As hundreds of millions of dollars get poured annually into the 33-year effort to restore the Chesapeake Bay, with progress still lagging in many places, some suggest that state and federal authorities are neglecting an essential tool — one that might reduce the cost and hasten the recovery of the beleaguered estuary.
“The most important thing is to hold people accountable when they don’t do what they said they were going to do,” contended Rena Steinzor, a professor at the University of Maryland School of Law and former president of the Center for Progressive Reform, a Washington, DC, think tank.
Appearing on Maryland Public Television’s Chesapeake Bay Summit broadcast last year, Steinzor called for making polluters and governments alike answer for their failures to clean up.
“We’ve had 30 years of collaborating to nowhere on the Bay,” she said, “and it’s time to get some enforceable requirements, where people are penalized if they don’t do what they said they were going to do.”
Everyone loves the Bay, or at least professes to. But pollution happens, as they say. And while every year brings new regulatory and voluntary programs to clean it up, Steinzor contended that there’s not enough attention being paid to enforcing the laws that are already on the books — and to punishing those who don’t comply.
In a 2014 report, for example, Steinzor and her think tank colleagues took issue with the Environmental Protection Agency’s plan, in the face of steep budget cuts, to perform 40 percent fewer inspections nationwide and file 30 percent fewer lawsuits against violators. By the agency’s own projections, the report pointed out, that would mean 30 percent less water pollution reductions over five years.
Steinzor’s argument resonates with environmental activists, who complain that state and federal regulators are often slow to act against polluters.
“You can’t effectively clean up the waterways if you don’t stop pollution,” said Patuxent Riverkeeper Fred Tutman. “Enforcement is much more important, in my opinion, than restoration.”
Officials with the EPA and most of the Bay states insisted in recent interviews that they are actively enforcing the laws, though they acknowledge they haven’t done as much as they could to publicize what they’re doing.
In Maryland and Virginia, regulators said that instead of constantly playing the bad cop, they’re giving out warnings and offering to help polluters come into compliance before handing out fines — especially when the infractions seem minor. Most still ticked off actions they have taken in recent months or years to stop pollution, require cleanups and penalize violators.
But some acknowledge that their ability to spot and stop problems promptly has been handicapped over the years by budget and staffing cuts. In Pennsylvania, the enforcement staff has been so depleted that outside help is being recruited to bring back what the environmental protection secretary calls “a culture of compliance.”
Here’s a brief overview of what’s happening around the Bay.
Environmental Protection Agency
Six years ago, the EPA unveiled a Chesapeake Bay compliance and enforcement strategy, complete with a website that listed and mapped places where the federal agency had taken action. The map and list of enforcement cases are gone, but the strategy is still being carried out, according to Jon Capacasa, the EPA’s mid-Atlantic region water protection director.
“There’s quite a bit going on,” Capacasa said. While responsibility for enforcing the Clean Water Act is delegated to the states, he explained, the EPA staff oversees their performance and addresses any shortcomings. And in certain cases, the agency gets directly involved.
Since 2010, the EPA has conducted assessments of five states’ efforts to control agricultural and stormwater pollution and, where shortcomings were found, issued orders “telling them to shape up their programs,” Capacasa said. Agency staff have also inspected 101 animal feeding operations and checked out the runoff prevention measures of 140 municipalities and businesses.
Acting in concert with state regulators, the regional official said, the EPA has negotiated court-enforced consent decrees with municipalities like Harrisburg and the District of Columbia that require them to fix chronic sewage overflow problems.
But such decrees can drag on. Baltimore city, for instance, is nowhere near halting rampant sewage overflows there, despite being given 14 years to do so under a consent decree signed in 2002. The deadline was Jan. 1.
Capacasa said the EPA and the Maryland Department of the Environment have been negotiating with Baltimore over revising its sewage consent decree, and hope to announce an agreement soon.
“We want to make sure the controls are aggressive enough and [that they’re] getting the job done in the soonest possible time frame,” he said.
But activists complain that those talks have been going on for nearly two years while the public has been kept in the dark.
“We don’t know what they’re waiting for,” said David Flores, the Baltimore Harbor Waterkeeper. Keeping the public informed…would be really helpful,” he said.
The city has said the repairs are expected to cost more than $1 billion, and has repeatedly raised water and sewer rates to help pay for the overhaul. But municipal officials won’t say how much longer the work could take, contending that the negotiations with regulators are confidential.
The Chesapeake Bay Foundation recently joined in calling for prompt action, as well as more accountability and transparency surrounding the costly undertaking.
Though not strictly an enforcement action, the EPA did withhold nearly $3 million from Pennsylvania for a few months last year because it wasn’t meeting its obligations under the EPA-imposed Bay cleanup plan, or total maximum daily load.
The agency acted last fall after it became clear the state was lagging badly in reducing its share of the nitrogen and sediment pollution fouling the Chesapeake.
“It was important to communicate that we had higher expectations of performance, and they needed to close the gap,” Capacasa said.
The money was restored in January after the Pennsylvania Department of Environmental Protection put together a plan to “reboot” its Bay cleanup efforts. Though it did not address all of the EPA’s concerns, and won’t really kick in until July, Capacasa said the state plan contained enough specific pledges and deadlines to satisfy the agency, at least for now.
“Clearly there are other opportunities for EPA to weigh in again,” he said, noting that the federal agency makes annual distributions of funding to the states.
At the Department of the Environment, there’s a new commitment under Gov. Larry Hogan to what the agency’s chief calls “customer service.” When it comes to enforcement, that means a renewed emphasis on a familiar tool: “compliance assistance.”
The MDE took 16,762 compliance assistance actions in fiscal 2015, offering violators a chance to correct infractions without being formally cited and fined. That’s more than twice the 7,676 formal enforcement actions taken that year, according to the department’s annual enforcement report. In the department’s water management administration, the tilt is even more pronounced, with nearly 7,000 assistance actions to 1,200 enforcement cases last year.
MDE Secretary Ben Grumbles said he’s put “a priority on collaboration over confrontation and working with communities and businesses and citizens’ groups.” But he also said the department is committed to “using our enforcement tools when we need to.”
If a shopping center, ski resort or agricultural operation gets the MDE’s attention, for example, Grumbles said, “we would send staff out there to look at the situation and provide some specific advice” about how to curb the pollution and even how to get government funds to help pay for it. Likewise for reporting violations, he added, when a business or community fails to provide required information.
Sometimes the helping hand doesn’t work, Grumbles acknowledged. The MDE recently took its first-ever enforcement action against a Wicomico County farm for not having a required nutrient management plan. The farm had a plan, but it expired in 2012 and was not updated, even as the growers kept spreading poultry manure on their fields, officials said. The state is seeking a $31,000 penalty from each of the farm’s co-owners.
“That’s an example where compliance assistance wasn’t enough by itself,” Grumbles said. Yet he defended the focus on assistance, saying, “I don’t know how anyone can argue the point that if you’re focused on environmental success over the long term, you should be building bridges and bringing regulated entities into compliance.”
Brian Frosh, Maryland’s attorney general, disagrees. Frosh said he thinks compliance assistance often delays cleanup and gives polluters an advantage over their competitors by avoiding pollution control costs.
“I think it’s bad for business,” he said. “I think it penalizes folks who are abiding by the law.”
The attorney general’s office pursues enforcement cases referred to it by the MDE. It’s helped the department collect $45,000 from Delmarva Power & Light Co., for instance, for illegally disturbing 15 acres of nontidal wetlands while maintaining transmission line rights of way. It also went to court in Charles County to force the sale of land belonging to a long-term operator of an illegal dump to pay for cleaning up the site after the owner allegedly failed to comply with terms of a consent decree.
But Frosh said he’s concerned that continual budget and staff cuts have eroded the ability to catch polluters and hold them accountable.
“There are way, way fewer inspectors than there should be,” he said, “and way fewer inspections as a result. And consequently, there are fewer referrals to our office for enforcement. And our budgets have been cut, so we’re down people.”
Indeed, the Maryland attorney general’s office is struggling to deal with a backlog of more than 80 environmental enforcement cases that are awaiting legal action. The list was even longer several years ago, when Frosh’s predecessor, Douglas F. Gansler, hired two more attorneys to deal with it. But one of those positions has been cut, and dozens of cases are still waiting to be brought, Frosh said.
John Quigley, Pennsylvania secretary of environmental protection, bluntly said the state hasn’t taken any significant enforcement actions against polluters lately, but that’s not necessarily because there aren’t any.
Indeed, he said, that the “limited data” his department has indicate that up to 70 percent of the farmers in 41 counties don’t have manure management and erosion and sedimentation control plans, even though those have been required by state law for more than 25 years.
But the DEP’s inspection staff has been hollowed out over the years by repeated budget cuts. Overall, Quigley said, the department’s workforce has declined by 14 percent in the last decade.
Now, under pressure from EPA because the state is lagging badly in meeting its Bay cleanup obligations, the state has developed a plan to “reboot” its water-quality efforts that calls for cracking down on errant farmers and communities.
“We need to create a culture of compliance,” Quigley said. “Not having a plan is an infraction of the regulations and we will enforce the regulations.”
But with continuing budget woes preventing him from hiring more staff, Quigley said he is negotiating to have the state’s soil conservation district agents inspect farms. Meanwhile, he’s shifting his available inspectors to ramp up checks on stormwater pollution controls in Pennsylvania’s many municipalities, another problem area. Until recently, fewer than 10 percent of them were checked annually.
“There are many holes we’re trying to climb out of,’’ he said. “The Chesapeake Bay is only one of them.”
Beyond that, Quigley said he’s aiming to improve the DEP’s system for tracking and reporting compliance. Noting that “you can’t manage what you don’t measure.” But right now, he said, record-keeping is hopelessly antiquated.
“We are drowning in paper,’’ he said. “We don’t have the systems right now to be as transparent as we want to be and to make our data accessible and understandable to the public. We’re going to fix that.”
Virginia’s Department of Environmental Quality took 245 enforcement actions in fiscal 2015, a slight drop from the prior year but nearly 10 percent more than what was taken in 2013.
The department doesn’t keep tabs of its informal enforcement actions, but Jeff Reynolds, who oversees the division, said they almost certainly outnumber the formal ones.
“There is a very good place in my opinion for compliance assistance, and it is in the lower impact, lower severity of items we see,” he said.
Still, the DEQ has taken action against serious violations, where pollutants got in the water. The state collected $250,000 from Duke Energy for the massive 2014 coal-ash spill into the Dan River, and got the company to pledge $2.25 million toward its cleanup. In another case, Honeywell Corp. agreed to pay a $300,000 penalty and spend $13 million upgrading one of its plants in Hopewell after a 2014 chemical spill into a James River tributary caused a fish kill.
More recently, the DEQ cited Dominion Virginia Power but has yet to assess penalties for an oil spill in late January that eventually reached the Potomac River near the District of Columbia. An estimated 13,500 gallons of mineral oil escaped from a Crystal City power substation and despite efforts to capture and recover it all, some got in to the storm drain system and found its way to a creek off the river, where it killed 29 bird and other animals.
“I’m trying to, on a very broad, strategic level, change the culture of enforcement and the perception of it, both internally and externally,” Reynolds said. “My goal is for us to be smarter about enforcement and also to optimize the enforcement action.”
For instance, Reynolds said he is moving to broaden the DEQ’s enforcement actions to seek not just penalties and cleanup costs, but compensation for harm done to natural resources.
Like the environmental agencies in Maryland and Pennsylvania, the DEQ has lost staff in the last eight years. Reynolds said his office has had six or seven vacancies in its 29-person staff for a few years now. The number of inspectors — the people who must find violators in the first place — also is down, Reynolds said, so the DEQ of necessity takes a “risk-based” approach to inspections and enforcement.
Enforcing in obscurity
Whatever the EPA and states are doing to ensure environmental compliance, it’s often hard for the average person to find out about it without some digging. All of the regulators interviewed agreed that they probably could do more to publicize their enforcement actions.
For example, the MDE for several years had issued press releases every few months listing dozens of enforcement actions taken against specific companies, individuals and communities, but stopped the practice in 2014, citing a staffing shortage. The department recently posted an abbreviated list of actions taken from July through December 2015. MDE Secretary Grumbles said quarterly updates would be provided, but said in his view, compliance “is not just about press releases.”
Maryland’s top lawyer, though, argued that enforcement isn’t as effective at deterring polluters if no one knows about it. “I think people need to know that the law’s being enforced,” Frosh said. “It’s an incentive for people to comply, and it’s a message that if you don’t comply you’re going to get in trouble.”
About the Chesapeake Bay Summit
After more than three decades of effort and billions of dollars spent, the Chesapeake Bay continues to suffer with poor water quality, and fisheries are a shadow of what they were in the estuary’s heyday.
In 2015, Maryland Public Television invited a panel of experts to its studio in Owings Mills to air some ideas for how to overcome obstacles to the Bay’s restoration and make it more effective. The resulting special broadcast, The Chesapeake Bay Summit: Charting a Course, was produced in partnership with the Bay Journal.
Now, on the anniversary of that pioneering summit, this issue of Bay Journal takes a closer look at a few of those ideas.
- What if the Bay’s farmers were put on “nutrient budgets,” with all government payments they receive contingent on them sticking within strict limits of how much fertilizer they could spread on their fields? That’s had some success reducing runoff in Denmark. Read the article.
- Instead of imposing more Bay cleanup rules and requirements, what if more effort were put into enforcing the ones we already have, holding polluters and governments alike accountable when they fail to comply?
- What the Bay really needs is a stronger environmental ethic among the people who live in its vast watershed. We could learn from the Haudenosaunee, native Americans whose tradition calls for basing their actions on how they’ll affect the future seven generations from now. Read the article.
Much of the discussion at that first Bay Summit focused on agriculture, the leading source of the nutrient and sediment pollution impairing the Chesapeake’s waters.
In April 2016, MPT and the Bay Journal have teamed up again to convene a new summit. It will focus on one of the knottiest problems confronting the Chesapeake — the watershed’s growing population and the impact that new development has on the estuary’s health. The hourlong discussion be broadcast live during Chesapeake Bay Week at 9 p.m. on Wednesday, April 27.