Revision as of 10:39, 21 May 2017

Summary

Natural, Historic, Economic, Regional, and Political Framework

The Conflict

The conflict has been over how to best restore the bay’s environmental conditions. Some have favored voluntary approaches, with others calling for stricter regulatory approaches. Given states’ reluctance towards additional regulation, especially with economic interests that favor minimal regulation, voluntary approaches have been the main approach to targeted bay restoration. The conflict resolution mechanism for those efforts has been multi-state agreements, coordinated by the Chesapeake Bay Program and EPA. Through those documents, states have agreed to joint restoration goals, with varying levels of specificity, but little or no particular commitment or accountability (Cannon, 2006). After several failed agreements and new versions of agreements, the states and EPA finally acknowledged the need for a TMDL, a regulatory approach for bay restoration with specific commitments, accountability, and backstops.

Geographic Background

The Chesapeake Bay is a tidal estuary, with a watershed area of 64,000 square miles in the states of Virginia, Maryland, Delaware, West Virginia, Pennsylvania, and New York, as well as Washington D.C. The bay’s coastline stretches 11,864 miles, with 50 major tributaries including the Susquehanna, Potomac, Rappahannock, York, and James Rivers. The bay’s watershed has a land to water ratio of 14:1, the largest such ratio of any coastal waterbody in the world. As a result, land use greatly influences the quality of the bay’s waters (CBP, 2017).

Over 17 million people live in the watershed (CBF, 2017), with a diversity of jurisdictions and land uses. In particular, the watershed includes 1,650 local governments, four large metropolitan areas in Baltimore, Maryland, Norfolk and Richmond, Virginia, and Washington, D.C (Ernst, 2003, 39-40). In addition, the watershed includes rural areas and productive agricultural areas, such as Lancaster County in Pennsylvania and the Delmarva Peninsula (Brull, 2006, 2), which includes most of Delaware and the Eastern Shores of Maryland and Virginia.

The bay is home to over 3,600 species of plants and animals, including 348 finfish species and 173 shellfish species (CBF, 2017). The blue crab is perhaps the most famous and critical of these species. In fact, the name Chesapeake Bay comes from the Algonquin description “great shellfish bay.” The bay’s fish population was once so great that early English settlers were said to have tried to catch them with a frying pan. Famous Baltimore report H.L. Mencken once referred to the Chesapeake as “the immense protein factory” (Brull, 2006, 3). Today, the bay continues to support a fishing industry worth $1 billion (Ernst, 2003, 11).

Water Quality Issues

Despite this historic productivity, by the 19th century, the Chesapeake was severely degraded. In the 1850s, Baltimore, for example, was the third largest city in the United States, yet it lacked a modern sewage treatment system until the 1900s. Sewage from Baltimore’s 170,000 residents went directly to its harbor on the Chesapeake, leading one person to describe it as “among the greatest stenches of the world” (Ernst, 2003, 3).

Similar conditions were present throughout the watershed into the 20th century. In the 1950’s, the Potomac River, near Washington, D.C., was described as “malodorous…with gas bubbles from sewage sludge over wide expanses of the river…and coliform content estimated as equivalent to dilution of 1 part raw sewage to as little as 10 parts clean water” (US EPA, 2000, 8-5). Such degraded environmental conditions eventually led to great public concern.

Cases like the Potomac River and Baltimore Harbor inspired passage of the US Clean Water Act in 1972, which improved the environmental conditions of the nation’s waterways. In fact, by the 1980s, the Potomac frequently met bacteria standards for boating and swimming, except during wet weather conditions (US EPA, 2000, 8-12). Following the passage of the Clean Water Act, there were further water quality improvements in nutrients, biological oxygen demand, suspended sediments, dissolved oxygen, and ecological indicators of the Potomac (US EPA, 2000).

However, the bay was not fully restored to its pre-industrial and pre-urbanization condition. As in many waterbodies of the United States, nonpoint source pollution, largely unaddressed by the Clean Water Act, except for a few voluntary programs, remained and remains a major issue for the bay (Brull, 2006). Excess nutrients from agriculture, stormwater, and sewage continue to be the primary environmental concerns. Recently, the bay’s water quality has been described as still “very poor” (Klopman, 2013, 1) (Cohen, 2017).

Stakeholders and Interests

States

The Chesapeake Bay Watershed includes parts of six states: New York, Pennsylvania, West Virginia, Virginia, Delaware, and Maryland. Delaware comprises 1% of the land area, West Virginia 6%, New York 10%, Maryland 14%, Virginia 34%, Pennsylvania 35%, and Washington, D.C. 0.1% (Ernst, 2003, 173). With Maryland, Virginia, and Pennsylvania covering a combined 84% of the watershed and including many large urban and agricultural areas, those states have the biggest influences on the bay. Different areas in the states have different impacts on and interests in the bay, based on land uses, economic factors, and local politics. Above all, given competing interests in the states, especially economic interests that challenge regulations, the goal of many states – and sectors within states – is “little action and more delay” (Steinzor and Jones, 2013, 55). With these competing interests, superficial environmental goals without strict commitments that would threaten any interests tends to be the preferred approach (Cannon, 2006, 3). One large reason for this reluctance is related to Derek Parfit’s so-called contributor’s dilemma described as follows:

It can be true of each person that, if he helps, he will add to the sum of the benefits or expected benefits. But only a very small portion of the benefit he adds will come back to him. Since his share of what he adds will be very small, it may not repay his contribution. It may thus be better for each if he does not contribute. This can be so whatever others do. But it will be worse for each if others contribute. And if none contribute this will be worse for each than if all do (Colburn, 2016, 2, 22).

Such is the case in the Chesapeake where sate efforts to control pollution would benefit the watershed as a whole, but each state’s benefits might be comparatively small, especially for upstream states not on the bay (Dukes, 2015, 4). Further, if states don’t contribute to restoring the bay, there is no incentive for others to, but continued environmental degradation leaves all states worse off. Nevertheless, the voluntary approach has persisted, as it accommodates all states without defined commitments. In addition, the powerful political-economic interests of many sectors, especially agriculture, limit states’ abilities to enact strict approaches to restoration, even if they do prioritize restoration (Cannon, 2006, 3). Above all, most state officials do not want their state to look bad, so they further promote nonbinding approaches. That condition is particularly problematic because state officials lead the establishment of the Chesapeake Bay restoration approaches and goals. Such a lack of commitment to specific binding requirements tends to lead to lowest common denominator agreements, without accountability (Steinzor and Jones, 2013, 57-8).

The Headwater States: New York, West Virginia, Delaware

New York is the farthest upstream state in the watershed. The area in New York in the watershed is predominately agricultural and rural. The state contributes 4% of the nitrogen, 5% of the phosphorus, and 4% of the sediment loads to the bay. West Virginia is in a similar position to New York, as an upstream state not on the bay, with agricultural and rural land in the watershed. The state contributes, 2% of the nitrogen, 5% of the phosphorus, and 5% of the sediment loads to the bay (US EPA, 2010, 4-1-4-2).

New York became part of the Chesapeake Bay Program in 2000 and West Virginia in 2002, through memoranda of understanding and formally joined the effort through the 2014 agreement. However, neither state has formal representation on the Chesapeake Bay Commission (Ernst, 2003, 134). In recent monitoring of Chesapeake Bay restoration, New York has lagged behind in some TMDL commitments, especially related to agriculture (US EPA, 2016, 2-3). Because these states are not on the bay itself and in fact quite far away, environmental connections to the bay are less immediate (Dukes, 2015, 4).

Like New York and West Virginia, Delaware has a small area in the watershed and was not in the original agreement or in the Chesapeake Bay Commission (Ernst, 2003, 134). Delaware contributes 2% of the nitrogen, 2% of the phosphorus, and 1% of the sediment loads to the bay (US EPA, 2010, 4-1-4-2). Tourism, fishing, agriculture, and real estate development are important industries related to the bay in Delaware. Exemplifying those mixed interests, at one point for restoration purposes, Delaware passed a fishing moratorium on striped bass from 1985-1989 (Ernst, 2003, 22), yet agricultural industry groups like the Delaware-Maryland Agribusiness Association frequently lobby against environmental regulations on farmers (Ernst, 2003, 82). Agriculture is a particularly big industry on the Delmarva Peninsula, with poultry farms, many run by large companies like Tyson Food and Perdue Farms, producing 3.2 billion pounds of waste, with 13.8 million pounds of phosphorous and 48.2 million pounds of nitrogen each year (Brull, 2006, 3). Industry groups there frequently challenge regulatory attempts and are quite influential (Colburn, 2016, 11).

The Big Three: Pennsylvania, Virginia, Maryland

Pennsylvania is also an upstream state, removed from the bay, but with a large amount of land in the watershed, its influence is quite substantial. Without land on the bay itself, Pennsylvania has less incentive to improve the bay (Steinzor and Jones, 2013, 53). Nevertheless, Pennsylvania contributes nearly half (44%) of the nitrogen pollution load, 24% of the phosphorus, and 32% of the sediment load to the bay, mostly via the Susquehanna River and its tributaries, which provide 50% of the bay’s freshwater. Because of the geography of the river – it is deep and flows quickly – it does not suffer from the same environmental water quality challenges (i.e., eutrophication from excess nutrients) as the shallow, slow-moving Chesapeake Bay estuary. Further, more than half of Pennsylvania is actually outside the Chesapeake Bay Watershed, so bay concerns are even less important in the state. These conditions exemplify the aforementioned participant’s dilemma, as Pennsylvania lacks direct incentive to restore the bay. Reflecting that lack of interest, in 2010, Pennsylvania contributed far less state funding ($256.6 million) to bay restoration than Maryland or Virginia (Steinzor and Jones, 2013, 54).

Agriculture is the big culprit of the water pollution from Pennsylvania. Lancaster County is one of the largest sources of pollution, with 22 million cows, pigs, chickens, and turkeys. Covering only 1.5% of the watershed, Lancaster County generates more manure – 72 million pounds annually – than any other county in the entire watershed (Steinzor and Jones 2013, 55). Statewide, there are 30,000-40,000 family farms, and there are concerns that regulations on farms would severely impact Pennsylvania’s economy (Dukes, 2015, 13). In the 1990s, there were several attempts to enact mandatory environmental controls on farms, and each time, those regulations were stopped by agricultural and business interests, due to economic concerns (Ernst, 2003, 76-8). Above all, agricultural production grosses $4 billion every year in Pennsylvania (Ernst, 2003, 79). Further, when the American Farm Bureau Federation and other parties sued the EPA over the TMDL, the lawsuit was entered in the Middle District of Pennsylvania (Klopman, 2013, 6). In terms of meeting nutrient commitments in the TMDL, Pennsylvania and its agricultural sector have lagged (US EPA, 2016)

With a large area in the watershed and some urbanization, stormwater runoff is also an important contributor to bay degradation, with 33% of nitrogen, 16% of phosphorus, and 21% of sediment bay loads coming from that sector in Pennsylvania (US EPA, 2010, 4-5-4-6).

Virginia has been involved in the interstate and federal efforts to improve the bay since the earliest collaborations, going back to a conference with Maryland in 1924. Virginia is a large state, directly on the bay with fishing and tourism as critical industries directly tied to the bay. In addition, Virginia includes larger urban areas around Washington, D.C., Norfolk, and Richmond. It also includes substantial agricultural areas, including its portion of the Delmarva Peninsula, which it shares with Delaware and Maryland. Virginia contributes 27% of the nitrogen, 43% of the phosphorus, and 41% of the sediment loads to the bay (US EPA, 2010, 4-1-4-2).

Fishing is a particularly important industry in Virginia, along with Maryland, as the seafood industry contributes $3.39 billion in sales, $890 million in income, and nearly 34,000 jobs to the local economies in those two states (Steinzor and Jones, 2013, 54). The blue crab is a particularly important species. Virginia has adopted efforts to manage blue crab harvesting since the 19th century, but the regulating bodies are closely tied to the commercial fishing industry. In that context, Virginia allows harvesting of egg-bearing crabs and a winter dredge season (Ernst, 2003, 108) (D'Angelo, 2016). Like Pennsylvania, with a large area in the watershed and some urbanization, stormwater runoff is also an important contributor to bay degradation from Virginia, with 33% of nitrogen, 50% of phosphorus, and 39% of sediment loads coming from that sector in Virginia (US EPA, 2010, 4-5-4-6). Those particularly high numbers likely reflect the urbanized and suburbanized areas of the state.

Many of the same agricultural factors in Pennsylvania and Delaware are applicable to Virginia. In fact, the state has resisted any strict regulations of agricultural activities (Ernst, 2003, 75), as agricultural grosses $2.4 billion annually in Virginia (Ernst, 2003, 79). Highlighting that regulatory reluctance, a 1999 lawsuit forced Virginia to establish an impaired water bodies list and TMDLs for those water bodies, as required under the Clean Water Act (Mueller and Murdoch, 2014, 6). Virginia, does however, have a water quality trading program (CBC, 2016) that some have suggested be adopted on a bay-wide level for nonpoint source pollution (Brull, 2006, 9-10).

In general, because Virginia is on the bay and the bay is so critical to its economy and identity, it has been more proactive in restoration than upstream states. Contrasted with Pennsylvania, Virginia spent more than twice as much state funding on bay cleanup in 2010 ($367 million) (Steinzor and Jones, 2013, 54). Frequently, Virginia and Maryland scapegoat Pennsylvania for its lack of action (Steinzor and Jones, 2013, 53).

Maryland has led much of the initiative to restore the Chesapeake Bay, likely because the bay is so deeply tied to the state’s identity, but it also faces similar limitations to other states. Most of the factors in Virginia that contribute to concerns about the bay are also applicable to Maryland, with fishing and tourism key industries. Above all, Maryland contributes 20% of the nitrogen, 20% of the phosphorus, and 32% of the sediment loads to the bay (US EPA, 2010, 4-1-4-2. As in Virginia and Pennsylvania, with a large area in the watershed and urbanization, stormwater runoff is also an important contributor to bay degradation from Maryland, with 28% of nitrogen, 28% of phosphorus, and 32% of sediment bay loads coming from that sector in Maryland (US EPA, 2010, 4-5-4-6).

Maryland politicians have led much of the environmental stewardship and policy approaches in the bay, even going back to the 19th century when the Maryland General Assembly made it illegal to throw dead animals in the Potomac River (Ernst, 2003, 2). In the 20th century Maryland Senator Charles Mathias spearheaded the initial effort to restore bay, leading the way towards the 1983 agreement. In 2009, Maryland Senator Ben Cardin introduced the comprehensive Chesapeake Bay Clean Water and Ecosystem Restoration Act, which included specific federal support for the bay through enforcement, a TMDL, and over $1 billion in funding. However, agricultural interests, the Republican takeover of Congress, and economic downturn ultimately defeated its chances of passage (Houck, 2011, 11-4).

On specific policies, Maryland has also advanced environmental efforts. Unlike Virginia, Maryland’s blue crab management tends to be more independent from industry and harvesting of egg-bearing crabs is not permitted in Maryland, leading to some tensions between the states (Ernst, 2003, 108-114). Further, Maryland is on track with commitments under the TMDL (CBC, 2016) and has set more aggressive targets than EPA’s requirements. In addition, when states submitted to EPA draft Watershed Implementation Plans (WIPs) under the TMDL, Maryland was the only state (along with Washington, D.C.) whose WIPs had only “some deficiencies,” instead of “serious deficiencies” as in the other states (Zawitoski, 2011, 30). Lastly, Maryland has enacted mandatory manure management plans and innovative manure transport systems.

However, those laws have been challenged by farmers with many submitting delay forms or simply ignoring the new regulations. Above all, there is limited enforcement and funding for those efforts, leading to a similar lack of progress as in the other states in the watershed (Ernst, 2003, 77-8) (Brull, 2006, 6). Agriculture is still a powerful interest in Maryland, grossing $1.4 billion annually, with the same interests in the Delmarva Peninsula as Virginia and Delaware. Further, a similar lawsuit to the one in Virginia was brought against Maryland in 2001 that required the state to create an impaired waterbodies list and TMDLs (Mueller, and Murdoch, 2014, 6). In addition, the construction sector, also an important interest in the state with groups like the Maryland Sate Builders Association, has rejected regulations (Houck, 2011, 12). Thus, despite perhaps being more proactive than other states in working towards restoration, Maryland still faces many of the political and economic limitations on restoration efforts.

Issues and Stakeholders

The bay’s environmental quality, especially water quality, is degraded. How should those conditions be restored?

There are competing interests among and within jurisdictions. Voluntary, interstate agreements have been the primary approach, with minimal results. Eventually, those agreements led to a total maximum daily load (TMDL).

Stakeholders

• States (Virginia, Maryland, Delaware, West Virginia, Pennsylvania, New York)
• Washington, D.C.
• Federal Government (United States Environmental Protection Agency (US EPA))
• Chesapeake Bay Commission
• Chesapeake Bay Foundation
• Interest Groups

Analysis, Synthesis, and Insight

No ASI articles have been added yet for this case

Key Questions

Transboundary Water Issues: What kinds of water treaties or agreements between countries can provide sufficient structure and stability to ensure enforceability but also be flexible and adaptable given future uncertainties?

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