS 6 out of Richmond, VA, although they plan to protest "heavy handed" restoration initiatives "the Farm Bureau says Virginia farmers are committed to doing their share to clean the bay." They are supporting an alternative, House Resolution 5509, the Chesapeake Bay Program Reauthorization and Improvement Act. The Bay TMDL is supposed to equitably address the concerns and define the responsibilities of vastly conflicting interests; I don't see how it's going to manage, especially without fully vested involvement by the state governments involved.
Despite the convictions of groups like the CBF or the VA Farm Bureau, who are "in the know" as it were, I fear that there isn't enough force propelling the necessary changes into being.  I am amazed by the lack of general media coverage pertaining to this issue, considering how many millions of people will be impacted by legislature that regulates the Chesapeake Bay watershed. There needs to be a much stronger public outcry to draw attention to this project now, while it's in the early stages, so that no one can say later that they didn't know.  There are multiple public meetings planned in locations throughout the watershed. I can only hope that enough regular people attend to attract some media coverage. Then maybe the political machine will realize that people do care about their water and are willing to make changes to improve it.

And What If We Don't?

Part of my concern with the viability of this project is defining the repercussions for not abiding by the new rules. Who will be responsible for supplying enforcement? When will the ‘higher power’ step in? The EPA, with full initial support from all involved, created an aggressive timeline planning to yield a final document by December 2010 which would define benchmarks by which progress could be measured as early as 2012. This is a huge step towards achieving the goals set forth by the Chesapeake Executive Council to designing and implementing nutrient and sediment controls by 2025 (perhaps an enthusiastic response to new federal legislature due to the failure to achieve goals set out in Chesapeake 2000: A Watershed Partnership).

I found the punitive definitions in an official letter to the Secretary of Natural Resources from the Regional Administrator for the Environmental Protection Agency (EPA) from December 2009. According to the letter, the six states involved and Washington, DC (States) will be responsible for formulating and enacting Watershed Implementation Plans which will lead them toward self-defined two-year-goals. If the EPA finds a State lacking in progress, they are prepared to: revamp the current regulation of National Pollutant Discharge Elimination System permits to be more inclusive and under more stringent Federal oversight, pay more attention to all sources of pollutants in the watershed (including air pollution), base future funding on “demonstrated progress” towards reducing nutrient and sediment pollution, and hold localities to federal standards of water quality if the local laws aren’t adequate. If the States do not address their load allocations adequately in the drafts, EPA reserves the right to establish appropriate requirements in the final document. Also, they plan to potentially hold point sources (water treatment facilities, factories, etc.) responsible for more than their “fair” share of pollutants. New facilities or expansions of existing ones may be required to offset more pollutants than they anticipate discharging. EPA also may expect point sources to offset enough to compensate for non-point sources (agriculture, urban run-off, etc.) which will be unable to guarantee a reduction in their load.

Pollution Entering the Chesapeake Bay Watershed
Photo: Chesapeake Foundation

Is this fair to the factory owner? Personally, I don’t think so, but I’m sure the dairy farmers of Pennsylvania will be relieved. Point sources are easy targets because they are so well-defined and can be monitored and measured relatively accurately. Non-point sources are where I feel more emphasis should be placed, if only because they pose a greater challenge and will take longer to address due to their nebulous nature.

Amish Dairy Farm
Photo: Ad Meskens

Welcome!

By September 1st, the EPA received state-specific Total Maximum Daily Load (TMDL) reports from New York, Pennsylvania, Delaware, Maryland, West Virginia and Washington, DC (the state of Virginia requested an extension).  The EPA intends to create a Chesapeake Bay TMDL by the end of the year, encompassing all six states and DC, in order to create regulation governing pollution from point sources (factories, water and sewage treatment plants, etc.) and non-point sources (farms, construction projects, general use by the population). A successful end result would yield a regulatory document outlining enforceable policies that can be applied across state lines. Am I all in favor of improving water quality for the millions of people who live, work, and play in the Chesapeake Bay Watershed? ABSOLUTELY! Can it be done using this type of all-encompassing document? How will this new TMDL impact farmers and fishermen and men-on-the-street? Who will be responsible for enforcing the new policies and what sort of penalties will infractions elicit? These questions and more will be the focus of this blog as I follow the progress of the EPA in this epic endeavor.

The following video by the NASA/Goddard Space Flight Center Scientific Visualization Studio provides a glimpse at the scope of this project. 
Do you think there's a chance it will be effective?