Bay Journal

Can the EPA enforce the Chesapeake Bay’s ‘Pollution Diet’?

January 14, 2020 by Bay Journal Leave a Comment

TMDLs are required for any “impaired” waterbody — one that does not meet standards set by a state to ensure a waterbody is safe for people and aquatic life.

A TMDL sets the maximum amount of a pollutant that the waterbody can receive and still meet those standards. The Bay TMDL maximum “loads” are established for the pollutants nitrogen, phosphorus and sediment.

The TMDL, often called the Bay’s “pollution diet,” allocates those loads among the states and major rivers that drain into the Bay. It also establishes specific limits for entities with a discharge permit.

But, in a strict sense, it is not the TMDL that enforces those numbers for individual dischargers. The permits do that job — but they must be consistent with the TMDL.

“TMDLs are not self-implementable,” said Mike Haire, who helped manage the U.S. Environmental Protection Agency’s TMDL program for years, and now teaches environmental science at Towson University. “But,” he added, “the bottom line is you can’t write permits that aren’t consistent with the TMDLs.” And if water quality standards are not being met after those permit limits are in place — possibly because unregulated sources of runoff are not meeting their goals — the limits “might have to become more stringent than the requirements in the TMDL,” Haire said.

Likewise, rules governing TMDLs do not establish deadlines, they only state that goals should be achieved in a “timely manner.”

But courts have held that water quality standards are to be met “reasonably promptly,” and the Bay cleanup could face a court-imposed deadline if the effort continues to fail, said Ridgeway Hall, an environmental attorney who has worked on Bay issues and written about its TMDL. (See the related article, MD threatens to sue EPA, PA over lack of action as regional tensions rise.)

While the Bay TMDL sets limits as all TMDLs do, it has several unique aspects. It includes an “accountability framework,” developed by the EPA and the states in the Bay watershed that goes beyond what TMDLs traditionally require. The framework includes a 2025 cleanup deadline that was agreed upon by the state-federal Bay Program partnership in 2007.

The accountability framework also requires states to write plans showing how they will meet cleanup goals, setting two-year milestones to provide “reasonable assurance” that they will meet their goals. Those milestones were suggested by the states.

The TMDL also outlines steps the EPA can take if states fall short of their goals for reducing pollution, including unregulated discharges from sources such as farms. Those “consequences,” such as forcing further reductions from regulated sources, are grounded in the EPA’s authority under the Clean Water Act.

“The contingency actions were set up to get people’s attention and to recognize that there is a limited set of actions that the agency can take under the Clean Water Act,” said Rich Batiuk, retired associate director for science with the EPA Bay Program Office and a key architect of the Bay TMDL. “If states want to control their own destiny, we are saying great, but you need to hold up your end of the bargain or there is a price to be paid,” he said.

The Bay TMDL is also unique because its goals were adopted into the 2014 Chesapeake Bay Watershed Agreement signed by the EPA and Bay states.

Section 117g of the Clean Water Act, which creates the state-federal Bay Program, includes a requirement that the EPA administrator “shall ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay agreement to achieve and maintain … the nutrient goals of the Chesapeake Bay agreement …”

In terms of TMDL authority, “I think 117g presses EPA into a different place than other TMDLs in other places,” said Jon Mueller, vice president for litigation with the Chesapeake Bay Foundation.

About Karl Blankenship

Karl Blankenship is editor of the Bay Journal and executive director of Bay Journal Media. He has served as editor of the Bay Journal since its inception in 1991.

By Karl Blankenship

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Targeting Male Crabs for Harvest May Put a Slight Squeeze on Reproduction

January 8, 2020 by Bay Journal Leave a Comment

It turns out there could be a price to pay for eating all those “jimmies.” Scientists at the Smithsonian Environmental Research Center have found that the focus of Chesapeake Bay commercial and recreational crabbers on catching male crabs is preventing some female crabs from having as many offspring as they could.

The Bay’s crab fishery is currently regulated to limit the harvest of female crabs, in a so-far successful effort to ensure that enough survive to reproduce and maintain the crustacean’s overall abundance — and sustain the estuary’s most valuable fishery.

But researchers have wondered — and even worried at times — if harvesting more male crabs (or jimmies, as watermen call them) than females could be having an impact on the population.

Smithsonian scientists set out several years ago to find out. They started with what was already known about crab sex and reproduction, explained Matthew Ogburn, an ecologist with the Smithsonian Environmental Research Center in Edgewater, MD. He was lead author of the study, which was published in October in the journal Marine Ecology Progress Series.

Blue crabs mate from May to October in the brackish or slightly salty waters of the Bay. Maturing females can mate for about two weeks after they shed their shells for the last time. During that brief time, they may hook up with one or more males. But the sperm they receive then is all they’ll have to produce young for the rest of their lives.

A male crab can give a female up to 3 billion sperm in a single coupling. But it takes an average of four sperm to fertilize each egg produced by the female. Female crabs can crank out multiple broods in a year, and those that evade capture and survive can continue to spawn for a couple of years.

The question scientists wanted to answer was, are females — known as sooks to watermen — getting enough sperm during their brief mating window to maximize their reproductive potential?

The researchers paid watermen to bring them batches of female crabs that had recently mated but hadn’t produced eggs yet. The team took a small sample of those female crabs to count the sperm they were carrying. They tagged the rest and released them back into the Bay. The tags promised a reward to anyone who caught them a year later. Those who kept the tagged crab in a freezer until scientists could retrieve it got $15.

“We got a couple hundred back out of the thousands tagged,” Ogburn said.

After mating, female crabs carry the sperm with them to saltier water down the Bay. They don’t start fertilizing their eggs until months later — usually the next spring or summer. The spongelike mass of eggs they produce on the underside of their abdomen can hold anywhere from 750,000 to 8 million eggs.

But the research team found that before the females can produce those eggs, they often lose as much as 95% of the sperm they’re carrying within a month or so after mating.

“We don’t know why that happens,” Ogburn said. There’s a “sperm plug” the male leaves in the female that breaks down over time, he noted, but researchers aren’t sure if there’s something else going on.

Even so, of the tagged year-old female crabs that were recovered, researchers found they still had enough sperm to fertilize all of the eggs they could produce that first year.

To check how much spawning females did in their second year, the Smithsonian team obtained some from an annual crab sampling survey by the Virginia Institute of Marine Science. To spot the second-year females, the team looked for big barnacles growing on their shells that are only found in the saltier waters of the Lower Bay.

Of those second-year females, researchers found that only about half still had enough sperm to produce multiple broods again, Ogburn said.

From those findings, Ogburn said researchers did a “back-of-the-envelope” calculation to get an idea of how “sperm limitation,” as they call it, could be affecting crab abundance. They estimate that it reduced the output of young crabs by 5–10%.

Given the overall fecundity of crabs, Ogburn said, that’s no big deal. Only about 15% of female crabs survive long enough to spawn for a second year anyway.

“We don’t see evidence that females are not finding a mate,” he said. “In fact, a lot of females are getting plenty of sperm to reproduce over two years, but not all of them.”

The most recent scientific assessment of the Bay’s crabs, released in June, found them in good shape, with nearly 600 million crabs of all sexes and ages

While there are no limits on how many male crabs can be caught, the experts on the Chesapeake Bay Stock Assessment Committee have suggested curbs may be needed if more than 34% get harvested in any given year. The 2018 landings came close, just below that trigger.

Even so, Ogburn said, the Smithsonian research finds no cause now to mess with the Bay’s most lucrative fishery, only to keep an eye on that sex ratio to be sure it doesn’t get more out of whack.

“As best we can tell, the population is doing relatively well under current management strategies,” Ogburn said, “so there’s no evidence that we need to jump to change that.”

By Timothy B. Wheeler

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EPA Confirms Shortfalls in PA, NY Bay Cleanup Plans

December 20, 2019 by Bay Journal Leave a Comment

The U.S Environmental Protection Agency confirmed on Thursday that plans produced by Pennsylvania and New York fall far short of meeting Chesapeake Bay cleanup goals.

But the agency did not call for any new actions against the states, although their shortfalls — especially Pennsylvania’s huge gap — means the region would miss its 2025 deadline to put in place all actions needed to achieve the Bay’s clean water goals.

Instead, the agency asked the states to provide more details about the actions they would take during the next two years to get their programs back on track.

Meanwhile, the EPA’s evaluation of other state plans, which were submitted in August, found that they met goals, though the review found that most needed more detail to show how they would achieve the dramatically ramped-up rates of action needed to curb polluted runoff from farms and developed lands. The District of Columbia, though, has met its goals.

The EPA in 2010 established a new cleanup program called the Chesapeake Bay total maximum daily load, or “pollution diet,” which set limits on the amount of nitrogen and phosphorus that each state sends to the Bay. The nutrients spur algae blooms that cloud its water and fuel oxygen-starved “dead zones.”

Since then, the levels of the water-fouling nutrients have declined — and phosphorus goals likely will be met — but the region remains far off track for nitrogen. Nitrogen reductions are lagging mostly because of shortfalls in Pennsylvania, which is, by far, the largest source of nutrients reaching the Chesapeake, though it does not border the Bay.

The EPA required the new state cleanup plans to show how states will meet nutrient reduction goals by the TMDL’s 2025 deadline. Between now and then, states also must continue to submit additional plans showing the actions they will take in two-year increments to show they are making adequate progress.

“It is critical that we continue the momentum that has led to signature successes and positive signs of resilience in the watershed,” said EPA Regional Administrator Cosmo Servidio. “The Chesapeake Bay is a national treasure and its environmental, economic and cultural importance cannot be understated.”

But the agency’s failure to announce any actions against Pennsylvania — whose plan fell 25% short of its nitrogen reduction goal and had an annual funding shortfall of more than $300 million a year— was a disappointment to some.

“EPA has failed to fulfill its obligation to be the referee of the multi-state partnership. It has not held Pennsylvania accountable,” said William Baker, president of the Chesapeake Bay Foundation. “Rather, it has once again kicked the can down the road, abdicating its Clean Water Act responsibilities and putting the Bay restoration in jeopardy.”

He said the environmental group was considering suing the EPA for not using its regulatory oversight authority to enforce cleanup goals.

The agency has the ability to take a variety of actions against states failing to meet their goals, such as increasing oversight, extending regulatory authority over more entities, and requiring more pollution reductions from dischargers with permits, such as wastewater treatment plants.

In its evaluation, though, the EPA focused on providing assistance rather than meting out punitive measures, pledging to provide Pennsylvania with more technical support, continued grant funding, and help identifying places where runoff control measures would be most effective in meeting Bay goals.

As written, Pennsylvania’s plan would be about 9 million pounds short of its nitrogen reduction goal. New York’s plan was about 1 million pounds a year short.

That gap is more than a fifth of the 47 million pounds of additional annual nitrogen reductions the region needs to achieve to meet Bay water quality goals.

Most of the nitrogen reaching the Bay from Pennsylvania — and all of it coming from New York —flows down the Susquehanna River, the Bay’s largest tributary. Nutrients from the river, which empties near the head of the Bay, have an enormous impact on the Chesapeake’s water quality. Failure to come close to meeting nitrogen goals in the Susquehanna means that most of the Bay would be unlikely to meet clean water objectives.

Achieving nutrient reductions in Pennsylvania has been a struggle because most of its nitrogen comes from agriculture and stormwater runoff — sectors that all Bay states grapple to control. Pennsylvania has far more farms — 33,000 — than the other states, though, and most are small, making both oversight and outreach difficult.

Maryland, Virginia and the District of Columbia have made progress largely because they have reduced nutrient discharges from large wastewater treatment plants, and Pennsylvania has few of them. Since the TMDL was established, 85% of the nitrogen reductions in the Bay watershed have come from upgrading wastewater treatment plants across the region. But there are few plants left that need upgrades.

All states must now significantly ramp up efforts to control runoff from farms and developed lands at rates far beyond what they have demonstrated they can achieve in recent years. From now to the end of 2025, state plans cumulatively call for about 82% of the remaining nitrogen reductions to come from agriculture and 5% from developed lands.

While plans from other states generally described programs that would reach their goals, the EPA said more details are needed to boost confidence in that outcome. Its analysis said that states should provide estimates about the number of on-the-ground nutrient control actions they plan to take during the next two years.

In some cases, state plans call for the implementation rates of runoff control practices to be increased tenfold beyond recent levels. In comments submitted earlier this year about state plans, many local governments and conservation districts expressed skepticism that such an aggressive ramp-up could be achieved.

By Karl Blankenship

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Save the Bay: Eat Invasives!

December 19, 2019 by Bay Journal 1 Comment

Biologist holds blue catfish caught by electrofishing, courtesy of Branson D. William

Maryland’s infamous invasive fishes — blue catfish, northern snakehead, and flathead catfish — were introduced to bay waters without Maryland Department of Natural Resources authorization. These species now pose an array of potential problems for the ecosystems of the Chesapeake Bay and its tributaries.

Even with increased fishing pressure, controlling the abundance of invasives after they’ve become established can be difficult. While the department is investigating other ways of controlling the spread and abundance of these fish, we encourage the method that has been tried and true for centuries – eating them! And the good news is that the illegally introduced invasive fishes in Maryland are not only edible but delicious!

How do these invasive fish affect the Bay?

An invasive species is a non-native species that cause or will likely cause either ecological or economic harm to an environment. In some cases, invasive species cause ecological harm by preying on other species and causing changes in communities.

Both blue and flathead catfish were introduced into the Chesapeake Bay in the 1960s through the 1980s to create new recreational fisheries, a common practice at the time. After their introduction, they quickly spread into Maryland waters. Blue catfish can now be found in several major rivers of Maryland, including the Potomac River, Patuxent River, and Nanticoke River. Flathead catfish primarily occupy some areas of the Potomac River and lower Susquehanna River (above and below the Conowingo Dam). The first reported sighting of the northern snakehead in Maryland was reported in 2002 in Crofton. It was also illegally introduced to Potomac River and Nanticoke River, and has since spread throughout the Chesapeake Bay watershed.

Maryland’s invasive fishes affect the Chesapeake Bay in different ways depending on their abundance and location. Many invasive species do not have natural predators in their new habitats, so their numbers can increase rapidly. These invaders eat native fish, although blue catfish tend to also eat a lot of macroinvertebrates, like blue crabs and mussels. Invasive species can also spread viruses or disease. Potentially fatal pathogens such as largemouth bass virus and mycobacteria are found in parts of the Chesapeake Bay, but these pathogens could expand their ranges by hitchhiking along with the highly mobile northern snakehead. When a new species enters a complex ecosystem like the Chesapeake Bay, the ecosystem can change in ways that threaten ongoing conservation or management efforts.

The department has launched many campaigns over the past fifteen years to encourage the public to fish and harvest these invasive fish. As with other predator fish populations, imposing greater fishing pressure on these species will cause their numbers to decline. However, both recreational anglers and commercial markets can be slow to develop an affinity for these ugly fishes and spreading the word of their tastiness takes time.

Blue catfish is now on the menu at most state institutions that have food service. Schools, universities, hospitals and prisons are serving up blue catfish to help reduce their population. The state initiative is twofold: reduce the number of invasive species and provide Maryland citizens a locally sourced and healthy meal option. In addition, introducing blue catfish into the state’s public institutions also creates jobs and supports educational opportunities on invasive species.

To help educate the public on invasive species and as an alternative food source, the department routinely donates northern snakehead and blue catfish to local food banks and public and private events.

How can I help?

Photo by Stephen Badger

Fish and eat; then repeat. Unlike other fish species in the state, there are very few rules for harvesting invasive species. These invasive fish can be harvested any time of year, at any size and in any number. Anglers must use legal fishing gear and have a current fishing license. Anglers should remember that it is illegal to have a live northern snakehead in their possession.

Once you buy a fishing license, not only will you be permitted to fish for these very tasty fishes, but you will support department efforts to engage more of the public, conduct research and share information. The department has online tools to assist you in how to catch and fillet invasive fishes.

If you fish alone or are going for the first time and need some advice, there are a lot of resources available to you. Visit the public access page to find locations to fish, or search the Maryland Angler’s Log for helpful tips from other anglers. If you want to fish with professionals, find a licensed charter boat guide or find a fishing tournament to join. The department maintains a list of some licensed charter boat guides on its website.

Finally, spread the word; share your fishing experiences with others. If you don’t fish, share the story of these invasive fish so that our society can prevent more of them. Are you a photographer and nature lover? Share your photos with the department. Or, if you just like to eat, ask your local restaurant or store for locally caught blue catfish. Increased demand drives product delivery. Tell them you want to help the bay by eating invasive fishes.

How do you like your snakehead?

Snakehead may not be winning any beauty contests, but they’ll serve you well in a cooking contest. The fillets from these species are mild, flaky and generous. These fish are prized as food sources in their origin countries, so it should be no surprise that there are lots of recipes and recommendations for cooking the fillets.

Before cooking snakehead, people usually strip the fillet from the body of the fish. This can be a challenge for folks who are not familiar with the process. First, we recommend buying or borrowing a fillet knife that has a thin, sharp and long blade that can be easily worked through a fish. Use a towel or glove to hold onto the fish’s head, making the fish easier to control during the filleting process. Find a clean space with easy access to a garden hose or other water source. Having the water nearby aids in clean up and will allow for easy rinsing of the fillet. For more information on how to fillet a fish, please visit the department’s website for snakeheads.

Once they fillet the fish, cooks can get creative. We’ve seen the fillets served many ways, including fried and baked, sautéed and grilled, even as ceviche. One of the best ways we’ve tried it is simply cooking it in a lemon-infused olive oil. Top if off with fresh cilantro and a zesty lemon wedge. What’s your recipe? Visit the Maryland Angler’s Log and send us an email with a photo of your prized catch!

For more information on invasive fish in Maryland, please visit our website and search for “invasive.” The department has just updated content and videos regarding northern snakeheads and is in the process of doing the same for invasive catfish.

The department works with Maryland Department of Agriculture’s Seafood Marketing program to help enact the control strategy. While the Department of Natural Resources sets the reasons and rules for harvesting invasive fishes, the Seafood Marketing program helps promote sale and consumption of invasive fishes in commercial markets. For more information on how to harvest invasive fishes, contact the Department of Natural Resources at 1-877-620–8DNR. And for more information on where to buy fillets, contact the Maryland Department of Agriculture.

dnr.maryland.gov/fisheries

Joseph Love and Eric G. Wilson work for the department’s Fishing and Boating Services, as a biologist and public affairs officer, respectively. Appears in Vol. 22, No. 4 of the Maryland Natural Resource magazine, fall 2019.

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MD files Suit over ‘Black Liquor’ Discharges into North Branch of Potomac River

December 18, 2019 by Bay Journal Leave a Comment

State environmental regulators are taking legal action against the owners of a closed paper mill in Western Maryland, alleging that it is continuing to pollute the North Branch of the Potomac River.

Maryland Attorney General Brian E. Frosh announced Monday that he had filed suit in Allegany County Circuit Court against Verso Luke, LLC, and its parent company, Verso Corporation.

Verso owns the Luke paper mill in the Allegany County town of the same name, though part of the facility also lies across the river in Beryl, WV. The mill closed in June 2019, ending 131 years of operation and eliminating 675 jobs.

In April, before it shut down, a fisherman reported seeing “pure black waste” in the North Branch near the Luke mill, according to Frosh’s announcement. Inspectors found black liquid seeping from the riverbank into the water.

According to the lawsuit, the substance appeared to be “pulping liquor,” a corrosive and caustic byproduct of the papermaking process. Samples of the seepage detected elevated pH and low dissolved oxygen levels, the state filing said. The samples also were high in sulfur and sodium. Industrial safety data on pulping liquors indicate they can burn skin or eyes on contact and may also irritate the respiratory tract if inhaled in mist form.

The Maryland Department of the Environment ordered Verso to find the source of the discharge and take steps to stop it. The company installed sump pumps to collect the black liquid as it seeped from the riverbank, but regulators received complaints about continuing discharges in the summer and fall. Samples taken in late October had an alkalinity similar to household chlorine bleach.

On. Nov. 4, according to the lawsuit, West Virginia’s Department of Environmental Protection ordered Verso to empty its above-ground storage tanks on that state’s side of the river, saying it was violating storage tank laws. The company then piped those tanks’ contents across the river to tanks in Maryland, the lawsuit contends.

MDE’s lawsuit says it directed Verso to post signs on the riverbank near the seepage warning people not to drink or have contact with the water because of the presence of hazardous materials. The company posted signs saying “Restricted Area, Do Not Enter,” but would not post signs with the warning language specified by MDE, the lawsuit says.

Kathi Rowzie, Verso’s vice president for communications and public affairs, said that “we continue to work cooperatively and transparently with both Maryland and West Virginia regulatory agencies to address concerns at the facility.” She said the company is conducting a subsurface study ordered by MDE and has emptied all of the liquor tanks and other vessels near the river seeps.

A consultant that Verso hired to investigate the seeps found pulping liquor in the ground near the seeps, even though the plant was shut down and the tanks emptied. The consultant’s report submitted to MDE did not call for further investigation and did not spell out a plan for stopping the seepage.

“After numerous attempts to get Verso to comply with Maryland’s environmental laws, the company continues to allow pulping liquor to contaminate the river, harming fish and wildlife, in violation of Maryland’s laws,” Frosh said in a statement.

The state lawsuit comes almost a month after the Environmental Integrity Project, on behalf of the Upper Potomac Riverkeeper, notified Verso of its intent to file a federal lawsuit against the company for discharging toxic material, which it contended was black pulping liquor, coal ash or both.

In its lawsuit, MDE asks the court to order Verso to halt the seepage of pollution into Maryland waters and post warning signs on the river about the risks of exposure to the discharge. It also seeks civil penalties.

But Brent Walls, the Upper Potomac Riverkeeper, questioned why the state suit makes no mention of the coal ash he contends may also be leaking into the river. There’s a coal storage facility on company property just upriver of the apparent black liquor seeps, he said, and there was evidence there of some discolored leakage as well.

In the group’s Nov. 19 letter to Verso, the Environmental Integrity Project said sampling done by the Potomac Riverkeeper Network detected toxic constituents of coal ash, including arsenic and mercury. Walls said he was concerned that the substances he alleges are being discharged could interact chemically and convert the mercury to a form that builds up in fish tissue and could pose health threats to any angler who eats contaminated fish taken from the river.

In late November, MDE spokesman Jay Apperson said that the state’s inspections determined that the impact of the seep is localized and that water quality remains good downriver. On Tuesday, when asked why coal ash was not mentioned in the state’s lawsuit, Apperson said MDE’s investigation is continuing.

By Timothy B. Wheeler

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No Delay Urged in MD Restrictions on Use of Animal Manure as Fertilizer

December 16, 2019 by Bay Journal Leave a Comment

A Maryland advisory committee urged state agriculture officials Friday not to hold up a regulation restricting the use of animal manure to fertilize farm fields, even though a study found the state was not prepared to deal with the excess manure that could result.

Officials with the Maryland Department of Agriculture had asked the 19-member advisory group whether, in light of the study by Salisbury University, it should grant a one-year delay in the restrictions being imposed in the coming year on more than 1,300 farms in the state. Most of the nearly 123,000 acres to be affected by the rule are on the Eastern Shore, where poultry manure is widely used to fertilize corn and soybean crops.

Memo Diriker, director of Salisbury’s Business Economic and Community Outreach Network (BEACON), repeated Friday what he had told committee members a month ago — that the state lacks the funding, trucks and storage facilities likely needed to collect and haul away the excess manure that growers would no longer be able to spread on fields.

The Phosphorus Management Tool regulation, adopted in 2015, restricts or bars outright the application of phosphorus on fields where there’s a risk that it will wash out of the soil into nearby streams and drainage ditches when it rains. Phosphorus, one of the nutrients contained in manure, is essential for plant growth, and farmers have traditionally relied on animal manure as a low-cost fertilizer.

But when it reaches local waterways, phosphorus feeds algae blooms and worsens the fish-stressing “dead zone” that forms in the Chesapeake Bay. In some places, manure has been repeatedly applied to fields in larger quantities than crops can use. As a result, phosphorus has built up in the soil there and poses a continual risk for polluted runoff.

Soil tests have found that 20% of the state’s 1.1 million acres of croplands contain so much phosphorus that they need to be regulated. Although there are hot spots in practically every county, more than three-fourths of the acreage with elevated phosphorus levels is on the Shore, and more than half is in the Lower Shore, according to state data.

So far, about 65,000 acres on 350 farms statewide have been affected by the restriction, which applied first to fields with the highest phosphorus levels in their soil. By the time the phase-in is complete on Jan. 1, 2022, the rule is expected to control manure use on about 228,000 acres on more than 1,600 farms statewide.

The state has set up a manure transport program that is hauling about 250,000 tons a year to other farms — some even out of state — where it can be safely spread on fields or put to other uses. Two-thirds of that waste comes from dairy farms in central and western Maryland, while the other third has come from Shore poultry growers.

The state provides $1 million annually to subsidize the transport, with another $400,000 contributed by poultry companies responsible for most of the 300 million birds raised there every year.

State officials have said there’s ample farm acreage elsewhere in Maryland — and even on the Upper Shore — where the excess manure could be safely applied with little risk of runoff because the soils do not have high levels of phosphorus.

But Diriker cautioned that much of that land may not be available, because at least some farmers who use commercial fertilizer are reluctant to spread manure on their fields, either because it requires different equipment or because they’re wary of the regulatory scrutiny that may come with it.

At a minimum, Diriker said, his Salisbury study predicted that the state would have to boost funding to subsidize manure transport and provide financial incentives to expand the private truck fleet now involved in hauling it. He projected $3.5 million might be needed annually over the next three years.

Farmers on the Lower Shore also have voiced concerns that they’ll be hurt financially by being forced to cut back or stop use of poultry manure and buy more expensive commercial fertilizer for their crops.

But Jeff Horstman, executive director of Shore Rivers, one of three environmental groups represented on the advisory panel, urged against delay. He acknowledged growers’ fears that many farm fields could be restricted or placed off limits for manure spreading, but he said that was the point of the regulation.

“Every river on the Eastern Shore continues to get worse in nutrient pollution,” he said. That pollution also exacts an economic impact on watermen, affecting their catch, and on tourism, where waters aren’t safe for swimming.

“If we vote to delay this, we’re going to send a powerful signal that our agency and our farmers cannot take care of the waste that the industry is producing today … If we can’t take care of it safely, how can we expand the industry?”

Del. Vaughn Stewart, a Democrat from Montgomery County, put it more bluntly. If the committee votes to delay the rule, legislators will be asking “how can we possible issue new permits” for poultry operations if the state and the industry can’t handle the current amount of manure.

“And I think that’s a terrifying prospect for a lot of folks in this room if the legislature takes that [tack],” Stewart said. He added that rejecting a delay would pressure the governor, lawmakers and industry to act promptly to deal with the potential problems cited in the Salisbury study.

Hans Schmidt, assistant MDA secretary, told the group that state officials were aware more funding and other steps are likely needed. The department is looking to increase its subsidy for transporting manure to safer locations, he said, and working with the Maryland Environmental Service to set up regional transfer stations for poultry manure needing to be moved. He said officials also are talking with the poultry companies about better coordinating the process.

Schmidt promised to report back to the committee in coming months, and he noted that it could still seek a delay next year if problems seemed to warrant it.

In the end, the committee voted 12 to 5, with two abstentions, to recommend against a delay. Representatives of farm groups and the poultry industry joined with environmentalists to oppose a hold up. The final decision is up to Maryland Agriculture Secretary Joseph Bartenfelder, who attended the meeting but did not speak.

Virgil Shockley, a Worcester County farmer who represents the Delmarva Poultry Industry on the advisory committee, cast his vote against a delay, even though he said he personally believes many Lower Shore growers like him will suffer once the restrictions kick in.

Shockley said a majority of the poultry industry group’s board voted to oppose a delay because the companies were concerned that any holdup would be “bad PR” for the industry.

But then, emphasizing that he spoke only for himself, Shockley said he believed that on the Lower Shore, “you’re going to have manure piled up with nowhere to go.” He estimated that he’ll only be able to spread poultry litter, a mix of manure and wood shavings, on about 70 of the 300 acres of his home farm.

Environmental groups praised the committee for opposing a delay. They noted that the regulation had been held up repeatedly in years past to address farmers’ concerns before finally being imposed by Gov. Larry Hogan in 2015.

“With an important Chesapeake Bay cleanup deadline bearing down on Maryland, it would have been irresponsible to delay — yet again — these critical pollution control regulations,” said Courtney Bernhardt, research director at the Environmental Integrity Project. “There is no evidence that more stalling by the Maryland Department of Agriculture would have solved the main issue, which is that we have millions of tons more poultry manure than we need.”

Alison Prost, Maryland executive director of the Chesapeake Bay Foundation, said the rule has been working and her group hopes Bartenfelder follows the committee’s recommendation.

“If farmers are struggling to make changes, then large chicken producers should step forward and provide additional assistance to prevent poultry waste from becoming a pollution source,” she said.

State officials have said the best long-term solution for the excess manure generated by poultry growing operations on the Shore is to develop viable alternative uses. MDA has awarded nearly $6 million to eight projects statewide over the last five years to try technologies for converting manure into methane and potentially marketable fertilizer byproducts. The results so far have been disappointing.

By Timothy B. Wheeler

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Protect the Clean Water Act to Ensure Progress on Conowingo Dam, by U.S. Sen Ben Cardin

December 13, 2019 by Bay Journal Leave a Comment

A healthy Chesapeake Bay means a healthy economy, and a full recovery cannot be accomplished without a strong, bipartisan federal commitment. That commitment includes respecting states’ rights under the Clean Water Act.

Section 401 is the single most powerful authority granted to states under the Clean Water Act. It establishes a unique “certification requirement” that allows states and authorized tribes to impose preconditions on, or block, certain types of federally issued permits and licenses. This certification requirement applies to any entity applying for a federal license or permit for “any activity” that “may result in a discharge” into waters of the United States.

Currently, states have one year to issue or deny a water quality certification for a project requiring a federal permit. Backlash from industry groups, particularly members of the fossil fuel industry, against the 401 process has prompted punitive action by the federal legislative and executive branches. Their complaints fall into two camps: delays in issuance of federal permits and licenses, and purported abuse of section 401 by states that take into account other impacts beyond water quality.

In April, Sen. John Barrasso, R-WY, reintroduced S. 1087, the Water Quality Improvement Act of 2019. The bill would require states to make final decisions on whether to grant or deny a request in writing based only on water quality reasons and require them to inform project applicants within 90 days, regardless of whether the state has all of the materials necessary to process a request. In August, the U.S. Environmental Protection Agency proposed a rule to replace its original section 401 regulations with a version that substantially pares back state authority.

This coordinated attack on state authority in the guise of clarification is unnecessary and unwanted. The Supreme Court has found that states have significant latitude under the Clean Water Act, including the ability to condition certification upon any effluent limitation or other appropriate state law requirement to ensure the facility will not violate state water quality standards.

The section 401 process plays an important role in the ongoing relicensing of the Conowingo Hydro Electric Project. The owner of the dam, Exelon Generation, originally applied for a water quality certification in 2014, but withdrew it after Maryland state officials said they did not have enough information on the water quality impacts of the dam. The company resubmitted its application in 2017. In October, the state and Exelon reached a settlement at the one-year mark on the reapplication. Exelon agreed to spend $200 million over 50 years on projects to rebuild eel, mussel and migratory fish populations in the Susquehanna River and to reduce nutrient and sediment pollution flowing down the river into the Upper Bay.

Reaction from stakeholders to the settlement has been varied. Some praise the agreement’s provision for pollution reductions upriver from the dam. Others support the investments to restore filter feeders such as mussels and fish passage for their symbiotic partner, the American eel. (The larvae of certain freshwater mussels [called glochidia] attach to the gills of eels to hitch a ride upstream.)

Some riverkeepers feel the deal does not go far enough to address the dam’s impacts. In addition to questioning the amount Exelon had agreed to spend, others still worry the agreement lacks detail in places and assurances that Exelon will be held to its commitments.

The proposed settlement is not perfect. But it might not exist at all without section 401. It certainly would reflect less of a consensus had negotiators been allowed only 90 days — just three months, as the proposed legislation would require — to strike a balance between a number of complex needs for the project: electricity, restoration and even recreation.

And the settlement is not the end of the story. We have more work to do upstream — Exelon, Maryland, other watershed states, the federal government and other stakeholders. At the federal level, we are working to secure — and increase — funding for the EPA Chesapeake Bay Program that in recent years has redoubled its efforts to target funding to areas within the watershed where the water quality bang for the buck is highest.

As part of that effort, Sen. Chris Van Hollen and I in September announced the award of almost $600,000 in competitive funding for grantees to carry out planning, financing strategy and monitoring projects for the Conowingo Dam reservoir through the Chesapeake Bay Program. These federal resources will help develop a road map to offset the impacts of the reservoir’s reduced storage capacity, which has resulted in increased pollutants making their way through the dam and into the Chesapeake Bay. Establishing a Watershed Implementation Plan specifically for Conowingo, similar to the plans being written by each state and the District of Columbia to clean up the Bay, highlights how essential addressing the problem is to restoring and protecting the health of the Chesapeake.

Finding solutions to address such complex problems is not easy. The federal government must not make the water quality certification process even harder by putting its thumb on the scale for industry. For now, our states are not required to confine themselves to the impacts of the discharge itself, but can address a range of conditions as part of their certification: physical and biological impacts such as water withdrawal from a river or habitat impacts.

I am deeply concerned the Barasso legislation — and more urgently the Trump administration’s regulations it has inspired — will deprive states of the leverage they need to secure commitments to protect water quality. Maryland has joined many other states, Republican– and Democratic-led, in objecting to those proposed rules. The rule-making follows a disturbing pattern: Where partisan proposals are stopped in Congress for lack of bipartisan support, the Trump administration carries the torch, forging ahead in disregard of thousands of public comments in opposition.

This effort must not succeed, or the Chesapeake Bay will suffer for it.

The views expressed by columnists are not necessarily those of the Bay Journal.

Oyster Farms Make Slight Improvement in Water Quality

December 10, 2019 by Bay Journal Leave a Comment

It’s easy to demonstrate the filtering prowess of oysters by placing them in a small aquarium and filling it with algae-clouded water. Within a few hours, as time-lapse YouTube videos show, the glass tank is nearly crystal clear.

It’s tougher to see that happen in the wild, though. A recent field study by researchers with the Virginia Institute of Marine Science found that oyster farms in the lower Chesapeake Bay had only slight — but positive — impacts on water quality.

“We were expecting to see more effects of the oysters filtering the water than we saw,” said Jessica Turner, a Ph.D. student who was the study’s lead author. But, she added, “They’re not having any negative impacts either, and that’s definitely worth noting.”

Oyster aquaculture is a booming business in Virginia’s portion of the Chesapeake, yielding more than $14.5 million in sales in 2018. As oyster-growing operations have spread, the industry’s expansion has stirred controversy over leasing in areas offshore of waterfront homes. It’s also inspired competing claims about aquaculture’s impact on water quality.

Aquaculture proponents say the farmed filter feeders are helping clean up the Bay. Others, who don’t want oyster farms near their waterfront homes, contend that they hurt rather than help, with shellfish waste piling up on the river bottom and cages blocking currents that could flush coves and creeks.

Researchers have concluded that farmed oysters, like their wild counterparts, are removing nutrients from the water that otherwise would help feed algae blooms and the Bay’s summertime “dead zone.” As a result, the federal-state Chesapeake Bay Program considers certain types of oyster aquaculture as best management practices that could be counted toward states’ goals for cleaning up the Bay.

Still, it’s less clear whether oyster farms are having measurable impacts on the clarity or dissolved oxygen levels of the Bay or any of its tributaries.

The VIMS scientists monitored four aquaculture operations in 2017, from Windmill Point near the mouth of the Rappahannock River south to Broad Bay in Virginia Beach. Two were raising oysters in floating cages, while the other two kept the cages on the bottom. The area covered by cages ranged in size from a little more than a quarter-acre to nearly 10 acres.

Aboard a VIMS research vessel, the team towed two sensors between the rows of cages in each oyster farm, like a lawnmower crisscrossing a yard. They also checked the water just beyond the array of cages, collecting data on current speed and direction, chlorophyll a (an indicator of algae), turbidity and dissolved oxygen.

The results were not that striking. They found higher oxygen levels inside the large oyster farm in Broad Bay than outside of it, for instance, but no similar pattern at the other sites. They found lower turbidity inside the Broad Bay operation and one other farm, but nothing like that at the other two. In fact, it seemed that the differences they observed had more to do with the characteristics of each farm’s location than anything about their operation.

“We expected to see more signal from the oysters,” Turner said. “It’s not to say [they’re] not helping. It’s just hard to measure or quantify how much.”

Lisa Kellogg, a VIMS senior research scientist and co-author of the paper, said the lack of noticeable water quality impacts could be attributed to the relatively low density of oysters in the farming operations and the tiny footprint they had, compared with the water bodies where they were located.

Because the farms operated in open areas, researchers estimate that even under ideal conditions, when tides and currents were low, oysters were able to filter less than 10% of the water flowing past them.

“It’s a matter of the volume of water in the farm,” she said, being relatively small compared to the entire creek.

Even in Maryland’s Harris Creek, where more than two billion hatchery-reared oysters were planted on restored reefs covering 350 acres — an area the size of the National Mall in the District of Columbia — it’s yet to be shown conclusively that they’re cleaning up the water.

With the help of a computer model they developed, researchers with VIMS and the University of Maryland Center for Environmental Science calculated that the restored reefs in Harris Creek could remove about a million pounds
of nitrogen from the water over the next decade. They also estimated that the oysters, mussels and sea squirts that cover the reefs now can filter all the water in the creek — 10 billion gallons — in as little as 10 days.

The researchers took some field measurements in the creek to help them validate the model calculations and found some small-scale water quality impacts. Around a reef they studied, they saw distinct declines in the concentration of suspended algae and other tiny particles.

“As oysters are filtering, they’re actually cleaning out the water that goes over them,” explained Larry Sanford, a professor at the UMCES Horn Point laboratory. “The further down you go over the reef, the more you can see that signature of clear water.”

Although the water immediately over the reef was noticeably clearer than elsewhere, it grew murky again within a half-meter to a meter away from the oysters, Sanford said. Without a lot more fieldwork, he said, it’s impossible to tell if the restored reefs are affecting the creek as a whole.

“The preliminary results from our modeling studies suggest there is a measurable impact, but we haven’t measured it yet,” said Lora Harris, an associate professor at the UMCES laboratory in Solomons.

Eyes in space, however, may see what water-quality monitoring hasn’t been able to so far.

Preliminary analysis of data collected by satellites show that water clarity in Harris Creek and its neighboring tributary, Broad Creek, have gradually become less murky in recent years, said Jay Lazar, field program coordinator for the Chesapeake Bay office of the National Oceanic and Atmospheric Administration.

“You can see … over time, water clarity improves,” Lazar said. “Its sharpest and most distinct improvements are right there at the lower part of Harris.”

The satellite data span from 2009, before the restoration work began, to 2017, after it was finished.

“In layman’s terms, there’s something real there that we’re observing,” Lazar said. “The challenge is attributing a cause or reason to why we’re seeing it.”

Broad Creek’s improvement also begs closer scrutiny. It has not undergone any significant restoration work, and it remains open to commercial oyster harvest. Yet it routinely has some of the best natural oyster reproduction in Maryland’s portion of the Bay. Could the clarity there stem from a natural cause, rather than an abundance of oysters from restoration efforts?

Or could there be another factor? Lazar said satellite imagery also shows a recent surge in the extent and density of underwater grasses in that same area. Bay grasses need a certain amount of water clarity to grow but, once established, they help clear it up more.

“They’re connected,” Lazar said of the two creeks. “Quantifying how they’re connected and what’s responsible for the improvement, we’re continuing to struggle with that.”

Report Says 4 of 6 Bay States Cut Funding, Staff for Top Agencies Handling Pollution

December 6, 2019 by Bay Journal Leave a Comment

Four of 6 states in the Chesapeake Bay region cut funding or staff to their main pollution control agency over the last 10 years, says a report released today by the Environmental Integrity Project.

Environmental agencies in Pennsylvania, Delaware and New York each saw budget reductions, even after adjustments for inflation, between 2008 and 2018, according to the report, The Thin Green Line: Cuts in State Pollution Control Agencies Threaten Public Health. Those states, as well as Maryland, also reduced their environmental workforce during the same time period.

The report was especially critical of Pennsylvania legislators and governors for cutting funding by 16% and staffing by 15%, even as state spending overall grew by 18%.

Among the 48 states studied, 30 cut funding to the operating budgets of agencies that protect public health and the environment.

Both Delaware and New York were in the top 10 states with the largest cuts. Delaware cut funding to its Department of Natural Resources and Environmental Control by 33% and staffing by 21% over the decade. New York cut the Department of Environmental Conservation by 31% and staffing by 29%.

Maryland increased funding for its Department of the Environment by 1.6% but reduced staffing by 5%. Virginia increased funding by 5.5% and staffing by just less than 2% to the Department of Environmental Quality.

West Virginia was the only state to show dramatic increases in financial support to its Department of Environmental Protection over the decade, increasing funding by 46% and staffing by 8%.

According to the report, Pennsylvania’s cuts came at a time when the state faced “unprecedented environmental challenges.” Hydraulic fracturing for natural gas emerged as a source of environmental controversy, and the state has failed to meet its commitment to dramatically reduce nutrients polluting the Chesapeake Bay. Maryland and environmental groups have threatened to sue the state over the nutrient shortfalls.

Also, Pennsylvania is the third-largest coal-mining state and has more than 5,000 abandoned coal mines, many of them leaking pollution.

“From soup to nuts, when you make steep cuts in revenue at the Pennsylvania Department of Environmental Protection and then lose staff and expertise, not surprisingly, your ability to run the agency and protect the environment is chopped off at the knees,” said David Masur of PennEnvironment, a Philadelphia-based citizens advocacy group.

Pennsylvania was chastised in the study for being the only state that produces large amounts of natural gas that does not impose an excise tax on drilling companies, which could be used to fund clean water and conservation efforts, the study noted. The state does levy an “impact fee” to help communities offset impacts of gas drilling.

The study also is critical of the Trump administration’s budget cuts to the U.S. Environmental Protection Agency and its proposed rollback of regulations under the argument that states will offer protection from air and water pollution.

“This is just a shell game,” said Eric Schaeffer, executive director of the Environmental Integrity Project and a former EPA enforcement director. “State agencies are often badly understaffed, and the EPA workforce is already at its lowest level in more than 30 years.”

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