Policy

Virginia Approves Permit Allowing Dominion Power to Divert Water From Coal-Ash Ponds into Nearby Waterway

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Last Thursday, the Virginia State Water Control Board approved a permit allowing Dominion Virginia Power to drain their coal-ash ponds at a Dumfries facility into the Bay Watershed, in a move that will exacerbate pollution issues in the lesser Potomac River Watershed.

Dominion Power operates the Possum Point Power Plant in Prince William County, where, until 2003, the company burned coal for power. While coal is no longer burned at this facility, 215 million gallons of coal-ash water remains on-site, in holding ponds.

Dominion Electric and environmentalists alike would like to get rid of this debris. Their desired method of removal however, is a point of contention, with Dominion wanting to divert debris into the nearby waterways, and some environmentalists and state senators calling for ash and sediment removal and relocation to a landfill.

Last week, the State Water Control Board sided with Dominion Power, approving a permit that allows the company to gradually drain the water from the coal-ash ponds into the neighboring Quantico Creek (a part of the Potomac River Watershed, and greater Chesapeake Bay Watershed).

The approval of discharge of the coal-ash water is allowing an on-going practice to continue, but not without consequences. Concentrations of arsenic and selenium (by-products of coal-ash) have been found in high concentrations in Quantico Creek, and in the past, monitors have found evidence of coal-ash seeping through pond linings.* Allowing Dominion Power to divert water from their coal-ash ponds into Quantico Creek will exacerbate water quality issues, endangering local fish and shellfish species. Fish in this immediate region (in particular bass and catfish) have already been declared too contaminated to eat. The recent permit will prolong consumption restrictions, not to mention poor living conditions for marine species.

The Department of Environmental Quality (DEQ), which is in charge of Dominion’s discharge permit, has previously made some concessions to environmentalists, including limiting the rate Dominion is allowed to divert treated water from the coal-ash ponds to the creek. However, the agency refuses to enforce further water treatments from these ash ponds, or seal off the drain from the ponds to the Quantico Creek altogether.

Opposing parties to the recent permit are examining ways in which to appeal this decision. Updates will likely soon follow.

 

* Water quality in Quantico Creek is monitored by members of the Potomac Riverkeeper Network, a group that finds sources of water pollution in our local waterway, and works to involve regulators to enforce environmental law. More on the organization to follow.

Sources: The Washington Post, The Bay Journal

 

 

Microbeads Banned in US Waters

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Good news for the Chesapeake Bay, and watersheds around the nation!

Earlier this month, Congress voted to ban microbeads in common personal hygiene products, such as soaps, toothpastes and facial cleansers. The bill – the Microbead-Free Waters Act of 2015- was passed by the House of Representatives first, and then the Senate on December 18. President Obama signed the bill into law yesterday.

Microbeads, found in many health and beauty products, cause major problems in watersheds. The beads, which are rinsed down the drain with use, are too small to be filtered out in wastewater treatment plants, and end up directly in our waterways. These beads, which are plastic, adhere to PCBs (polychlorinated biphenyls) in streams and estuaries, and are toxic to marine animals. Toxins make their way up the food chain, and have been found in significantly high concentrations in fish in watersheds such as the Great Lakes.

Nine states, and several municipalities around the country, have already passed bans on products with these beads, but this is the first nationwide bill of its kind. With the Microbead-Free Waters Act, all production of microbeads will be phased out of personal care products by July 1, 2017, with production phase out of microbeads in over-the-counter drugs and cosmetics to follow in July 2018 (with a ban on sales enforced by July 2019).

To read more about plastic debris in the Chesapeake Bay, CityLab has a post on Julie Lawson’s (director of Trash Free Maryland) efforts to document  plastic concentrations in Bay waters. Lawson’s team has found plastic debris from what they suspect comes from film associated with mulching on watershed farms. If or when the lab working on these water samples confirms this, our region will likely face a fresh set of challenges, revolving around the phase-out of harmful products from the agricultural sector.

Sources: New York Times, Washington Post, Detroit News

Maryland Lawn Fertilizer Law

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Last week, I saw several Chesapeake Bay news stories referencing a Maryland Lawn Fertilizer Law. There has been a lot of discussion in recent months about agricultural application of fertilizer, and the harmful effects nutrient farm runoff has on the Chesapeake Bay Watershed. Fertilizer is also frequently applied in nonagricultural settings, (with lawn fertilizer accounting for 44% of all fertilizer sold in Maryland), and can have just as harmful an impact on the Bay (but at a smaller scale).

I took a look into the Maryland Lawn Fertilizer Law, which went into effect in 2013. This law creates limits and restrictions for lawn fertilizer application across the state, in an attempt to reduce nitrogen and phosphorus runoff into the Bay Watershed. Before 2013, there were no Maryland state laws aimed at homeowners, and other non-agricultural consumers of fertilizer. Restrictions of fertilizer use for farmers has been in place since 2001. The Maryland Lawn Fertilizer Law targets fertilizer use by not only urban and suburban homeowners, but also owners of golf courses, parks and athletic fields, and businesses.

While the law does not forbid home and business owners from applying any fertilizer, it limits what can be laid down – limits that are created based on what is strictly necessary (and determined by the University of Maryland). Excess fertilizer results in stormwater runoff, depositing phosphorus and nitrogen into the Bay watershed, which is already heavily polluted with these nutrients.

This state law overrules any preexisting county legislation in Maryland that applied to nonagricultural fertilizer use.

Restrictions include:

-Lawn fertilizers with phosphorus (unless a soil test is taken, and shows that a particular lawn is in need of phosphorus)

-Lawn fertilizers with less than 20% nitrogen that is slow release

-The application of more than 0.9 pounds of total nitrogen per 1,000 square feet

-The hiring of lawn care professionals not certified by the Maryland Department of Agriculture (penalties apply: $1000 for the first violation, $2000 for every violation after that)

-The application of lawn fertilizers during “blackout dates” (November 15 – March 1)

-The application of lawn fertilizers to any impervious surfaces

-The application of lawn fertilizers before heavy rain forecasts

-The application of lawn fertilizers within 15 feet of waterways

Chesapeake Bay Clean Water Blueprint Faces its Next Round of Appeals

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The American Farm Bureau Federation (AFBF) has taken their case against the EPA’s Clean Water Blueprint to the Supreme Court. The AFBF is appealing the most recent decision by the Third Circuit Court of Appeals, which, this July, upheld the EPA’s right to enforce the Clean Water Blueprint for the Chesapeake Bay. (See the full opinion from that case here). This most recent appeal, should the Supreme Court choose to take this case, will be the third time the AFBF has challenged the Clean Water Blueprint in court. AFBF originally sued the EPA in January 2011, following the 2010 announcement of the Blueprint. That challenge was dismissed in 2013.

The EPA Clean Water Blueprint sets Total Maximum Daily Loads (TMDLs), which Bay states must enforce to meet Bay cleanup goals by 2025. While AFBF claims that these TMDL requirements are an overstep of federal authority, lower courts have upheld the EPA’s ability to enforce these pollution standards through the Clean Water Act.

The AFBF submitted their appeal to the Supreme Court this past Friday.

Virginia Winter Crab Dredging Closed Again This Year

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The Virginia Marine Resources Commission (VMRC) issued their decision on October 27 concerning the winter dredging of blue crabs in state waters. The VMRC has elected to close winter dredging for the seventh year in a row, to protect the Chesapeake Bay crab population.

The VMRC must decide on a year-to-year basis whether or not to open winter dredging, based on what they call ‘trigger values,’or crab population numbers deemed high enough for winter harvesting. Trigger values for juvenile abundance of crabs must be at 291 million or higher; crabs of spawning age, or female abundance must be at 125 million for winter harvesting to occur. However, estimates made earlier this year for juvenile abundance of blue crabs was only at 269 million, and crabs of spawning age at 101 million. Both juvenile and female crab abundance were well below trigger values, leading to the recommendation to close winter dredging again this year. The VMRC took this recommendation into account, and elected to restrict dredging once again.

The full audio recording of the VMRC meeting concerning crab management can be found here.

Stormwater Fees to Be Reworked in Maryland’s Montgomery County

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Stormwater runoff carries nutrient and sediments from urban and suburban areas into our local streams and rivers, eventually making its way into the Chesapeake Bay. Local stormwater fees, or “rain taxes,” as they are sometimes called, help pay for infrastructure and programs that reduce urban and suburban runoff from municipalities in the Chesapeake Watershed. Stormwater fees have faced a lot of backlash in Maryland recently, especially in Montgomery County. The County has reworked stormwater fee legislation, after the law was successfully challenged in court by a local developer. (See here).

Introduced last Tuesday, the new stormwater fee law will face a public hearing next month. Reworking of the law redefines the stormwater runoff fee as an excise tax, which the county has the ability to collect. Hopefully this new version will pass without issue, as stormwater runoff fees are a necessary pollution reduction tool for urban and suburban areas in the Bay watershed.

American Farm Bureau Plans to Bring Chesapeake Bay Case to Supreme Court

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This summer we shared the rulings from the Third Circuit Court of Appeals on the American Farm Bureau Federation (AFBF) and allies vs. the Environmental Protection Agency (EPA) and Chesapeake Bay Foundation (CBF). See here.

The most recent ruling from the Third Circuit was the result of an appeal from the AFBF of a lower court decision upholding the legality of the EPA’s Chesapeake Bay Clean Water Blueprint in 2010 (the Blueprint that sets Total Maximum Daily Loads or TMDLs for the Bay states and Washington, D.C.). While all Bay states and D.C. support this Blueprint, and are committed to cleaning up their watershed, pushback is coming from interest groups and states outside of the Bay watershed. These groups originally sued the EPA for overstepping on an issue that they claim should be left up to the states. The EPA argues that it has the right and responsibility to uphold the Clean Water Blueprint under the Clean Water Act.  Groups, such as the AFBF, fear that the EPA’s role in the Chesapeake Bay Watershed will set a precedent, allowing the federal government to intervene in the cleanup of other major watersheds around the nation, such as the Mississippi River Watershed. Big agriculture groups fear that they would be a major target of watershed cleanup plans. As such, the AFBF and its allies plan to appeal the Third Circuit court decision, and bring the case before the Supreme Court.

Lawsuit Invalidates the Often Misunderstood “Rain Tax”

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By Neil Saunders

A Montgomery County judge invalidated the county’s so-called “rain tax,” the stormwater runoff fee program used to fund projects that would reduce polluted runoff from contaminating the Chesapeake Bay. While the holding in the case is limited to the county’s program, many anticipate that it will lead to similar decisions in other Maryland counties and the city of Baltimore. The program, which forms part of Maryland’s overall Watershed Implementation Plan to achieve the reductions required by the Bay TMDL, was designed to reduce urban and suburban stormwater runoff that continues to be a leading source of pollution in the Chesapeake Bay. Without the fee program Montgomery County will have to come up with alternative ways to fund its federally and state-mandated Bay restoration programs.

The Water Quality Protection Charge (WQPC), or “rain tax” as opponents label it, has been hotly debated in Maryland since the law was passed in 2012. That law, which mandates stormwater fees in the nine largest counties and the City of Baltimore be assessed to property owners whose land contributes pollution runoff to nearby streams and the Bay, has been opposed by many Republicans and Governor Hogan, who pledged to repeal it during his campaign. The Democrat-led General Assembly, however, refused to repeal the law outright, and instead amended the law earlier this year to remove the fee mandate and permit the counties to decide for themselves how to fund their stormwater management programs. Some counties, including Montgomery County, chose to keep the fee program in place. Other counties are required to demonstrate how their stormwater management programs will be funded in the absence of a fee program.

The WQPC was created as part of Maryland’s overall strategy for Bay TMDL compliance. In counties that use the fee structures, residential and commercial property owners are assessed annually based on the amount of impervious surfaces on their property. For many homeowners, the fees range from under $30 for Baltimore County to up to $90 for some Howard County residents. Commercial property owners with larger tracts of land that have greater areas of impervious surfaces are assessed larger fees. While the fee structure serves to fund new measures to reduce pollution, it also acts as an economic incentive for homeowners and business owners to take remedial steps to reduce polluted runoff. Additionally, off-set credits are available for individuals or businesses who show that reduction efforts are being taken.

The lawsuit was brought by a commercial developer owner who had been assessed an $11,000 stormwater fee to his 34-acre development. The owner argued that he shouldn’t be assessed any fees because he had built two ponds on his property to collect stormwater runoff from his property, effectively eliminating pollution from reaching the Bay. He also argued that the fee was unlawful under state law. In the lawsuit, the circuit court judge agreed on both issues, holding that the fee was not properly assessed in this case, because it did not fully take into account the remedial actions taken by the landowner (the landowner was only given a 50% credit reduction), and the calculation methodology used by the County did not limit the fee to what the actual services rendered to the property.

The effect of this second point could make it more difficult to manage pollution from stormwater runoff if lawsuits in the other counties and the City of Baltimore reach the same conclusion. While the County was permitted to base its fees on the amount of impervious surface on a property, the circuit court held that the County failed to adhere to the law’s mandate that “a county or municipality shall set a stormwater remediation fee for a property in an amount that is based on the share of stormwater management services related to the property and provided for by the county or municipality.” Env. Art. sec. 4-202(e)(3)(i). Under this provision, the court maintains that a county may charge a fee based on the actual cost of stormwater management services to that property only. In other words, the County is not permitted to use the WQPC to fund other stormwater remediation projects because the law only permits the County to set a charge to cover its costs.

It is not yet clear whether Montgomery County will appeal this narrow interpretation of the law or seek alternative options to fund its stormwater management practices. If this result does extend to the other counties and Baltimore it will likely result in a greatly reduced source of funding for important water quality programs; stormwater runoff remains one of the critical sources of Bay pollution. Hopefully, if similar lawsuits are brought, those courts will apply a much more practicable interpretation of the law, and give the counties the flexibility they require to meet the requirements of the Bay TMDL. Otherwise, the state would have to rely on changes at the legislative level, which is often difficult and moves at a much slower pace.

Chesapeake Bay Foundation Will Not Appeal VA Court Decision

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Last month I posted about the Richmond Circuit Court ruling against the Chesapeake Bay Foundation (CBF) in the case of CBF vs. Virginia, (see here). In this case, CBF argued that the Virginia Department of Environmental Quality and the State Water Control Board should have included livestock exclusion from streams in a permit that both agencies passed late last year on land application of animal waste.

The Richmond Circuit Court, after reviewing the Virginia Pollution Abatement Permit in question, decided that given the lack of clarity in the permit’s wording, Virginia’s Department of Environmental Quality and the State Water Control Board were able to make their own call on the issue of livestock exclusion from streams. With this ruling, CBF’s case was rejected. As of last week, CBF has decided not to appeal this decision.

Chesapeake Bay Executive Council Meets to Discuss Progress, Initiatives

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Last Thursday, July 23rd, the Chesapeake Bay Executive Council met in Washington, D.C. to discuss progress, setbacks, and initiatives going forward for restoration of the Bay. The Executive Council is made up of governors from all Bay states and the Mayor of D.C., as well as heads of relevant federal agencies.

Present at Thursday’s meeting were: Virginia Governor Terry McAuliffe (the Executive Council Chair); D.C. Mayor Muriel Bowser; Maryland Lieutenant Governor Boyd Rutherford*; Pennsylvania’s Secretary of the Department of Environmental Protection, John Quigley*; and Delaware’s Secretary of the Department of Agriculture, Ed Kee. Also present were heads of various agencies: Administrator of the EPA, Gina McCarthy; Deputy Assistant Secretary of Fish, Wildlife and Parks in the Department of the Interior, Karen Hyun; Assistant Chief of the Natural Resources Conservation Services in the U.S. Department of Agriculture, Kirk Hamlin; and Chairman of the Chesapeake Bay Commission, L. Scott Lingamfelter.

The public meeting began with an introduction from Chesapeake Bay Program Director Nick DiPasquale. He mentioned the interconnectedness of all species and habitats in the Bay watershed, and the need for multi-state partnerships to protect and restore the Bay. Following his presentation, the Executive Council panel made brief comments on what had been discussed at the earlier private lunch. A short Q&A session from the press ended the meeting.

Most of the meeting was spent by council members reassuring the public that a lot of progress had been made to clean up the Chesapeake Bay, and that a lot more progress was required. However, a few specific initiatives were mentioned that shed some light on how restoration efforts might progress in the years to come.

The Council mentioned a riparian forest buffer resolution, and the need for partner states to increase compliance and enforcement among farmers to install riparian buffer zones along waterways. Going off of this, Chesapeake Bay Commission Chair, Lingamfelter, discussed livestock stream exclusion. While many Bay states, such as Virginia, have a majority of their farmers participating in livestock stream exclusion, there is still more to be done in the watershed. Lingamfelter calls for greater USDA support and outlined five actions he recommended to the Secretary of the USDA to ensure livestock stream exclusion is enforced throughout the watershed. These actions include educating farmers, increasing technical and financial assistance for fencing or riparian buffers, and making requirements more clear, and more of a priority.

The issue of funding restoration efforts came up several times during the meeting. Governor McAuliffe announced an increase in federal funding. The current Presidential Budget allocates $39.7 million, pending congressional approval, toward conservation and restoration in the Chesapeake Bay watershed, while the previous fiscal year allocated only $7.58 million. Maryland Lt. Governor Rutherford suggested creating more public-private partnerships to increase funding from the private sector. He mentioned a resolution to sponsor a symposium by the Bay and federal partners to further discuss this idea.

The panel ended with EPA Administrator McCarthy and Virginia Governor McAuliffe highlighting where more efforts need to be made, such as urban stormwater runoff and agriculture, and the need for Bay states and partners to share their best practices with each other to improve water quality throughout the watershed.

This meeting was the first for many Executive Council members who had been newly elected as representatives for their states or cities in 2014. This excuse was used to explain why timetables for the next two-year milestone (2015-2017) were yet to be released. (Milestones are due to come in to the EPA in mid-January of 2016). While more specifics on timeframes and restoration plans would have been appropriate, the meeting did provide some insight on what Bay states will be focusing on over the next couple of years to improve the health of the Chesapeake Bay.

* Virginia Governor Terry McAuliffe was the only governor present at Thursday’s meeting. Maryland’s Lieutenant Governor Boyd Rutherford stepped in for Governor Larry Hogan as he underwent medical treatment. Pennsylvania’s Secretary of the Department of Environmental Protection, John Quigley, represented his state as Governor Tom Wolf was held up in Harrisburg, attempting to finaliz