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October 2, 2023

Talbot Spy

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

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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
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The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

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

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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
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The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

EPA Confirms Shortfalls in PA, NY Bay Cleanup Plans

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Karl Blankenship

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The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Maryland Continues Funding for Protective Crop Plantings

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About $5 million the state of Maryland has set aside for farmers to plant protective crops has gone wanting in recent years.

For the second year in a row, the state has spent less than it set aside on a program that Maryland uses in its favor when tallying efforts to clean up the Chesapeake Bay.

In 2010, under the Clean Water Act, the Environmental Protection Agency set the Chesapeake Bay Total Maximum Daily Load — called a “pollution diet” — for the estuary to minimize major sources of pollution, including nitrogen, phosphorus and sediment, and meet water quality standards.

The Chesapeake Bay watershed includes seven jurisdictions: Maryland, Virginia, West Virginia, Pennsylvania, Delaware, New York and the District of Columbia.

Low water quality in the Bay can cause dead zones in the water — areas of water with not enough oxygen to sustain marine life.

The standards established by the EPA set pollution limits for the Bay that would reduce nitrogen by 25%, phosphorus by 24% and sediment by 20% in total.

Each of the seven jurisdictions was given distinct limits and required to describe how they would meet their goals in what are called Watershed Implementation Plans.

Since 2010, Maryland has reduced its phosphorus loads by nearly 10%, from 4.01 million pounds per year to 3.62 million pounds per year, already reaching its 2025 target. Additionally, Maryland’s nitrogen pollution per year has decreased by over 9%, from 58.1 million pounds per year in 2010 to 52.7 million pounds per year in 2018. To meet its 2025 target, Maryland must reduce nitrogen runoff by an additional 6.9 million pounds per year.

The EPA set the targets, said Jason Keppler, the state’s Watershed Implementation Plan manager, and Jason Schellhardt, the Maryland Department of Agriculture’s communications director, and the state is given the flexibility to design programs that will meet its goals.

One of these is Maryland’s cover crop program for local farmers.

After harvesting for the season, farmers can plant more crops — wheat, barley, rye, and legumes — to cover their land, i.e. cover crops. These plantings hold the soil together and sequester and absorb excess nutrients, according to the Maryland Department of Agriculture.

The cover crops take up the excess nitrogen from previous fertilizers and prevent them from flowing downstream into the Chesapeake, said Colby Ferguson, government relations director at the Maryland Farm Bureau. Additionally, the cover crops reduce sediment and phosphorus erosion.

To encourage participation in the cover crop program, Keppler and Schellhardt said, the department pays farmers per acre to plant crops as a part of the state’s Watershed Implementation Plan.

This year, the state allocated $22.5 million to the program, according to this year’s cover crop brochure.

To qualify for this year’s program, farmers had to apply between June 21 and July 17 at soil conservation district offices. The last day to plant cereal grains was Nov. 5, and other types of cover crops had earlier deadlines.

As a part of the program, farmers are not allowed to sell their harvested cover crops as a grain. If a farmer decides to sell the grain, they forfeit money from the cover crop program.

Farmers may have livestock graze the cover crops, the Maryland Department of Agriculture said.

Following the planting of cover crops, the Department of Agriculture confirms the number of acres that were planted before paying for them, said Rob Schnabel, Maryland restoration biologist at the Chesapeake Bay Foundation.

Payments are per acre and depend on when the cover crops were planted and removed. In this year’s program, crops left to grow after May 1, 2020, qualify as “Extended Season” and receive an incentive payment of $15 per acre.

Keppler said that the department “(tries) to encourage early adoption of cover crops” because it reduces the time that the soil is left uncovered.

According to the state’s Phase III Watershed Implementation Plan, the state increased funding to the cover crop program to $25.5 million per year starting this year, covering around 470,000 acres.

According to Nicholas Pepersack, deputy chief of staff at the Department of Budget and Management, this amount has not been allocated since fiscal year 2015.

The cover crop program offsets the costs of planting to encourage farmers to use the program.

There are benefits to the farmers other than financial incentives.

Leaving crops in the ground over the winter helps retain the soil, Ferguson said, which is to the farmer’s advantage.

The plant material is left on top of the soil and functions similar to mulch. The organic matter improves soil quality and holds in water so the soil does not dry out as fast.

The leftover plant material also decreases weeds, said Norman Astle, the Maryland Department of Agriculture’s administrator of Maryland Agricultural Conservation Grants.

Last program year, counties on the Eastern Shore received the highest amount of payouts compared to other counties in the state. A program year starts from when a farmer signs up for the program and then harvests the crop the next spring.

In recent years, participation in the program has decreased, according to data from Maryland’s Department of Agriculture.

During the 2018-2019 cover crop program, around 1,274 farms participated in the program, down 10% from the 2017-2018 program. The exact number cannot be confirmed because of differentiations between two Maryland Department of Agriculture datasets.

(One dataset includes historical data, which the department explained should be used because the data is likely more consistent over time. Another dataset contains each farm that signed up for the program and includes slightly different program totals than the historical dataset. The Maryland Department of Agriculture said that this dataset may be different because it may include some refunds from farmers. Historical data is used for this story.)

Harborview Farms in Kent County has been the largest user of the cover crop program in the last two years. During the 2018-2019 program, Harborview Farms planted over 9,500 acres and received over half a million dollars from the state. Attempts to contact representatives for the farm were unsuccessful.

Additionally, 11 farms in the state received over $100,000 each from the program for planting over 2,000 acres of crops.

In the last seven years, farmers signed up for a total of over 600,000 acres per year. Through the 2016-2017 program, at least 68% of the acres signed up for the program were actually planted, and it peaked at nearly 81% that year.

During the 2017-2018 program, the number of participants who signed up and actually planted their cover crops dropped to below 60%. From 2017 to 2018, the final number of acres paid for by the state compared to the initial number of acres registered dropped by 25 percentage points.

The drop in participation was weather-related, Astle said.

Wet weather in the spring can delay the planting of crops, which pushes the harvest back and a farmer’s ability to participate in the cover crop program.

Because the weather has been drier this year, Astle said he anticipates higher participation in the 2019-2020 program.

Because planted acreage is down, the state is spending less on the program than it has allocated.

In the last two years combined, the state has spent nearly $36 million. However, the program typically has been allocated annually between $22 million and $24 million split, nearly equally, between the Chesapeake Bay Trust Fund and the Bay Restoration Fund, Pepersack said.

“Any unspent funds from the (Bay Restoration Fund) remain in the cover crop program and are carried over to the following fiscal year,” Pepersack said in an email. Remaining funding from the Chesapeake Bay Trust Fund is reverted back to the trust fund at the end of the fiscal year.

Not everyone is on board with increasing the allocation of funding to cover crops in Phase III of the Watershed Implementation Plan.

Schnabel said the Chesapeake Bay Foundation would like to see a greater emphasis on long-term agricultural solutions, such as permanent pastures and stream-side forest cover. The Chesapeake Bay Foundation believes these are more cost-effective than annual funding programs, like cover crops, in the long run.

Permanent pastures convert cropland used for feed for livestock into permanent rotational grazing fields of grass.

Originally, Maryland’s Watershed Implementation Plan indicated 425,000 acres of cover crop and 15,000 acres of permanent pasture, but the most recent phase III plan indicated approximately 70,000 more acres of cover crops, and reduced permanent pasture acreage by around 12,500, according to the Chesapeake Bay Foundation.

Keppler said that cover crops are just “one tool in the toolbox.” Permanent pastures are more geared for a livestock farm industry whereas cover crops are better suited for cropland, Keppler said.

Capital News Service reached out to a number of farms that have participated in this program, but none responded.

By Emily Top

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The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.