Bay Journal - Chestertown Spy

Maryland Levies Fines on Perdue, Valley Proteins for Environmental Violations

August 21, 2024 by Bay Journal Leave a Comment

The Perdue AgriBusiness soybean processing plant in Salisbury, MD, added machinery without a permit, leading to more air pollution, according to the Maryland Department of the Environment.

Two major agricultural companies ramped up operations recently on Maryland’s Eastern Shore, and the environment paid a price, according to the Maryland Department of the Environment.

One case involves the agency’s second-largest cash penalty in its history while the other has reopened a long-running pollution saga that local environmentalists hoped had been resolved.

Perdue’s plant, situated a couple blocks away from its parent company’s headquarters, extracts the oil from soybeans to be used in cooking, among other uses.

Perdue applied for a permit in 2017 but withdrew the application the following year after MDE indicated it would require additional review. The company went ahead anyway with the installation of the new machinery in September 2017, followed by a second round in May 2019, according to the settlement agreement.

After the plant’s expansion, the hexane emissions, state officials say, exceeded the 40-ton annual threshold to be considered a new “major source” of pollution, MDE alleged. Hexane is a volatile organic compound, a major ingredient in ground-level ozone that can worsen an array of breathing problems from asthma to emphysema, experts say.

MDE records show annual VOC emissions increased at the facility by 28% from 2017 to 2019, from 246 tons to 315 tons.

“Everyone must follow the rules which are in place to keep Marylanders safe. When Perdue failed to comply, it was the community who suffered the undue burden, so there must be meaningful penalties,” said Attorney General Anthony Brown. “I am glad that Perdue has accepted responsibility and will be investing in the surrounding neighborhoods moving forward.”

The settlement calls for Perdue to pay an $8 million fine to the state. The only larger civil penalty in MDE’s history was the $29 million settlement in 2018 with Volkswagen over the auto manufacturer’s installation of “defeat devices” on certain vehicles, aimed at circumventing emissions tests.

Perdue also must install $3.5 million in pollution-reduction measures at the plant, including electrifying diesel-fired equipment, and contribute $400,000 to Salisbury for a tree planting campaign in areas with poor canopy coverage.

In separate press statements, the two sides left a muddled picture about when and how the problem came to light. MDE’s legal complaint says that agency staff and Perdue representatives “met at various times” to discuss the cause of the emission increases. It wasn’t until correspondence on April 11, 2022, however, that Perdue “finally admitted” it had installed the equipment without a permit, MDE alleged in a legal complaint.

Meanwhile, Perdue spokeswoman Kate Shaw said in a statement that “The discrepancy was discovered in May of 2020, as part of our air permit renewal process.” Her statement doesn’t indicate who discovered the discrepancy or whether state inspectors were aware of it at the time. She added, “We take full accountability for what occurred. The individuals who did not reapply for the permit are no longer with the company.”

When asked for clarification via email, Bill See, another Perdue spokesman, replied, “Our original statement stands on its own.”

In a separate case, MDE charges that Darling Ingredients, owner of the Valley Proteins poultry rendering plant in Dorchester County, has violated its October 2022 consent decree. Under that settlement, Darling Ingredients agreed to pay $540,000 to the state while fixing wastewater and stormwater problems at the troubled plant.

“I would say this facility is in no better shape than it was in 2021 when we filed the lawsuit,” said Matt Pluta, the Choptank Riverkeeper and director of riverkeeper programs at ShoreRivers, one of the environmental groups whose lawsuit triggered the decree. “In fact, it’s probably gotten worse.”

A few months after the settlement was signed, MDE renewed the plant’s discharge permit, allowing a nearly four-fold increase in the amount of wastewater it can release into the Transquaking River, a nutrient-impaired Chesapeake Bay tributary. Environmentalists had pushed MDE to impose tougher limits and not let the company expand until showing it could meet them, but the agency didn’t do so.

Problems have piled up since that approval. MDE inspectors say they uncovered 51 violations of the decree’s requirement to maintain at least 2 feet of freeboard – the distance from the surface of the wastewater to the top of the holding pits. In May, MDE announced plans to fine Darling $15,000.

The Texas-based company formally contested the fine, arguing that all the exceedances fell under an exception in the decree for lagoon levels to rise because of heavy rainfall.

MDE also contends that the plant has been hauling away production waste from the lagoons without going through the complete treatment process. Farmers use the material, known as “dissolved air flotation,” to fertilize their fields. But in adjoining Caroline County, the practice has sparked an outcry from neighbors about foul odors and prompted county commissioners to enact a moratorium on its storage.

Darling representatives have told the state they believe their current permit allows the hauling to continue. Ongoing upgrades to the wastewater treatment plant, required as part of the 2022 decree, will substantially reduce, if not eliminate, such hauling, they say.

“We have responded to the MDE and share its commitment to resolving this issue through the established MDE process,” Darling spokeswoman Jillian Fleming said in a statement.

The agency notified Darling in June that it was referring the hauling matter along with other recent violations to the state Attorney General’s Office.

By Jeremy Cox

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

University of Maryland Gives Chesapeake Bay a C+ in Overall Health; Best in 21 Years

July 12, 2024 by Bay Journal 1 Comment

The Chesapeake Bay’s health, which has waffled between middling and poor for decades, ticked upward in 2023 to its best condition in more than 20 years, according to the latest annual report from the University of Maryland Center for Environmental Science.

In a report card issued Tuesday, the university gave the Bay’s overall health a C-plus for 2023, a half-letter grade improvement from the previous year’s mark. It earned a 55% score, up four points from 2022.

How much real progress that represents is an open question. The university has only been issuing Bay report cards since 2006, but in looking back at water quality, habitat and underwater grass data for previous years, it found that the Bay’s health received exactly the same score in 2002.

This report card comes at a critical time, as the Bay restoration effort is falling short of key goals for the third time in its 41-year history. The state-federal Chesapeake Bay Program is now looking to tweak its most recent strategy, adopted in 2014, to extend it beyond its 2025 deadline. Some scientists and environmental advocates, though, contend that a fundamental overhaul is needed to set different and more realistic goals.

State and federal officials hailed the latest report card as evidence that massive public investments to upgrade wastewater plants and control runoff from farms and development are making headway in restoring the Bay’s water quality, habitat and fisheries.

Adam Ortiz, mid-Atlantic regional administrator for the U.S. Environmental Protection Agency, called the report card “a strong indicator of progress,” showing that the restoration effort is back on track and gaining ground. U.S. Sen. John Fetterman (D-PA) declared that the Susquehanna River, the Bay’s largest tributary and a major source of its pollution, is “the cleanest it’s been in two decades.”

Environmentalists, while acknowledging that the C-plus grade is an improvement, stressed that much more needs to be done. Chesapeake Bay Foundation Vice President Alison Prost said a report produced by a group of Bay scientists shows “there are approaches to Bay cleanup that could be more effective and efficient, and also help us optimize the use of resources.”

The UMCES report card found modestly improved conditions since 2022 in 11 of the Chesapeake’s 15 regions. The lower Bay scored highest at 70%, enough for a grade of B, followed by the upper Bay. Heavily influenced by the Susquehanna, the upper Bay garnered its highest-ever score of 61%.

“This improvement is a testament to efforts to reduce nutrients in the Susquehanna River watershed,” said UMCES Vice President Bill Dennison, “underscoring the hard work in the state of Pennsylvania on nutrient reduction and riparian buffers.”

At least some of the improvements, though, can be attributed to the weather: 2023 was a dry year, with river flows falling to record lows amid drought conditions. Lack of rainfall and snow melt reduced the amount of water-fouling nutrient and sediment pollution flushing into the Bay and its tributaries. By comparison, in 2019, a year of record rainfall, UMCES rated the Bay’s health much lower, at 44%.

Despite weather-influenced oscillations, UMCES scientists say the Chesapeake’s health has trended modestly upward since the restoration effort began in earnest in 1983. After earning a 55% score in 2002, nearly two decades into the cleanup effort, Dennison said that “the bottom dropped out” of the estuary’s condition in a rainy 2003, including the deluge of a tropical storm that blew right up the Bay.

“The good news is that it’s not going as low as it was,” he added, “and it’s steadily, slowly creeping up.”

Even with less runoff in 2023, though, the overall condition of the rivers and streams flowing into the Bay through its 64,000-square-mile watershed showed no improvement from the previous year. Their overall 52% score and C grade remained unchanged.

The highest scoring tributary was the upper James River, which earned a B-minus, while the lowest was the Choptank River, which rated a D-plus.

Most Bay tributaries on the Eastern Shore showed at least some improvement from 2022, which UMCES said might be attributed to dry weather in 2023 causing less farm runoff. But rivers on the upper Eastern Shore are still trending slightly downward. With 40% of the peninsula’s land devoted to farming, the report card suggested that controlling agricultural runoff is key to making real gains there.

UMCES has expanded its report card in recent years to evaluate a range of economic and social factors that could also be affecting the Bay’s health. Overall, it found the watershed lost ground or stayed the same on those fronts, with scores ranging from D-plus to B-minus on individual factors.

This year, UMCES said it is developing an assessment of another environmental threat: debris in the water. Scientists have teamed up with the Ocean Research Project to survey the Chesapeake for “micro-debris” on or near the water’s surface and in bottom sediments.

By Timothy B. Wheeler

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

First Baby Eagles Hatch on Reborn Chesapeake Island

June 5, 2024 by Bay Journal Leave a Comment

Some eagle-eyed wildlife biologists have made a surprising discovery at Poplar Island.

That’s the island in Maryland’s portion of the Chesapeake Bay that the U.S. Army Corps of Engineers and Maryland Port Authority have been rebuilding over the last 25 years. What was once almost entirely open water is now more than 1,700 acres of rock-ringed land.

One of the primary aims behind creating the island was to reestablish some of the habitat that waterfowl and shorebirds have lost around the Chesapeake to rising seas, erosion and shoreline development. According to the latest count, about 40 different bird species have successfully nested on Poplar and produced young.

But one iconic species wasn’t among them — until now.

A federal wildlife official attached purple bands on the legs of two newly hatched eagles on Maryland’s Poplar Island in May 2024 to help identify them later. Photo by Craig Koppie/U.S. Fish & Wildlife Service

On May 2 this year, a veteran U.S. Fish and Wildlife Service scientist named Craig Koppie shimmied up a cottonwood tree on a spit of higher terrain on the north side of the island. He peered down into a stick-laden nest known to have been built by bald eagles the previous fall. Inside were a pair of newly hatched eaglets — a male and a female.

“It’s that quote where ‘If you build it, they will come,’” said Peter McGowan, a Fish and Wildlife biologist who has been involved in the Poplar project since the mid-1990s. “If you have this nice habitat, things will move in, and they will move in quick. You never know what’s going to show up, and that’s one of the great parts of the job.”

McGowan said he isn’t surprised that eagles would nest on the island. He thought it would only be a matter of time. Still, the dynamics behind the island’s reconstruction didn’t make it a likely candidate to host eagles.

The original Poplar Island once sprawled across more than 1,100 acres a few miles west of Tilghman Island on the Eastern Shore. At its height, Poplar was home to a population of about 100 people. There were several farms, a school, a church, a post office and a sawmill.

Like dozens of other low-lying islands around the Chesapeake Bay, though, Poplar was washing away. By the 1920s, the last of its residents had fled to higher ground. By the late 1990s, only a few acres of land remained.

Enter the Paul S. Sarbanes Ecosystem Restoration Project. Named after the U.S. senator from Maryland who championed the effort, the project is rebuilding the island using mud dredged up from Baltimore’s shipping channels to keep its port open to navigation.

The first mud delivery came in 2001, and the last is expected to arrive in the mid-2030s.

To make the island as hospitable as possible for water-loving birds, engineers designed Poplar to poke only slightly above the surrounding tide. The landscape is largely given over to marshes and mudflats. The only trees planted so far have been a handful in a small test plot.

That doesn’t bode well for eagles, who generally seek out trees as their nesting spots. But nature appears to have intervened on their behalf, McGowan said.

The cottonwood tree that harbors the young eagles sprang up on its own. It’s part of a clutch of trees on about an acre’s worth of slightly higher ground surrounded by marsh. Despite the harsh environment, some have grown more than 60 feet tall, McGowan estimates.

Eagles have been spotted flying overhead and hunting around Poplar since the earliest days of its restoration, he noted. A stone’s throw away from Poplar lies tree-lined Coaches Island and its cache of four eagle nests (two of which are active).

But McGowan and his colleagues had to wait about 20 years into the project before they noticed the first signs that eagles were trying to nest on Poplar. It started with a pair of eagles’ effort to build a nest on the metal grate top of a water-control structure in 2020.

“Obviously, it wasn’t the best place for an eagle to nest,” he said.

The nest didn’t last. A second attempt atop a spillway the following year also failed. Then, the scientists noticed a mound of sticks growing larger in a cottonwood tree where a crow’s nest had been. It was too big for the supporting branches and eventually tumbled out of the tree.

Another nest in the same tree started taking shape last fall. McGowan can’t say for sure whether its builders are the same eagles that had enlarged the crow’s nest, but he suspects they are. This time, the nest was more centered over the trunk and less likely to fall.

By March, the amount of time the eagles spent perched on the nest suggested that there were eggs inside of it. Koppie’s climb in May confirmed the presence of two eaglets. Before descending, he attached purple bands on their legs, identifying one bird as “09/E” and the other as “10/E.”

Disaster nearly struck toward the end of May when a strong storm knocked the nest out of the tree. Biologists quickly reconstructed a new nest on a nearby pole and put the eaglets in it. Soon, their parents were back to taking care of them, McGowan said.

The young birds will probably take wing by June, McGowan said. Will their parents try again in the future? McGowan is optimistic that they will.

“That’s a good place to raise a family,” he said. “So, they should come back next year and in following years.”

By Jeremy Cox

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Tree Cover Declines, Pavement Spreads across Chesapeake Watershed

October 3, 2023 by Bay Journal

*Amputated tree trunks and mounds of shredded wood are all that’s left of a patch of woods off Aris T. Allen Boulevard in Annapolis that was cleared for development. Dave Harp*

When it comes to safeguarding the ecological health of the Chesapeake Bay and the rivers and streams that feed it, little is more pernicious than development and nothing more beneficial than trees.

Yet despite long-running, wide-ranging efforts to restore the Bay, high-resolution aerial survey data show that an area larger than the District of Columbia is being covered by pavement and buildings every five years. Over the same time period, an area the size of Arlington County, VA, loses tree cover, dwarfing watershedwide tree-planting efforts aimed at replacing cover already lost.

Those data, recently released by the Chesapeake Bay Program, highlight the as-yet unmet challenge of reversing the harm that development is causing to the Bay and its tributaries. The 2014 Chesapeake Bay Watershed Agreement signed by all six Bay watershed states and the District of Columbia pledges only to “evaluate policy options, incentives and planning tools” that local officials might use to curb forest loss and reduce the spread of runoff-inducing paved surfaces.

Comparing aerial imagery and other data gathered between 2013 and 2018, the nonprofit Chesapeake Conservancy, the U.S. Geological Survey and a University of Vermont laboratory tallied 3,012 square miles of the Bay watershed covered by buildings and pavement. Such impervious surfaces keep rainfall from soaking into the ground. Instead, the rain picks up pollutants as it washes toward local waterways. Stormwater runoff is a significant and, according to Bay Program computer models, growing source of pollution degrading the Bay.

While impervious surfaces currently cover less than 5% of the Bay watershed’s 64,000 square miles, they are spreading at the rate of 50,651 acres or 79 square miles every five years, the groups’ analysis found. The District of Columbia encompasses 68.3 square miles, by comparison.

The analysis found that buildings accounted for a little less than a third of the increase in impervious surfaces, while roads added 4%. Nearly two-thirds of the spread represented the cumulative impact of new driveways, parking lots, runways, rail lines and the like.

The aerial surveys found that 8,307 acres of trees had been planted across the Bay watershed from 2013 to 2018, with efforts in Maryland accounting for more than 80% of that. Yet communities throughout the watershed lost more than 25,000 acres of canopy, three times what was planted, for a net loss of about 16,000 acres, or 25 square miles. Arlington County, VA, covers 25.8 square miles, as a comparison. While Maryland had the largest acreage in tree plantings, it also had the greatest net loss of trees in that period, the groups found.

Trees provide a panoply of ecological and health benefits. They soak up rainfall, stabilizing soil and preventing runoff of nutrient and sediment pollution that harms water quality. They also reduce air pollution and provide shade that mitigates summer heat.

Bay Program participants called the data sobering but said they believed it could spur local officials to do more to curb the impacts of development.

“Data and technology can inform and empower the Chesapeake conservation movement like never before,” said Joel Dunn, president of the Chesapeake Conservancy. “In this case, land use decisions in the watershed will finally be informed by both the amount and the value of tree canopy status in every county, one of the most significant factors for water quality.”

Matt Stegman, a lawyer in the Maryland office of the Chesapeake Bay Foundation, called the data “a wake-up call for local jurisdictions to target reforestation projects and policy solutions in places most rapidly losing canopy.”

*Analysis of high-resolution imagery has revealed that pavement and buildings cover about 45% more of the Chesapeake Bay watershed than had been previously identified. Dave Harp*

The data released in August by the Bay Program largely tracks with preliminary analysis of the aerial surveys first reported in 2022 by the Bay Journal. At that time, the groups said the watershed was adding more than 12,000 acres annually of runoff-inducing pavement and buildings.

They also reported in 2022 that communities in the Bay watershed cumulatively suffered a net loss of more than 29,000 acres in urban tree canopy. That’s higher than the current net loss tally of about 16,000 acres, but further analysis found that some of those losses were offset by tree cover forming on otherwise developed lands, according to Bay Program geographer Sarah McDonald.

The latest analysis doesn’t mention another significant trend. In 2022, the groups’ preliminary analysis found the watershed was losing more than 20,000 acres of forest a year. McDonald said the overall forest loss number remains the same, but the groups chose not to report that to the public again because they are “working on better understanding land conversion,” particularly the generally permanent loss of forest to development versus the short-term but potentially replaceable loss of forest to timbering or farming.

By Tim Wheeler

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Getting to Know Serena McIlwain: New Secretary of Maryland Department of the Environment

August 3, 2023 by Bay Journal

Serena McIlwain, secretary of the Maryland Department of the Environment, discusses the Chesapeake Bay and other topics during a Bay Journal interview in June. Photo by Dave Harp

When Serena McIlwain was appointed to lead the Maryland Department of the Environment earlier this year, she took charge of an agency at a crossroads.

Under Republican Larry Hogan’s governorship, which ended after eight years because of term limits, the department made several important strides toward restoring the Chesapeake Bay. But it was hobbled by a shrinking workforce and bruised by legal fights with environmental groups seeking better enforcement of pollution controls.

The new governor, Democrat Wes Moore, reached across the continent to hire McIlwain.

She had served for four years as undersecretary of California’s Environmental Protection Agency. That was after a short stint at the U.S. Environmental Protection Agency in Washington, DC, as director of the Office of Continuous Improvement during the Trump administration.

The veteran bureaucrat has worked in various roles across much of the federal government going back to 2003.

During an interview with the Bay Journal, McIlwain was quick to dispel any notion that she is merely a hired gun. She was born and raised in the Chesapeake Bay region, and she still considers it her home.

Below are excerpts from the interview, which took place in mid-June at MDE headquarters in Baltimore. It has been edited for length and clarity.

Question: You’ve moved across the country a couple of times now. Why did you want to come back to Maryland for this position?

Answer: I wanted to come home. And the more important reason is when I met with the new governor, Gov. Wes Moore, we talked about climate change. We talked about some of the issues in Maryland, and when we spoke, I saw the passion he had and the support that he would have for me and MDE, I was ready to pack up right then and there and leave my job and come here.

Q: What’s your favorite image when you think of the Chesapeake Bay?

A: My favorite image is really just the water. I love water. Water is my middle name. Not literally. But yeah, it’s just the image of the water and seeing the boats and people out there enjoying themselves.

Q: The University of Maryland Center for Environmental Science Bay report card recently gave the Bay ecosystem a C grade. Despite 40 years of effort, the big lift in aquatic health seems to elude us. Why haven’t we been able to overcome this?

A: It’s called climate change. Things keep changing. Every time we come up with goals that we think are suitable for restoring the Chesapeake Bay, more things are happening. And it’s just hard. We’re relying on other states that contribute [pollutants] to the Chesapeake Bay. We don’t really control that. We rely on the EPA to control those other states. It’s a constant battle challenge, but we’re making progress nonetheless.

Q: The biggest pollution reductions for the Bay need to come from the agricultural sector. That’s not news to anybody. But, so far, efforts such as cost sharing and best management practices haven’t been nearly effective enough. What can be done to get at this problem?

A: There’s a lot of nonpoint sources of pollution. I will tell you, as new secretary, I’m working very closely with the new [Department of Agriculture] Secretary Kevin Atticks on trying to really look at ways that we can do things differently in the agricultural area. It’s agriculture. We need it. But at the same time, you cannot pollute the environment. It’s a constant thing that we try to deal with and work with.

Q: The Chesapeake Bay program from the beginning has largely been based on reducing nutrients to reduce the size of the “dead zones” in the deep channel. With the 2025 deadline approaching to put actions in place, is it worth rethinking what those goals should be?

A: I think we’re at a good moment where we can start to reimagine how we’re going to restore the Bay. There was a recent report out [the Comprehensive Evaluation of System Response report], and it has a lot of recommendations in there as well. In that report, they’re talking about ways to start thinking differently. I know there’s a lot of hype about, “Oh, we’re not going to meet the 2025 TMDL [total maximum daily load].” I will tell you, that might be true. But Maryland — we’re on target to meeting it. We’re doing our part.

Q: Your agency is working on releasing an implementation strategy for the Climate Solutions Now Act, which calls for 60% reductions in greenhouse gas emissions by 2031. How do you see the state reaching this goal?

A: It hasn’t been released yet. But I do have an idea of what it’s going to take. And it is going to take a lot of coordination and partnership with state agencies. I will tell you this: It is possible to meet the 60% goal by 2031. We can do it, but it’s going to be a real heavy lift. That includes continuing the efforts that we have now with zero-emission vehicles and building more infrastructure [to support EVs].

MDE secretary roundtable — MDE Secretary Serena McIlwain, seated beside Maryland Gov. Wes Moore, speaks during a climate roundtable on April 3.

Executive Office of the Governor

Q: What about the gas stoves?

A: Yes, the gas stoves loved by chefs and cooks at home. But it is part of the solution that we need to be able to convert appliances to electric. It’s better for pollution, and it will definitely help us meet our climate goals. We plan to really look into changing appliances and making them cleaner.

Q: When you look at any environmental justice screening tool — University of Maryland’s, for example — you see different places light up in the DC suburbs and Baltimore, but also in rural places like Hagerstown and the Eastern Shore. What can this administration do over four or eight years to get wins when it comes to environmental justice?

A: I will be looking at everything that we do from an equity lens. And that’s from permits, to regulations, everything.

Q: The Climate, Labor and Environmental Equity Act did not pass this last legislative session. It would add more teeth to the idea of equity and permitting. Is that something you would support going forward?

A: I absolutely need it. I supported it. I want it badly. If it’s never passed, are we still going to move forward? I am. That bill was really important to me, and I hope to see it continue on [in next spring’s session].

Q: What other justice-related goals do you have in mind?

A: I have started listening sessions throughout Maryland. I started with Curtis Bay. And it was really enlightening for me. We’re starting to listen more. And it’s no longer rhetoric, as far as I’m concerned. So, I’m listening to their needs. We’re coming back here, and I’m keeping it at the forefront of all that we do.

Q: What was so enlightening about the Curtis Bay listening session? [Editor’s note: Curtis Bay is a majority Black community in Baltimore that neighbors several industrial sites.]

A: They brought up issues like, we have to continue to get our tires changed on our cars because of all the trucks going through. We [at MDE] don’t regulate the streets. But that was a concern to them. And it was a concern to us. They talked about the coal that’s in those trains that are right there, and I was able to go and see the dust. They were talking about how they can’t keep their windows open. That really resonated with me. I felt helpless because I can’t do anything about that coal. And that did not make me feel good. So, what I told them was, “It’s not my area, but I will partner with whoever I need to, to bring awareness to this issue.” That means talking to federal Department of Transportation, speaking with Maryland Department of Transportation, and I already have it scheduled to meet with them.

Q: This administration’s first state budget includes funding for 43 new positions at about $3.7 million to help clear the backlog of stormwater discharge permits that have expired but been allowed to continue standing. Why did this administration want to address that right out of the gate?

A: The public is really concerned about it. We need to make sure that everyone is in compliance. We need to do our jobs. I get reports weekly. I’ve made it clear that it’s a priority.

Q: It very much echoes another situation that involves your department. MDE and the Department of Health share oversight of septic permitting, where another backlog is occurring, particularly for the Eastern Shore. What can you tell folks who are saying, “Why can’t I get my darn permit?”

A: We are working with the Health Department. We’re going to be looking at making sure that the people who need the permits are getting five-star customer service. People are waiting for responses. That’s unacceptable. Period. So we’re going to correct it, we’re going to clean it up.

Q: Can you provide an update on the Conowingo Dam license negotiations with its owner, Constellation Energy, in the wake of the federal court ruling last year that nullified the 2018 agreement for it operating license? Do you see significant changes to those provisions in that settlement?

A: As part of the court decision, we are required to start the reconsideration process again. We’re going to reconsider whatever [Constellation’s representatives] bring forward. Once that process is over, then we will make a decision on what we need to do with the water quality certification.

We’re going to be and we have been very transparent. We’re letting the public be a part of it. We’re just trying to do the right thing by Marylanders.

Q: Under the 2018 agreement, Exelon (the dam’s owner at the time) was on the line to pay $200 million to address water quality concerns, and $700 million if you count in-kind projects. Do you see that amount changing much going forward?

A: I’m not sure about how much more money we will get, if any, because now we have to start all over. There are a lot of court cases and different things that have happened over the years. Because this case was drawn out too long, we’re not in a position as we could have been to be more forceful with the enforcement, or the amount. We’ve got court cases [released since 2018] saying we can’t do this and we can’t do that, in terms of asking for more money when it comes to fines.

[As for the original settlement payout], I think people on the outside thought, “That’s nothing. You could have gotten billions.”’ Honestly, there was a chance that we could have gotten zero. When I did start, I asked what happened with Conowingo Dam, what happened with the settlement. When I looked at everything, I understood why we decided to settle for $200 million. That was good for what we knew and what was in front of us.

Q: A timely question: Our region was literally choking on smoke caused by Canadian wildfires widely attributed to climate change. You lived in and worked in California, where wildfire fires have sadly become part of life. What was your takeaway from this latest experience?

A: My mind went to California. I thought, “Oh, communication.” When I was in California, we were very good at communicating to the public where we are and what does this mean. We didn’t really have that system in place here.

As we were getting through it [here], I saw misinformation. [Misinformation was spreading that said] it was getting worse. We were looking at the data, and it was going down. So, I made a decision that, “Hey, we need to get out there and get the message out correctly.”

By Jeremy Cox

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Supreme Court Wetlands Ruling ‘Serious Setback’ for Bay

July 29, 2023 by Bay Journal

With a recent U.S. Supreme Court decision sharply curtailing federal oversight of streams and wetlands, environmental groups working to restore the Chesapeake Bay say they’re worried about gaps in state laws and enforcement practices that now leave those waters vulnerable to unrestricted development and pollution.

In a May 25 ruling the nine justices unanimously agreed that the U.S. Environmental Protection Agency overstepped its authority in declaring part of an Idaho couple’s home site wetlands and demanding that they get a permit to fill it.

But the court’s majority went further in Sackett v. EPA and, with a 5–4 vote, drastically redefined which streams and wetlands are protected under the Clean Water Act. In doing so, it sought to settle decades of debate by removing federal regulation of activities affecting isolated wetlands and tiny streams that flow with water only after heavy rains.

“I’m not aware of anyone who predicted this,” said Peggy Sanner, Virginia executive director of the Chesapeake Bay Foundation.

She called it a “serious setback” for environmental protection efforts in general, as well as for the Bay restoration effort.

Wetlands and those periodically dry stream beds help keep water-fouling nutrients and sediment from reaching the Bay while also providing critical habitat and soaking up floodwaters.

Farmers, developers and other business organizations welcomed the ruling. The Virginia Farm Bureau’s blog called it “a major victory for farmers and property rights,” while the chair of the National Association of Home Builders dubbed it a win against “federal overreach” and for “common-sense regulations and housing affordability.”

Passed in 1972, the Clean Water Act gave the federal government jurisdiction over “navigable waters” and set up a permitting program to regulate discharges of dredged or fill material into “waters of the United States,” including wetlands.

A legal and political dispute has flared on and off since then about how far upstream that authority applies. Congress amended the Clean Water Act in 1977 to specify that it also covered wetlands “adjacent” to navigable waters, but that hasn’t quelled the controversy. The Supreme Court has weighed in repeatedly since the 1980s, with shifting and conflicting opinions.

In 2015, the Obama administration sought to clarify what’s regulated with a rule that protected isolated wetlands and “ephemeral” streams with a “significant nexus” to navigable waters.

That drew fierce backlash from farmers, developers and energy companies. The Trump administration repealed it and proposed a much narrower rule that applied federal regulations only in cases where surface water contributes to the wetland or waterway in question. States and environmental groups sued.

A court threw out the Trump rule, and the Biden administration has been working on another, more expansive version.

Environmental lawyers say the Sackett ruling appears to restrict federal jurisdiction even more than the Trump regulation. The EPA and U.S. Army Corps of Engineers, the two agencies that regulate activities affecting wetlands and waterways, had estimated that the Trump regulation would have stripped federal protection from more than half of the nation’s wetlands and roughly one-fifth of its streams.

Bob Dreher, legal director for the Potomac Riverkeeper Network, estimated that the recent court decision removes protection from as much as 65% of wetlands nationwide and more than 80% of the streams.

In the Bay watershed, the impact is somewhat muted. Five of the six states and the District of Columbia provide at least some protection under their own laws for wetlands and streams now removed from federal jurisdiction. Delaware is the only outlier, one of 24 states nationwide that rely entirely on the Clean Water Act for safeguarding their waters, according to the Environmental Law Institute.

Maryland, Pennsylvania and Virginia each have comprehensive state laws that provide protection from disturbance for their wetlands and all waters, even groundwater, noted the Bay Foundation’s Sanner.

West Virginia law also contains a broad definition of “waters of the state” but, according to the law institute’s James McElfish, the state has not always required permits for activities in wetlands and streams that fall outside the federal interpretation.

New York last year strengthened its protections for freshwater wetlands, but the state only requires permits for activities affecting wetlands larger than 7.4 acres, unless they’re deemed to be of “unusual importance.”

David Reed, executive director of the Chesapeake Legal Alliance, foresees trouble, even in states with strong legal protections on the books. State and federal agencies have jointly reviewed applications for permits to disturb a wetland or stream. Now, with the federal role shrinking, he said, there won’t be a backstop for state regulators facing intense pressure to look the other way.

“It will push them inevitably toward laxer enforcement,” Reed said of the states. “It will be this insidious direction toward less and less protection.”

Before the court’s ruling narrowing federal jurisdiction, Virginia, for instance, had relied on the Army Corps to review developers’ delineations of wetlands and surface waters when they were seeking permits.

In late June, the state’s Department of Environmental Quality announced that it would take over that task and would prioritize those applications where the delineations are performed by certified private wetlands professionals. The agency said the change would “restore certainty in the permitting process and allow projects to move forward in a timely manner.”

The Bay Foundation’s Sanner said she was encouraged by DEQ’s “thoughtful” process for continuing to protect wetlands while ensuring efficient permitting. But she cautioned that “many questions remain” about the state’s response to the court ruling.

Another major concern is that most states do not offer their citizens the same right to go to court to enforce their laws as the Clean Water Act does. The federal provision for “citizen suits” has allowed environmental groups to go after polluters in federal court and often prod state regulators to act when they haven’t before, Reed said.

Environmentalists say the Supreme Court decision also puts a cloud over the section of the Clean Water Act that establishes federal and, by extension, state authority to regulate discharges of stormwater and other pollutants into dry stream beds or isolated wetlands.

Activists say the Supreme Court’s ruling means they’re going to have to press for stronger state laws and for staffing and budget increases for regulatory agencies to enforce them.

“If we’re going to have hope for states to be a little of a backfill here, we’re going to have to help states get up to speed,” said Betsy Nicholas, the Potomac Riverkeeper Network’s vice president of programs.

by Tim Wheeler

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Debate Resumes on Conowingo Dam Pollution Problems

June 23, 2023 by Bay Journal

Conowingo was built in 1928 to generate electricity, and it inadvertently acted as a trap for nutrient and sediment pollution flowing downstream to the Chesapeake Bay. Over the years, sediment buildup behind the dam has reduced its pollution-trapping capacity. Photo by Dave Harp

The long-running and litigious debate over Conowingo Dam’s impact on the Chesapeake Bay has resumed, with all sides still entrenched, at least for now.

Six months after a federal appeals court vacated Constellation Energy Corp.’s license to generate hydropower at the dam on the lower Susquehanna River, the Maryland Department of the Environment has called a parley with representatives of the company and of the environmental groups that successfully challenged the license. The initial meeting of the parties was June 21.

At issue is what the state will require of Constellation to reduce nutrient and sediment pollution flowing downriver through the dam to the Bay. In a letter inviting lawyers for the other two parties to meet, MDE officials said they were going to resume reconsideration of a tough water quality certificate, or permit, for the dam that it had issued in 2018, triggering a legal donnybrook in which both the company and environmental groups filed lawsuits.

“We’re not sure how this is going to go for all of us,” said Betsy Nicholas, a consultant to Waterkeepers Chesapeake, a coalition of 17 riverkeepers around the Bay watershed which with the Lower Susquehanna Riverkeeper, had sued. MDE has never dealt with a situation like this before, she said.

Completed in 1928, the 94-foot-high dam straddles the Susquehanna about 10 miles upriver from the Bay. Until about a decade ago, it captured a portion of the nutrients and sediments washing down the river. But now its 14-mile reservoir is mostly filled, and those pollutants from farm runoff, municipal wastewater and stormwater flow through Conowingo and into the Chesapeake, where they contribute to algae blooms and other water quality woes. Storms or heavy rains also flush a surge of pollution, trash and debris from behind the dam into the Bay.

Five years ago, after years of studies, MDE had ordered the company, as a condition to keep operating the dam, to either deal with that untrapped pollution or pay the state $172 million a year to have it done. The federal Clean Water Act effectively gives states veto power over federal licenses or permits for construction projects or facilities like the dam that may affect states’ waters.

But Constellation, then a part of Exelon Corp., sued MDE in response, contending that Maryland was placing an “unfair burden” on the company to address pollution its dam did not generate.

In 2019, MDE and the company reached an out-of-court settlement, under which it agreed to provide more than $200 million to rebuild eel, mussel and migratory fish populations in the river. It also offered help with nutrient and sediment pollution flowing into the Bay, though much less than the state had initially required. In turn, the state waived its right to impose its previous conditions on the dam’s operating license.

Environmental groups and others objected to the deal. But the Federal Energy Regulatory Commission, which regulates hydropower facilities, issued a new license for Conowingo with no other conditions. The waterkeepers groups then sued, and in December 2022, the U.S. Court of Appeals for the District of Columbia ruled that the commission should not have accepted the deal and vacated Constellation’s license to run the dam. The court said Maryland could either uphold its original certification or toss it and have the company apply for a new one.

After first engaging in private talks with Constellation, MDE wrote the company and environmental groups on June 1 inviting them to present any new or previously overlooked information they believe is relevant to assessing the dam’s impact on water quality downriver and in the Bay. MDE also is inviting public feedback on the issue, with Aug. 1 set as the deadline for all comments and new information.

“Ensuring a revitalized Chesapeake Bay for the benefit of all Marylanders is a top priority,” MDE Secretary Serena McIlwain said in a statement issued by the department. “As we move ahead with the reconsideration of the 2018 Water Quality Certification, we will be transparent, we will welcome input and we will work collegially with all parties for a healthier and more vibrant Bay.”

Environmentalists want MDE to stick to its original requirements.

“We’re hoping that they see at the end of the day that they made the correct choices in 2018,” said Lower Susquehanna Riverkeeper Ted Evgeniadis. MDE “provided a water quality certificate that was adequate to protect water quality,” Evgeniadis said, “and we hope they uphold that … without any changes.”

A Constellation spokesman indicated the company wants MDE to honor the deal they negotiated.

“While we believe another round of comments is an unnecessary step,” spokesman Bill Gibbons said in an email, “Constellation will participate in the re-opened reconsideration process to support the long-term future of the state’s largest source of renewable energy and to demonstrate that our settlement agreement with Maryland offers the best possible outcome for the state and the Bay.

Gibbons urged MDE to “come to a speedy conclusion” so the company could carry out the cleanup measures it agreed to in the deal, which it values at $700 million. Meanwhile, Constellation continues to generate power under a temporary extension of its expired license.

But MDE’s review may just be the opening round in another legal bout that could take several more years to conclude. Betsy Nicholas, a consultant to Waterkeepers Chesapeake, said if MDE sticks by its earlier requirements or substantially reduces them, one side or the other is sure to demand a “contested case hearing.” That is a trial-like process at which all sides can present evidence and testimony and cross-examine witnesses. And if anyone disagrees with the outcome of that hearing, they can then file a lawsuit in state court, with appeals possible all the way to Maryland’s Supreme Court.

Evgeniadis and Nicholas say that while they want to see MDE stand by the water quality requirements it originally set, they hope an acceptable compromise can be negotiated among all parties, one that deals with the pollution while perhaps adjusting Constellation’s financial burden.

One possible framework for a new deal is a plan Bay watershed states developed in 2021 for dealing with the pollution impacts of the dam. It calls for reducing the annual flow downriver of nitrogen by 6 million pounds and of phosphorus by 260,000 pounds. The estimated price tag: $53 million, only part of which the states have pledged so far to cover.

Alison Prost, the Chesapeake Bay Foundation’s vice president for environmental protection and restoration, said she believes Constellation has a role to play in reducing that pollution.

“I don’t believe they should take up the entire burden, Prost said. But, she added, “this is an opportunity to bring them into the fold.”

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

The Chesapeake Bay Loses Best Friend Scientist Beth McGee

June 10, 2023 by Bay Journal

Beth McGee, senior scientist at the Chesapeake Bay Foundation, walks along a Maryland shoreline in August 2020. Photo by Dave Harp

Beth McGee, a longtime senior scientist with the Chesapeake Bay Foundation whose work is reflected in some of the most widely used reports detailing the Bay’s health and value, died June 4 after a long battle with cancer.

“The Chesapeake Bay lost a giant,” said Alison Prost, CBF vice president for Environmental Protection and Restoration.

“Few have contributed as much to the science and policy of Bay restoration as Dr. Beth McGee,” Prost said. “Her love and connection to the watershed and the Bay drove her. And her intellect never let her settle for the status quo. When Beth talked, the Bay restoration community listened and acted on her advice.”

Many people in the general public are familiar with her two decades of work at CBF, even if they do not recognize her name. She oversaw production of the organization’s State of the Bay reports, one of the most widely cited assessments of the Chesapeake’s well-being.

McGee was also a lead author of a 2014 study that established a value on the natural benefits of the Bay ($107 billion a year) and how those would grow (by another $22.5 billion annually) if cleanup goals were met — figures still widely used today.

The breadth of McGee’s work over the years encompassed everything from agriculture, fish health and nutrient trading to the Conowingo Dam, toxic contaminants and much more.

“Beth was able to become an expert on this or that aspect of science, whether it was economics or agricultural restoration tools,” said Roy Hoagland, a retired CBF vice president who worked with McGee for years. “She had a mind that was able to understand, grasp and articulate practically any subject matter.”

Prior to 2010, when the region was developing its latest cleanup plan — the Chesapeake Bay total maximum daily load, which limits the amount of nutrients states can send to the Bay — McGee was instrumental in developing new approaches that would provide more accountability than previous plans.

“She wanted to make it actually mean something,” Hoagland said. “That was consistent with her being a really smart, thoughtful, creative, passionate advocate.”

McGee was a fixture at meetings of the state-federal Chesapeake Bay Program, and colleagues there cited her ability to synthesize complex scientific issues and recommend how that could inform the many policies related to restoration efforts.

“She did not lead with that advocacy side. She was an advocate, absolutely. But she was advocate that had a strong, strong scientific foundation,” said Rich Batiuk, the retired associate director for science with the EPA’s Bay Program Office. “I found myself, probably 99% of the time, ending up agreeing with her, even when I started that conversation thinking, ‘Let me see if I can turn about her around.’ It was usually Beth who ended up turning me around and having me understand the science implications.”

Because of her ability to translate science into potential policy solutions, she was frequently asked to make presentations to the Chesapeake Bay Commission, a panel of Bay state legislators who work to turn such advice into laws.

“Beth was, for many of us, our ‘go-to’ person,” said Ann Swanson, who recently retired as the commission’s executive director. “She was a gifted conservation policymaker with a strong science background. She was most interested in getting it right, with little need for fanfare or credit. Her wit provided well-timed humor, and all of us will remember her laugh. So many of us relied on her. So many of us will now miss her.”

Kim Coble, who hired McGee at CBF in 2003, recognized early that the scientist had a gift for communicating and tapped her to help persuade lawmakers on key legislation.

“It was fun to see somebody with her scientific skills, intellect and personality, lobby,” recalled Coble, who is now executive director of the Maryland League of Conservation Voters. “As you can imagine, she was very effective at it. I don’t think she really enjoyed it, but she was very good at it.”

McGee often took the lead in creating forums to advance knowledge of Bay issues that were not always front-and-center in the public eye.

When fish diseases were turning up everywhere, from the open waters of the Bay to headwater streams in its watershed, she led efforts to organize a workshop that for the first time brought together biologists from across the region, many of whom had never met.

She was particularly proud of the development of a nitrogen footprint calculator on CBF’s website, which helps individuals estimate their contributions to the Bay’s nutrient problems and learn how they could be reduced. A link to the calculator was always in the signature line of her emails.

In more recent years, her title expanded to encompass “agricultural policy” as she took a greater role in addressing the largest source of nutrient pollution to the Bay.

The work included addressing state and federal policies, identifying ways to better target funding and programs, trying to accurately assess nutrient contributions from the growing number of chickens in the watershed and, most recently, crafting approaches to address both climate change and nutrient runoff on the region’s farms.

That’s an evolution even McGee didn’t envision when she started working on the Bay. “If you had asked me 10 years ago whether I would have agricultural policy in my title, I would have said you were crazy,” she told an interviewer from the Peal Center for Baltimore History and Architecture in 2020. “I’m actually an aquatic toxicologist by training.”

Indeed, prior to joining CBF in 2003, she worked on chemical contaminant issues with the U.S. Fish and Wildlife Service office in Annapolis. Previously, she worked with the Maryland Department of the Environment.

McGee had a bachelor’s degree in biology from the University of Virginia, a master’s degree in ecology from the University of Delaware, and a Ph.D. in environmental science from the University of Maryland.

She was an outdoor enthusiast, kayaking the Bay, hiking the region’s trails and taking long bicycling trips both here and abroad, often organizing trips for friends and colleagues.

In 2011, she and another CBF staffer made a 1,200-mile bike trip that roughly followed the perimeter of the Bay watershed to raise funds and awareness for the Chesapeake, conducting media interviews in areas far from the estuary.

She once said, “Find your passion, make it your job, and you’ll never work another day in your life!” In her Chesapeake work, McGee found her passion, continuing to push for solutions to complex problems years after her cancer diagnosis. Indeed, no matter how difficult the issue, McGee always described herself as an “eternal optimist.”

“Not only was Beth incredibly smart, thoughtful and passionate in her work for clean water, she was also known for her kindness, affability and warmth,” said Mariah Davis, acting director of the Choose Clean Water Coalition, which represents more than 200 organizations in the watershed. “We will miss Beth and hope to honor her legacy by leaving clean rivers and streams for future generations.”

By Karl Blankenship

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Consumer Guide Criticized for Saying ‘Avoid’ Chesapeake Oysters

May 27, 2023 by Bay Journal

The Chesapeake Bay’s oyster population is still a long way from what it once was, but lately it’s shown signs of a rebound. Maryland and Virginia watermen harvested more of the bivalves in the most recent season than they had in more than three decades.

So why is Seafood Watch, a widely consulted guide to sustainable seafood, recommending that people avoid eating wild-caught oysters from the Bay?

The Monterey Bay Aquarium, which produces Seafood Watch, isn’t saying. A spokesperson for the California aquarium declined a request for an interview to answer questions about its draft report, which includes a recommendation to shun oysters from Maryland or Virginia.

“At this time, we are not able to comment on the draft assessment as the report may change based on feedback we receive in the public comment period,” the spokesperson said by email.

The aquarium was taking feedback through May 22. Since making its draft report public in April, it has received an earful from watermen, fishery managers, scientists and even other conservationists. Critics contend it erroneously portrays the Bay’s oyster population as overfished and poorly managed, a characterization they say even in draft form is hurting the region’s seafood industry.

“They have no idea what they’re doing,” said Robert T. Brown Sr., president of the Maryland Watermen’s Association, “… and they’re interfering with people’s livelihoods.”

Since 1999, the Monterey Bay Aquarium’s Seafood Watch program every few years has been offering what it says are science-based recommendations on which fish and seafood across the United States are sustainable “best choices” or “good alternatives” — and which should be avoided because of the risk of that species’ depletion or of harm to the marine ecosystem. It distributes about 2.5 million printable online guides every year aimed at influencing the purchasing decisions of nonprofit organizations, businesses and consumers.

Based on its last assessment in 2018, Seafood Watch currently rates oysters from Maryland and Virginia a good choice, despite some concerns, for those who care about sustainable seafood.

The new draft assessment downgrades those recommendations, citing “high concern” for the abundance of oysters in both states and deeming their public fisheries management ineffective. It even finds fault with the methodology Maryland has used in assessing the abundance of its wild oyster stock and whether it’s being overharvested.

Officials with the Maryland Department of Natural Resources say no one from the aquarium contacted them in developing the new assessment, and they were stunned to learn of the “avoid” recommendation.

“There’s missing information, there’s outdated information. They have misinterpreted information, and they have failed to live up to their own standards of using the best science and collaborating,” said Kristen Fidler, assistant DNR secretary for aquatic resources.

Agency officials defended the state’s oyster management, which they say is based on a science-driven stock assessment that has been reviewed favorably by a panel of outside scientists.

Mike Wilberg, a fisheries scientist with the University of Maryland Center for Environmental Science who led the development of DNR’s stock assessment, said he thought the Seafood Watch drafters applied an overly broad and uneven brush when rating the sustainability of oyster stocks along the East Coast. He said they failed to appreciate the complexities of the Bay’s oyster population and how it varies from one place to another.

“Some of the things we were criticized for [by Seafood Watch] are things we were praised for in the expert review of our stock assessment,” he noted.

“I applaud their efforts to get consumers to make conscious decisions [about sustainability],” Wilberg added. “Unfortunately, with all this stuff, the devil is in the details.”

Roger Mann and Mark Luckenbach, a pair of veteran oyster biologists with the Virginia Institute of Marine Science, likewise contend that the Seafood Watch ratings of their state’s fishery are “based on old data and are entirely inappropriate.” The data cited by the report’s drafters in deeming oyster abundance “a high concern” was more than a decade old, they pointed out.

JC Hudgins, president of the Virginia Waterman’s Association, said that the Virginia Marine Resources Commission and members of the seafood industry “do a lot to keep the Eastern oyster a sustainable species,” even as the state’s harvest from public fishery areas in the 2022–23 season topped 300,000 bushels for the first time in 35 years.

Since 2018, when Seafood Watch rated Virginia oysters a good choice, the fishery has steadily improved every year, Hudgins said. Last year, he noted, reef surveys found oyster densities at levels not seen since before diseases struck in the late 1980s and triggered a catastrophic decline in population and habitat.

Brown, head of the Maryland watermen’s group, said he believed the Maryland oyster recommendation was also based on outdated information. In the six-month 2022–23 season that ended March 30, watermen harvested more than 600,000 bushels, the most since 1986–87.

In the recently ended season, Brown said, “a lot of people were still catching their limits [early] at the end of the season. That’s telling you we had plenty of oysters there.” He also noted that since the first stock assessment in 2019 that found widespread overharvesting, the state has reduced daily catch limits. “We’ve got a good management plan,” he said.

Even conservationists, who have at times voiced their own criticisms of oyster management in the Bay, have qualms about the draft Seafood Watch recommendation.

Allison Colden, the Chesapeake Bay Foundation’s Maryland director and a fisheries biologist, said she thinks the aquarium may be jumping the gun because a fresh update of the state’s oyster population is due to be completed and released within a matter of weeks. She noted that conditions for oyster reproduction and survival have been on the upswing lately, with very low mortality rates from the once-devastating diseases MSX and Dermo.

Even so, Colden said, the Seafood Watch assessment “does highlight some of the lingering concerns CBF has had and still has with the fishery.” Though only a few areas are still experiencing overfishing, one of those is Tangier Sound, where the majority of Maryland oysters are harvested.

And while oyster reproduction has been good to excellent the last few years, Colden said, caution is warranted because the fishery has undergone boom and bust cycles in the past.

Colden said she was in wholehearted agreement with another Seafood Watch recommendation — a blanket endorsement of farmed oysters as a “best” choice for consumers concerned about the sustainability of the reef-building bivalves.

“We have long recommended that consumers choose farmed oysters from the Chesapeake Bay,” she said, “because that eliminates any possibility of concerns about sustainability or about oyster recovery.”

But even there, Maryland officials say, the Seafood Watch guides don’t make it clear enough that their “avoid” recommendation doesn’t apply to the state’s farmed oysters.

“We have a successful and growing oyster industry, both wild and aquaculture,” Fidler said. The “avoid” recommendation “could be incredibly damaging to the industry and really a major and unnecessary setback, especially with all the progress we’ve made.”

by Tim Wheeler

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Maryland Court finds County Erred in Waiving Forest Conservation Law

May 19, 2023 by Bay Journal

An effort to prevent development of one of the last large, unprotected forests near the upper Chesapeake Bay has won a signal victory, but too late to spare some of its oldest trees from the bulldozer.

A Harford County Circuit Court judge ruled May 9 that the county’s planning and zoning officials improperly granted developers permission three years ago to remove 49 large “specimen” trees while developing a business park in a 326-acre tract known as Abingdon WoodsHarford Investors LLP and BTC III I-95 Logistics Center LLC received county approval in 2020 to clear 220 wooded acres for the construction of four large warehouses, restaurants, shops, a hotel and gas station. As part of the plan, the county also waived a requirement in its forest conservation ordinance that would have required the developers to preserve trees that were notable specimens because of their size and age.

The county allowed the removal of 49 of 85 such trees after the developers asserted that it would be a hardship to keep them.

The Chesapeake Bay Foundation and some residents living near Abingdon Woods filed suit in 2020, arguing that the county failed to follow the Forest Conservation Act, the 1991 state law on which the county’s ordinance was modeled. Harford Circuit Judge Diane Adkins-Tobin at first dismissed the case, ruling at the time that the county’s sign-off on a developer’s forest conservation plan could not be appealed until the entire project was approved.

But in 2022, Maryland’s highest court — now called the Maryland Supreme Court — ruled that a developer’s forest conservation plan could be challenged in court and sent it back for reconsideration. The Harford judge then ordered a temporary halt to construction until she could hear and decide the case, but clearing at the site had already begun.

In January, when the case came up for a hearing, the county — which had until then defended its decision — switched its position and asked the judge to send the issue back to the county to reconsider.

In her May 9 opinion, Adkins-Tobin did just that. She declared that the county had not made any findings of fact, as required by the law, to justify waiving the preservation of all specimen trees.

The Bay Foundation hailed the latest ruling as a “major victory.”

“The judge’s ruling sends a message to counties and developers that there must be a clear factual basis for granting waivers from the state’s requirements to protect forested land,” said Paul Smail, the organization’s attorney.

“Most developers won’t suffer hardship,” Smail added, “by preserving forests and large trees that benefit residents’ physical and mental health, the enjoyment of their property, and improve water quality.”

Tracey Waite, chair of the Save Abingdon Woods Coalition, said the rulings set important precedents for preserving trees and forests.

“These court actions and decisions have kept hope alive even as trees were being cut down,” she said.

Before work was stopped at the site, though, the developer felled 22 of the specimen trees.

“Families of turkeys were seen running out of the woods and through suburban neighborhoods looking for cover,” she said. Polluted runoff into the stream called Haha Branch also was observed after rainstorms, she added.

The Bay Foundation’s lawyer noted that project opponents had tried and failed to prevent the start of tree clearing until the case could be resolved. He said he and his clients are now weighing what recourse they have for the loss of those trees.

Meanwhile, the court has yet to rule on a separate related lawsuit challenging the Maryland Department of the Environment’s decision to let the developer build across wetlands and a stream.

Harford County spokesman Joe Cluster said officials are still reviewing the ruling in the Bay Foundation lawsuit and weighing their next step. That decision comes at a time when Republican County Executive Bob Cassilly, who took office in December, has expressed reservations about the environmental impacts of e-commerce-related warehouse development in the county.

At Cassilly’s behest, the county council in April approved a three-month moratorium on warehouse projects while officials weigh what if any new limits or requirements they want to place on them. That has at least temporarily held up another large warehouse project proposed on Perryman Peninsula near the Bush River, a tributary of the Chesapeake Bay.

Waite said that during the moratorium, her group and others hope to persuade the county to alter its development laws to permit distribution centers larger than 200,000 square feet only on land zoned for industry — which would prevent construction of what she called “mega-warehouses” at Abingdon Woods and Perryman Peninsula.

“There’s every reason to keep fighting,” she said.

By Tim Wheeler

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

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