An algal bloom in Norfolk’s Lafayette River.

Chesapeake Bay Foundation

Why Are 20 Far-Away States Trying To Block The Cleanup Of The Chesapeake Bay?

Over the years, the Chesapeake Bay has been known for many things: bountiful seafood, such as clams, oysters and the bay’s iconic blue crabs; its boating, fishing and water sports industry; its curly-haired duck-hunting dogs.

Now, however, the bay has become famous for something else: its pollution.

For more than 30 years, states in the region have tried to restore the bay, the largest estuary in the U.S. and a body of water which has effectively served as a dumping ground for agricultural pesticides, pharmaceuticals and other chemicals from urban runoff and industrial sources for decades. In the last few years — and after numerous failed attempts — they’ve inched closer to succeeding, thanks to an Environmental Protection Agency-led plan that puts limits on the amount of agricultural nutrients entering the bay, pollution that has spawned numerous oxygen-free, marine life-killing “dead zones” in the bay and its tributaries. The plan was created at the request of the six Chesapeake Bay states and the District of Columbia, and according to Claudia Friedetzky of the Maryland Sierra Club, is “the best chance that we have ever had to clean up the Chesapeake Bay.”

But to a group of 21 Attorneys General from states almost exclusively outside the Chesapeake Bay region, the plan means only one thing: EPA overreach.

Earlier this year, a group of 21 Attorneys General from states as far away from the Chesapeake Bay as Alaska and Wyoming submitted an amicus brief that aims to strike down the EPA’s Chesapeake cleanup plan. The AGs argue that the cleanup plan raises serious concerns about states’ rights, and they worry that if the plan is left to stand, the EPA could enact similar pollution limits on watersheds such as the Mississippi.

“This is one of the great examples of people working together across federal, state, local business and agriculture, and it’s working, and outsiders are coming in to try to stop it,” William Baker, President of the Chesapeake Bay Foundation, said. “It’s absolutely bizarre.”

Big Ag Enters The Fray

The Chesapeake Bay watershed.

The Chesapeake Bay watershed.

CREDIT: Wikimedia Commons

To understand why the 21 state AGs care about a cleanup plan that is, for the most part, outside of their boundaries, you first have to understand why outside groups are suing to strike down the cleanup plan in the first place. That comes down to the interests of one powerful entity: the U.S. agriculture industry.

When the EPA enacted its latest cleanup plan, the Chesapeake Bay Clean Water Blueprint, in December 2010, major agriculture groups were quick to sue, arguing the agency didn’t have the power to restrict the amount of pollutants that enter the bay. Their response came as no surprise, considering agriculture is the largest contributor of nutrient and sediment pollution to the Chesapeake Bay, accounting for 42 percent of the nitrogen, 58 percent of the phosphorous and 58 percent of the sediment that entered the bay in 2012. The EPA’s new cleanup plan established a Total Maximum Daily Load (TMDL) for how much nitrogen, phosphorus and sediment can enter the bay each year, potentially cutting pollution by 20-25 percent.

Those pollution limits, Baker said, are exactly what the bay needs to recover and “absolutely consistent with what science says is needed to address the Chesapeake Bay.” Successfully reducing nutrient runoff could mean shrinking the dangerous “dead zones” — oxygen-free areas that kill clams and worms, key food sources for blue crabs — and deadly algal blooms that have plagued the bay for decades. The pollution diet, as it’s written, also allows states “maximum flexibility” in determining how to meet the limits set forth by the EPA, Terri White, press officer at the EPA, told ThinkProgress.

The American Farm Bureau, a powerful agricultural interest group which has sued the EPA on behalf of farmers multiple times before, has led the charge against the EPA, claiming they’re concerned the agency’s actions in the Chesapeake Bay region could lead to similar plans in the Mississippi River watershed. The Mississippi runs through the heart of agricultural country in the U.S. and empties into the Gulf of Mexico, a water body that’s been plagued by massive dead zones for years.

Though the Farm Bureau’s suit failed in court in September 2013, the group isn’t giving up. It appealed in late January, and soon after, the 21 state AGs added their support.

Kansas Attorney General Derek Schmidt filed the brief on behalf of the group of AGs. He said in a statement that he does not think the EPA has authority under the Clean Water Act to implement the bay’s TMDL.

“The issue is whether EPA can reach beyond the plain language of the Clean Water Act and micromanage how states meet federal water-quality standards,” Schmidt said. “We think the clear answer is ‘no,’ and we would prefer to get that answer while the question surrounds land use in the Chesapeake Bay instead of waiting for EPA to do the same thing along the Mississippi River basin.”

The AGs write in their brief that they’re worried about what implications the EPA’s Chesapeake Bay cleanup plan has for other states.

“If EPA follows through, it could start requiring States to zone specific parcels of land to permit or prohibit certain uses — all without any political accountability or vested interest in the State’s welfare,” the brief reads. “This is the kind of ‘gun to the head’ and ‘economic dragooning’ that the federal government cannot use to coerce States to implement its policy choices.”

Ellen Steen, General Counsel and Secretary for the Farm Bureau, told ThinkProgress via email that though the AGs’ worries reflect those of the Farm Bureau, it’s not that the Farm Bureau wants to stop the cleanup of the Chesapeake Bay altogether. The Farm Bureau wants a clean Chesapeake Bay, but it disagrees with the way EPA has gone about implementing the plan.

“What we oppose is that EPA’s plan eliminates state flexibility to make their own cleanup decisions, or to modify their plans based on new technologies or new information,” she said. “It gives EPA the power to decide which land can or cannot be farmed, where homes can or cannot be built, and where schools, hospitals, roads and communities can or cannot be developed — with no regard for local economic or social impact.”

But in her September opinion, Judge Sylvia Rambo said some of the Farm Bureau’s claims were overblown, and that the EPA did not have the authority to “dictate to a state what measures a state must take to reduce pollution from a specific source.” Terri White, press officer with the EPA, did not respond directly to the Farm Bureau’s claims, citing the ongoing lawsuit, but told ThinkProgress that it was up to states, not the EPA, to determine how to achieve the needed reductions for the pollution diet. What’s more, she said, the pollution diet was decided upon with state input, after the bay states agreed in 2000 that if voluntary efforts to restore the bay didn’t work by 2010, a TMDL should be implemented.

Baker, whose Chesapeake Bay Foundation supports the pollution diet and in 2009 sued the EPA to try to force a cleanup of the Chesapeake Bay, was more forthcoming in his rejection of the claims of the Farm Bureau and Attorneys General.

“Nothing in the TMDL dictates that agriculture do anything one way or another — much less that any kind of zoning occur that is not supported by local government,” Baker said. “States and local governments worked together with a number of federal agencies to develop this Clean Water Blueprint for the bay. It’s hardly a mandate being imposed on high down to the states.”

Judge Rambo also rejected the Farm Bureau’s argument, and the argument the 21 state AGs would later make, that the Chesapeake Bay pollution limit sets the stage for the EPA to implement similar restrictions in a single state and then mandate it to be accepted in all other upstream states — all of the states in the Mississippi River watershed, for instance.

“In short, the court endorses the holistic, watershed approach used here. This approach receives ample support in the CWA [Clean Water Act], its legislative history, and Supreme Court precedent,” the opinion reads.

The Farm Bureau’s appeal hopes to overturn that endorsement, backed by the 21 Attorneys General. But in April, the EPA got a little extra help from Virginia Attorney General Mark Herring, who decided to throw his weight behind the cleanup plan. Herring announced on April 10 that he’s filed his own brief in support of the EPA’s cleanup effort, saying he won’t let the AGs’ attacks “go unanswered.”

“When the most promising plan to protect and restore the bay comes under attack, I am going to stand up for the health of Virginia’s families, for Virginia’s economic interests, for Virginia’s efforts to restore the Chesapeake Bay,” Herring said.

Herring said the lawsuit wasn’t about EPA overreach, but rather whether the surrounding states had the authority to work together to clean up the bay, something they’ve been trying to do “for decades.”

“Each bay state, including Virginia, voluntarily entered into the current restoration plan because of the economic, recreational, environmental and intrinsic value of a healthy Chesapeake Bay,” he said. “I hope the courts and my colleagues, none of whom serve a state which touches the bay, recognize that fact and allow Virginia and its partners to continue their work.”

A History Of Failure

Dead fish at Northwest Creek on Kent Island in Stevensville, Md.

Dead fish at Northwest Creek on Kent Island in Stevensville, Md.

CREDIT: AP Photo/Maryland Department of the Environment, Charles Poukish

It’s that “for decades” qualifier that points to why many environmentalists and lawmakers in the bay region are so protective of the TMDL — support it or oppose it, the cleanup plan has been a long time coming in the bay region. The first time Chesapeake Bay states made an attempt to improve the health of the bay was 1983, when the EPA, Maryland, Pennsylvania, Virginia and the District of Columbia signed an accord “recognizing the need to act” to clean up the bay. The states failed multiple times to stick to voluntary goals of reducing nutrient pollution in the bay, and in in 2006 the EPA realized the states wouldn’t meet their latest goal by 2010, or even 2020.

In 2009, the Chesapeake Bay Foundation sued the EPA, saying the agency had “abdicated leadership and weakened regulations that would have reduced pollution.” The lawsuit ended in a settlement in 2010, the same year that the EPA released its strategy for restoring the bay.

Brown Bullhead, (Ameriurus nebulosus) with lip tumors.

Brown Bullhead (Ameriurus nebulosus) from the South River with lip tumors.

CREDIT: Fred Pinkney, USFWS.

A host of problems have plagued the bay and its tributaries as a result of this pollution. Since the early 1990s, the Fish and Wildlife Service has documented a surge of tumors and lip lesions in catfish in the Anacostia River, which flows through D.C., and the South River, which flows through Maryland.

Algal blooms, which develop when algae feed off of excess nutrients in the water and multiply rapidly, have long been a problem in the bay and its tributaries. The blooms led to a mass fish kill in Baltimore’s Inner Harbor in 2012, a consequence of the algae sucking the oxygen out of the water and suffocating fish. Maryland saw other fish kills in 2012, too — 60,000 to 100,000 fish died in three Maryland creeks that year after strong rains washed more nutrients than usual into the creeks, turning them “the color of malted milk” for weeks.

And it’s not just aquatic life that’s suffering.

“Many people in many parts of the bay watershed can’t drink their well water because nitrate levels are so high, and they routinely and without any thought really have to drink bottled water,” Baker, President of the Chesapeake Bay Foundation, said. “People are also worried about the effects polluted water has on their livestock, and most health departments now discourage against swimming after heavy rains because of the pollution washed into local waterways.”

It’s these pollution woes that worry Baker most of all, not just because he wants the bay to be healthy for ecological reasons but because he knows it’s an essential part of the region’s economy, a tourist draw and recreational and commercial fishing hub. According to the Chesapeake Bay Foundation, a 2005 Shenandoah River fish kill caused a loss of $700,000 in retail sales and revenues in the region.

“If the Chesapeake were to get worse to the point that it was so bad that it was viewed as something bad for the region rather than something good, the economic impacts would be huge,” Baker said.

Changing For The Better

Baker said he wasn’t surprised that the farm industry opposed the cleanup plan — after all, it’s the industry most affected by a plan that targets nutrient runoff. But he was dismayed that a group of AGs from states almost exclusively outside the Chesapeake Bay region signed on to help stop the effort.

“It’s just one more example of the attempts to derail good things that have broad-based support in this country when narrow interests feel they are threatened,” he said.

Claudia Friedetzky with the Sierra Club said that while the national agriculture industry seems to largely have its mind made up about the TMDL, the farmers she’s talked to in the region have mixed feelings. Many of the farmers who oppose the cleanup plan are those who have ties to Big Ag, but it varies from farmer to farmer, she said.

“The feelings that are very prevalent [among farmers] are that we have done enough already, and now it’s time for other pollution sectors — like the urban sector — to step up and clean up their act,” she said.

Steen said that since the TMDL is still relatively new and states are still developing their plans on how to meet the pollution limits, she doesn’t know yet how the plans will affect individual farmers in the region. Richard Hutchison, a farmer at a Talbot County, Maryland farming partnership of about 3,400 acres, said the plan hasn’t caused him to change his practices much at the farm, other than requiring him to complete a little more paperwork each year. But he still worries what the TMDL means for the future of farming in the state, and whether the regulations will prevent new farmland from opening up in the future.

“We have to have land available to farm, and there are so many different regulations that remove food producing land from producing food,” he said. “And the TMDL could be one of them.”

But Cleo Braver, who runs the organic Cottingham Farm in Easton, Maryland, said she thinks a pollution diet is exactly what the bay needs. A dirty bay has implications for the community’s environment and health, and she said farmers should step up to improve their practices.

“Farmers can be a part of changing [the bay] for the better, and I think we have a long, long way to go to clean up our farming,” she said.

Braver said she’s been looking for ways to reduce nutrient pollution since she started her farm. She uses buffer strips — things like grass and vegetative barriers which can remove up to half of the nutrients and pesticides and 75 percent of the sediment from farm runoff, something Hutchison has on his farm, as well. Braver has also used cover crops, which cut down on the need for fertilizers, for the past seven or so years. She said other farmers should be encouraged to do more of the same if they want to do their part in improving the bay.

While many of the farmers who own their land in Maryland have implemented these pollution-reduction measures, Braver said the farmers who don’t — often those who are paid to farm land that doesn’t belong to them — aren’t pushing for the landowners to plant things like buffer strips on their farms. Farmers can get financial help to install pollution control measures through Maryland’s EQIP initiative, which provides incentives for conservation on farms.

There are differing opinions on how much progress has been made in constructing buffers in the bay region. In December, the Chesapeake Bay Foundation said farmers in bay states were falling behind in planting buffer trees around their farmland, an effort that’s part of a pledge by the bay states to plant 185,000 acres of trees on farmland by 2025 to help reduce pollution. The Farm Bureau, however, maintains that farmers have done enough to help the bay recover. The group states that farmers in the bay watershed have implemented pollution-reducing measures in 96 percent of the cropland acres in production in the region, which has resulted in nutrient runoff reductions.

According to Braver, however, there is always more to be done to help restore the region’s iconic bay.

“Instead of us all pointing our fingers at each other, we should all just say, ‘you know what, I’m part of the problem, and there’s things I can do to help, and I’m going to,'” Braver said.

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