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.
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.