After TMDL process, Bay Program finds itself at a crossroads

Bay Journal by Karl Blankenship

View Original Article HERE

This article explains a lot that formerly seemed inexplicable. Now we see that DNREC has been cutting deals with the environmental officials of other states without consulting with the people of Delaware.

This article describes an event in 2000 where DNREC promised other states to create buffers, even though they had no authority in Delaware law to do so. This resulted in Delaware citizens being forced to sue and spend close to $100,000 to defend their rights.

It is time for the department to stop cutting secret deals (or deals that 99.99% will never find out about) with people who are not from Delaware. DNREC must represent the people of Delaware.

How is it possible that DNREC can make these kind of commitments for us without any kind of public hearing or input from us in advance? It's time for the General Assembly to change the implementing legislation so that it can never happen again.

Standing inside a tent while rain drizzled outside, regional leaders gathered in June 2000 to outline a bright future for the Bay and its watershed. It was a future in which sprawl development would be reined in, oyster populations rebuilt and Bay water quality restored.

"This new agreement is historic, without a doubt," proclaimed then-EPA Administrator Carol Browner, as she and other Bay leaders signed the Chesapeake 2000 agreement.

Some of the agreement's 102 commitments have been achieved or exceeded, such as permanently protecting 20 percent of the watershed from development, establishing more than 500 miles of water trails, and opening more than 1,357 miles of river to migratory fish.

Others, such as a tenfold increase in oyster population and restoring 25,000 acres of wetlands, fell far short.

One was a spectacular misfire: States couldn't even agree how to measure the goal to slow the rate of "harmful sprawl" by 30 percent.

But the region's failure to restore Bay water quality by 2010 dwarfed the other accomplishments and disappointments. As a result, EPA officials at the end of December announced another "historic" Bay initiative: a highly regulatory program, known as a total maximum daily load, which requires states to hit pollution targets or risk punitive consequences.

Largely unnoticed in the noise surrounding the new TMDL, was that most of the remaining Chesapeake 2000 commitments - many still unmet - quietly expired on Dec. 31.

Today, the state-federal Bay Program, which was started as a voluntary partnership between states and the federal government in 1983, is at a crossroads.

Most agree that the TMDL dramatically changed the partnership, at least as it pertains to water quality issues. Instead of negotiating among equals, the TMDL is an EPA requirement, and the agency has the power to impose a variety of sanctions against states that fail to keep pace with nutrient reduction programs. Further, EPA actions during the TMDL development process, including its imposition of tight deadlines for writing state cleanup plans, were seen as heavy-handed, and left the state-federal relationship strained.

"The implementation of the TMDL has, I believe, fundamentally altered the nature of the program," said Peyton Robertson, director of the National Oceanic and Atmospheric Administration's Chesapeake Bay Office. "You can't reasonably argue that it is a voluntary approach anymore."

That has ramifications. He and others are worried that the TMDL will make it more difficult to forge agreements with states on other Bay issues, such as those that deal with land protection or habitat restoration.

There's good reason for that worry. The EPA has said that if states don't make enough progress implementing Bay cleanup plans, it may force greater nutrient reductions for wastewater treatment plants - something that would have a huge price tag. In the eyes of state agencies, that threat clearly elevates water quality issues over other Bay priorities.

"That is our primary focus," said John Hines, executive deputy secretary for programs with the Pennsylvania Department of Environmental Protection. "While we recognize that there are a number of broader commitments within the agreements, our number one priority has to be improvement of water quality."

That point has been echoed by many other state officials at recent meetings.

But it raises a fundamental question: Is the Bay Program about more than just water quality?

More than water quality?

The Bay Program was formed as a voluntary partnership to implement coordinated plans to improve and protect both the water quality and living resources of the Bay.

It's overseen by the Executive Council, which includes the EPA administrator; the governors of Maryland, Virginia and Pennsylvania; the mayor of the District of Columbia; and the chair of the Chesapeake Bay Commission, which represents the legislatures of the three states.

The original, one-page 1983 agreement that launched the program was replaced by a more expansive seven-page agreement in 1987 that said the Bay's significance transcended regional boundaries and committed the partners to managing the Bay "as an integrated ecosystem." It established broad goals that have guided the Bay Program for years: to reduce pollution; restore populations of fish, underwater grasses and other living resources; protect the watershed from the impacts of growth; improve public access; and promote public understanding and stewardship. Committees were created to address key areas and address dozens of individual actions.

The Chesapeake 2000 agreement built on the 1987 agreement. It outlined scores of actions, many with specific due dates, intended to better drive coordinated actions. In addition, the Executive Council has adopted numerous directives to address specific policies over the years, such as environmental education, fish passages and forest conservation.

Nutrient reductions have always been a cornerstone of the Bay Program since its 1987 agreement, which called for a 40 percent nutrient reduction by the year 2000, a goal that was missed.

But many say the Bay's restoration has to be about more than water quality. For example, for resources such as fish and crabs, healthy habitats such as reefs and natural shorelines can be more important than water quality. And the introduction of invasive species can fundamentally alter the Bay ecosystem.

And engaging the public in the restoration remains an important challenge.

"One of the greatest problems we have in restoring the Chesapeake Bay is being able to explain to people how the health of the Bay and the waters draining to it is relative to their lives," said Frank Dawson, assistant secretary for aquatic resources with the Maryland Department of Natural Resources. "We haven't been able to do that to the level that people would want to invest as they may need to do to restore the Bay."

Programs that engage citizens - such as efforts to improve fish and waterfowl populations, create more public access and conserve land - are critical, he said.

"The vision forward should be to look at the Chesapeake Bay as an ecosystem," Robertson said. "It is a nationally significant multi-state ecosystem that demands some level of coordination."

But incorporating other issues into Bay Program planning has become difficult. Development of the TMDL and the watershed implementation plans, which detail how states plan to meet the nutrient reduction goals, has dominated most high-level Bay Program meetings over the last two years. That's likely to continue this year as states have to develop a new round of watershed plans showing, at a more local level, how nutrient reduction goals will be met.

A new era of federal leadership?

To some extent, reaching any agreement on a common path forward has also been muddied by the Obama administration's attempt to demonstrate a "new era of federal leadership" though an executive order issued by the president in May 2009. That order required federal agencies to develop a federal plan for Bay restoration, which was completed last May.

The federal strategy followed in the footsteps of past agreements. It called for habitat protection and restoration, coordinated fisheries management, open space conservation and citizen stewardship. But hefty price tags come with some of the specifics, such as restoring oyster populations in 20 tributaries and protecting 2 million additional acres of open space by 2025.

Efforts to align the federal strategy within the Bay Program have met with little enthusiasm from many state officials who, after dealing with TMDL-related mandates and deadlines, are reluctant to adopt new, potentially costly, goals set by federal agencies.

"How the federal partners respond, and how they step up to the plate in doing this executive order plan is very much on their shoulders," Hines said.

"It doesn't affect the states at all," agreed Anthony Moore, assistant Virginia secretary of natural resources for Chesapeake Bay restoration. "I don't think we should align with the executive order to work with federal goals."

The goals in the federal strategy were set after consultations with the states. Jim Edward, acting director of the EPA Bay Program Office, said federal agencies recognized they could not reach goals by themselves, so the strategy was intended to reflect the direction where they felt the partnership was going.

"We tried to think ahead, recognizing that without the full engagement of the partners, we couldn't get there," Edward said. "We tried to set up a framework that would allow that to happen down the line. It hasn't quite worked out that way."

Complicating matters, the administrations in both Virginia and Pennsylvania have changed since most of the federal strategy was drafted. The federal strategy was also written with the intent of bringing more federal money to help achieve far-reaching goals. Instead, changes in Congress after the 2010 elections have put the emphasis on cutting federal spending - not new programs.

Now, instead of asking states to help meet federal commitments, Moore said the U.S. government should use its limited resources to help states meet federally imposed water quality goals. "Funding and getting these programs done for the TMDL is going to be a big concern for the states," he said. "The federal government needs to help us with our goals."

In the short term, the job of figuring out how to knit together historic Bay Program priorities with state and federal initiatives is likely to fall on a series of committees - dubbed Goal Implementation Teams - which deal with specific Bay issues. Those teams include representatives from state and federal agencies, nonprofit organizations, academia and others.

Ultimately, Edward said, a new Bay agreement was needed. But he said, that wasn't likely until agencies recover from "TMDL exhaustion."

"Even on our end, we've been overwhelmed with the TMDL and the watershed implementation plans and everything else," he said. "It's been difficult. But you've also got to have a long-term vision."

Edward said that after new watershed plans are finalized early next year it may be easier to move onto other issues, such as a potential new Bay agreement. But past agreements have taken a year or more to negotiate and write. That means a new agreement might not be finalized until 2012 or 2013.

A lukewarm reception

So far, the idea of writing a new agreement has gotten, at best, a lukewarm reception. "It comes down to, 'do we constantly want to keep setting new goals, do we want to perpetually plan, or do we actually want to see systematic changes and get something done?'" Hines said.

Indeed, the TMDL resulted precisely because of the perception that too little progress was being made under previous, voluntary agreements.

While some commitments have fallen short, past efforts to coordinate regional action through various Bay Program agreements have yielded successes, others contend. The Bay Program was responsible for the first regional effort in the nation to promote the planting of forested riparian buffers, an initiative that mobilized legions of volunteers over the years. An initial goal of planting 2,010 miles of forest buffers by 2010 was met in 2002.

"Whole programs and whole organizations were created around the forest buffer goal," said Carin Bisland, associate director for ecosystem management with the EPA Bay Program Office. "So I do think that paradigm of setting the goals works when the partners all feel there is an added value to achieve them."

While much of any new agreement may be voluntary, Edward said he expected state and federal agencies alike to use more regulatory muscle where appropriate. For instance, he noted fishing regulations, such as those for blue crabs, have been getting tougher to help resources recover.

Still, any new agreement will have to weigh water quality issues and other Bay priorities. That puts the EPA in a difficult spot. The agency is charged with enforcing the regulatory TMDL program on one hand, and coordinating the traditional voluntary partnership on the other.

"EPA has to continue to play an active and leadership role in the Bay Program," said DNR's Dawson. "But I think there is a difference in making sure that your part of the job gets done, and making sure the whole job gets done."

If the Bay Program can't more effectively deal with issues not related to water quality, he and others suggest other forums may be needed to deal with them. For example, most of the recent efforts that led to increased protections for blue crabs and are credited with helping the stock rebound from near-record lows happened outside the formal Bay Program partnership.

Others worry that without an overarching agreement, opportunities for coordination will be lost. The stream buffer initiative thrived in part because local organizations, state agencies and others could see the benefit to both local streams' health and broader Bay goals.

Ann Swanson, executive director of the Chesapeake Bay Commission, and one of the prime authors of the Chesapeake 2000 agreement, said writing a new agreement would be "really difficult" if efforts to implement the TMDL do not go smoothly.

But she said agreements negotiated among all Bay partners are essential to provide the "blanket of policy" that has driven goals such as land preservation. Virginia, for instance, specifically adopted a 400,000-acre land preservation goal during the Tim Kaine administration to meet the Chesapeake 2000 goal. Current Gov. Bob McDonnell has vowed to protect a similar amount.

"But I think it is going to take all of the intelligence, all of the political savvy, and all of the tolerance of the people in the Bay Program to negotiate that new agreement," Swanson said. "And if we do it, it will be groundbreaking, as every agreement before it has been."

Bay Restoration Highlights

1983

• A Congressionally mandated EPA study is released highlighting excess nutrients, loss of underwater grass beds, toxic chemicals and the overharvest of fisheries as the main problems facing the Bay.
• In response to the EPA study, the states of Maryland, Pennsylvania, Virginia; the District of Columbia; the Chesapeake Bay Commission; and the EPA sign the 1983 Chesapeake Bay Agreement creating the Chesapeake Bay Program as a voluntary partnership to address Bay issues.

1984

• The Maryland legislature passes the Chesapeake Bay Critical Areas Protection Act, a plan to control development along the shores of the Bay and its tidal rivers.

1985

• Maryland places a moratorium on fishing for striped bass.
• A phosphate detergent ban is enacted in Maryland. Washington, DC, follows in 1986, Virginia in 1988 and Pennsylvania in 1990.

1987

• The 1987 Chesapeake Bay Agreement is signed. It outlines numerous goals to control pollution, restore living resource populations and improve stewardship. It sets a goal to reduce nutrient pollution entering the Bay 40 percent by 2000.

1988

• Virginia adopts the Chesapeake Bay Preservation Act to provide land use guidance to local governments near the Bay.

1989

• Virginia places a moratorium on fishing for striped bass.

1992

• The Bay Program assigns nutrient reduction goals to individual rivers, leading to the development of the first tributary strategy plans to guide nutrient reduction efforts.

1995

• Striped bass are declared restored by the Atlantic States Marine Fisheries Commission.

1996

• A Bay Program Riparian Forest Buffer Initiative calls for planting 2,010 miles of forest buffers along streams and shorelines by the year 2010. That goal is reached in 2002.
• The largest wastewater treatment facility in the Chesapeake Bay region, the Blue Plains Wastewater Treatment Plant in the District of Columbia, begins biological nutrient removal for half of its flow capacity.

1999

• The settlement of a lawsuit against the EPA requires the development of a total maximum daily load for the Chesapeake by May 2011 unless the Bay is cleaned up first.

2000

• Chesapeake 2000 is signed, establishing 102 commitments to restore the health of the Bay and its living resources, including a goal to restore Bay water quality by 2010.

2008

• Based on new figures that show dramatic declines in the Chesapeake Bay blue crab population, Maryland and Virginia implement emergency harvest regulations.
• For the first time, the federal Farm Bill contains targeted funding for agricultural conservation practices in the Chesapeake Bay region.

2009

• President Barack Obama signs an executive order calling on the federal government to lead the effort to control pollution and protect wildlife habitats in the Chesapeake Bay region.

2010

• The EPA releases a total maximum daily load for the Bay.

Federal Chesapeake Bay Strategy Highlights

The federal Chesapeake Bay strategy completed in May 2010 established broad goals in four policy areas with several measurable outcomes for each goal.

Restore Clean Water Goal

Reduce nutrients, sediment and other pollutants to meet Bay water quality goals for dissolved oxygen, clarity, chlorophyll a and toxic contaminants.

• Water Quality Outcome: Implement 100 percent of pollution reduction actions for nitrogen, phosphorus and sediment no later than 2025, with 60 percent of Bay segments attaining standards by 2025.
• Stream Restoration Outcome: Improve the health of streams so that 70 percent of sampled streams throughout the watershed are in fair, good or excellent condition by 2025.
• Agricultural Restoration Outcome: Apply new conservation practices on 4 million acres of agricultural working lands in high-priority watersheds by 2025.

Recover Habitat Goal

Restore a network of land and water habitats to support priority species and to afford other public benefits, including water quality, recreational uses and scenic value across the watershed.

• Wetlands Outcome: Restore 30,000 acres of tidal and nontidal wetlands and enhance the function of an additional 150,000 acres of degraded wetlands by 2025.
• Forest Buffer Outcome: Restore riparian forest buffers to 63 percent, or 181,440 miles, of the total riparian miles by 2025.
• Fish Passage Outcome: Restore historical fish migratory routes by opening 1,000 additional stream miles by 2025.

Sustain Fish & Wildlife Goal

Sustain healthy populations of fish and wildlife that contribute to a resilient ecosystem and vibrant economy.

• Oyster Outcome: Restore native oyster habitat and populations in 20 tributaries by 2025.
• Blue Crab Outcome: Maintain a sustainable blue crab interim rebuilding target of 200 million adults in 2011 and develop a new population target for 2012 through 2025.
• Brook Trout Outcome: Restore naturally reproducing brook trout populations in headwater streams by improving 58 subwatersheds from the 'reduced' classification to 'healthy' by 2025.
• Black duck Outcome: Restore the capacity of the Bay watershed to support 100,000 wintering American black ducks by 2025.

Conserve Land & Increase Public Access Goal

Conserve landscapes treasured by citizens to maintain water quality and habitat; sustain working forests, farms and maritime communities; and conserve lands of cultural, indigenous and community value. Expand public access to the Bay and its tributaries through existing and new local, state and federal parks, refuges, reserves, trails and partner sites.

• Land Conservation Outcome: Protect an additional 2 million acres of lands throughout the watershed currently identified as high conservation priorities at the federal, state or local level by 2025.
• Public Access Outcome: Increase public access to the Bay and its tributaries by adding 300 public access sites by 2025.

Chesapeake 2000: How Some Goals Fared

The Chesapeake 2000 agreement contained 102 commitments, although many were for the completion of reports or development of policies.

Here's a look at how some of the more notable commitments fared:

• Correct nutrient- and sediment-related water quality problems in the Chesapeake by 2010. Not achieved
• Achieve a tenfold increase in native oysters by 2010, measured from a 1994 baseline. Not achieved; little change in oyster population
• Achieve a no-net-loss of existing wetlands and their functions within regulatory programs. Achieved
• Restore 25,000 acres of wetlands by 2010. Not achieved; about 54 percent complete
• Eliminate the input of toxic pollutants from all controllable sources to levels that result in no toxic impact to living resources or human health. Not achieved
• Expand the number of waste pump-out facilities for recreational boats 50 percent by 2010. Not achieved
• Install at least 60 innovative stormwater management demonstration projects by 2006 that seek to achieve no net increase in pollution loads as well as maintain pre-development hydrology. Achieved
• Permanently preserve 20 percent of watershed from development by 2010. Achieved
• Reduce the rate of harmful sprawl 30 percent by 2010, measured from a 1992–97 baseline. Not achieved; no agreement reached on definition of harmful sprawl
• Expand the number of public access points to the Bay and its tributaries 30 percent by 2010. Not achieved; about 95 percent complete
• Increase the number of designated water trails within the watershed by 500 miles by 2010. Achieved
• Beginning with the class of 2005, provide a meaningful Bay or stream outdoor experience for every school student in the watershed before graduation. Not achieved; about 80 percent complete