Chesapeake Bay Foundation: Fighting for the Chesapeake

Written by: Ted Williams

[Editor’s Note: The following sobering article by Ted Williams appeared on July 10th in Fly Rod & Reel Online. The Chesapeake Bay Foundation is a 2014 recipient of an Orvis Customer Matching Grant. Join us in the fight to save an American treasure.]

Saving America from a Clean Chesapeake

Recovery of the estuary that provides 75 percent of the Atlantic striped bass population is being fought by 21 states, only one of which is in the watershed.

In February 2014, Florida joined a lawsuit to stop the Environmental Protection Agency’s belated effort to render Chesapeake Bay clean enough to be taken off the EPA’s “impaired waters” list by 2025. If this action seems inexplicable, rest assured that it is not. Columnist and novelist Carl Hiaasen has unearthed the answer: Because Florida Attorney General Pam Bondi and Florida Governor Rick Scott are “complete tools” and “pimping” for polluters.

Florida has no monopoly on tools and pimps. They abound in 20 other states whose attorneys general signed on to the same action. The amici curiae brief was filed to seek judicial relief from alleged hardships a clean Chesapeake would inflict on people who live not just in Florida but also Alaska, Kansas, Arkansas, Utah, Wyoming, Michigan, Montana, Texas, Missouri, Nebraska, North Dakota, South Dakota, Oklahoma, Indiana, Alabama, Georgia, Kentucky, Louisiana, South Carolina and West Virginia. Only one of these states—West Virginia—is (partly) in the Chesapeake watershed.

As Hiaasen notes, “You can’t make this stuff up.”

The original suit was brought October 8, 2013 by nine of the nation’s most brazen and intractable polluters: the American Farm Bureau Federation (worst of the lot and lead plaintiff), Pennsylvania Farm Bureau, National Association of Home Builders, Fertilizer Institute, US Poultry and Egg Association, National Pork Producers Council, National Corn Growers Association, National Chicken Council and National Turkey Federation.

THE reason EPA is finally attempting to enforce the Clean Water Act on the Chesapeake is because in 2008 it was successfully sued by the nonprofit Chesapeake Bay Foundation and partners who value things like striped bass, black sea bass, speckled trout, tautog, shad, white perch, yellow perch, Atlantic croaker, sheepshead, spot, summer flounder, oysters, crabs, water birds and federal law.

Previously the cleanup had been voluntary—and therefore not sufficient to get the bay off the impaired list. In 1983 a pollution-control agreement was hatched by Pennsylvania, Maryland, Virginia, the District of Columbia and EPA. In 1987, they set a voluntary 40-percent reduction goal for nitrogen and phosphorus by 2000. When it became apparent that this goal would be missed these players set a voluntary goal for taking the bay off the impaired list by 2010. Even by mid-decade it was clear that this goal would also be missed. So DC and all six bay states—Pennsylvania, Maryland, Virginia, West Virginia, Delaware and New York—agreed that EPA should write and enforce a TMDL (Total Maximum Daily Load—a calculation of the maximum amount of pollutants that a water body can receive and still safely meet water quality standards). The last three states did so reluctantly and under pressure from President Obama, who had issued an executive order to clean up the bay. The TMDL would be the biggest in history, covering the six-state, 64,000-square-mile watershed. It came out in December 2010.

The Farm Bureau and its fellow polluters were aghast. A region-wide TMDL would require farmers, home builders, and chicken, turkey and pig producers to suffer such indignities as keeping at least some of their vile effluent out of the public’s bay and tributaries. So in January 2011 they sued EPA, losing on September 13, 2013, when US District Judge Sylvia Rambo, in a strongly worded decision, upheld EPA’s authority under the Clean Water Act to impose the TMDL. Less than a month later the plaintiffs appealed. And on February 3, 2014 they were joined by the 21 states.

“What are they afraid of if we have clean water in the Chesapeake Bay?” inquires Chesapeake Bay Foundation president Will Baker. It’s an excellent question. And here’s the answer: They’re afraid of other region-wide TMDLs, especially for the Mississippi watershed. What they are fighting for is freedom to keep polluting and to keep creating bacteria-infested, algae-clogged, anaerobic dead zones like the one in the Gulf of Mexico. That dead zone, courtesy of most of the amici curiae states, was bigger than Connecticut in 2013.

A witches’ brew of their chemical poisons, silt and soil runs down the Mississippi. And the pollution is made worse by rampant conversion of grasslands, native prairie and prairie potholes to corn, which requires more insecticides, herbicides, fertilizers and tilling than any other food crop. A federal law, rammed through in 2007 by the Farm Bureau and its agribusiness allies, is expanding the Gulf dead zone by requiring the amount of corn ethanol in gasoline to be increased from 4.7 billion gallons in 2007 to 36 billion by 2022. This despite the fact that corn ethanol requires more energy to make than it delivers.

DEAD zones blight the Chesapeake, too. They result from urban runoff, septic-tank leakage into groundwater, lawn fertilizers, combined sewer/stormwater overflow and sewage-treatment plants. But most of the damage is from farming.

As I write I am looking at sonar photos sent me by the Chesapeake Bay Foundation. In one, taken in summer, dense schools of stripers and baitfish (predominantly menhaden) are jammed together near the surface over a 40-foot-deep hole. This is dangerous behavior, because the crowding and warm water facilitates disease transmission. And it’s unnatural behavior, because the cool water is near the bottom. But the fish have no choice; there’s not enough oxygen in the cool water to sustain them. The low oxygen in the zone where they’re holding is stressful but survivable—2.5 milligrams per liter (mg/l). Below 18 feet, oxygen falls off to a lethal 1.7 mg/l. This is because algae, proliferating on polluted runoff, have died and are rotting on the bottom, burning oxygen in the process.

The stress, heat and crowding (coupled with nutritional deficiencies from diminished stocks of menhaden and bay anchovies) promote mycobacteriosis, especially in stripers. The disease causes scale loss, skin ulcers, severe weight loss, and lesions on the head, spleen, kidney, liver, heart and gonads. Approximately 75 percent of all East Coast stripers spend their first three to seven years in the Chesapeake. Of the ones that stay at least five years (mostly males), about 95 percent are infected. In humans mycobacteriosis is called “fish handler’s disease,” and it manifests itself with lymph-node swelling, Lyme-disease-like joint stiffness, bumps under the skin and dead skin. Believe me, you don’t want it. I write from experience.

Three quarters of the bay’s aquatic grasses, vital to fish and crabs, have been killed by algae blooms and silt. And in warm weather the blooms elicit public health advisories against swimming. In the headwaters, algae die-offs eradicate entire year classes of juvenile yellow perch and render otherwise fertile salt ponds unfit for white perch and crabs.

In the early 1600s Captain John Smith reported that bay oysters “lay as thick as stones” and that there were more sturgeon “than could be devoured by dog or man.” Today the sturgeon are gone, and oysters are down by an estimated 99 percent.

“We need to get our live bottom back,” says the Chesapeake Bay Foundation’s senior naturalist, John Page Williams. “Critters like worms, small crustaceans and mollusks that live in the mud in deep water can’t live there now. They used to sustain crabs and larger fish. So dead zones are not just taking water volume from fish and crabs; they’re taking part of the food web.”

In summer at least 80 percent of the bay’s water violates Clean Water Act standards. Of this, dead zones account for as much as 20 percent.

THE lawsuit from the Farm Bureau, et al. is especially discouraging because the Chesapeake has finally started to heal. While it’s not even close to qualifying as unimpaired, cleanup efforts have produced results that prove bay health is salvageable. Eelgrass (at the southern edge of its range here) is much diminished, but other grasses are coming back. For instance, at the mouth of the Susquehanna River grass fields have increased fourfold in just the past six years; now they’re visible from space. The once repulsive, fish-deficient Potomac River now attracts major bass tournaments.

“In the last couple years there have been remarkable runs of puppy drum all the way up into the Choptank,” says Williams. “Black sea bass and juvenile black drum are coming back, too. Last year the Maryland Saltwater Sportfishermen’s Association documented 11 fish species off the Cook’s Point [restored oyster] reef, including black sea bass, red drum, black drum, speckled trout, and even gray trout [weakfish]. I can’t remember the last time I saw a gray trout in the Chesapeake.”

The oyster population is the highest in three decades, and the number of dead zones is the lowest in four decades.

Williams is conflicted about the fast and furious fishing he’s having for stripers and white perch over restored oyster reefs, which now cover 1,600 acres in Maryland and Virginia. Built in the best water by state and federal agencies, university research labs, NGOs and local fishing clubs, the reefs create fish habitat that provides a little compensation for the headwater streams and salt ponds lost to oxygen depletion. But by concentrating fish, the reefs make them vulnerable to anglers and predators.

Still, fish are slowly being spread around as these reefs proliferate. And the oysters filter and feed on algae and other organic material that would otherwise rob the bay of oxygen and sunlight. The reefs, notes Williams, “host a huge variety of associated bay critters, including anemones, marine worms, sponges, small crustaceans like barnacles, amphipods, grass shrimp and mud crabs; and tiny fish like naked gobies and striped blennies. These communities attract blue crabs of various sizes, croakers, spot, white perch from eight to 12 inches, and hordes of hungry young rockfish [striped bass].”

EDUCATED BY THE Chesapeake Bay Foundation and its partners, many watershed farmers are curbing livestock and poultry runoff with tree plantings and by fencing cows out of streams (the Farm Bureau speaks for these farmers about the way Ted Nugent speaks for fair-chase hunters).

Typifying the new breed is Virginia dairy farmer Gerald Garber, who understands that soil and water conservation lead to animal health. For instance, mastitis, the most costly cow disease, can be controlled by keeping stock out of mud, manure and polluted water. “By installing alternative watering stations in pastures rather than letting his cattle wallow in ponds and streams, Garber now provides fresh drinking water to his animals and rotates them weekly in multiple paddocks of fresh grass rather than in worn-down mud lots,” reports the Chesapeake Bay Foundation’s Chuck Epes in the organization’s Bay Daily Blog. “[These] conservation practices . . . have also helped restore water quality in the North River tributary that flows through this Shenandoah Valley farm. And that means cleaner water in the Shenandoah River, the Potomac River, and eventually the Chesapeake Bay.”

But somehow Farm Bureau president Bob Stallman has divined that Judge Rambo’s cleanup order is “dangerous for farmers.” And he proclaims that, while his organization and the other plaintiffs are absolutely committed to “cleaning up the bay,” EPA can’t legally “dictate where farming will be allowed, where homes can be built, and where businesses can be established.”

I got the same line from the Farm Bureau’s senior counsel for public policy, Danielle Quist. “It’s not a matter of should we clean up the bay or do we want clean water,” she told me. “Of course we do. But you have to proceed lawfully. The EPA model is deeply flawed; it doesn’t take into account what farmers have been doing for the last decade or so. Congress didn’t give EPA authority to go farm to farm and tell farmers how they can farm.”

The Farm Bureau, instigator of both the original lawsuit and the nine-group, 21-state appeal, wants clean water the way some teenagers want clean rooms—provided they can continue using the floor for a closet and someone else does the cleaning.

I was reminded of this fact last fall while inspecting conversion of grasslands and prairie potholes to broken, bleeding cornfields and polluted catch basins in North Dakota, one of the states seeking judicial relief from the Chesapeake Bay cleanup and where the Farm Bureau pretty much runs things. The oil fracking boom has devastated fish and wildlife, but the windfall from oil taxes has created an opportunity. Accordingly, the environmental community, led by Ducks Unlimited, is promoting a state ballot initiative called the Clean Water, Wildlife and Parks Amendment, which would dedicate 5% of the oil extraction tax to protect fish and wildlife habitat. The initiative would restore prairie potholes and shrink the Gulf of Mexico dead zone, but the Farm Bureau is going all out to kill it, calling it a “land grab.” In Bismarck I met with DU’s regional director, Dr. Stephen Adair, who offered this: “Grants would be determined by the governor, the attorney general and the agriculture commissioner. So this notion that they’re going to take big parcels from farming is ridiculous, just a scare tactic. That’s one of the Farm Bureau’s favorite fundraising strategies: ‘These crazy enviros want to buy up the whole state, so we can’t let them get a foot in the door.’”

The Farm Bureau’s ongoing efforts to contravene the public good in North Dakota and Chesapeake Bay hardly diverge from its traditional behavior. Consider these past victories in its never-ending fight for the freedom to pollute:

• Assisted by its current co-litigants (the National Chicken Council, the National Turkey Federation and the National Pork Producers Council), the Farm Bureau pressured EPA into hatching a new rule for manure disposal at factory farms. Permits for dumping manure on land, even where it runs into streams, could be written by the farmer with no public or governmental oversight or review. And, provided he had written a permit for himself, he could kill fish and other aquatic organisms with impunity.

• The Farm Bureau coerced and cajoled the US Bureau of Reclamation (BuRec) into allocating for irrigation the best part of the Klamath River, which drains 9,691-square-miles of high desert, woods and wetlands in southern Oregon and northern California. This provided farmers with so much excess water they flooded highways and disrupted traffic. State fisheries biologists, commercial fishermen, anglers, Klamath Basin Indian tribes and environmental groups repeatedly warned BuRec that fish need things like water, but Farm Bureau lobbyists shouted them down. So when Chinooks, cohos and steelhead hit the low, warm, farm-polluted river they turned belly up. The mortality estimate was 33,000 fish, mostly Chinooks. It was the largest known die-off of adult salmon in history.

• Seeking to preserve the ability of irrigators to dry up streams like Idaho’s Big Wood River, Lemhi, Little Lost and Pahsimeroi, the Farm Bureau led the successful fight to pressure that state’s enlightened Fish and Game director, Rod Sando, to resign; his top priority was preserving and restoring instream flows for trout and imperiled salmon.

CLEAN WATER DOESN’T come easy anywhere. In 1972 Congress enacted legislation that was going to make all waters of the United States “fishable [safe for fish eating] and swimmable” by 1983, then end all industrial and municipal pollution by 1985. It was called the Clean Water Act.

But if we’ve learned what we have to invest for clean water, we’ve also learned what we get for returns. For example, Cleveland’s once-flammable Cuyahoga River—which caught fire most recently in 1969, inspiring Randy Newman’s memorable song, “Burn On”—now sustains prolific runs of steelhead.

And Lake Erie, declared “dead” in the 1960s, now provides arguably the continent’s best smallmouth bass and walleye angling, as well as more commercial fishing than the other Great Lakes combined. Most of us have come to see clean water as an investment we can’t afford not to make.

What are the chances that the Farm Bureau and its fellow polluters will win their appeal? Probably not great. But if they lose, there’s every indication they’ll take the case to the Supreme Court, where they’ll have a much better chance.

“To say we are outraged is a vast understatement,” says the Chesapeake Bay Foundation’s Will Baker. “We find it almost beyond belief for any state outside of the Chesapeake Bay watershed to try to sue to stop us from cleaning up our waters. We say . . . don’t tell us how to restore clean water in our backyard.”

Don Boesch, president of the University of Maryland Center for Environmental Science, adds this: “I don’t think we’ll get another chance if we fail.”

But even if EPA prevails in court, the fact remains that nearly half the states in the union have sided with nine of the worst polluters in the union in defense of dirty water and business as usual.

To all who love fish and wildlife and the wild, beautiful places they abide, that comes like a kick in the solar plexus.