Several Maryland counties, alarmed about the high cost of cleaning the Chesapeake, have formed a coalition to battle what they consider to be unfair state mandates in the legislature, and potentially in court.
Letters circulating among local governments charge that counties are facing huge costs to lessen local sources of pollution while state and federal agencies are not aggressively tackling major pollution problems — in particular the sediment built up behind the Conowingo Dam on the Susquehanna River — which the counties fear will overwhelm their local efforts.
Environmental groups and state and federal officials vigorously dispute the claims made in the letters. They contend that most cleanup actions required by counties are needed to clean up local waters — areas largely unaffected by the Susquehanna and the Conowingo.
Nonetheless, by mid-November, six rural counties — Allegany, Caroline, Carroll, Cecil, Dorchester and Frederick — had voted to chip in $25,000 apiece to create the TMDL Coalition, which will use the Maryland law firm of Funk & Bolton to lobby the General Assembly to loosen some of the requirements placed on counties.
The Dorchester County Council, which has an annual county budget of $56 million and faces estimated cleanup costs of $87 million by 2025, engaged Funk & Bolton to try to enlist other counties into a coalition that could fight back against what the Dorchester council members see as overly costly mandates.
"The objective of the TMDL coalition is to pursue improvement to the water quality of the Chesapeake Bay in a prudent and fiscally responsible manner," Dorchester County Council President Jay Newcomb said in a letter to Frederick County Council members.
"To achieve that objective, precious taxpayer funding must be directed toward reducing major sources of nutrient and sediment loading to the Bay before such funds are expended on lesser, more marginal sources of loading." Newcomb did not return a call requesting an interview.
Funk & Bolton also sent out letters. Both the county's and the law firm's letters express concerns about the cost of cleanup actions; tougher controls on stormwater and wastewater treatment plants; septic systems; and other potential regulations. They contend that Maryland counties are being asked to do more than their counterparts in neighboring states, and question the cost-effectiveness and scientific underpinning for some of the actions they are expected to take.
Several other counties are considering joining the group, although some have declined to participate. "We are still waiting to see how many ultimately jump on board," said Charles "Chip" MacLeod, an attorney with Funk & Bolton working on the issue. "For an initiative like this, there is strength in numbers." And, he said, some counties may join once the coalition is formally established.
MacLeod said the intent of the coalition is primarily to lobby the General Assembly, although the Dorchester letter hints at a possible legal action as well, citing the importance in gathering information that would allow them to challenge the "factual and legal underpinning" for specific state mandates. At the least, the letter expresses hope that agencies "will be more thoughtful in how they seek to require counties to implement TMDL initiatives if they realize that Maryland local governments are scrutinizing the scientific and technical foundations underpinning (or not) such initiatives."
A focal point of both letters is an argument that too little is being done to control pollution from the Susquehanna River, which provides most of the nutrients to the upper portion of the Bay, and to point out that the situation may worsen. A report from the U.S. Geological Survey earlier this year cautioned that phosphorus and sediment discharges from the dam will likely increase as the sediment storage capacity of the reservoir behind Conowingo nears its capacity.
In an average year, the Susquehanna provides about half of the freshwater entering the Bay, along with two-fifths of the nitrogen and about a quarter of the phosphorus and sediment. Scientists estimated in the past that the 12-mile-long Conowingo reservoir traps about two-thirds of the sediment coming down the river, along with more than a third of the phosphorus
Scientists have warned for two decades that the Conowingo reservoir was nearing its storage capacity, but the huge price tag of trying to remove sediment stored behind the dam — something that could cost tens of millions of dollars a year — has kept the problem from being addressed. The recent USGS report said the reservoir has reached a phase where phosphorus and sediment discharges appear to be increasing during large storms, a situation likely to become more pronounced over time.
The counties have seized on that as an example of states failing to tackle big challenges even as they require counties to undertake expensive actions that they contend would have minimal impact on the Bay.
"There's an elephant in the room and we're going after the flies," MacLeod said. "The big stuff always gets put off."
But environmental groups and state and federal officials said it was misguided to blame water quality problems on the Conowingo Dam. While it's true that flows and nutrients from the Susquehanna are largely responsible for poor water quality in much of the mainstem of the Chesapeake, they note that it has little impact on local rivers, and no impact above tidal zones of those tributaries — which also suffer from poor water quality.
"We think it perpetuates a really insidious myth that somehow the Susquehanna is responsible for everything," said Tim Junkin, executive director of the Midshore Riverkeeper Conservancy. "We do a lot of water quality testing on the Eastern Shore, and the farther you go up any of our rivers to test, the worse the water quality becomes, even above the tidal zones. So clearly that pollution is not coming from the middle of the Bay or the Susquehanna. It is coming from our farms, our land."
Rich Batiuk, associate director for science with the EPA's Bay Program Office, said most tributaries would still suffer from poor water quality "even if we shut off every source of nutrients coming off the Susquehanna and sent pure distilled water down it. It is an important source, but it clearly is not the only one."
Bob Summers, secretary of the Maryland Department of Environment, acknowledged that some of Maryland's actions are more restrictive than neighboring states — discharge limits on wastewater treatment plants in Pennsylvania are not as restrictive as those in Maryland, for instance — but he said Maryland also stands to gain more from the cleanup effort.
"The argument that Maryland shouldn't be leading the charge on the Bay cleanup to me doesn't make a heck of a lot of sense," Summers said. "Look at the map. We are the Bay, New York and Pennsylvania aren't. So we've got to show the way here."
He also said upstream states are making progress. While water quality monitoring shows that sediment and phosphorus loads below the Conowingo Dam may be ticking up during severe storms as the reservoir fills, they note that monitoring above the dam shows downward trends, suggesting that actions taken by Pennsylvania and New York are reducing pollution.
Summers also said the actions required in watershed implementation plans would be needed to clean up local waters regardless of the Chesapeake TMDL as stormwater discharges degrade local streams and nitrogen from septic systems and other sources contaminates groundwater.
Further, the filling of the reservoir has little impact on nitrogen, which is showing a downward trend on the Susquehanna. Nitrogen is water soluble so little is trapped behind the dam, unlike sediment and phosphorus (which is often attached to sediment). Therefore, even if the reservoir completely filled, the amount of nitrogen reaching the Bay would not significantly change. "Everyone still needs to address nitrogen," Summers said.
Officials also dispute that the Conowingo problem is not being addressed. State and federal agencies have been meeting for more than a year to develop strategies to deal with the sediment buildup behind the dam. It is among the issues under negotiation as the dam's owner, Exelon, seeks to renew its operating license with the Federal Energy Regulatory Commission.
Also, the Bay TMDL requires that states offset any increased discharges from Conowingo with greater nutrient and sediment reductions.
Still, the argument that too little is being done to control what comes down the Susquehanna and past the Conowingo Dam has resonated with many rural county officials, and some of the state lawmakers who represent them.
Representatives from Carroll and Harford counties met with several state legislators on the Lower Susquehanna Nov. 1 to draw attention to the river's impact on the Bay and the high costs facing Maryland local governments.
"Before the state and its counties commit to such heavy expenditures, Maryland should evaluate whether these efforts, in light of the Susquehanna's polluting potential, will be in vain," said state Sen. E. J. Pipkin.
MacLeod remains skeptical that the development of plans to address the Conowingo storage issue will actually translate into action, in which case the Chesapeake will fail to meet cleanup goals.
"Who can assure the local governments that when they spend their money it is not being negated or washed out by what's happening at the dam?" he asked.
MacLeod insisted the counties are willing to take actions to help clean up local waters, but those actions have to make fiscal sense and show results. "There are obviously folks out there that don't even want to have this kind of discussion," he said. "And they don't want to see local governments coalesce to do this."
Alison Prost, Maryland executive director of the Chesapeake Bay Foundation, said some of the backlash from rural counties stems from the fact that, while local representatives were involved in the development of watershed implementation plans, that involvement was largely by professional staff — not elected officials who are now getting sticker shock from the result.
She said that CBF representatives have started participating in some county meetings where the TMDL coalition is coming up to offer their perspective on the issues. But she said state and federal officials need to engage county officials in discussions, too.
"I do feel the counties have some legitimate questions," she said. "The costs are real. But we think there are other ways to get at the answers than reaching out to a law firm to potentially challenge the regulations…There are costs associated with this. We've ignored the problem for so many years that the costs have built up."