Bay Journal

Coronavirus Closes Bay Region Beaches, Some Park Facilities

April 1, 2020 by Bay Journal Leave a Comment

The coronavirus pandemic that’s keeping many people inside across the Chesapeake Bay watershed is also limiting some outdoor recreational opportunities — closing campgrounds, playgrounds, public beaches and some parks. In Maryland, it’s also putting a crimp in boating.

Authorities issued stay-at-home orders in Maryland, Virginia, Delaware, the District of Columbia, New York and West Virginia. In Pennsylvania, a growing number of counties joined their ranks. But such decrees still allow ample opportunities for getting outside to hike, bike, jog, fish or hunt — or just take in a little fresh air and nature. Following is a state-by-state rundown.

Maryland

The stay-at-home order issued March 30 by Gov. Larry Hogan specifically permits “outdoor exercise activities, such as walking, hiking, running, or biking,” as long as people maintain a 6-foot separation from each other.

But recreational boating is not permitted. That’s a bitter pill in a state with more than 200,000 registered power- and sailboats. Boaters took to social media to complain, and at least one started an online petition asking Hogan to lift the ban. One signer argued that boating is “good for mental health,” while others maintained it fit the spirit of “social distancing.”

Amid a flurry of questions, the state Department of Natural Resources issued new guidelines on Tuesday that say “limited” hunting and recreational fishing are permitted, including by boat, if pursued to obtain food. That prompted at least one boater to suggest he’d be sure to have a fishing rod aboard.

The DNR also specified that kayaking and paddle boarding are acceptable forms of outdoor exercise, if practiced with proper separation. Though not specifically mentioned in DNR guidance, canoeing is also permitted, according to DNR spokesman Gregg Bortz, providing that whoever else is in the canoe is someone you’re living with.

Delaware

Delaware’s state parks remain open with their fees waived, but its state-operated beaches are closed for all but exercise and surf-fishing under Gov. Jim Carney’s stay-at-home orders.

Those parks were all but shuttered to out-of-state visitors. A week after Carney ordered anyone coming into Delaware to self-quarantine for 14 days, he extended the policy March 30 to apply to those heading into the state to fish, hunt or visit a park.

Playgrounds have been closed in parks throughout the region to prevent the spread of the new coronavirus. Photo by Jeremy Cox/Bay Journal News Service

Surf-fishing, an activity known for packing beaches during warm weather, is limited to people fishing from vehicles with a cap of two people from the same household. Vehicles must be parked at least 20 yards apart, according to the Department of Natural Resource and Environmental Control.

“This change is designed to allow a source of food and a bit of safely distant recreation, but it is not intended to allow the normal type of surf-fishing we see with groups of people engaged in non-fishing activities. The beaches are still not a place for numbers of people engaged in social activities,” DNREC Secretary Shawn Garvin said.

All state parks playgrounds, campsites and park offices are closed. Any visitors must practice social distancing. Upstate trout season remains open in seven designated streams.

Pennsylvania

Thirty-three counties are under stay-at-home orders, but residents are still permitted to engage in outdoor activities such as walking, hiking or running, as long as they keep their distance from others.

State parks and state forests remain open but all facilities, such as rest rooms, pavilions, and campgrounds, are closed. For details and updates, go here.

The Fish and Boat Commission did delay the early start of trout season in Southeastern Pennsylvania to coincide with an April 18 opening day in the rest of the state. Stream stocking was accelerated, without the assistance of volunteers. For more info, go here.

Virginia

Gov. Ralph Northam ordered all Virginians to stay home but included “engaging in outdoor activities, including for exercise,” among the exceptions. He didn’t address boating, but said generally that individuals using outdoor spaces, “whether on land or on water,” must stay at least 6 feet away from each other, unless the others are family or household members or caretakers.

Virginia state parks have closed visitor centers, cabins, campgrounds and restrooms, but trails and outdoor spaces are still open for day use. For details, see here.

Northam also declared a moratorium on most private campground reservations and closed all public beaches except for exercising and fishing. For more info, go here.

District of Columbia

As in neighboring states, District residents have been ordered to stay home, unless they have some “essential” purpose. They may venture out to engage in “certain authorized recreational activities.” The list includes: “walking, hiking, running, dog-walking, biking, rollerblading, scootering, skateboarding, playing tennis, golfing, gardening, and other activities where all participants comply with social distancing requirements and there is no person-to-person contact.” It’s unclear whether fishing or any type of boating is acceptable.

New York

With a statewide stay-at-home order, New York park officials encouraged people to get outdoors but to #RecreateLocal.

The Department of Environmental Conservation created the hashtag in a campaign urging people to keep visits short and not travel too far from home. “To keep these places safe and healthy for everyone, we need to adjust the ways we enjoy our parks,” State Parks Commissioner Erik Kulleseid said.

Like other states, New York has waived fees at state parks but closed playgrounds, canceled all public programs and shuttered nature centers and other facilities. All state-operated campgrounds are closed through at least April 30; anyone with a reservation in the meantime is being given refunds. For more info, go here.

The state urged people to keep their distance from each other while outdoors and avoid group activities, such as basketball and football. If crowds are forming at a park, people should go somewhere else, officials said. Fishing and boating were allowed, but officials urged boaters to stay at least six feet from each other.

West Virginia

As in other states, Gov. Jim Justice’s stay-at-home order specifically allows walking, hiking, biking, jogging and just being “in nature for exercise,” with proper separation from others.

All state campgrounds are closed through April 30. All restrooms are closed, and all events canceled.

Day-use areas, such as hiking trails and fishing lakes, continue to be open for public use. The state has waived fishing license fees through April 24 for state residents. Under Justice’s order, no outdoor gatherings could exceed 10 people and they must stay at least 6 feet apart. Justice also closed private campgrounds to out-of-state travelers.

National parks

National parks remain mostly open, but they are coming under increasing pressure to close after reporting that seven employees have confirmed cases of the coronavirus.

The Park Service has closed popular parks such as Great Smoky Mountains, Yellowstone and Grand Teton, plus dozens of other sites to reduce risks of spreading illness. But many more remain open, and the government has waived entrance fees.

The chair of the Coalition to Protect America’s National Parks, Phil Francis, wrote Interior Secretary David Bernhardt on Tuesday urging him to close the parks to protect employees and help slow the spread of COVID-19.

With 54 sites in the Chesapeake Bay watershed, the National Park Service says it is modifying operations on a park-by-park basis during the pandemic. It is basing those decision on guidance from the Centers for Disease Control and Prevention as well as state and local health authorities, officials said.

Among the sites closed in the Bay watershed are Fort McHenry in Baltimore, the Washington Monument in the District of Columbia and the Harriet Tubman Underground Railroad National Historical Park on Maryland’s Eastern Shore.

At other sites, parks have suspended visitor services, with exceptions for law enforcement and trash removal.

Among the changes announced in the Bay region’s national parks:

• The Fredericksburg and Spotsylvania National Military Park in Virginia canceled its Illumination of the Fredericksburg National Cemetery scheduled over Memorial Day weekend. The event typically draws 4,000-9,000 visitors a year. The parks also curtailed services to only those considered essential.

• National parks in the greater Washington area remain open but most indoors facilities, roads, playgrounds and other facilities are closed. In the District’s popular Rock Creek Park, four iconic park fountains are closed.

• At the Gettysburg National Military Park in Pennsylvania, all non-life sustaining operations are shut down, including restrooms, museum and observation towers.

• The Shenandoah National Park in Virginia remains open but has closed several popular trails and parking lots because they were attracting large crowds. The annual openings of its lodges had been delayed until May 21.

Appalachian Trail

Trailhead facilities and other access points to the Appalachian National Scenic Trail have been shut down in the George Washington and Jefferson National Forests in Virginia to prevent groups from congregating.

After multiple sections of the popular footpath from Maine to Georgia drew large crowds in late March, the Appalachian Trail Conservancy issued an appeal to hikers to stay away until the risks of spreading COVID-19 to others has reduced significantly.

National forests

National forests remain open, but many campgrounds and facilities are closed. The George Washington and Jefferson Forests in Virginia are still open for “dispersed camping and other activities that support social distancing and small groups,” according to a Forest Service release. For details on what’s open where, go here.

By Timothy B. Wheeler, Jeremy Cox, and Ad Crable.

Chesapeake Crab Industry Remains Crippled by Visa Shortage, Coronavirus

March 22, 2020 by Bay Journal 1 Comment

Responding to employers’ calls, including those of crab meat processing companies in Virginia and Maryland, the federal government announced March 5 that it would release an additional 35,000 temporary visas for foreign workers.

That still may not be enough to quench the Chesapeake Bay seafood houses’ demand for temporary workers, according to the trade group that represents the industry. And they may still arrive too late to help much or perhaps get stuck on the other side of the border, as the United States March 20 closed its Mexican border for unessential travel because of coronavirus concerns.

Several seafood company owners and watermen had implored the Trump administration to issue 64,000 more visas, the cap set by Congress.

Jack Brooks, co-owner of J.M. Clayton Seafood Co. in Cambridge, and president of the Chesapeake Bay Seafood Industries Association, said he expects a worker shortfall, despite the government’s action.

Initially, the Department of Homeland Security doled out 33,000 work visas, which are in effect for six months beginning April 1. With the added 35,000 visas, the total still falls well short of the 100,000 slots that U.S. employers nationally had sought to fill.

The agency will likely conduct a lottery to determine which companies obtain visas, Brooks said.

“It’d be great to think that all of [the crab houses] get lucky and win, but I don’t think the odds are great that they all get staffed up,” he said.

The temporary visas, known as H-2B visas, are made available annually to workers in seafood, landscaping, construction and other seasonal fields. To be eligible, employers must prove there aren’t enough domestic workers willing or able to fill the positions.

Only three of the county’s nine picking houses had received their workers during the first visa release, businesses say.

Now, because of the sweeping coronavirus pandemic, it’s unclear if and when the additional 35,000 workers will arrive, said Amanda Wright, CEO of Virginia-based Phoenix Labor Consultants.

Releasing those visas “is not even being talked about now” at the federal government, said Wright, whose clients include Chesapeake seafood processors.

Mexico is one of the main sources of seafood workers. It’s likely they will be considered essential workers, but the United States has shuttered its embassy consulates in Mexico, which threatens to halt the visa application process.

Still, the government signaled it would continue processing workers who have previously participated in the program. The requirement for a face-to-face interview would be waived.

Meanwhile, Guatamala, another major supplier of H-2B workers, closed its borders for at least 15 days beginning March 16, adding more uncertainty to the situation.

Even if the administration were to begin taking employer applications immediately, Brooks said, the earliest that crab houses could expect to welcome the workers would be in early May. The Maryland crab season kicks off April 1.

“Customers are wondering, ‘Where am I going to get the crab meat?’” Brooks added.

A crab house that doesn’t receive any workers could be forced to close its doors for this season, with the possibility that it might never reopen because its customers and suppliers will have moved on, industry leaders say.

Several dozen watermen, crab industry leaders and local elected officials gathered March 2 inside a picking house on Hooper’s Island in rural Dorchester County, MD, to passionately plea for the Trump administration to release more visas.

Seafood is one of the island’s only industries. It is home to eight of the state’s 20 crab-picking houses.

“I hope everyone can see this is more than a job issue. [It’s] more of an American community issue,” said Aubrey Vincent, sales manager at Lindy’s Seafood on Hooper’s. “A lot of these family businesses are holding on by a thread.”

At picking houses, workers scoop meat from freshly caught crabs and collect the chunks into plastic containers to be sold to restaurants and retailers. The processors often struggle to find enough local employees, especially in places like Hooper’s Island, on Dorchester’s isolated coastline, which is a winding, 40-minute drive to the nearest Walmart and movie theater.

So, the businesses turn to foreign workers, mostly from Mexico. The jobs may be seasonal, but many workers return to the same employers year after year, industry members say.

“I consider these H-2B workers part of my family,” said Darlene Ruark of the W.T. Ruark & Co. picking house. “My son grew up with those workers, and they consider him family, too.”

But for the last 15 years, some picking houses have been left waiting for months to receive their workers or have been shut out altogether from the program. In 2018, for example, a new lottery-style allocation system left Dorchester’s processors with a 40% shortfall of foreign workers four months into the six-month season.

The region’s seafood industry blames the visa shortage on increasing competition from other business sectors. But above all, they blame Congress for not heeding their repeated calls to set a higher cap or separate seafood workers into a separate visa class.

“Isn’t this a bunch of B. S. that our government is here trying to put us out of business?” asked A.E. Phillips and Sons CEO Steve Phillips. “It’s stupid. It’s something that can be fixed in five minutes.”

Homeland Security temporarily raised the cap by as many as 30,000 workers in recent years to help meet business’ demands. Maryland Gov. Larry Hogan and several members of Congress from Maryland and Virginia had called on the administration to take that action once again.

Hogan described the additional visas as “welcome relief” but implored that “we still urgently need a long-term solution to this problem.”

The Maryland Department of Agriculture released an economic study on the day of the Hooper’s event, showing that the state’s economy would take up to a $150 million hit without the visa workers in the seafood industry.

By Jeremy Cox

Climate Study Predicts Heavier Rains, Deeper Floodwaters on Eastern Shore

March 14, 2020 by Bay Journal

Climate change will fuel heavier downpours and deeper floodwaters on Maryland’s Eastern Shore, according to one of the first detailed looks at changing rainfall patterns at the local level in the mid-Atlantic.

The new report, a collaboration between the University of Maryland and Eastern Shore Land Conservancy, estimates rainfall totals and intensity for five towns on the Mid and Upper shores. It predicts that by the 2040s, a 100-year storm will dump an additional 0.5-inch to 1.5-inches of rainfall over 24 hours, depending on the location.

That might not sound like much of a difference. But when it comes to planning for new roads, drainage ditches and other types of infrastructure, it is, said Jim Bass, manager of the conservancy’s coastal resilience program.

Jim Bass, of the Eastern Shore Land Conservancy’s coastal resilience program, stands in the rain at the conservancy’s office in Easton, MD. He said that the rural towns represented in a new Eastern Shore study face a bigger challenge, than most because their public works staffs and budgets are smaller than most of their counterparts. Photo by Dave Harp/Bay Journal News Service

“This was a great opportunity to bring some specificity to this phenomenon that everyone agrees is going on,” he said. “You can’t plan for what you don’t know.”

Many coastal communities across the country are struggling to get ready for rising seas, greater storm frequency and other climate-related impacts. The rural towns represented in the Eastern Shore study face a bigger challenge, Bass said, because their public works staffs and budgets are smaller than most of their counterparts.

In anticipation, his organization formed the Eastern Shore Climate Adaptation Partnership in 2016. The network’s six participating counties and three municipalities work to share costs and resources as they plan for climate change. Their goal, according to the partnership’s website, is to create “America’s Most Resilient Region.”

The rainfall study, funded by a $60,000 grant from the New York-based Rauch Foundation, brings a level of scientific understanding to those communities that many larger cities still don’t have, its backers say.

Climate scientists typically use broad brush strokes when predicting rainfall patterns decades into the future, said Kaye Brubaker, a University of Maryland researcher who co-authored the report. Even with the aid of supercomputers, they can only pin down results to square-shaped blobs with boundary lines stretching more than 30 miles apart.

Brubaker and her team took just such information from the North American Regional Climate Change Assessment Program and used a statistical process called “downscaling” to make forecasts at a more-precise scale.

“It’s almost like zooming in onto an image,” she said. “As you zoom out, you see very coarse pixels, and when you zoom in the pixels get finer and finer.”

The study forecasts rainfall for the period between 2041 and 2070, assuming a scenario in which relatively little is done to combat global greenhouse gas emissions. For a 100-year storm — the sort with a 1% chance of occurring during any given year — the study foresees the following rainfall totals over a 24-hour period:

• Elkton: 9.3 inches (1.6 inches greater than the National Oceanic and Atmospheric Administration currently charts for such storms in that community)
• Denton: 9.9 inches (1.2 inches greater)
• Cambridge: 10.1 inches (1 inch greater)
• Easton: 10 inches (1 inch greater)
• Centreville: 9.2 inches (0.5-inch greater)

Brubaker said the labels used to describe storms can be misleading. A 100-year storm can strike more than once every 100 years; to say it only has a 1% chance of arising per year is better, but it’s still possible for such ferocious storms to pop up once every few years or even within days of each other.

“It’s like you’re rolling a 100-sided die. Your probability of coming up with a 1 is one in 100. But there is a possibility that you could roll it two times in a row and a 1 would come up,” Brubaker said.

Those labels, though, are critical for engineers trying to decide how high to build bridges and how wide to dig stormwater ponds. If the calculations for a newly constructed highway don’t account for the shifting definition of a 100-year storm, it may be in danger of flooding more often in the future, Brubaker said.

“If the rain falls slowly, it can trickle off somewhere,” she said. But “if the rain falls intensely very fast, where’s it going to go? It’s going to pile up in your pipes and on your street.”

Another symptom of climate change — rising seas — could complicate things for local planners, Brubaker said. If coastal areas become inundated by higher tides, it will be more difficult for rainfall-driven flooding to drain away.

Brian Lightner, the zoning administrator for Cecil County in the state’s northeast corner, said the new rainfall totals will help his department develop even more localized computer models, which he hopes to use to plan stormwater projects.

“Local governments are always thinking about where we can do stormwater retrofits,” he said. “With our flood vulnerabilities being predicted, [we’ll be] looking where we can try to do some restoration to reduce some of that impact.”

Climate scientists generally agree that rainfall will continue increasing in the Chesapeake Bay region, but projections at the local level have only begun to trickle in. The Maryland Commission on Climate Change said in a 2008 report, for example, that winter rainfall amounts could increase up to 12% by 2090, but that information applied statewide.

A 2015 analysis compiled for the District of Columbia’s Department of Energy and Environment looked at a variety of storm scenarios, finding greater intensity and frequency with each. For instance, it showed that the number of days per year with 1 inch of rainfall would increase from an average of 10 to 13 by the 2080s.

In Virginia Beach, a 2018 study suggested that 100-year storms would typically produce 13.3 inches of rainfall over the span of 24 hours by 2075, up from the historical average of 9.4 inches. Such results prompted the report’s author, the Dewberry consulting firm, to recommend that the city increase rainfall intensities by 20% in its design calculations.

In its report, the Eastern Shore Land Conservancy lays out several policy recommendations of its own, emphasizing the use of “green infrastructure,” such as rain gardens and wetlands, to absorb additional water.

It is the second climate change report produced by the organization in as many years. Its sea-level rise study last year estimated a 6-foot increase on the Shore, a swell that would put nearly 6,000 buildings at risk of becoming flooded.

Brubaker said that her use of a higher-emissions scenario was a feature of the study, not a fault. It is better to plan for a worse scenario and wind up with dry roads than to hope for the best and end up under water, she said.

“I think we all need to pay attention to what we’re doing to the planet,” she added. “This [analysis] is a hint of what global-scale change might be bringing to our neighborhood.”

By Jeremy Cox

Feds Release Additional H-2B Visas to Help MD Seafood Industry

March 10, 2020 by Bay Journal

With less than a month until the start of the blue crab harvest in Maryland, federal officials have released an additional 35,000 temporary worker visas to help Eastern Shore’s crab picking houses and the seafood industry here and in other states.

The release of the supplemental H-2B visas for the second half of FY2020 comes with “new conditions to protect American workers, provide relief to seasonal employers who truly need it, and reduce fraud and abuse in the program,” the Department of Homeland Security said in a press release.

DHS said the program will “offer an opportunity for nationals of key Central American partner nations to work lawfully in the United States. Of the released H-2B visas, 10,000 are specifically designated for nationals of Guatemala, El Salvador, and Honduras, in support of these countries’ efforts to work with the U.S. to stem the flow of illegal migration in the region and encourage lawful migration to the United States.”

Gov. Larry Hogan, U.S. Sens. Ben Cardin and Chris Van Hollen, and First District Congressman Andy Harris are among those who have been pushing for the supplemental visas, as they have in prior years.

Those officials and DHS agree that Congress needs to make long-term reforms to the H-2B visa program. Visas are released at the start of the fiscal year and quickly allocated, often leaving businesses who don’t need such workers until later — such as the crab processing houses — out of luck.

For the past few years, federal officials have granted requests for the release of supplemental visas to help the Shore’s crab processors and other seafood industries.

Maryland Gov. Larry Hogan

“I am pleased to report that our efforts to make additional H-2B visas available to help our state’s seafood industry have again proven successful,” Hogan said in a press release. “While we still urgently need a long-term solution to this problem, this announcement is welcome relief for our state’s iconic crab processing houses and seafood industry.”

Harris had sent a letter, signed by 151 members of the House and 38 senators, urging Acting DHS Secretary Chad Wolf to release, as quickly as possible, additional H-2B visas to meet seasonal labor demands.

“I applaud the Department of Homeland Security for approving the release of 35,000 supplemental H-2B visas in time for the upcoming summer season,” Harris said in a press release. “This is 5,000 more supplemental visas than had been approved last year.

Rep. Andy Harris, R-Md.-1st

“The record low unemployment rate under the Trump Administration and oversubscription to the H-2B visa program is a debilitating issue for the economy of Maryland’s First Congressional District and the country,” Harris said. “I commend President Trump and Acting Secretary Wolf for providing these extras visas — and I remain committed to working with my colleagues in Congress to pass a permanent solution to the chronic H-2B visa shortage across this country — something that only Congress can do.”

Homeland Security said the department is “taking significant steps to promote integrity in the program, combat fraud and abuse, and ensure the supplemental allocation aligns with the national interest.

“Reform measures include: requiring matching start dates on an H-2B petition and the employer’s start date of need; collaborating with the Department of Labor on increased employer site visits; and, generally limiting the supplemental visas to returning workers, who are known to follow immigration law in good faith.”

The supplemental visas will be made available in two batches to prevent a small handful of employers from using all the visas: 20,000 for start dates beginning April 1, and 15,000 for start dates beginning May 15. Adding a second batch will address specific congressional concerns about late-season filers.

Maryland’s Best Seafood, a marketing program within the Maryland Department of Agriculture, released a survey earlier this week measuring the economic impact of the state’s crab industry and the importance of the federal H-2B temporary visa program.

All eight crab processors surveyed agreed that the current lottery system for awarding temporary visa requests creates uncertainty that hurts their businesses, and that limiting the number of available H-2B visas hurts Maryland’s seafood industry as a whole.

Seven of the eight crab companies indicated that they would not open for the 2020 crab season without adequate H-2B workers.

Without these seasonal workers, the survey showed that income for watermen would drop by $12.5 million; processors would lose $37-$49 million in sales; Maryland would lose 914-1,367 jobs; and the overall hit to the state’s economy could be $100-$150 million.

Federal immigration officials had announced last month that they had doled out the national limit of 33,000 work visas, which are in effect for six months beginning April 1. That was far short of the nearly 100,000 slots that employers had sought to fill.

In Maryland, seafood processors say they received roughly one-third of the 450 visas they need for this season, which also kicks off April 1. The shortage, they warn, could force some of the affected processing plants to close their doors for this season, with the possibility that they might never reopen because their customers and suppliers will have moved on.

Workers pick crabs at Russell Hall Seafood in this file photo.

Several dozen watermen, crab industry leaders and local elected officials gathered March 2 inside a picking house on Hooper’s Island to passionately plead for the Trump administration to release 64,000 more visas, the limit set by Congress on how many can be added.

“I hope everyone can see this is more than a job issue, [it’s] more of an American community issue,” said Aubrey Vincent, sales manager at Lindy’s Seafood on Hooper’s, home to eight of the state’s 20 crab-picking houses. “A lot of these family businesses are holding on by a thread.”

For the last 15 years, some picking houses have been left waiting for months to receive their workers or been shut out altogether from the program. In 2018, for example, a new lottery-style allocation system left Dorchester’s processors with a 40% shortfall of foreign workers four months into the season.

So far this year, only three of the county’s nine picking houses have received their workers, businesses say.

“Isn’t this a bunch of B.S. that our government is here trying to put us out of business?” asked A.E. Phillips and Sons CEO Steve Phillips. “It’s stupid. It’s something that can be fixed in five minutes.”

Calls to expand the program face an uphill battle in an administration that has largely moved to constrict both legal and illegal immigration. The issue represents a rare point of conflict between Trump and voters in Dorchester County, which overwhelmingly supported him in 2016.

Some of the Hooper’s Island speakers appealed directly to the president.

“We follow the rules. We do it the right way,” said Jeanne Phillips of Hooper’s Island General Store. “So, please just let us do what we know how to do well. It’s hard enough to keep people in a county like this.

“President Trump, we’re counting on you to keep Hooper’s Island great for many generations to come.”

Staff writer Jeremy Cox of the Bay Journal News Service contributed to this article.

Override of Hogan Veto Sets New Course for Oyster Management

January 31, 2020 by Bay Journal

Overriding a veto by Gov. Larry Hogan, Maryland lawmakers enacted legislation Thursday requiring a more consensus-based approach to managing the state’s beleaguered oyster population.

The new law is the latest round in a years-long tug of war between the Hogan administration and legislators over oyster management. It directs the Department of Natural Resources to work with scientists, mediators and an expanded roster of stakeholders to seek agreement where little has existed to date on how to increase the abundance and sustainability of the Chesapeake Bay’s keystone species.

The bill cleared the House by a vote of 95 to 43. That was a few votes less than it got when originally passed last year but still more than the three-fifths majority needed for a veto override. The Senate quickly followed suit, voting 31-15 to make it law despite the governor’s objections.

Supporters of the measure said it was needed to direct the DNR to revamp the oyster management plan it had adopted last year. Environmentalists and their allies in the General Assembly have complained that the administration has favored watermen’s interests in seeking to open oyster sanctuaries to harvest and is not moving forcefully enough to end the overfishing found in a 2018 scientific assessment.

“It’s time to work together toward the common goal of increasing Maryland’s oyster population to improve the state’s environment and the fishery’s long-term outlook,” said Alison Prost, the Chesapeake Bay Foundation’s Maryland executive director.

The bill requires the DNR to reorganize its Oyster Advisory Commission, then work with it and the University of Maryland Center for Environmental Science to develop recommendations for maintaining a sustainable harvest and rebuilding the depleted oyster population, estimated to be 1–2% of historic levels. Any recommendations would have to be approved by 75% of the members.

Republican lawmakers who opposed the override contended that the measure wasn’t needed and that it would only delay action and drive a deeper wedge between environmentalists and watermen.

“The department has a plan, or is working on a plan, to get to a sustainable fishery in the next eight to 10 years,” said Sen. Stephen S. Hershey, Jr., who represents the Mid– and Upper Eastern Shore. The new decision-making process the legislation prescribes “has pushed the goalpost back even farther.”

In vetoing the legislation last year, Hogan had used similar language, accusing lawmakers and environmental advocates of making an “end run” on his administration’s efforts to forge “thoughtful and science-based” oyster management policies.

But lawmakers supporting the measure said the oyster management plan the DNR adopted last year doesn’t put enough emphasis on restoring oysters for their ecological value and doesn’t move quickly enough to end overfishing. A scientific stock assessment finished in 2018 found that the stock of harvestable adult oysters in Maryland’s portion of the Bay had declined by half since 1999 and that they were being overharvested in more than half of the public fishery areas.

The bill’s chief sponsor, Sen. Sarah K. Elfreth, D-Anne Arundel County, said “a new approach was needed” in light of the continuing conflict between environmentalists and watermen. She noted that the legislation awards nearly 60% of the seats on the advisory commission to watermen and other seafood industry representatives.

Elfreth noted that many of her constituents in the Annapolis area have urged her to push for a total moratorium on oyster harvests to rebuild the state’s depleted population. But she said the science doesn’t support that.

“I think this bill presents the right balance,” she said, “and makes sure we have an oyster fishery for generations to come.”

Because the measure sat in limbo for a year, proponents say the timeline it specifies for revisiting the oyster management plan needs to be adjusted. Legislation is to be introduced to do that, as well as remove a provision authorizing the advisory commission to close its meetings to the public.

Anticipating the veto override, DNR Secretary Jeannie Haddaway-Riccio had already moved to reconstitute the department’s Oyster Advisory Commission in line with the membership prescribed by the legislation. She also brought in a pair of mediators late last year to begin a new round of discussions among the oft-disputing parties over what they would change in the state’s oyster restoration efforts and in its management of the public fishery.

But Haddaway-Riccio has warned that the measure could tie the DNR’s hands, because it bars the agency from changing the boundaries of the state’s oyster sanctuaries until the commission has revised its oyster management plan. She has indicated it could take two years to complete that process.

After Thursday’s vote, Haddaway-Riccio issued a statement saying that the “real consequences of this vote are delaying our ability to enhance our state-managed oyster sanctuaries and further straining the relationship between the very stakeholders the legislature wants to come to consensus. Both of these things will delay us from reaching our goals on oyster restoration.

“Regardless of this misguided vote,” she added, “we will continue to implement our Oyster Management Plan and remain focused on our goal of a sustainable harvest and population in eight to 10 years.”

By Tim Wheeler

MD, VA Mulling Options to Halt Decline in Striped Bass Population

January 24, 2020 by Bay Journal

Prompted by a scientific finding that the East Coast’s most prized finfish are in trouble, Maryland, Virginia and the Potomac River are all moving to adopt new catch restrictions aimed at stemming the species’ decline.

But many anglers are complaining about the complexity, fairness and even the adequacy of the cutbacks under consideration, which range from a quota tuck of less than 2% for commercial fishermen in Maryland to a 24% reduction in fish removed by recreational anglers in Virginia.

The two states are taking somewhat different tacks to comply with a directive from the Atlantic States Marine Fisheries Commission, which regulates fishing for migratory species from Maine to Florida. Last October, the interstate panel ordered an 18% decrease in mortality of striped bass coastwide, including in the Chesapeake Bay, which serves as the main spawning ground and nursery for the species.

Striped bass aren’t in as bad a shape as they were in the 1980s, when Maryland imposed a total fishing moratorium on them for nearly six years. But scientists have warned that after rebounding from that earlier swoon, the number of spawning-age female fish has fallen once more to a worrisome level, and the species is again being overfished.

The interstate commission decided that commercial and recreational fisheries should share equally in the cutbacks it ordered. But it agreed to consider letting states curtail the two sectors by differing amounts, as long as the net effect achieves a “conservation equivalency.”

The commission meets again in early February to review and decide whether to approve the alternative approaches states have come up with.

All of the Bay jurisdictions are looking to throttle back recreational fishing pressure on striped bass because it’s considered the chief culprit in the population decline. Regulators are weighing a variety of combinations of rules that would shorten the fishing season or restrict the size and number of fish that can be caught. Maryland is also proposing to clamp down on the widespread practice of catch-and-release fishing when it’s otherwise not legal to keep striped bass.

The Potomac River Fisheries Commission recently posted the options it was considering, so anglers on the Bay’s second largest tributary will have a chance to comment at a Feb. 19 meeting of the bi-state commission’s finfish advisory committee. But the plans already aired for Maryland and Virginia waters have drawn the ire of anglers in both states. One oft-heard objection is over the recreational catch being cut more than the commercial harvest.

In Maryland and in the Potomac River, regulators have proposed trimming the commercial harvest by just 1.8%, while the recreational catch is targeted for a cutback of 20.6% below what was caught in 2017. The Virginia Marine Resources Commission, meanwhile, voted last year to reduce the commercial catch in the Bay by nearly 8%, while going for a 24% overall reduction in recreational losses in both the ocean and the Bay.

“Effectively, this will be transferring fish from the recreational sector to the commercial sector,” complained Tom Powers, a Poquoson-based angler. The Virginia Saltwater Sportfishing Association flooded the state commission’s email inboxes with more than 300 messages from its members, lobbying for equity.

But fisheries scientists say it’s recreational rather than commercial fishing that’s bringing striped bass down. Studies indicate that anglers catch many more striped bass, also known as rockfish, than commercial fishermen. Anglers kill still more when they release fish they’ve hooked that are too small to legally keep or are caught out of season. In 2017, more died after being released than were kept, scientists have estimated.

Alex Aspinwall, a data analyst with the VMRC, noted that the recreational harvest accounts for about three out of every five striped bass caught in Virginia waters. In Maryland, the breakdown is similar.

Bay jurisdiction regulators are loath to make deep cuts in the Chesapeake’s commercial striped bass fishery because it provides a livelihood for hundreds of people.

The Virginia commission did support a modest cut in that state’s commercial catch, extending by 11 days the period in the spring when larger fish are protected from being netted. The goal, Aspinwall said, was to improve the chances for big reproductive females to survive to spawn future generations of fish.

Cutting back on recreational fishing is trickier because regulators have to rely on what anglers want to tell them, rather than hard data. The hundreds of thousands of people who get recreational fishing licenses every year are not required to report their catch, as commercial fishermen are.

Some steps have been taken already to try to reduce the release mortality of striped bass. The Maryland Department of Natural Resources trimmed the minimum catchable size from 20 inches to 19 inches, reasoning that would result in fewer fish being thrown back and dying.

The state has also required the use of rounded “circle” hooks, which cut down on potentially lethal injuries to the fish’s mouth when caught. The Atlantic States commission has directed all East Coast states to mandate the use of circle hooks by 2021.

The VMRC, meanwhile, canceled its spring “trophy” season last year — a shutdown extended this year. Traditionally, for about four weeks in May and June, recreational anglers and charter boats have pursued the large striped bass that enter the Bay from the Atlantic to spawn. Virginia regulators said they shut down their trophy season to protect the big female fish, which produce the most eggs.

Maryland and the Potomac River, in comparison, are keeping their trophy seasons, though Maryland has cut its monthlong season nearly in half to match the two-week season in the Potomac.

Michael Luisi, the DNR’s director of fishery monitoring and assessment, defended keeping the season targeting the big spawners. The trophy fishery doesn’t take that many fish, he said, and it’s the only chance Maryland anglers have at the really large mature rockfish that anglers in other states can go after the rest of the year.

Virginia also adopted other conservation measures last year — adjusting catchable size limits, and most significantly, reducing the number of striped bass an angler could keep from two a day to one.

Some Virginia charter boat captains say the changes, imposed last fall, have caused bookings to dry up.

“I’m not going to pay $800 to go out on a boat and be only able to keep one of the fish I catch and it can only be 36 inches,” charter operator John Satterly said of his clients.

Regulators elsewhere in the Bay are weighing closing their striped bass fishery at different points of the year. In Maryland, they’re also looking to give charter fishing a break, even while restricting private anglers.

The Potomac River Fisheries Commission is eyeing four options, all focused on closing the striped bass fishery for varying lengths of time in the summer. That’s when fish are most stressed by high air and water temperatures and low dissolved oxygen levels in the water, noted Martin Gary, the commission’s executive secretary.

Depending on which option is chosen, Potomac anglers would not be allowed to keep any striped bass in most or all of July and August and possibly even later. They’d still be able to take two fish a day in the rest of the summer and in the fall.

Maryland’s DNR is considering a different set of options, which would close the summer striped bass season for shorter periods of two to three weeks in July or August. But it’s also looking at barring anglers from “targeting” striped bass during those closures, meaning that they could be cited for a fishing violation if spotted repeatedly catching and releasing the fish. That’s something no other Bay jurisdiction has proposed.

The DNR’s Luisi said that enforcing the “no targeting” rule could be challenging, because an angler can’t control what fish get hooked. But one fishing method that would be automatically suspect, at least in the spring, would be trolling, which involves towing multiple fishing lines through the water behind a boat.

“There’s nothing else in the Bay during March and April that people would be trolling up and down for,” he said.

Like Virginia, the Maryland DNR is weighing limiting all anglers to keeping one fish a day, down from two previously. But state regulators have indicated they’re leaning toward letting charter boat customers continue to keep two fish.

David Sikorski, executive director of Coastal Conservation Association Maryland, representing about 1,400 saltwater anglers, complained that the DNR is “picking haves and have nots.” He contended that if the DNR goes ahead with that option, “the charter and commercial fisheries are giving up much less than private anglers.”

Luisi acknowledged the uneven treatment. But he said that DNR officials sought to “strike a balance” that would keep the state’s 600-boat charter fishing fleet afloat.

“The one fish [limit], it would have been a death sentence for us,” said Ken Jeffries, acting president of the Maryland Charter Boat Association. Jeffries, who is based in Severna Park, said there are few other species to fish for in the Upper Bay.

Anglers complain Maryland’s proposed ban on catch-and-release makes little sense in early spring, when cooler weather means fish returned to the water are less likely to die. And, they argue that the charter-friendly plan the DNR favors is not protective enough, because it would only close the summer fishery for a couple of weeks in late August, rather than in July, normally the hottest time of the year.

“You’ve got to close during the time you’re killing the most to have the most positive conservation impact,” Sikorski said.

The larger problem, Sikorski said, is that the Maryland DNR is making regulatory decisions without reliable information on the state’s anglers. The East Coast states have compiled recreational catch estimates based on surveying anglers at marinas, boat ramps, beaches and other places. But the survey was designed to assess fishing activity coastwide, critics say, and it provides a much less accurate picture of what’s going on in any state or part of the year.

“We know the system we have right now is not working,” Sikorski said. “We deserve better.”

Luisi acknowledged the shortcomings of the survey, but he said it’s all regulators have to work with. He said the DNR is talking with Sikorski’s group and others about launching some type of voluntary electronic reporting for anglers that would give regulators more data to work with.

Jeffries of the Maryland charter boat association said he, too, is worried that the restrictions the DNR is considering don’t go far enough to reduce losses from catch-and-release fishing. But, he said, “this was the best plan we could come up with that was easily manageable.”

By Timothy B. Wheeler & Jeremy Cox

Don’t miss the latest! You can subscribe to The Talbot Spy‘s free Daily Intelligence Report here.

Op-Ed: 36 years after Bay Agreement, Restoration still a Pipe Dream by Gerald Winegrad

January 22, 2020 by Bay Journal

December 9 marked the 36th anniversary of the signing of the first Bay Agreement at George Mason University in Virginia.

As a state senator serving on the Chesapeake Bay Commission, I joined 700 Bay enthusiasts as witnesses. The one-page Chesapeake Bay Agreement was signed by Maryland, Virginia and Pennsylvania’s governors, DC’s mayor, and the head of the U.S. Environmental Protection Agency, all of whom solemnly pledged to restore the Bay. I was also a member of a workgroup that recommended legislative actions for each signer that would aid the Bay’s restoration, including a phosphate detergent ban that I sponsored and was enacted in 1985.

All of the attendees — elected federal and state politicians, scientists, administrators and environmental leaders — were optimistic that the herculean task ahead would lead to the Chesapeake’s restoration. The optimism was fueled by the display of bipartisanship that led to President Ronald Reagan declaring in his 1984 State of the Union address, “Though this is a time of budget constraints, I have requested for EPA one of the largest percentage budget increases of any agency. We will begin the long, necessary effort to clean up a productive recreational area and a special national resource — the Chesapeake Bay.” The formal Bay Program under the EPA was established with $10 million in funding.

In Maryland, under the leadership of Gov. Harry Hughes, 10 major Bay initiatives, were enacted in 1984, including the Critical Area Law, as well as the addition of significant funding and staff to move us forward. Many other laws followed, including those that protect wetlands and forests and ban detergent phosphates.But looking back to our optimism in 1983, if we were to have created a nightmare scenario for the Bay, it would be the one we are living in 36 years later!

Make no mistake — without the Bay Agreement and the Bay Program, the Chesapeake would be much worse. Reductions in nutrients and sediment have been achieved despite significant population growth, from 13 million watershed residents in 1983 to 18.3 million today.

Larval shad swim at the Van Dyke Shad Hatchery in Pennsylvania. The moratorium on shad harvest has been in effect for three decades with little recovery. (Dave Harp)

Still, Bay restoration is floundering and the situation is dire:

We have so poisoned our waters that reports abound of serious flesh-eating infections in humans who come into contact with Bay waters. My Annapolis car mechanic, an avid fisherman, contracted a serious infection while fishing the South River and was hospitalized with a chronic wasting disease eating his leg away. He died a year later. This is not an isolated case of life-threatening infections around the Bay.
Most of the Bay’s waters remain severely degraded with 58% of its waters so polluted they fail to meet basic Clean Water Act requirements.

The dead zone in the Chesapeake grew in late July, covering two cubic miles and making it the second-largest late-July dead zone since 1985. The average size for that time period is 1.34 cubic miles. Overall, the summer dead zone was the third largest recorded.

Collapsed fisheries — oysters, shad and soft clams — are at or near record lows.

Rockfish numbers have seriously declined, leading to a mandate from the Atlantic States Marine Fisheries Commission to reduce harvest.

The moratorium on shad harvest has been in effect for three decades with little recovery. The shad restoration goal, agreed to by the Bay states in 2000, for returning spawning shad at the Conowingo Dam was abandoned when there was near zero recovery.

Adult oysters, the most important keystone Bay species, declined 50% in Maryland from 1999 to 2018 despite public funding for oyster restoration exceeding $50 million. Oysters are at 1% of the historic levels of the 1880s. More than 70% of the oyster bars in Maryland are useless for growing oysters because of excess sediment flows, mostly from agricultural operations, hindering recovery. In 2019, the spat set was so low there were not enough seed oysters to replant baby oysters in key areas of the Chesapeake. Oysters filter the water and its nutrients as well as serve as “coral reefs” in the Bay: a foundation for thick, healthy oyster bars.

Bay states failed to meet their 2010 deadline for increasing oysters tenfold. In 2014, the states responded by eliminating this goal as oyster populations declined. The time for a closure of the wild oyster harvest is now, with a transition period to move watermen to aquaculture.

Bay grasses, another essential living resource, are at only 56% of the 185,000 acres originally pledged by the states in 2000 to be attained by 2010. The response by the states in 2014: set an interim goal of 100,000 acres in 2017 and declare success when it was met while remaining far from a delayed goal of 185,000 by 2025. Underwater grass acreage will likely end up being significantly lower when results from last year’s survey are complete.

Many toxic hotspots remain.

What happened to our lofty commitments?

The years from 1983 to 2010 were marked by voluntary efforts under new Bay Agreements signed in 1987 and 2000 in which the states committed to take the actions necessary to meet nitrogen and phosphorus reduction goals aimed at restoring water quality. The voluntary efforts resulted in repeated failures to meet these goals with serious consequences for water quality, living resources and humans. But there were no consequences for the elected officials and states that violated their pledges.

In 2010, the EPA was required, in the settlement of a lawsuit, to impose a pollution diet with hard caps on nutrients and sediment called a TMDL (total maximum daily load). The EPA listed potential sanctions — some very consequential — for failure to take the actions to achieve 60% of the pollution reductions by 2017 and 100% by 2025.

Again, the states failed to meet many of these requirements in 2017, especially for nitrogen. The emasculated EPA fecklessly failed to take any action against even the most recalcitrant states such as Pennsylvania.

We have excelled at nutrient reductions from wastewater treatment plants through the expenditure of billions of dollars and tougher federal limits on such dischargers. The reduction from these plants is “the” singular success story of the Bay restoration efforts as reductions occurred despite wastewater flows increasing significantly to serve a much greater population. The phosphate detergent ban helped in these efforts.

Federal Clean Air Act restrictions have also resulted in significant reductions of nitrogen from atmospheric deposition, especially with tougher new emission controls and the decline of coal burning for electrical generation. Unfortunately, President Trump is undoing these Clean Air Act regulations and promoting coal burning.

We have done the easier things even though decisions made to achieve the great reductions in nutrient flows from sewerage plants, such as the phosphate detergent ban and later the Flush Tax, were not easy.

But now that these reductions have been achieved, the states are faced with much more difficult requirements to reduce nonpoint pollutants, especially those from farm operations — the number one source of nitrogen pollution — and stormwater from developed lands. The latter is expensive to achieve as is upgrading septic tanks for better nitrogen removal. Clamping down on farm pollutants, especially from manure, is the most cost-effective choice we can make and yet efforts lag.

The states are reluctant to enact better regulatory measures governing agriculture. This is compounded by much more intensive agricultural operations, especially large chicken and other manure-producing operations and the expansion of nitrogen-intensive crops such as corn and soybeans.

Unfortunately, the EPA, elected officials and most of the environmental community believe the answer lies in throwing more money at famers to pay them not to pollute. Fully 40% of farm income this year comes from federal subsidies. Farmers have been given more than $1 billion in the Bay states from state and federal sources to reduce nutrient and sediment flows. This carrot approach must now be augmented with some sharp sticks strictly regulating farm pollutants.

Consider that Pennsylvania must reduce its nitrogen loads by more than 30 million pounds in the next five years to meet its TMDL goal, a staggering increased rate of 67 times previous annual reductions. With no new meaningful initiatives, there is a near zero likelihood of achievement even though Pennsylvania is responsible for 40% of the Bay’s nitrogen flows.

Maryland must reduce nitrogen flows by 2025 by 9 million pounds, including a ramp-up in its annual rate of farm nitrogen reduction of 6.4 times to meet its TMDL requirement. Yet the state’s watershed implementation plan lacks any new policies or funding to get the job done.

Since the TMDL was established, 84% of Maryland nitrogen load reductions came from wastewater treatment and those reductions will soon play out and may begin to increase over time. During that same period, only 16% of the state’s nitrogen reductions came from agriculture — the cheapest per pound to achieve — but the political will is lacking to better regulate this major pollutant source.

Then there is the problem of increasing pollution loads from new developments and the failure to reduce loads from existing impervious surfaces. Stormwater rates, volume and pollutant flows from new development must not be allowed to exceed the pre-development flows from storm events, including those from increasingly intense storm events. Funding to accomplish the massive multibillion-dollar existing stormwater problem must also be achieved.

Exacerbating these grave problems is the lack of political will to restore the Bay. The Trump administration’s first budget proposed eliminating all of the funding for the Bay Program. The U.S. House of Representatives passed riders in 2017 and 2018 to prohibit any enforcement by the EPA of the EPA-imposed limits under the Bay TMDL, though they did not win approval in the Senate. And, the states are not initiating the bold actions needed to address these pollutant flows for agriculture and developed lands.

Now, the situation has grown worse: The hopes that were rekindled when the EPA set the states on a mandatory pollution diet with potential grave consequences for failure to comply have been shattered. Dana Aunkst, the director of the EPA’s Chesapeake Bay Program, has now stated that the TMDL with its 2025 pollution caps is “an aspiration” and not an enforceable deadline. Aunkst stated that “The TMDL itself is not enforceable.” This seems to make the whole TMDL exercise a house of cards now collapsing. Without a court victory, we are back to voluntary efforts. At no point since 1983 has saving the Bay been at a lower ebb.

We know that reducing nutrients and sediment works to restore water quality. We know the sources of these pollutants. We know what needs to be done to restore our treasured Chesapeake Bay.

What is most needed is strong political leadership that is so sorely lacking. Also needed is a more forceful and politically effective environmental community promoting aggressive changes to better regulate farm pollution, development pollution and forest loss. We can get it done but not with the current attitudes and near-sighted leadership.

Gerald W. Winegrad is an adjunct professor at the University of Maryland School of Public Policy where he teaches graduate courses on Chesapeake Bay restoration and wildlife management. He served 16 years in the Maryland legislature where he was responsible for many Bay initiatives, including the state’s phosphate detergent ban.

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

January 15, 2020 by Bay Journal

Is the Chesapeake Bay Total Maximum Daily Load and its cleanup deadline enforceable? The answer is complicated.

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

Don’t miss the latest! You can subscribe to The Talbot Spy‘s free Daily Intelligence Report here.

EPA Confirms Shortfalls in PA, NY Bay Cleanup Plans

December 23, 2019 by Bay Journal

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

Don’t miss the latest! You can subscribe to The Talbot Spy‘s free Daily Intelligence Report here

Coalition to Think Beyond State Borders to Offset Conowingo Flows

October 30, 2019 by Bay Journal

A coalition of nonprofits is developing a plan to reduce nutrient and sediment pollution that now flows over the Conowingo Dam. (Dave Harp)

Write and enact a plan to eliminate millions of pounds of nutrient pollution washing into waterways.
Do it without duplicating the pollution reduction plans that states will be using to meet their own goals, which typically contain the cheapest and potentially most effective options.
Oh, and come up with a way to pay for it, too.

Surprisingly, people have signed up for this seemingly impossible job. A coalition of nonprofits is developing a plan to reduce nutrient pollution to the Upper Bay to offset the impact of the Conowingo Dam — and to pay for it.

They hope to identify highly effective ways to reduce agricultural and stormwater runoff, which carries nutrients into waterways, and use them in places not already being targeted by states for Bay cleanup efforts. They also aim to tap new funding sources, including the private sector, to help pay for the plan.

“It is certainly a challenge,” said Byran Seipp, a watershed manager with the Center for Watershed Protection who is helping to coordinate the effort. “There is no doubt about that. It is something people have been wrestling with for quite a long time.”

The 94-foot-high Conowingo Dam, located just 10 miles up the Susquehanna River from the Chesapeake, has been casting a shadow over Bay cleanup efforts for years. Scientists had long known that once its 14-mile-long reservoir was filled, it would no long trap pollutants and they would begin to flow downstream.

But that day of reckoning was thought to be far in the future — at least past the 2025 Bay cleanup goal. As a result, impacts from the filled reservoir were not factored in when the U.S. Environmental Protection Agency assigned nutrient reduction goals to states in 2010.

Recent studies, though, determined that the reservoir has filled and is spilling more nutrients — nitrogen and phosphorus — into the Chesapeake than previously thought.

Computer models estimate that an additional 6 million pounds of nitrogen and 260,000 pounds of phosphorus would need to be controlled to make up for the dam’s lost trapping capacity. That would require roughly 15% more nutrient reductions beyond the stated 2025 cleanup goals — more than some states in the region have to accomplish individually.

With states already struggling to meet those goals, the state-federal Bay Program partnership last year decided to seek proposals from outside parties to develop a strategy to make up that gap.

Proposals were collected earlier this year, and the EPA recently awarded grants totaling nearly $600,000 to the Center for Watershed Protection, Chesapeake Bay Trust and Chesapeake Conservancy to tackle the job. They, in turn, will enlist the support of nearly a dozen other nonprofits, university partners and private sector consultants.

They’ll be working in partnership with a steering committee of state and federal representatives to coordinate the effort and ensure that their plan does not rely on practices states are counting on to meet their own cleanup goals.

The hope is that the Conowingo group will bring new insights that help tackle problems where progress has been elusive.

While the region has succeeded in reducing nutrient pollution from wastewater treatment plants, which can be addressed through regulation and technology, it has struggled to reduce nutrient-laden runoff from farms and developed lands. Progress remains far off the pace required to meet Bay water quality goals.

The Conowingo team will look to new high tech tools, new ideas and new financing strategies to accelerate progress.

“There is a real opportunity to create a sort of case study of how these states can come together to solve these basinwide issues in a cost-effective way,” Seipp said.

One of the first tasks is determining, geographically, the best places for making additional nutrient reductions. While the dam is located on the Susquehanna, reductions from nearby areas of Maryland’s Eastern and Western shores would have similar impacts on Bay water quality. The group is working with computer modelers to more precisely identify those areas.

The ability to explore that type of question is one reason that this plan will be unique. Unlike states, which are constrained to reducing nutrients within their borders, the Conowingo team can make reductions across jurisdictional borders.

Once those regions are identified, the team will use high-resolution satellite data and other tools to identify more precisely specific sites where runoff control practices will have the greatest benefit to water quality.

Many state and federal cost-share programs tend to rely on farmers signing up on their own to participate. By identifying specific sites, or groups of farms, they envision using more proactive outreach to targeted groups of farmers and other landowners, based on priority locations.

“It is not working an acre here and acre there,” said Jeff Allenby, director of conservation technology with the Chesapeake Conservancy. “You can actually put together some significant initiatives that achieve larger results than they would if you were just working project by project.”

The team also will explore barriers, whether financial, technical or cultural, to different nutrient reduction techniques. Some stream restorations, for example, meet resistance from landowners or local governments because the work requires more land than they are willing to make available or can acquire. The new tools can help identify opportunities for such projects that require less land.

Allenby said the group also might identify effective but underused manure treatment technologies to try to figure out how to boost their adoption.

Ultimately, though, the effort will require more money.

Some could come from Exelon, the utility that owns the dam. The state of Maryland recently announced an agreement with Exelon, in which the company will pay $200 million toward pollution reduction and habitat improvements over the next 50 years.

Even so, the Conowingo plan will require more money and creative ways to find it. A group of financial advisers will be recommending ideas, including private sector involvement.

One possibility is to view some agricultural efforts as infrastructure projects, and fund them through bonds. That would bring money to address problems more quickly, but allow those improvements to be paid off over time.

Also, the plan will likely involve the use of nutrient “trading,” and other market-based tools that encourage private investors to install nutrient control practices for credits that can be sold to jurisdictions or businesses needing to offset pollution impacts in other places. And that needs to happen across state borders, said Dan Nees of the University of Maryland Center for Global Sustainability.

“Somehow, we have to agree that geopolitical boundaries are not going to work when it comes to finance,” Nees said. “There needs to be an opportunity for revenue to flow back and forth where it has the greatest economic value, and that is through markets and water quality trading.”

Such techniques have been talked about for years in the Bay region, but have never had widespread adoption. Because of its cross-border approach, Nees said the Conowingo plan is ideally suited to pilot such concepts.

“We’ve been talking about this for too long,” Nees said. “We have to actually do it.”

A draft strategy is expected by March, with a final plan in June.

There is one key difference between the Conowingo cleanup plan and those written by the states. The EPA can take action against the states if their plans fall short, because they are legally required to meet Bay water quality standards. There’s no such legal requirement for the groups working on the Conowingo plan.

“We are working toward being able to devise a plan and have the funding to implement it and the tools to track it,” Seipp said. “But if that doesn’t happen, the people who ultimately hold the regulatory responsibility is the states.”

Follow Us