The Kent County Commissioners joined with six other counties and the law firm of Funk & Bolton to challenge Maryland’s federally mandated pollution reduction plan for the Chesapeake Bay–on the grounds it does not adequately address a chronic history of nutrient and sediment discharges from the Conowingo Dam.
“I don’t know how we could continue to…ignore something that caused so many problems to Kent County,” Fithian said, shortly before a 2-1 vote to pay Funk & Bolton $25,000 in legal fees to challenge the state’s Watershed Implementation Plan. He said Kent’s seafood industry has probably suffered more than any other county because of its proximity to the Conowingo Dam.
Maryland’s WIP plan was the result of a lawsuit won by Chesapeake Bay Foundation in 2010 that compelled the EPA to enforce the 1972 Clean Water Act. Under a consent decree, states in the Chesapeake Watershed, from New York to Virginia, were required to submit a WIP plan to the EPA that brought the Bay into compliance with the Clean Water Act by 2020.
Maryland was unique in drafting its WIP by requiring all the counties to enact their own plan to reduce local nutrient runoff into the Bay, also referred to as Total Maximum Daily Load.
The bottom-up approach centered around the idea that local communities have a better understanding of their impaired rivers and streams and know best how to mitigate nutrient runoff.
All the counties submitted TMDL plans that were adopted by the state and written into the WIP plan that was submitted to the EPA this spring.
“Maryland knew that involving local communities at the county level in developing the state’s clean water blueprint was important because local communities play such an important role in implementing the plan,” said CBF Eastern Shore Director Alan Girard in an email just a few hours before the vote. “Counties usually know what’s best for them and the blueprint is responsive to that.”
CBF, along with other environmental groups and local river keepers, fear that problems at the Conowing Dam could be used as a distraction to delay local funding of TMDL plans. They worry that a rebellion could spread throughout the watershed because of the sticker shock associated with the plan.
Speaking before the commissioners Tuesday, Chester River Keeper David Foster said he hoped Kent’s decision to join the new TMDL Coalition was not an attempt to undercut the local responsibility for TMDL reductions–and he questioned the motives of counties in the coalition that are not impacted by the Conowingo.
“As you go through the list of counties that have signed on…these are not places that are impacted directly by the Conowingo Dam,” Foster told the commissioners, referring to Allegany, Frederick, and Carroll counties. “I hope if you sign onto this that you use your influence to make sure this is really focused on the problems of the Conowingo Dam and not something that will undercut the TMDL process, which all of us are counting on to hold Pennsylvania and New York responsible.”
Foster restated his commitment to work with the Kent Commissioners and recognized the high cost of implementing the TMDL plan.
“We look forward to working with the TMDL and WIP teams and doing everything possible to reduce the cost of reducing pollution,” Foster said.
Fithian assured Foster and members of the audience on several occasions that he was not backing away from implementing local TMDL plans.
“I’m not in this to turn my back on all the things we’ve done,” Fithian said. “[But] if we’re really sincere about cleaning up the Bay, then we have to address it from every angle. I think we’ve proven that we’re trying to do the right thing for the environment.”
Fithian pointed to a recent agreement to connect Georgetown to the municipal water system in Galena, and Kent’s lead in solar field development on the Shore, as testaments to the commissioners’ commitment to the environment.
“I think our track record shows that we are mindful of the environment,” Fithian said. “This is in no way a time where I’m going to turn my back on the environment and use the Conowing Dam as a scapegoat.”
But Chip Macleod, lead attorney for Funk & Bolton representing the TMDL Coalition, said the state WIP plan requires huge local expenditures without adequately addressing what is already documented about the Conowing Dam.
“The pollution coming from the Susquehanna through the Conowingo Dam is the largest source of [nutrient and sediment] loading into the Chesapeake Bay…that’s a fact,” Macleod said in a phone interview with the Spy on Wednesday. “The purpose of the coalition is to ensure that local governments commit taxpayer money to water quality programs that are prudent and fiscally responsible.”
“The coalition believes that the TMDL programs are flawed because they do not accurately take into account the nutrient loading from the Susquehanna River through the Conowingo,” Macleod said. “Attention needs to be brought to that before we commit local tax dollars.”
But a recent statement from CBF disputed Macleod’s assertions that the Conowingo Dam was not adequately addressed in the state’s TMDL plan.
“The EPA explicitly included the dam and pollution removal capacity in the TMDL and considered it throughout TMDL’s development,” said a recent fact sheet published by CBF to specifically dispute Macleod’s claims.
The CBF fact sheet also said the dam has acted as a safety net for most of the sediment coming from the Susquehanna River.
“The dam is not the largest contribution source, the Susquehanna River is. The dam historically has been the Bay’s best management practice, removing what would have flowed down stream, particularly phosphorus and sediment.”
Girard wrote in late October that nutrient discharges from the Conowingo were significant but did not flow up into the tributaries of the Eastern Shore where a significant amount of nutrient runoff originates.
“While the Susquehanna discharges significant pollution into the central stem of the Bay, virtually no pollution flows up into the tidal tributaries of the Eastern Shore,” Girard said in a statement published on Oct. 24. “Our local creeks and rivers are polluted almost entirely by local sources—farms, sewage plants, and other sources.”
Foster agreed that nutrient pollution comes from local sources and must be tackled at the local level.
The dissenting vote on the measure came from Commissioner William Pickrum, who voiced concerns over the agenda of the newly formed coalition.
“I am really bothered by what the charter for this coalition states,” Pickrum said. “I am adamant in my opposition from stopping the TMDL process period. If Kent County joins this coalition, I cannot…be assured the coalition won’t proceed in a direction that will be detrimental to all of us.”
But in his opposition to joining the coalition, Pickrum said he understood Fithian’s holistic approach to addressing every source of pollution.
“Yes the dam has been there since 1918 and no one has done…a damn thing about it,” Pickrum said.
Fithian said he would make his feelings clear to Funk & Bolton that Kent did not want to go in the direction of stopping local TMDL plans.
“We’re not just looking at one direction of pollution,” Fithian said. “We want to attack this thing from many different angles, and we should relay that message to Funk & Bolton and the coalition. And if we see it going in the wrong direction, we’ll have to make an adjustment.”
Girard said in an email before the vote that threatening the progress of the state’s WIP program could cost the coalition members a lot more than $25,000.
“The choice to use taxpayer money to challenge the blueprint really puts the state in a bind,” Girard said. “Maryland must demonstrate progress is being made or face consequences of reduced federal funding and permitting that most Maryland communities depend on. Choosing to point fingers at Pennsylvania and other pollution sources, rather than taking local action, could really make things worse at the local level in the long run.”