Bacon's Rebellion

Democracy Thrives in Sunlight

The Bay Needs More than a Pollution Diet

—

by

James A. Bacon
in

Photo credit: Richmond.com
Photo credit: Richmond.com

by Carol J. Bova

The U.S. 3rd Circuit Court of Appeals upheld the Environmental Protection Agency’s authority to set limits on the amount of pollution and sediment reaching the Chesapeake Bay through TMDLs, Total Maximum Daily Loads. TMDL plans are sometimes referred to as a “pollution diet.” The 3-judge panel said, “The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay….” (Opinion of the Court, Case No, 13-4079, July 6, 2015.)

The ruling and the legal arguments, for and against, failed to recognize that TMDL pollution limits alone cannot restore the health of the Chesapeake Bay or of the streams, rivers and smaller bays connecting to it.

Virginia’s Attorney General Mark R. Herring said in his July 6 news release, “The most promising plan for Bay restoration was under attack from out of state special interests and I couldn’t let that go unanswered.” But the Attorney General isn’t acknowledging that TMDL plans are only part of the answer and can’t restore the Bay.

TMDLs are determined from computer models. Existing levels of pollutants in the waterways are determined through monitoring. Pollutant levels above the maximum the waters can tolerate without exceeding water quality standards are divided among the potential sources. Those sources must then attempt to meet the reduction targets.

Sounds simple and straightforward, but computer models are only as good as the information input into them. At best, they’re a reasonable estimate. At worst, they attribute the pollution to the wrong sources, or in the wrong quantities, or miss factors related to damaged ecosystems, factors like stream flow.

Stream flow is akin to a Goldilocks story with too much, too little or just right rates. A natural rate of flow is the just right part. Flow that’s too fast, as in the well-known and litigated Accotink Creek situation, scours too much material from stream banks and the streambed and deposits that sediment downstream. (Virginia’s former Attorney General won that case against the EPA for the Virginia Department of Transportation (VDOT), with the court ruling the EPA can regulate pollutants like sediment, but not conditions like stream flow rate that erode and move sediment downstream where it causes a problem.)

VDOT also creates the opposite condition, too little flow in streams that must cross under state roads or pass through state roadside ditches and culverts to reach receiving waters. This slowing or obstruction causes a different kind of sediment problem, one that results from lack of dissolved oxygen in the water. Impounded rainwater or streams lose oxygen. Without oxygen, beneficial bacteria that decompose dead plant matter die off. Partially decomposed matter accumulates, further blocking flow. This mucky sediment smothers aquatic plants and bottom-dwelling invertebrates, forces upstream water to back up, and deprives downstream waters of the dissolved oxygen every living thing in the Bay needs.

In Mathews County, the first hard-surfaced road the Commonwealth built interfered with stream flow in 1926-28—and still does there and across the county today. As the Accotink Creek case shows, VDOT impacts stream flow in other counties too.

The EPA can’t force VDOT to correct damaging stream flow conditions. DEQ (the Virginia Department of Environmental Quality) can only issue new VDOT permits and has no enforcement power over prior VDOT stream impairments. The Attorney General’s office provides for the legal needs of state agencies, including protecting them from the consequences of prior bad decisions and practices.

Farmers and private citizens can observe TMDLs to the letter, but that won’t fix VDOT’s impacts and let streams flow without carrying excessive sediment or allow obstructed streams to deliver life-giving oxygen to truly restore the Bay. Article XI of the Virginia Constitution says, “…it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction.”

So, Attorney General Herring, if you believe in restoring the Chesapeake Bay, can you advise us how the Commonwealth is going to address VDOT’s impacts?

Carol Bova is author of “Drowning a County,” a book documenting VDOT’s neglect of its roadside drainage ditches in Mathews County.

Share this article

ADVERTISEMENT

(comments below)

ADVERTISEMENT

(comments below)

Comments

  1. Acbar Avatar
    Acbar

    We need BOTH enlightened VDOT policies and TMDLs and probably much more to restore the health of the Bay. I don’t mind embarrassing those stuck-in-their-own-mud transportation officials who can’t see beyond the edges of the pavements they lay down — but there has to be a broader commitment to regional water health, shared by suburbanites and chicken and truck farmers and bureaucrats alike, and that’s where TMDL goals come in. If the estimates that go into those computer models are suspect, let’s also make it a priority to fix them.

    BTW, excellent book you wrote there, Carol.

    1. cjbova Avatar
      cjbova

      Where goals don’t match reality, there’s going to be expense without good results. If state agencies won’t work together in the second smallest county in Virginia, one without urban pressures, no industrial use, a 2-1/2 block long Main Street commercial district, one with 11 percent of its 1910 farmland (using good practices) and one that maintained its wetlands intead of draining them, what chance do the other counties with more challenges have to achieve water quality improvement success? What Mathews does have is 350 miles of shoreline around its 85 square miles of land and no record of excessive nutrient contributions. Controlling pollutant input is important, but recognizing the impact of stream impairments (and who’s causing them) is important too.

      And thanks, glad you liked the book.

  2. TooManyTaxes Avatar
    TooManyTaxes

    The link to the Third Circuit case is broken.

    1. Acbar Avatar
      Acbar

      Using Carol’s info I looked it up myself; find the opinion at: http://pacer03.ca3.uscourts.gov/opinarch/134079p.pdf

  3. LarrytheG Avatar
    LarrytheG

    so perhaps a little Farm Bureau history:

    ” Legal arguments presented against EPA’s bay regulations

    October 12, 2012
    WASHINGTON—In its ongoing battle against the U.S. Environmental Protection Agency’s Total Maximum Daily Load, or TMDL, regulations for the Chesapeake Bay watershed, the American Farm Bureau Federation argued last week that the EPA is violating the Clean Water Act.

    Attorneys for the AFBF delivered legal arguments stating that states in the bay watershed, not the federal government, are authorized by law to decide how best to achieve water quality goals.

    Virginia Farm Bureau Federation supports the federal lawsuit filed in 2011 by AFBF and the Pennsylvania Farm Bureau.”

    next up:

    ” Feb 5, 2014

    Last week, American Farm Bureau Federation filed a long-awaited federal appeal seeking to overturn last fall’s U.S. District Court ruling that upheld U.S. EPA’s authority to enforce total maximum daily loads on the Chesapeake Bay watershed.

    Monday, 21 state attorney generals and eight counties joined Farm Bureau and other plaintiffs with a friend of the court briefs challenging EPA’s authority over state authority.

    The appeal to the U.S. Third Circuit Court of Appeals was filed by American Farm Bureau, National Association of Home Builders, National Corn Growers Association, National Pork Producers Council, Pennsylvania Farm Bureau, The Fertilizer Institute and the U.S. Poultry & Egg Association.

    EPA’s quest to usurp state rights and enforce Clean Act TMDLs on the Chesapeake Bay watershed may ripple nationwide if it wins the U.S. District Appeals Court appeal case.

    But it’s not just an agricultural or environmental issue, suggests Kansas Attorney General Derek Schmidt.

    It’s the continuing tug-of-war between states and federal government over finding a balance of power. That’s why Schmidt led the effort to file an amicus brief from attorney generals in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.”

    notice how many of these State are in the Chesapeake Bay Watershed.

    now….

    EPA: Chesapeake Bay clean-up progressing in Virginia

    July 09, 2015
    RICHMOND—A 2014-2015 interim report card on efforts by Virginia farmers to reduce pollutants reaching the Chesapeake Bay found producers are “generally on-track for meeting programmatic milestones” in a multi-year effort.

    The report, prepared by the U.S. Environmental Protection Agency, “notes that many farmers are taking the steps required to reduce soil erosion and runoff of nitrogen and phosphorous,” said Wilmer Stoneman, Virginia Farm Bureau Federation associate director of governmental relations.

    “Farmers have said all along that there’s no quick and easy fix to bay restoration. We’re pleased to hear that we’re on track to make that a reality.”

    so what was all of that about cuz it wasn’t about TMDLs in the Chesapeake Bay.. was it?

    It’s sort of like we never had the Clean Water Act to start with. That it was never the purview of the Feds/EPA to start with – that each state would take care of it’s own water quality . .. nevermind that the Clean Water Act was passed more than 40 years ago when rivers near Chicago caught fire and the Potomac was an open cesspool… and heavily polluted rivers did not care what state lines they passed.

    so this court suit was not so much about the Chesapeake Bay as it was about the EPA’s authority to create TMDLs and enforce them.

    so that’s where we are today. Va’s own Farm Bureau rejects the idea of the EPA setting up TMDLs in the first place.

    and they most likely will continue to look for opportunities to obfuscate and block in the future.

    Notice the Farm Bureau’s alternative approach is to “leave Farmers alone” and let them adopt best practices… and call that good enough.

    I’m not a fan of the models being used for enforcement.

    I think they are fine to set preliminary targets but actual monitoring should be implemented if we are really serious.

    And I want to point out that there are benchmark rivers and waterbodies to reference for setting real world, common-sense standards.

    There are upland lakes and smaller rivers in Virginia that have no agricultural or municipal inputs… that have true background levels for TMDLs.

    multiple monitoring points along the length of the river should be able to
    show where increased concentrations are detected and then allow more monitoring locations within those segments to determine where the inputs are coming from.

    that’s a lot of trouble and expense but it’s what you have to do – to do the job fairly and equitably without unfairly penalizing farmers nor municipalities with model data.

    there are undoubtedly going to be dozens of lawsuits filed as soon as allocation limits are assigned to specified dischargers… not based on real monitoring data.

    The Farm Bureau will survey the various limits put on farms and municipalities.. find the ones that seem most egregious overreach and litigate them – tying up implementation for years and a real possibility that a judge will rule on some aspect that will undermine the entire effort – as what happened with Accotink in Fairfax.

    So, from my point of view – they have to set up a monitoring regime that essentially backs up their assigned geographic/locational limits…

    The funny thing is that the USGS already has done this for a select set of Rivers – for a long time… and that data could be a valuable baseline to build off of. In fact, the USGS data is actually being used for TMDL on other rivers in the country.

    The USGS Role in TMDL Assessments

    http://pubs.usgs.gov/fs/FS-130-01/

  4. TBill Avatar
    TBill

    Thank you for the article. I am a marginally active member of Friends of Accotink and have attended one of the public meetings with DEQ/VDOT/Fairfax County. I have also done some stream monitoring in Fairfax to measure organism health. But have not really gotten highly involved. Keep us updated and I will try to read your book.

    1. cjbova Avatar
      cjbova

      Thank you for your monitoring efforts! Every bit of information is valuable in the process of improving our water quality. The Friends of Accotink website has a lot of information and opportunities to work on their issues. Drowning a County is available in print and Kindle on Amazon.

  5. TooManyTaxes Avatar
    TooManyTaxes

    I would guess that the Port of Baltimore overshadows VDOT for existing storm water problems any day of the week. Every new VDOT project of any substance I’ve seen addresses storm water issues.

    1. cjbova Avatar
      cjbova

      In new projects, storm water retention ponds are not the ideal. Controlling the rate of stormwater flow is one thing, stopping it is another. Water is supposed to run as nature intended, not be impounded into dead pools or into cattail or phragmites-infested mosquito nurseries. No flow=no dissolved oxygen to the Bay.

      1. TooManyTaxes Avatar
        TooManyTaxes

        I’ve attended multiple meetings on storm water in Fairfax County over the last several years. The overwhelming message from the engineers is to slow down the flow of the water. Why is their message different than yours? I am truly confused.

        The Tysons Comp Plan won a national award and includes a requirement for rezoned property to store the first inch of storm water on site and to either reuse on the premises or to allow it to reenter the world slowly. If that was wrong, I don’t think the County would have been honored for its plan. Fairfax County has also taken over maintenance of all HOA storm water facilities that serve three or more houses. Condos and apartments are still responsible for their own maintenance. The County has created a special service district and will ultimately impose 2 1/2 cents in additional real estate tax for storm water. Requirements for ponds or underground storage are required for all re-zonings.

        How much of a storm water tax does Mathews County impose on its residents and businesses? Has the County approached the State with a request to take over its secondary roads? The local residents could supplement state funding with higher taxes if they truly wanted to change the storm water impact of paved roads.

        Seriously, pardon my skepticism, but every time RoVA wants to do something, it too often involves an attempt to get more money from Fairfax County residents and businesses. We’re doing our share. So should the rest of the state.

        1. cjbova Avatar
          cjbova

          The idea to slow down urban flow is correct because all the hard surfaces increase the rate of flow. But to stop it entirely is not correct for urban or rural areas. That’s what I’m saying. The Bay cannot sustain a healthy condition without clean oxygenated water flow from its streams.

          Mathews is a tiny place with about 100 people per square mile, the same as in 1910. There are only a handful of apartment buildings in the whole county. The County has entered into revenue sharing agreements with VDOT and VDOT spent 15 years on 3 one-year projects and didn’t accomplish what they were supposed to do. (Read the book for details.)

          Should we start charging a toll for all the out of area folks who want to walk on an unpolluted beach, or go birdwatching in a natural environment or go kayaking? I don’t think so. The property owners and businesses here are state taxpayers who aren’t adding to VDOT’s failed drainage. We have as close to pre-development hydrology as an inhabited place gets. Why should this county–or any other with that background– have to pick up the slack for a 4.5 billion dollar a year state entity who won’t observe their own drainage manual and policies?

  6. LarrytheG Avatar
    LarrytheG

    New VDOT roads have storm ponds all over the place, I agree with TMT.

    In terms of flooding – it’s not the same as mitigation/prevention of pollution.

    All VDOT can do is make sure the drainage is clear for water to seek a lower level.

    if water is already backed up to whatever sea level is – there’s not much more they can do other than increase the elevation of the roads – which they will have to do if sea level is rising… that’s what all the hurrah is about places like Norfolk and Hampton.. as sea level increases – they are going to have to raise the infrastructure were they can.

    At the last big storm surge – they were struggling to keep the surge tides from flooding the tunnels down Hampton Roads way. Up in New Jersey during Sandy they were not so lucky and billions of dollars of damage was done and it tooks months to re-open some of their tunnels.

    If not mistaken, significant damage was done to Alexandria during a recent flood because even the Potomac could not transport the flood water downstream fast enough – at high tide.

  7. cjbova Avatar
    cjbova

    Larry, stick to the point of the post. VDOT does not make sure their existing roads’ drainage reaches a lower level. (Setting aside for the moment, the opposite problem of VDOT roadbuilding that diverts too much water away from natural patterns causing flow that’s too rapid.) Failed maintenance in the past that damaged streams and obstructed stream flow has nothing to do with sea level rise. These are upland waterways that would flow if not obstructed. When the water moves freely in ditches next to marshes, but not on the inland side of the road, it’s the VDOT pipes that are preventing the flow. In a rural area without any significant excessive nutrient, sediment or bacterial contributions to the Bay’s problems, when the pipes are open, the ditch slopes the right direction and the stream or channel open to receiving bodies of water, the water flows and carries oxygenated water. When farmers use good management practices and don’t contribute excess nutrients through poor practices, when they provide livestock buffers to keep waste out of streams, more regulations aren’t going to fix the problem. When the Va Dept of Health doesn’t have adequate statistics, and septic system failure rates are inflated to an unidentified “average” so the TMDL numbers balance, that won’t fix the problem. It’s impossible to monitor every stream, and every community, citizens, farmers and industry, has the obligation to work toward keeping pollution out of the waterways. But there is no reason VDOT can’t begin to repair the damage they’ve caused–except no other agency has the authority to order them to do so and VDOT has shown no initiative in doing proper routine and budgeted maintenance, much less taking restorative action.

    1. LarrytheG Avatar
      LarrytheG

      Cbova – I know we’ve been over this before. If water does not drain and is blocked – won’t it eventually over-top the road?

      somehow we’re on different wavelengths on this.

      I just don’t see how you can hold back water.. eventually it finds a path downstream even if there are no pipes.

      1. cjbova Avatar
        cjbova

        You still refuse to understand that stream channels are lower than the ground level, and VDOT often elevates roads above ground level so they act like a dam. Ditches are lower than the roads and accumulate the water. These are not mighty rivers, they’re 2-5′ streams. The next lower downstream place is often timberland or someone’s yard. And when there’s a storm with high amounts of precipitation, the water does run over the road. It happens so often in Mathews, no one even calls it in to VDOT any more. I just posted three examples for you Larry on http://www.facebook.com/MCditches –go take a look.

        1. LarrytheG Avatar
          LarrytheG

          thanks for the FB.. I’m still confused I guess. I also see a road as essentially a dam – and if there is any rainfall – and not outfall pipes the water will eventually top the dam and the road.

          right?

          so if you look at a watershed – even a small one – the water will tend to flow from the higher elevations to the lower…

          so if you build a road across even a slow moving stream.. and you have no outfall.. then the water will gradually accumulate on the upstream side until it reaches the height of the road – then overtop it.

          right?

          I’ll hold off the storm pond issue until we reach some sort of understanding on this part.

  8. TooManyTaxes Avatar
    TooManyTaxes

    Don’t we have a split in Circuits with the Third Circuit holding EPA has authority to regulate TMDL and the ED VA (Fourth Circuit) holding the opposite? With split circuits, it’s either we go in two different directions or the Supreme Court decide.

  9. LarrytheG Avatar
    LarrytheG

    I don’t think there is a split on the authority of the EPA to establish TMDLs but of late there are challenges to it’s authority over the extend of US waters.

    have you got a link to a 4th circuit decision?

    1. TooManyTaxes Avatar
      TooManyTaxes

      Larry, I referring to the Fairfax County & VDOT suit against EPA in the federal district court for the Eastern District of Virginia. That case was not taken by the losing party, the EPA, to the 4th Circuit. But the Eastern District of Virginia is in the 4th Circuit, not the Third. In other words, Maryland and Virginia are not bound by what the 3rd Circuit held.

      1. LarrytheG Avatar
        LarrytheG

        I’m not understanding what you are saying TMT..

  10. LarrytheG Avatar
    LarrytheG

    here’s what I see:

    ” The Third Circuit Court of Appeals’ newly-released opinion upholds a decision made by a lower court that found that the Environmental Protection Agency-led cleanup effort, which involves all six states in the Chesapeake Bay watershed, is legal.”

    http://d35brb9zkkbdsd.cloudfront.net/wp-content/uploads/2015/07/0706ramboappealruling.pdf

    1. TooManyTaxes Avatar
      TooManyTaxes

      I didn’t see the opinion address the Virginia case. Lawyers have an ethical obligation to point out contrary precedent. Since non-Third Circuit cases were cited, so should have been the ED VA case. I’ve noticed in my 30 years of federal practice that government lawyers often fail to follow the rules. This is not a political statement, but a slam at the federal government’s increasing fixation that the ends justify the means.

  11. LarrytheG Avatar
    LarrytheG

    okay – so you think the 3rd circuit opinion does not apply in states whose cases go to the 4th circuit?

    so the 3rd circuit decision only applies to states within the 3rd circuit jurisdiction?

    1. TooManyTaxes Avatar
      TooManyTaxes

      Larry, I don’t know the answer. But when a court of competent jurisdiction rules the EPA does not have lawful authority to regulate stream water flow as a substitute for pollutants and another court rules the EPA can regulated water flow without discussing and distinguishing the first case, something smells and it isn’t sanitary sewer.

  12. James A. Bacon Avatar
    James A. Bacon

    Just back from spending a weekend in Sandbridge. I never paid attention before, but Carol has sensitized me to the issue. All the roads to Sandbridge have roadside ditches. Some of them looked OK but many of them look sorely neglected. I suspect that the problems Carol describes apply to thousands of square miles of Virginia Tidewater.

    1. LarrytheG Avatar
      LarrytheG

      Jim – do you think the ditches at Sandbridge would be at what level relative to sea level?

      1. James A. Bacon Avatar
        James A. Bacon

        Maybe 2 or 3 feet above sea level.

        1. LarrytheG Avatar
          LarrytheG

          thanks……………..

Leave a Reply

Read More