Chesapeake Bay Action Plan

(Posted by Erik Michelsen)

In preparing for the 2012 Maryland Legislative session, the memories of largely unproductive sessions for the environment in 2010 and 2011 were very fresh. The combined environmental community – the Clean Water, Healthy Families coalition – resolved to be more focused, to pursue a direct request of legislators, and to focus on goals that would have a measurable impact on improving water quality. Those goals were:

• Finish upgrading the wastewater treatment plants that Maryland has already committed to upgrade.
• Ensure that local governments have resources to reduce polluted stormwater runoff and implement their local clean water plans.
• Reduce pollution from poorly planned development – including limiting new septic systems.
• Require that all wastewater discharges, including septic systems, are treated at the highest levels to protect public health and ensure clean water.

The first two goals were explicitly stated in Maryland’s Watershed Implementation Plan (WIP) and comprised the core funding strategies for the state’s efforts to address pollution from its central urban and suburban corridor. The last two were focused on ensuring that we don’t erase any gains we make via the first two by developing in a way that creates a staggering amount of new pollution.

As the clock ran down on the legislative session yesterday, the future of the Chesapeake and Maryland’s rivers hung in the balance. Early in the day, legislation to double the Bay Restoration Fund (or “flush fee”) passed, followed by a bill aimed at limiting sprawling growth by restricting where septic-served subdivisions can be located. The debate on a bill to require the 10 largest jurisdictions in the state to create dedicated stormwater restoration fees carried on late into the evening, with opponents, largely from the eastern shore and western Maryland, attempting to filibuster until the end of session, at midnight.

At one point, the floor leader for the bill, Senator Paul Pinsky, asked the opponents – many of whom had invented, and then promulgated, the notion of a “war on rural Maryland”  – why, when they opposed additional water quality regulations on farms on the grounds that agriculture wasn’t the only source of pollution to the bay,  they opposed a bill whose impacts fell most heavily on the densest areas of the state. The opponents fell back to a line of defense that can only be characterized as diversionary. They argued that Maryland’s overall pollution contribution was insignificant compared to the contribution of other states, that the cost of compliance was too expensive, and that the Chesapeake Bay TMDL “pollution diet” was in litigation, so there was no need to rush to address it.

Never mind the fact that the bill was aimed at jurisdictions with an MS4 stormwater permit, which has conditions and requirements that exist independent of the TMDL. Eventually though, the filibuster was shut down, those in favor of the bill in the Senate prevailed, and the bill was sent back to House and passed with 10 minutes to spare in the session.

The community still intends to pursue, through regulations, a requirement that all new septic systems be built using the best available technology, but we ended the evening with three of our four goals in hand and a strong commitment to address the fourth. There can be little doubt that the 2012 session will go down in Maryland lore as the “Session of the Bay,” despite the fact that it was tumultuous in many other respects.

And, with the close of the 2012, Maryland’s cities, town, and suburban enclaves are well positioned to meet their pollution reduction goals going forward. They have developed their plans and now have been given the tools to implement them in a timely fashion. There still remains important work to be done in other sectors, though, with Maryland’s nutrient management regulations still under consideration and an agricultural community divided over its willingness to be a full player in the recovery of Maryland’s most valuable natural resource. The session has ended, but the journey to restoration has just begun.

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(Posted by Bob Gallagher)

A group of legislators, following a script conceived by the public relations machine of Perdue and the Maryland Farm Bureau, have joined in Perdue’s unprecedented effort to derail an environmental lawsuit that has singular importance for the Chesapeake Bay watershed. The effort is unprecedented in the extent to which Perdue and its enablers are attempting to use the media and the political process to win a case that they have as yet been unable to win in court. Here is the story.

The Waterkeeper Alliance, working with the Assateague Coastkeeper, filed suit against Perdue and one of its contract chickens growers. The suit alleges that Perdue and the contractor, Hudson Farm, polluted the Pocomoke River with chicken waste in violation of the Clean Water Act (CWA).

Waterkeeper Alliance is a community supported organization that operates on a tight budget. It has thousands of supporters in Maryland. It makes extensive use of volunteers and public interest lawyers who work without charge. In this case, it is represented by the student lawyers of the University of Maryland School of Law’s highly regarded Environmental Law Clinic. The Alliance has worked with the Clinic in other cases to stop pollution of our rivers, to protect public health and to protect marine-related jobs and economic activity.

Represented by one of the biggest law firms in Baltimore, Perdue asked the court to dismiss the case as flawed at its inception. The distinguished senior judge hearing the case denied the motion. Perdue’s lawyers then unleashed a blizzard of paperwork on WKA and its lawyers apparently hoping to wear them down in the legal “discovery” process. That didn’t work either. It just made the young law students want to work harder.

Next Perdue filed a motion for summary judgment. That means judgment without a trial. They filed with the court thousands of pages of documents and transcripts of testimony of expert and other witnesses. The judge ruled that all they managed to prove was that the case was sufficiently complicated that it could only be decided after a trial.

From the beginning of the case, Perdue has been very uncomfortable with the idea that this case will be decided by an impartial, independent judge applying the rule of law. Recently, Perdue’s preference for trying the case in the court of public opinion became apparent. It launched a slick website called SAVEFARMFAMILIES. The website was created for Perdue by Levick Strategic Communications. Levick specializes in “crisis” and “high stakes” communications. Its website invites potential clients to hire it to “drive the narrative.” Levick has planted articles, spinning the facts to match Perdue’s objectives, in media across the Eastern Shore, rural Maryland and elsewhere.

On March 14, 2012, the Appropriations Committee of the Maryland House of Delegates held a hearing on House Bill 1349. The bill appears to be the latest sortie in the Perdue/Farm Bureau strategy. Introduced by an Eastern Shore delegate with the zeal of a carnival barker, the bill would punish the University of Maryland for the Law Clinic’s participation in the case by requiring the University to reimburse Hudson’s legal expenses, even if the Court finds Hudson guilty of violating pollution laws.

The delegate’s opening gambit in support of the bill was screening a video portraying the case as being about a rich, foreign organization on a subversive campaign to bankrupt family farmers. The video is expensively produced and professionally narrated.

The delegate used the video to incite a handful of other delegates to threaten the Clinic with dire consequences if it does not withdraw from the case. The website and video have created a backlash of public opinion against the Alliance and the Clinic in some segments of the farm community.

One of the reasons that, in a democracy, we entrust resolution of significant disputes to an independent judiciary applying an objective rule of law is that judges are trained and ethically bound to seek the truth and apply the law fairly. The court of public opinion has no such constraints. In the court of public opinion, the person with the most money often wins.

One of the most insidious aspects of the Perdue/Farm Bureau strategy is that it also entices our legislators to make their own judgment on the case based on the “facts” presented by Perdue’s public relations machine. The video, like the website, is a layer cake of deceit – one layer of sticky sweet lies upon another. Many of the lies are apparent from a review of readily available public documents. But, the point of this piece is not to point out each lie. The truth is for the court to determine.

It is apparent from Perdue’s actions that it desperately wants to avoid a court ruling in the case. That might be because a ruling against Perdue could make Perdue responsible not only for its waste from the Hudson farm but from its many other contract growers.

Trial in the case will proceed if the case cannot be settled in mediation. The Law Clinic has made it clear that, even in the face of intense criticism, its fledgling lawyers will continue to meet their ethical responsibility to represent their clients to the best of their ability.

It won’t surprise many readers that a number of the people involved in the effort to stop the Perdue litigation are also behind the effort to delegitimize proposals to reign in sprawl and pollution from septic systems as a “war on rural Maryland.” I suggest that some of those people could learn something about civic duty from the law students.

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(Posted by Tom Horton.)

Governor Martin O’Malley presumably thinks he’s helping Maryland poultry growers and processors by pressuring the University of Maryland’s environmental law clinic to drop out of a lawsuit aimed at stopping chicken farms from polluting.

But the pollution is real, it’s substantial and it’s not going to get better until the governor and agricultural interests acknowledge we have a problem with too much poultry manure.

But there is no excess manure, agriculture’s defenders argue; and they are correct in that farmers on Delmarva readily use all the manure they can get because it is a good, cheap fertilizer.

The only reason that works, however, is that the state still doesn’t require honest accounting for the water pollution this causes. The only real accounting is the condition of Eastern Shore rivers, none of which meet environmental standards needed to restore Chesapeake Bay, into which they drain.

When farmers spread manure they must put down enough to satisfy their crops’ need for both nitrogen and phosphorus. Soils in many places don’t need any phosphorus at all, a legacy of decades of overapplying manure, which is richer in phosphorus than nitrogen.

So to give crops enough nitrogen they continue building phosphorus to levels where it runs into rivers and the Chesapeake.

The only way to remedy this, to begin restoring Delmarva waterways, is to stop spreading so much manure on soils that can’t handle more phosphorus. Ironically, Maryland already acknowledges this problem in another venue: state regulations on the spreading of municipal sewage sludges on farm fields have a suite of requirements that prevent the polluting buildup of phosphorus in soils.

These ought to apply to agricultural manure as well. If we decreed that overnight, the tougher regulations would stick farmers with a huge disposal problem, since the poultry companies that supply them with chickens—also with the feed and medicines that go in one end of the birds—deny responsibility for what comes out the other end.

So what to do? First and foremost, acknowledge forthrightly that we have a problem, an excess of manure, a significant pollution problem. Stop the denial. Second, search for every alternative use of manure, for generating power, for making fuels for on farm use, for recycling into soil conditioners. There’s been significant progress here, but a good deal more is needed.

Another way to go is just what has happened. Years of denial and delay have begun to bring forth lawsuits, such as the one filed by the Waterkeepers Alliance against an Eastern Shore poultry farm, with legal support from the University’s environmental law clinic.

The governor’s heavy handed attempt last week to short circuit the university’s involvement in the lawsuit is nothing more than shooting the messenger. It ignores the science and does nothing at all for water quality and the public interest.

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(Posted by Dawn Stoltzfus.)

With all the recent focus on the Chesapeake Bay TMDL and local WIPs, here’s something that may have flown under the radar of Marylanders following Bay restoration efforts: the Maryland Sustainable Forestry Council is developing a set of legislative proposals to achieve a “No Net Loss” of forests in Maryland, due by December 1, 2011. It seems like we could easily be losing sight of the forest for the trees!

Last week, former Maryland State Senator Gerald Winegrad testified before the Council. As Senator Winegrad notes in his testimony, “the Sustainable Forestry Council can greatly assist in efforts to restore the Bay by focusing on nonpoint source pollution as forests and wetlands are the greatest protectors of the Bay from pollutants.”

Senator Winegrad’s testimony includes two measures that are a part of the Senior Bay Scientists and Policymakers’ 25-step action plan: Adopt a No Net Loss of Forest Coverage and Require Forested Buffers along 85% of Riparian Areas, and Target Existing Funding and Amend the Forest Conservation Act (FCA) to Achieve No Net Loss and Expanded Buffers.

Not only do forests and buffers along waterways do an excellent job at reducing pollution, they also provide valuable wildlife habitat, restore fisheries, reduce flooding and improve air quality.

While the public meetings are now finished, you can let the Sustainable Forestry Council know you support these recommendations by emailing: SFCComments@dnr.state.md.us.

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(Posted by Bill Dennison.)

In a recent scientific publication by Rebecca Murphy and Bill Ball from Johns Hopkins University and Michael Kemp at the University of Maryland Center for Environmental Science, an analysis of 40 years of Chesapeake Bay data reveals some important new insights.

What Rebecca and her colleagues did was quite clever. Instead of simply looking at the annual “dead zone”– regions within Chesapeake Bay with very low dissolved oxygen levels (<0.2 mg/L)– they separated the low oxygen events into spring/early summer events vs. late summer/autumn events. Various different environmental factors influencing these low oxygen events were explored.

They found that the spring/early summer “dead zones” were largely due to increased stratification: warmer, fresher water floating in top of cooler, saltier water. This has led to earlier, more pronounced “dead zone” formation. Regional climatic factors were invoked to explain this trend, and it is just a bit of more bad news for Chesapeake Bay.

But what is really exciting about their analysis is what is happening in the late summer/autumn “dead zones.” Their analysis indicates a reduction in the “dead zones” which, by process of elimination, they have related to nutrient reductions that have been documented entering Chesapeake Bay at the river monitoring sites.

This is a very encouraging finding, as it is the first time that we can point to management actions having a positive impact on reducing the Chesapeake Bay “dead zone.”  In a similar vein, the resurgence of aquatic grasses in some of the freshwater reaches of the Bay were related to nutrient reductions in a paper by scientists at the Virginia Institute of Marine Science, United States Geological Survey and the University of Maryland Center for Environmental Science. This trend was not evident when lumping all of the Bay grasses into one group, just as lumping all of the dissolved oxygen data into annual increments would have hidden the story of nutrient reductions leading to reduced late summer “dead zones.”

There are three features of the dissolved oxygen and aquatic grass stories that are worthy of mention.

• These stories rely on good, long-term monitoring data carefully collected and analyzed. We need to continue to monitor the Bay to track the progress of Chesapeake Bay restoration.
• The in-depth analyses that synthesize large, complex data sets require teams of talented researchers using sophisticated analytical techniques. The monitoring data, without this analysis, was not enough. Thus, ongoing monitoring needs to be accompanying with ongoing research.
• The connection between what we are accomplishing in terms of management implementation and the health of Chesapeake Bay is difficult, but not impossible, to discern. We need to continue to look for more of these stories in the data that we have at hand. In summary, we need continued monitoring and research and we need to apply this to Chesapeake Bay restoration.

This past summer was a fairly awful one for Chesapeake Bay water quality, largely due to weather extremes. The advantage of analyzing long term data sets is that year-to-year variability can be factored out of the equation. So as we sort through the combined impacts of high spring rains, and Hurricanes Irene and Lee, it is really nice to have this news that Rebecca Murphy and colleagues have given us.

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