The Chesapeake Bay: Our Shame and Our Hope

by Chad Logan and Donald Litten
for Virginia Business
August 22, 2007

The Harrisonburg-Rockingham Regional Sewer Authority is on the eve of a historic investment. An $85 million dollar upgrade to its North River Wastewater Treatment Plant in Mt. Crawford has been proposed, increasing the plants treatment capacity from 16 million gallons per day (mgpd) to 22 mgpd, and installing state-of-the-art nutrient removal technology. This investment has been spurred by statewide efforts to reduce pollution in the Chesapeake Bay and by the regions high population growth.

While a state grant is projected to cover $24.9 million of the cost, the remaining $60 million will be coming in the form of a Virginia Resources Authority Bond, which the localities must repay. Locally, the water and sewer rates could double by 2010 due to this cost burden. Huge costs are imminent for other treatment plants throughout Virginia, and, particularly in Shenandoah County.

With such a steep cost, many are wondering if this investment is the best way to achieve the state's goal of reducing the pollution in the Chesapeake Bay. One key concern in bay pollution is Nitrogen, which stimulates algal growth in the bay. Algal growth is fueled by high nitrogen levels in the bay coming from runoff. While some algal growth is healthy, the increased nitrogen availability from runoff has caused "algal blooms," which overload the bay in the spring when nutrients are especially abundant. This growth, along with sedimentation, blocks sunlight to marine grass beds, a key feature of the Bay's ecosystem and food source for blue crabs. When the algae begin to die off, their decomposition strips oxygen from the water. Over a large portion of the bay a "dead zone" had developed due to this oxygen loss. While fish and have the option to swim away (generally to shallow waters where they are more vulnerable to predation and harvest), to oysters and other stationary organisms this anoxic environment is a death sentence.

Background
Even with decades of attention on the Bay's health, its situation has been slow to improve. This summer the dead zones are predicted to remain spread over the middle portion of the bay as they have since 2002, and the bay grasses will be in the worst shape since 1989.

Spurred by the drastic situation in the bay, Virginia, along with the five other states in the Bay's watershed, set a goal to reduce nutrient pollution in the bay by 40% in 2010. One of Virginia's targets was to reduce nitrogen pollution by 27 million pounds. The 2006 State of the Bay report by the Chesapeake Bay Foundation indicates that Virginia will fall 19 million pounds short of this goal. Where is all of the pollution coming from and why can't we stop it?

Point sources and non-point sources are the two classifications of pollutant flows, and their legal regulation is dramatically different due to the inherent nature of these pollution types. The Clean Water Act of 1972 (CWA) has done a remarkable job to control pollution coming from easily identifiable point sources, such as waste water effluent discharges from large manufacturing plants. These sources are generally pipelines or ditches that are carrying wastewater discharge to streams and waterways, and their quality can be easily monitored. One portion of the CWA mandated that best available technology be used to control point source pollution. The Sierra Club has called this regulation "one of the most successful environmental laws in our nation's history."

Unfortunately, the story of non-point source pollution regulation is much more dismal. Currently, the bay receives a whopping 41% of its nitrogen from agriculture alone, as compared to 21% from all point sources, both industrial and municipal. This nitrogen pollution's origination sources can be seen in figure 1, below.

Figure 1: Total nitrogen from agriculture reaching Chesapeake Bay Tributaries. Source: "Saving a National Treasure" Blue Ribbon Financing Panel 2004.

While some attempts at stemming this non-point source pollution have been made, success has been severely limited by a lack of funding and political unwillingness to regulate agricultural runoff. Instead, many lawmakers have opted to implement incentive programs to reduce water pollution, but these are habitually under-funded and under-staffed. One Virginia program aimed at reducing animal waste pollution attempted to provide up to 75% of the cost of waste management, but requests for participation exceeded available funds by $2.2 billion in 2004 alone. In Maryland a program to subsidize cover crop application could have spent between $12 and $17 million, but its budget was only $8.3 million.

Additionally, sprawl around the urban centers in the Chesapeake Bay has further fueled nutrient runoff. Often, sprawl takes place on virgin land, clearing acres of trees and farmland in favor of housing developments. Even though farms are sources of nutrient pollution, increasingly housing developments are becoming even greater sources of runoff and nutrient pollution. While farms can be managed to reduce their pollution, many housing developments give little thought to the nutrient runoff in their storm water. Many scientists believe rapid rates of sprawl in the watershed are the reason the bay's situation isn't improving. While concerted efforts have been made to manage nutrient pollution, rapid sprawl is offsetting these gains.

And so the cause of the problem is evident. As the beloved Pogo once remarked "we have met the enemy and he is us".

If there is any hope of achieving the 2010 goal significant investment consideration must be made, not only on how to reduce pollution, but also where we can get the greatest reduction for our limited financial resources. As with any pollution management program, the greatest clean-up gains per dollar spent are made from initial regulation. Just by implementing accountability standards and establishing management programs, great pollution reductions are achieved in the initial stages of pollution management. It is the later stages, generally those that are working to virtually eliminate pollution from a particular source, that are overwhelmingly costly. In the case of clean water, point source regulation has been ongoing since the 1972 CWA, but non-point regulation has been severely lacking and thus presents the greatest opportunity for pollution reduction.

Investing in Clean Water
A 2004 report by the Chesapeake Bay Commission identified six least-cost options to clean up the bay. Five of them focused on agriculture and non-point sources, indicating just how underdeveloped such programs are. The remaining suggestion is just what the Harrisonburg-Rockingham Sewer Authority is doing, upgrading its plant to the limit of present technology. They estimated that these six options, if implemented, could achieve 75% of the reduction goal for Nitrogen at the relatively low cost of $623 million total for all the bay states, but each come with their own individual cost. As seen in figure 2 below, while water treatment facility upgrades have great potential for reducing nitrogen loads, they are the most expensive reductions to achieve per pound.

Why then, did the state choose to promote this reduction above the others suggested in the report? Primarily, point source reductions are the most convenient to enforce. A monitoring structure is already in place for point source reduction, and there is great potential for reduction in this category. Additionally, the reduction amounts are virtually guaranteed if the technology is properly implemented. Even so, I would argue that greater per-dollar reduction could have been achieved by shifting this investment by the state and locality to non-point source controls.

The Commission's five other strategies are all plans that are viable and currently in practice on small scales, or are simply under-funded. I am not arguing that the capacity increase for the regional sewer authority is unwarranted, but if this spending is aimed primarily at cleaning up the bay, there are other options that could be more cost effective and achieve greater reductions. In total all six investments are only projected to meet three quarters of the reductions needed.

Litigation
While the state has largely ignored the significant water pollution associated with agricultural systems, environmental groups have started questioning the legality of their continued high rates of pollution. Three environmental groups have joined forces and threatened a federal suit against two corporations for overwhelming the SIL wastewater facility in Timberville, Virginia. The waste in question is primarily poultry and meat processing waste, and its overproduction is allegedly causing the facility to pollute substantially beyond their permitted discharge. This case is claiming violations under the CWA, challenging the corporations' argument that once their waste reaches the SIL treatment facility they are no longer liable for its release as pollution. While the wastewater facility is considered a traditional point source and has discharge permits under the CWA, this allegation is unique in that it is attempting to shift liability from the permitted facility onto the producers of the waste.

This pending case is similar to the federal Concerned Area Residents for the Environment v. Southview Farm case. In this case the courts held that some forms of large industrial agriculture, which are often considered the biggest non-point source polluters, can be classified as point sources due to their concentration of nutrient pollution into collection ponds and ditches. This designation called for Southview Farms, a dairy and crop farm, to be subject to the same best management practice standards and permitting process as contained animal feed operations (feedlots), which are regulated as point sources under the Clean Water Act. Initially the Southview case followed the same 60 day notice of CWA violations as have been given in the pending Virginia case. If this new case follows the course of Southview and the violations are not addressed, the next step will be for a Judge to find that the processing companies are alleging continuing violations of the CWA. This finding will be sufficient grounds for the environmental groups to bring a citizens suit, as decided in Gwaltney of Smithfield v. Chesapeake Bay Foundation.

This litigation can be seen as a barometer for public opinion. Citizens are calling for non-point source polluters to take responsibility for the damage they are causing to the Bay. Such regulation fits into the action plan the Chesapeake Bay Foundation has been calling for, and there is some promise for help on the federal level. The farm bill, due for renewal in September, could contain provisions quadrupling federal aid to the Chesapeake Bay watershed, totaling $262.5 million, which would then be matched by the states. One proposal calls for this funding to be managed by a regional authority, and under this direction real progress could be made in regulating non-point source pollution in the Bay's watershed. Unfortunately our legislatures national, state and local have done very little to help the matter in the past. The Bays' problems have been clearly evident for decades, but the legislators do not seem at all interested funding a real solution, rather they have been putting it off by long speeches, studies and generally finessing it until after the next election.

Saving the Bay
In the long term, several changes must be made if we are to elevate the Chesapeake from its current classification of "dangerously out of balance" with its score of 29 by the Chesapeake Bay Foundation to "saved," a score of at least 70. Both point and non-point sources must be rigorously managed, and this management must extend even beyond the agricultural controls that many are considering. Land use shifts from agriculture to development have incurred high water pollution in sprawling regions of the Bay's watershed. Removing forests that naturally clean runoff and remove nutrients and replacing them with landscapes that are at susceptible to high amounts of erosion is a trend that must stop. Future developments must be mandated to manage runoff and contain any nutrient pollution.

Additionally, homeowners that aren't connected to water treatment networks are sources of nutrient pollution. Generally they rely on individual septic systems, many of which will fail and leak over their lifetime. These systems typically have had no, or very limited maintenance and some are several decades old. Currently private septic tanks are estimated at contributing 4% of the nutrient pollution found in the bay. An inspection program should be implemented, with graduated upgrades required, to ensure these systems aren't leaking and are adequately neutralizing their nutrient pollution.

Finally, private lawn fertilization also contributes to water pollution. One way to raise clean-up funds while reducing water pollution could be a fertilizer tax. This tax could be levied against all fertilizers based on concentrations of nitrogen and phosphorus per pound equal to an estimated clean up cost, both for commercial farms and private homeowners. The proceeds of this tax could be used to further fund non-point source reductions and improve public awareness of the myriad of factors that have changed the bay from one of the most productive ecosystems in America to an estuary that is struggling to survive.

Saving the Bay will require a concerted effort on behalf of policymakers, industries, farmers, and citizens across the watershed, but the return on this investment will be substantial. The Clean Air Act has reportedly returned 4 times its implementation cost, and the bay could see such high returns as well. These returns will come from increased, sustainable harvests of fish and shellfish as the bay's populations recover, increased tourism to rehabilitated areas, and the inherent value of an ecosystem in balance. While these returns show great potential, we must be willing to make a real investment now for the future health of the Bay.

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Mr. Logan is a first year law student at the University of Virginia. Mr. Litten is a Harrisonburg attorney.