Bay Journal

Many say draft pact for Chesapeake comes up short

Public comments cite lack of toxics and climate goals as well as ability of states opt out of action.

  • By Karl Blankenship on April 02, 2014
Many critical comments focused on the lack of any commitment in the agreement to address the impact of climate change on the Bay. (Dave Harp)

With the work to craft a new Chesapeake Bay agreement entering its final stage, hundreds of people and organizations have offered widely varying views over what should be in the guiding document for the restoration of the Bay and its watershed.

Some who submitted comments characterized the agreement as a government power grab, while others characterized is as timid, visionless document that falls short of providing the kind of action needed by the Bay and its watershed.

Many from both sides of the spectrum said they couldn’t support the document as written. Others characterized their disagreements as minor issues and, while suggesting changes, said it was past due for a new agreement.

Large numbers of comments sharply criticized the omission of any reference to toxics and climate change in the agreement, and many suggested other issues should be addressed such as the impact of hydraulic fracturing and environmental justice.

In all, nearly 2,000 comments were submitted during the public comment period on the draft Chesapeake Bay Watershed Agreement that ended March 17. About 1,700 were form letters from environmental group members addressing specific topics, primarily the lack of toxics or climate change goals in the agreement. About 200 other written comments were submitted by individuals and organizations. Others commented at several public hearings.

The comments will be reviewed over the next several weeks by various Bay Program committees and workgroups that could recommend changes. “I am hopeful we will have an improved version of the agreement in the final analysis,” said Nick DiPasquale, director of the EPA Bay Program Office, at a public hearing.

Officials are aiming to have the agreement signed in late spring or summer.

Many commenters said the draft lacked the bold visions set forth in earlier agreements. Many measurable objectives it sets forth do little more than maintain current levels of effort for things like preserving land or establishing new public access sites.

“Instead of setting out a vision with aspirational goals it rather lays out more of a strategic plan for ongoing programs,” the Alliance for the Chesapeake Bay commented.

“We find it difficult to get enthused about this document,” wrote Wetlands Watch, a nonprofit based in Hampton Roads, VA. “The new draft agreement should push all of us, not settle for the minimum standards upon which we can agree.”

Bay agreements have been a cornerstone for guiding Bay-related restoration efforts since the first one was signed in 1983 by the governors of Maryland, Pennsylvania and Virginia; the EPA administrator; the District of Columbia mayor; and the chair of the Chesapeake Bay Commission, which represents the legislatures of the three states.

Additional agreements were signed in 1987 and 2000. Each provided guidance for the Chesapeake Bay Program, a state-

federal partnership that helps coordinate efforts among states and federal agencies involved with Bay-related work, from monitoring water quality in the Chesapeake and its tributaries to managing fisheries to working to reduce pollution entering the Bay.

The voluntary nature of Bay Agreements is a stark contrast to the Chesapeake Bay Total Maximum Daily Load established by the EPA in 2010, which sets enforceable limits on the amount of nutrient and sediment pollution that can enter the Bay.

The voluntary agreements have often been criticized as ineffective — it was the failure to clean the Bay with voluntary nutrient reduction goals in past agreements that led to the establishment of the TMDL. Indeed, many commitments from past agreements fell short of goals, and some never went anywhere — a commitment in the 2000 agreement to curb the rate of harmful sprawl by 20 percent floundered when Bay Program participants failed to agree on a definition of “harmful” sprawl, or how it could be measured.

At the same time, the priority placed on certain issues in agreements has spawned action. Emphasis placed on riparian forest buffers sparked an initial surge in plantings that surpassed goals. Past agreements have helped boost fish passages, water trails and land protection efforts. And, nutrient reductions were made under past agreements, though not enough to meet cleanup goals.

A recent analysis by the Chesapeake Bay Commission counted more than 40 pieces of legislation that were enacted in response to various Bay agreements, from phosphate detergent bans to tax credits for land preservation to restrictions on lawn fertilizers.

The new agreement is also expected to be signed by the governors of Delaware, West Virginia and New York, making those states full Bay Program partners with the original six Bay agreement signatories.

The draft agreement, negotiated among the signatories during months of meetings, contains seven overarching goals — to protect and restore fishery resources; to protect and restore habitats in the Bay and its watershed; to restore water quality; to protect existing high-quality streams and watersheds; to promote the conservation of forests, wetlands farms and other important lands and landscapes; to improve public access to waterways; and to expand environmental literacy.

It includes nearly two dozen specific outcomes designed to help achieve those goals, many of which have measurable targets or deadlines such as the amount of wetlands to be created, land preserved and forest buffers planted. All are voluntary except the water quality goals tied to the TMDL. (See “Chesapeake Bay Watershed Agreement Draft Goals & Outcomes,” on page 14.)

The agreement calls for management strategies to be written within a year that would outline what actions would be taken to achieve each outcome. Those strategies will also outline what monitoring is needed to track progress, and how various entities, such as local governments or stakeholder groups, will be involved. They would be updated every two years.

Those strategies sparked some of the sharpest criticism because the agreement allows each jurisdiction to “exercise its discretion to participate” in strategy development and implementation.

In comments echoed by others, the Choose Clean Water Coalition, which represents scores of watershed groups, said the so-called “opt out” provision “robs the agreement of any accountability” and effectively results in a document outlining issues that should be addressed, without firm commitments to do any work.

“Not only does this mean that a signatory could potentially opt out of all of the goals and outcomes, but this creates the potential for ‘orphaned’ goals or outcomes — those for which no jurisdiction elects to implement the management strategy,” the coalition said.

It suggested that each jurisdiction indicate which management strategies it plans to participate in before signing the agreement or, alternatively, that management strategies be written before the agreement is signed so it would be clear what each jurisdiction was committing to do.

Criticism of the opt-out provision was widespread but some defended it, including the Upper Susquehanna Coalition, a group of conservation districts in New York and northern Pennsylvania which has long been involved in Bay issues. It said challenges for headwater states such as New York could be very different from those close to the Bay and it would be difficult to commit in advance to strategies. “New York would be agreeing to potential management strategies that have not yet been developed and may not align with New York’s needs,” it said.

Lack of a toxics goal drew sharp criticism. Although the omission was supported by some agricultural groups, others noted that 74 percent of Bay tidal waters are impaired because of toxic contaminants, and fish health issues persist in many parts of the Bay watershed, especially the Shenandoah and Susquehanna rivers.

The Anacostia Watershed Society noted that the goal of the water quality section of the agreement was to achieve conditions necessary to support the aquatic living resources of the Bay and protect human health. “Logic and scientific evidence tell us that this should include toxic contaminant issues, which impact living resources and are strongly linked to human health through the consumption of contaminated fish and shellfish,” the group said.

Multiple groups called for commitments to both reduce toxics — particularly PCBs, which are responsible for most fish consumption advisories in the Bay — and to further research the potential impacts of toxins on fish and wildlife, particularly those of emerging concern, such as pharmaceuticals and personal care products.

Large numbers of commenters said the agreement should acknowledge that climate change will affect the Bay and that planning should begin to adapt to those changes.

For instance, strategies may need to be developed to ensure areas are available for tidal wetlands to migrate upland as sea levels continue to rise. Some practices aimed at controlling runoff from farms and urban areas may become less effective if severe storms become more frequent.

“Protecting the Chesapeake Bay from climate impacts for the long term will be a huge challenge for natural resource policy makers and conservation managers alike,” said a letter sent by nearly 1,400 Sierra Club members. “In order to meet this challenge, we need to be prepared.”

A number of commenters called for greater efforts to address stormwater, coupled with efforts to promote growth patterns that would minimize the increase in impervious surfaces.

Some want the agreement to address Conowingo Dam, which is reaching its capacity to capture and store sediment washing down the Susquehanna River.

The lack of any environmental justice goal was also criticized by numerous groups, who also urged that representatives of minority groups be included on various panels and committees. “This room looks mighty pale,” Lower Susquehanna Riverkeeper Michael Helfrich said at one public hearing on the agreement.

Many individuals and organizations said the agreement should address the rapid increase in hydraulic fracturing to extract natural gas, which is widespread in Pennsylvania and West Virginia, and may expand into Virginia and Maryland. They called for a study of the cumulative impacts of “fracking” that not only include drilling and wastes, but also the clearing of meadows and forests for pipelines, roads and other infrastructure.

“Not addressing this growing source of nutrient and sediment pollution in the watershed is a glaring omission,” said the Virginia Conservation Network, which called for such a study to be completed by 2017.

Some municipalities and trade organizations called for the agreement to establish a financing committee to identify cost-effective ways to meet Bay goals, as well as new funding mechanisms.

Much of the comments and criticism was focused more on items left out of the agreement than those that were included. Some aspects, such as commitments to improve environmental literacy, restore habitats, protect healthy streams and protect fisheries were generally well-received.

Still, some thought certain outcomes could be strengthened. American Rivers said the fish passage goal should clearly give priority to dam removals over fish ladders, which are less effective.

Many said the goal to preserve 2 million acres of land by 2025 lacked ambition. The Nature Conservancy called it “a business as usual goal” and the Chesapeake Bay Foundation called for upping the goal to 2.5 million acres.

Some, such as the Eastern Shore Land Conservancy, suggested the land conservation goal could be coupled with a “no net loss” policy for forests, which would help control land use as the watershed population grows.

The goal of adding 300 new public access sites by 2025 is too meager, said Mike Lofton, of the Anne Arundel Public Water Access Committee, who referred to the Chesapeake as “the world’s largest gated community.”

On the other hand, a few commenters thought the agreement was overreaching.

The Pennsylvania Farm Bureau, which unsuccessfully sued the EPA, claiming it exceeded its authority in establishing the Bay TMDL, said the Bay Agreement “appears to be intended, in large part, as a vehicle to transfer additional authority over land use and other decisions to the federal government.” The bureau is appealing the ruling in its lawsuit.

The City of Chesapeake, VA, expressed concern that some commitments under the agreement, such as those for streamside forest buffers and urban tree canopy, would infringe upon private property rights.

And a number of commenters faulted the agreement for making no effort to evaluate costs associated with meeting goals. “The challenge of affordability for citizens given other competing public funding needs (for example, education, public safety, social welfare programs) should be directly addressed,” said the Maryland Association of Municipal Wastewater Agencies, Inc.

Comments on the agreement can be viewed at www.chesapeakebay.net/chesapeakebaywatershedagreement/page.

Chesapeake Bay Watershed Agreement Draft Goals & Outcomes

Sustainable Fisheries

Goal: Protect, restore and enhance finfish, shellfish and other living resources; their habitats; and ecological relationships to sustain all fisheries and provide for a balanced ecosystem in the watershed and Bay.

  • Blue Crab Abundance Outcome: Maintain a sustainable blue crab population based on the current 2012 target of 215 million adult females and continue to refine population targets through 2025 based on best available science.
  • Blue Crab Management Outcome: Improve the ability to manage for a stable and productive crab population and fishery by working with the industry, recreational crabbers and other stakeholders to improve commercial and recreational harvest accountability. Evaluate the establishment of a Baywide, allocation-based management framework with annual levels set by the jurisdictions that will provide stability for crabbing businesses and accountability of the harvest for each jurisdiction.
  • Oyster Outcome: Restore native oyster habitat and populations in 10 tributaries by 2025 to recover the benefits of fish habitat and water quality improvements that healthy reefs provide.
  • Forage Fish Outcome: By 2016, develop a strategy for assessing the forage fish base available as food for predatory species in the Bay.
  • Fish Habitat Outcome: Continue to identify and characterize critical spawning, nursery and forage areas within the Bay and tributaries for important fish and shellfish. Use existing and new tools to integrate information and conduct assessments to inform restoration and conservation efforts.

Healthy Watersheds

Goal: Sustain state-identified healthy waters and watersheds, recognized for their exceptional quality and/or high ecological value.

  • Healthy Waters Outcome: By 2025, 100 percent of state-identified currently healthy water and watersheds will remain healthy.

Vital Habitats

Goal: Restore, enhance and protect a network of land and water habitats to support high-priority species and to afford other public benefits, including water quality, recreational uses and scenic value across the watershed.

  • Wetlands Outcome: Create or re-establish 85,000 acres of tidal and non-tidal wetlands and enhance function of an additional 150,000 acres of degraded wetlands by 2025. These activities may occur in any land use (including urban) but primarily occur in agricultural or natural landscapes.
  • Black Duck Outcome: By 2025, restore wetland habitats to support a wintering population of 100,000 black duck, a species representative of the health of tidal marshes across the watershed.
  • Stream Health Outcome: Restore stream health and function by 10 percent above the 2008 level* throughout the watershed by 2025. *Note: baseline will be re-assessed.
  • Brook Trout Outcome: Restore naturally reproducing brook trout populations in hesapeake headwater streams with an 8 percent increase in occupied habitat by 2025.
  • Fish Passage Outcome: By 2025, restore historical fish migratory routes by opening 1,000 additional stream miles, with restoration success indicated by the presence of alewife, blueback herring, American shad, hickory shad, American eel and/or brook trout. (2011 baseline year)
  • Submerged Aquatic Vegetation (SAV) Outcome: Achieve and sustain the ultimate outcome of 185,000 acres of SAV Baywide necessary for a restored Bay. Progress toward this ultimate outcome will be measured against a goal of 90,000 acres by 2017 and 130,000 acres by 2025.
  • Forest Buffer Outcome: Restore 900 miles per year of riparian forest buffer and conserve existing buffers until at least 70 percent of riparian areas throughout the watershed are forested.
  • Tree Canopy Outcome: Expand urban tree canopy by 2,400 acres by 2025.

Water Quality

Goal: Reduce pollutants to achieve the water quality necessary to support the aquatic living resources of the Chesapeake Bay and its tributaries and protect human health.

  • 2017 Watershed Implementation Plans (WIP) Outcome: By 2017, have practices and controls in place that are expected to achieve 60 percent of the nutrient and sediment pollution load reductions necessary to achieve applicable water quality standards compared with 2009 levels.
  • 2025 WIP Outcome: By 2025, have all practices and controls installed to achieve the Bay’s dissolved oxygen, water clarity/submerged aquatic vegetation and chlorophyll a standards as articulated in the Chesapeake Bay TMDL document.

Land Conservation

Goal: Conserve landscapes treasured by citizens to maintain water quality and habitat; sustain working forests, farms and maritime communities; and conserve lands of cultural, indigenous and community value.

  • Protected Lands Outcome: By 2025, protect an additional 2 million acres of lands throughout the watershed currently identified as high-conservation priorities at the federal, state or local level, including 225,000 acres of wetlands and 695,000 acres of forest land of highest value for maintaining water quality. (2010 baseline year)
  • Land Use Methods & Metrics Development Outcome: By 2015, develop a Chesapeake watershed-wide methodology and metrics for measuring the rate of land conversion of agricultural and forest lands, and for measuring the extent and rate of change in impervious surface coverage.
  • Land Use Options Evaluation Outcome: By 2017, evaluate policy options and identify potential incentives, resources and other tools that could assist local governments in their efforts to better manage and, when possible, reduce the rate of consumption of agricultural and forest lands. Also rate the conversion of porous landscape to impervious surface.

Public Access

Goal: Expand public access to the Bay and its tributaries through existing and new local, state and federal parks; refuges; reserves; trails; and partner sites.

  • Public Access Site Development Outcome: By 2025, add 300 new public-access sites, with a strong emphasis on providing opportunities for boating, swimming and fishing, where feasible. (2010 baseline year)

Environmental Literacy

Goal: Enable students in the region to graduate with the knowledge to use scientific evidence and citizenship skills to act responsibly to protect and restore their local watershed.

  • Meaningful Watershed Educational Experience Outcome: Increase the number of students participating in teacher-supported meaningful watershed educational experiences in elementary, middle and high school.
  • School and School System Model Development Outcome: Support and highlight models of sustainable schools and local education agencies that use systemwide approaches for environmental education.
  • Environmental Literacy Metrics Outcome: By 2014, develop baseline metrics to establish and measure outcomes related to student participation in teacher-supported meaningful watershed educational experiences and related activities.

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About Karl Blankenship

Karl Blankenship is editor of the Bay Journal and Executive Director of Chesapeake Media Service. He has served as editor of the Bay Journal since its inception in 1991. .(JavaScript must be enabled to view this email address).

Read more articles by Karl Blankenship

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