Next year, 20 years after approving a strategy that called for a “Bay free of toxics,” the Chesapeake Executive Council might settle for something else: a Bay agreement free of any reference to toxics.
Controlling toxic pollution has been an issue for the Chesapeake since the EPA released the results of its multi-year Bay study in 1983 that identified toxic pollution as one of the factors in the Bay’s decline.
Yet last fall, new toxics goals were struck from the latest draft of the Chesapeake Bay Watershed Agreement, the first new regional strategy for Bay restoration since the Chesapeake 2000 agreement was signed 14 years ago.
Several other issues have also brought criticism of the draft document, such as the omission of any mention of climate change and a controversial provision that would allow states to sign the agreement without an obligation to work toward achieving all of its goals.
The new agreement, which officials hope to sign late this spring, would expand the formal participation in the state-federal Bay Program to include Delaware, New York and West Virginia.
While those states are legally obligated to meet nutrient reduction goals established by the Chesapeake Bay Total Maximum Daily Load, their governors have not been signatories to past Bay agreements, which set forth largely voluntary goals for such issues as land preservation, habitat restoration, fisheries and environmental education, among others.
They would join the original six partners that have made up the Bay Program since 1983: the states of Maryland, Virginia, Pennsylvania; the District of Columbia; the federal Environmental Protection Agency; and the Chesapeake Bay Commission, which represents the legislatures of those states.
The three state governors, district mayor, EPA administrator and commission have signed the three previous Bay agreements and collectively make up the Chesapeake Executive Council, which is the top policy-making body for Bay cleanup efforts.
But getting nine entities to agree to provisions in the new agreement has in some cases been problematic.
The inclusion of a toxics goal is a case in point. Numerous studies have affirmed the continued threat to aquatic life — and human health — posed by toxins in the Bay and its tributaries.
The Executive Council approved a toxics reduction strategy in 1994 that called for a “Bay free of toxics” as well as a follow-up toxics strategy in 2000. Yet a report from federal agencies released last January concluded that PCBs and mercury still had widespread impacts on fish in the region, and that many contaminants of emerging concern, such as pharmaceuticals, were suspected of having adverse effects on fish and wildlife.
Figures released by the Bay Program last fall showed that 74 percent of Bay segments were impaired by toxic pollution, up from 66 percent in 2006.
But several states, already under pressure from the TMDL to meet expensive nutrient and sediment reduction goals, were reluctant to back any new toxics goals. A first draft of the new Bay agreement excluded any specific toxic reduction goal and received sharp criticism for that omission during an initial round of public review last summer.
That led to two commitments being proposed in a revised draft. One called for research to improve knowledge about the impacts of contaminants of emerging concern on the health of fish and wildlife in the Bay and its watershed. The other called for identifying practices that could reduce PCBs and mercury pollution to the Bay and develop an implementation strategy by 2015.
Both were rejected at a September meeting of senior environmental officials from Bay jurisdictions.
Virginia, West Virginia and New York representatives voted against the research commitment. Those three jurisdictions were joined by Pennsylvania and Delaware in voting against the commitment to develop strategies to address PCBs and mercury.
Under rules followed at the meeting, it took only three “no” votes to strike a provision from the agreement.
When the issue came up during a news conference after December’s Executive Council meeting, Virginia Secretary of Natural Resources Doug Domenech defended his state’s position, saying state and federal agencies had other programs to deal with toxic contaminants, and that Bay efforts should remain focused on controlling nutrients.
“It is not a question of whether toxics are good or bad. It is a question that there are other environmental regulations that are already working on those issues, either at the state level or the federal level,” Domenech said. “Our sense was that this Bay agreement doesn’t necessarily have to have everything in it to be effective.”
But others held out the possibility that a toxics goal may emerge in the final agreement if toxics become a major issue during the public comment period later this winter.
Given comments received about the omission of a toxics goal in the first draft, officials expect it will likely receive widespread attention in the next round of comments as well.
“We will consider those public comments as we move forward with finalizing aspects of the agreement,” said Maryland Gov. Martin O’Malley, who was elected chair of the Executive Council.
Indeed, the omission of a toxics goal or the mention of climate change — which scientists say could greatly impact restoration efforts — is already stirring comments.
The Bay Program Citizens Advisory Committee, which represents various stakeholder groups, said in a letter to the Executive Council that while climate change was a “sensitive political issue” for some jurisdictions, “we believe that an agreement that seeks to guide restoration for more than the next decade should openly recognize the need to adapt to climate change.”
Regarding toxics, the committee said that “not including a toxics contaminant goal in the agreement is a glaring omission, particularly since there are emerging threats like endocrine disruptors that have an impact on fish and human health.”
In its letter to the Executive Council, the Chesapeake Bay Foundation, the region’s largest environmental organization, said the lack of a toxics goal and the omission of any reference to climate change, “is incredibly short-sighted, and quite frankly an embarrassment, for what is considered to be the ‘premier’ restoration program in the country.”
Another issue of concern frequently raised is whether states that sign the agreement are actually committed to working toward the goals it does include. Under the agreement being drafted, states may opt out of participating in developing management strategies aimed at achieving the various goals.
The Chesapeake Bay Commission — a member of the Executive Council — said in a letter to other members that the language in the draft agreement makes a jurisdiction’s commitments “entirely optional.” If jurisdictions are not participating in goals, the commission warned, it would make it difficult to assess watershedwide progress.
The Citizens Advisory Committee echoed that concern, saying that if a state chose not to participate in a goal aimed at protecting healthy watersheds, citizens in that state would have no way of knowing whether particular waterways are threatened with degradation. “We believe all the jurisdictions should commit to all of the goals and outcomes that apply to their region so every citizen knows the health of their local waterway and can benefit from as many partners as possible working toward restoration and protection.”
Similarly, the CBF’s letter expressed concern in its letter about the ability of states to effectively “opt in or out” of saying it “provides neither transparency nor accountability.”
Executive Council members and their representatives discussed outstanding issues during their December meeting, but didn’t indicate that progress had been made on issues such as toxics and climate change, which have eluded consensus.
“We didn’t try to redo the agreement today,” said EPA Deputy Administrator Bob Perciasepe, though he said it was important that any new agreement contain provisions that “hold ourselves accountable.”
Officials now hope to complete a revised draft in late January or early February. It will then go out for public comment. After reviewing those comments, the agreement may be revised before being signed by the Executive Council, likely in late spring or early summer.