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Bay Journal: FEMA Cancels $1 Billion for Flood Prevention Projects in Chesapeake Bay Region

May 20, 2025 by Bay Journal
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As Crisfield Mayor Darlene Taylor sees it, the low-lying Maryland town has no future unless it can hold back rising water. Computer models suggest that the adjacent Chesapeake Bay could get high enough by 2050 to trigger daily floods that are deep enough to stall cars on roads.

Hope arrived in the form of a federal grant program under the Federal Emergency Management Agency, created during the first Trump administration. The Building Resilient Infrastructure and Communities (BRIC) program helped rural communities like hers to invest in massive projects to fight disaster threats, ranging from wildfires to floods.

Crisfield officially got word from FEMA last July that it had secured $36 million from the program to launch the first phase of its massive flood-protection initiative. “Everything had lined up and everything was in place for this to be a highly successful project,” Taylor said.

A lot has changed since then. Trump returned to office in January, vowing to drastically shrink the size of the federal government. In a terse April 4 press statement, FEMA announced it was pulling the plug on the disaster-preparedness funding, not just for Crisfield but for all applicants and grantees, calling it “wasteful and ineffective,” though without citing evidence to support those claims.

The administration announced that any undistributed funds from the program’s inaugural year, 2020, through 2023 would be returned to the Disaster Relief Fund or the U.S. Treasury. The agency also canceled the 2024 funding opportunity, just days before the application deadline for that year’s $750 million allocation.

The reversal has left hundreds of communities nationwide scrambling to find alternative sources for the billions of dollars they had been promised. Among the six states and the District of Columbia in the Chesapeake Bay watershed, BRIC grants had been on track to disburse nearly $1 billion across about 350 applications, according to a Bay Journal analysis of FEMA’s database.

Among the region’s losses: $32 million to restore wetlands along the Patapsco River’s Middle Branch near Baltimore; $2.7 million to acquire 21 flood-prone properties in Scranton, PA; and $20 million toward finishing a floodwall in DC around the Blue Plains Advanced Wastewater Treatment Plant, the largest sewage plant in the Bay watershed.

And, of course, there’s Crisfield. With an annual budget of just $4 million, the town of 2,500 residents can’t afford to fight sea level rise without financial help from beyond its borders, Taylor said.

“We’re pretty much devastated,” she added. “Without this, we know that we will be in a really bad position to protect our citizens, protect our property, protect our community and really protect our way of life.”

Wasteful?

The FEMA announcement described the program as “more concerned with political agendas than helping Americans affected by natural disasters.” Many experts contend the opposite is true.

Recent studies suggest that investments in flood hazard mitigation yield a return of up to $8 in benefits for every $1 spent, according to the Association of State Floodplain Managers. Chad Berginnis, the association’s executive director, acknowledged that the BRIC program had flaws, but said it was making important strides in warding off disasters.

“I don’t [doubt that we] have debt issues in this country, but I take very strong exception to the FEMA press release that characterizes this program as wasteful and ineffective,” he said. “Those are just flat-out lies.”

Berginnis said he largely agreed with the findings of a recent Republican-led task force’s report, which called for reforming the BRIC program. The 61-page report offered a broad range of recommendations to improve the nation’s overall disaster response and preparedness efforts.

Among them: creating a pathway for smaller communities to obtain BRIC grants, so they don’t have to compete against “coastal elites” who have access to caravans of consultants and grant writers. During the 2023 grant year alone, about 75% of the program’s funding benefitted such “high capacity” applicants, according to the report.

But the report was notable also for what it didn’t say, Berginnis pointed out. It didn’t say anything about getting rid of BRIC.

‘The water doesn’t care’

The BRIC program was established by Congress through the Disaster Recovery Reform Act of 2018, which Trump signed into law in October of that year. Beginning in 2020, applicants could receive up to $50 million for projects designed to help communities reduce their exposure to catastrophes.

Such “pre-disaster” funding, backers say, is necessary now more than ever with climate change exacerbating a variety of threats and driving up the costs of “post-disaster” spending.

The abrupt cancellation of the program has drawn strong criticism, especially from Democratic lawmakers.

“When we talk about government cuts to environmental programs, I will caution that rising seas don’t care who is in the White House,” said Rep. Sarah Elfreth, a Maryland Democrat. “The water doesn’t care how a small town that experiences 90 days of flooding or more a year voted in the last election. Flooding will continue to devastate communities, even if the president does not believe in climate change.”

Some Republicans, while supportive of Trump in general, appeared to be quietly working to get the president to change his mind and restore at least some funding.

“We were made aware of this cancellation in funds and are reaching out to the appropriate federal agencies for a better understanding of this decision,” U.S. Rep. Andy Harris’s office told the Bay Journal in a statement. Harris, Maryland’s only Republican congressman, chairs the conservative House Freedom Caucus, and his district includes Crisfield.

His office noted that Harris had written a letter in support of Crisfield when the community was applying for BRIC funding. Harris remains “supportive of the city’s need to become more safe, resilient and prosperous by reducing the negative impacts of flooding,” according to the statement.

Because of the sluggish manner in which FEMA disburses funding, some of the grants now being cancelled date back to the program’s inaugural year in 2020. In many cases, communities have already expended millions of their own dollars designing, engineering and permitting projects that now may never see the light of day, Berginnis said.

For multiphase projects, FEMA said its regional offices will work with applicants on previously obligated projects to determine what it called the “best path forward,” adding that “this may include ending the project after the completion of Phase 1 or at another appropriate stopping point.”

In the April 16 FEMA memo, the administration also justified BRIC by pointing to its purported failure to produce “concrete results” and the distribution of the “majority of funding … to only a few states.”

Community impacts

From small-town mayors to state emergency management coordinators, officials have reacted to the administration’s action with shock and disbelief.

“I don’t know what facts they are looking at to call this [program] wasteful,” said Maryland Secretary of Emergency Management Russell Strickland. “I know of nothing in Maryland that I would call wasteful.”

His agency estimates that communities across the state stand to lose more than $80 million across 26 applications that were in FEMA’s approval pipeline. The impact remains “undetermined” for $8.7 million that was allocated to 17 projects but hadn’t been spent as of the April 4 announcement.

Meanwhile, 31 Maryland-based applications for the 2024 funding year were dropped. Those $70 million in requests would have included $36 million for the second phase of Crisfield’s flood project and $16 million for a long-planned effort to fight frequent flooding in Cambridge, another Eastern Shore community struggling to transition its economy from seafood to tourism.

“We’re in a holding patten now,” Strickland said, adding that he hopes Congress and the administration work together to create a replacement for BRIC. He also is waiting to see whether Maryland and other states take legal action to overturn the decision.

The South Baltimore Gateway Partnership, along with other partners, has raised $67 million to restore the first phase of what will ultimately be 11 miles of the shoreline along the Middle Branch of the Patapsco River. BRIC funding accounted for about $32 million of that total. About $5 million has been used for designing the project, but the rest stands to be clawed back, said Brad Rogers, the partnership’s executive director.

So, Rogers said, the wetlands to be added along the shore by MedStar Harbor Hospital will be scaled back from 12.3 acres to 8 acres. And instead of simultaneously launching another project at the BGE Spring Gardens campus in Ridgely’s Cove, that phase will be delayed until more funds are raised.

“We are saddened that the federal construction funds won’t be available going forward, but we are confident this will still be a terrific project,” Rogers said. “We’re not being deterred. We’re just moving forward on a slightly different timeline.”

In Virginia, the affected projects included $12 million to upgrade Richmond’s water treatment plant and $24 million to repair and modernize Portsmouth’s Lake Meade Dam, which holds back the city’s main drinking water reservoir.

In Pennsylvania, outcry followed the cancellation of FEMA’s $2.5 million award to the city of Scranton to acquire 21 flood-prone properties and demolish 18 homes standing on them. The properties were set to be repurposed into infrastructure to help prevent future flooding, city officials say.

“You have people that are in limbo,” Scranton Mayor Paige Cognetti said. “Going forward, we are always going to have natural disasters. It’s absolutely untenable that cities and municipalities won’t have access to federal dollars to fend off and prevent [them] but also prepare [for them].”

Many of the places impacted by the program’s cancellation abound with Republican voters. For example, in Crisfield’s main voting precinct, Trump won a 56% margin of victory in last November’s election.

Plans there call for installing a tidal flood barrier that will surround most of the city as well as adding sewers, pump stations, water-retention facilities, tide gates and wetlands. The goal is to ensure protection from up to 5 feet of flooding above ground level — akin to the inundation from Superstorm Sandy in 2012.

Several residents recently completed coursework in a “resilience academy” program, hosted by the city and several partners. As part of their final project, three younger residents — all under 20 years old — pitched a plan to share knowledge with a “sister city” facing similar flooding issues.

“I live in this area,” said Emily Napier, indicating a point on the map near downtown, “and we flood on a daily basis.”

Dennis Marshall was on hand to collect his wife’s certificate in her absence. He owns a vacation rental in town that he says could benefit from the project.

“People come down here, and if they have to wear boots, they aren’t coming back,” he said. But Marshall added he is far from confident that the flood project, if built, would deliver the results it promises. “If it works, it’s fine,” he noted. “That’s the problem.”

Does he regret voting for Trump now that the Republican president has nixed the city’s massive windfall? “I think if he did it, he did it for a reason,” said Marshall, clad in a black Trump T-shirt.

Barbara Mete, another enrollee in the three-month resilience academy, moved to Crisfield about six years ago after retiring from a job in New York. She hoped the course would give her a deeper appreciation for her new home and the estuary at its doorstep. In the wake of the loss of funding, she is deeply concerned about her community’s future, she said.

Her message to Trump and FEMA? “Please think about the people who live here and the children that will come after your administration,” Mete said. “Nature is the key. If we take care of her, she will take care of us.”

By Jeremy Cox, Bay Journal

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State park about to be added to last Maryland county without one

February 20, 2025 by Bay Journal
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All but one of Maryland’s 23 counties contains at least one state park. But that could change soon.

Wicomico County is home to more than 100,000 residents as well as the Eastern Shore’s largest city, Salisbury, but no state parks — although one appears to be in the offing after a Feb. 12 vote by the Maryland Board of Public Works.

The three-member board, which is chaired by Gov. Wes Moore (D), approved the Department of Natural Resources’ plans to purchase a 445-acre property along Wetipquin Creek for $3.3 million.

The property hosts a variety of ecosystems, including tidal marshes, oak and hickory forests, mixed pines and intertidal scrubland along the Nanticoke River tributary. But its centerpiece is a house built in the mid-1700s, known as Long Hill.

“Wetipquin Creek State Park will expand our state parks to every county in Maryland, an important milestone in our mission,” said Maryland Park Service Director Angela Crenshaw. “Once open, the new park will provide recreational and educational opportunities for visitors to immerse themselves in the outdoor world by fishing and paddling [and] exploring trails that meander through forest, wetland and meadow habitats.”

The Park Service said the proposal is still in the planning stages, and there is no time frame for the park’s opening. But officials say the property could ultimately offer interpretive and educational programs, including tours and events exploring the region’s history, the lives of enslaved people at Long Hill and the history of the area’s Indigenous people.

The acquisition is expected to be finalized later this year.

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Trumpeter Swans: Two centuries later, a great big beautiful native returns by Tom Horton

December 16, 2024 by Bay Journal
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A pair of trumpeter swans rest at the Riverlands Migratory Bird Sanctuary near St. Louis. (Andy Reago & Chrissy McClarren/CC BY 2.0)

Nearly three decades ago on a chill, still December afternoon, I watched three majestic trumpeter swans touch down in a Chesapeake salt marsh.

It was a sight that had not been seen on the Bay for nearly two centuries, not since this bird — the world’s largest flighted waterfowl — had been hunted out, its feathers prized for ladies’ powder puffs and fancy hats.

(And yes, we do still have a robust migration of tundra swans, smaller cousins of the trumpeters, which visit the Bay annually in November from Alaska.)

That return of the trumpeters was somewhat contrived but immensely hopeful, I wrote at the time. The trumpeters had been raised in captivity and imprinted to follow an ultralight plane some 100 miles from Warrenton, VA, to Maryland’s lower Dorchester County.

The hope was that humans could teach the big birds to “remigrate” to the Chesapeake from remnant populations that still survived in other parts of the U.S. and Canada.

I couldn’t resist comparing their touchdown that afternoon with “the Eagle has landed” news that flashed around the globe in 1969 when humans first reached up and touched the moon.

That was a triumph of computers, engineering, metallurgy and chemical propellants — bursting the very bonds of gravity — an event of explosive force and high technology.

The swanfall of 1997 employed a gossamer-winged ultralight, a flying device resembling drawings by Leonardo da Vinci in the 1400s, weighing less than a dozen swans and designed to fly low and slow. But the event probed a frontier at least as important as outer space: one of recovery and restoration, reconnecting the planet’s old natural circuits that earlier generations had ripped asunder.

The anticipated new migratory route never came to fruition. Fortunately, no one told the trumpeters. Throughout the decades since, little noticed, wild trumpeters from western and northern populations would in some winters appear briefly, just one or a few birds, in parts of the Bay and its watershed.

Trumpeters seem to be explorers in contrast to the tundra swans that are locked into a rigid schedule by their evolutionary strategy of migrating some 9,000 miles a year between Alaskan and Yukon nesting grounds and wintering on the Chesapeake and in North Carolina.

And then in 2021, for reasons known only to themselves, a pair of trumpeters decided to stay — to nest on Hart-Miller Island in the Bay off Baltimore County, a place constructed both as a park and a safe place to put toxic sediments dredged from Baltimore’s shipping channels.

And now we have at least four documented successful trumpeter nests in the Maryland portion of the Chesapeake with several young swans, or cygnets, according to Gabe Foley, coordinator of the Maryland-DC Breeding Bird Atlas.

Two nests are in Anne Arundel County, one near Davidsonville and one on Naval Academy land at Greenbury Point. The pair near Davidsonville (on private property) appeared to have at least three young recently when Bay Journal photographer Dave Harp and I were scouting.

Another pair is nesting on several acres of wetland near a Home Depot in Harford County. Yet another couple appeared for a while near Laurel, MD, on the federal Patuxent Research Refuge, but they have not been seen there for some months, a refuge spokesman said.

No one knows for sure, but the Bay’s newest species of swan appears to have come from an established population in Ontario, Foley said.

What we are gaining is a most impressive creature with wingspans that can exceed 7 feet, standing up to 4 feet tall and weighing as much as 40 pounds (though average weights are more in the 20s and 30s).

And their call! While one might confuse trumpeters for tundra swans on sight, the sonorous, deeply resonant tone of Columbus buccinator (the trumpeter) contrasts sharply with the shriller, wild baying of tundras.

A young trumpeter’s growth would shame the best efforts of Perdue and Tyson with commercial poultry. A young one can go from slightly under half a pound on hatching to 20 pounds in 15 weeks.

So it is time to celebrate this return of the native, to marvel at its presence gracing ponds and rivers of the Bay and its watershed.

However.

I recall the words of a famous science fiction writer who said the best science fiction doesn’t look two centuries into the future and conjure sleek automobiles; rather, it envisions traffic jams and gridlock.

So it occurs to me that the trumpeters have lifestyles a lot like the invasive mute swans that Maryland only recently finished eradicating.

They were eradicated because they did not migrate; they ate our beleaguered submerged grasses all summer long and competed aggressively for nesting space with all manner of native species. And they were multiplying rapidly.

That behavior pretty much describes the trumpeter swan, which can make modest (several hundred mile) migrations if need be, but tends to stay resident. Unlike the situation with the mutes, of Asian origin, it would be a lot harder to justify eradicating a species that flourished throughout most of the Chesapeake’s history.

Fortunately, we are a long way from having to contemplate whether, after leaving an ecosystem for two centuries, you can go home again.

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Maryland Levies Fines on Perdue, Valley Proteins for Environmental Violations

August 21, 2024 by Bay Journal
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The Perdue AgriBusiness soybean processing plant in Salisbury, MD, added machinery without a permit, leading to more air pollution, according to the Maryland Department of the Environment.

Two major agricultural companies ramped up operations recently on Maryland’s Eastern Shore, and the environment paid a price, according to the Maryland Department of the Environment.

One case involves the agency’s second-largest cash penalty in its history while the other has reopened a long-running pollution saga that local environmentalists hoped had been resolved.

Perdue’s plant, situated a couple blocks away from its parent company’s headquarters, extracts the oil from soybeans to be used in cooking, among other uses.

Perdue applied for a permit in 2017 but withdrew the application the following year after MDE indicated it would require additional review. The company went ahead anyway with the installation of the new machinery in September 2017, followed by a second round in May 2019, according to the settlement agreement.

After the plant’s expansion, the hexane emissions, state officials say, exceeded the 40-ton annual threshold to be considered a new “major source” of pollution, MDE alleged. Hexane is a volatile organic compound, a major ingredient in ground-level ozone that can worsen an array of breathing problems from asthma to emphysema, experts say.

MDE records show annual VOC emissions increased at the facility by 28% from 2017 to 2019, from 246 tons to 315 tons.

“Everyone must follow the rules which are in place to keep Marylanders safe. When Perdue failed to comply, it was the community who suffered the undue burden, so there must be meaningful penalties,” said Attorney General Anthony Brown. “I am glad that Perdue has accepted responsibility and will be investing in the surrounding neighborhoods moving forward.”

The settlement calls for Perdue to pay an $8 million fine to the state. The only larger civil penalty in MDE’s history was the $29 million settlement in 2018 with Volkswagen over the auto manufacturer’s installation of “defeat devices” on certain vehicles, aimed at circumventing emissions tests.

Perdue also must install $3.5 million in pollution-reduction measures at the plant, including electrifying diesel-fired equipment, and contribute $400,000 to Salisbury for a tree planting campaign in areas with poor canopy coverage.

In separate press statements, the two sides left a muddled picture about when and how the problem came to light. MDE’s legal complaint says that agency staff and Perdue representatives “met at various times” to discuss the cause of the emission increases. It wasn’t until correspondence on April 11, 2022, however, that Perdue “finally admitted” it had installed the equipment without a permit, MDE alleged in a legal complaint.

Meanwhile, Perdue spokeswoman Kate Shaw said in a statement that “The discrepancy was discovered in May of 2020, as part of our air permit renewal process.” Her statement doesn’t indicate who discovered the discrepancy or whether state inspectors were aware of it at the time. She added, “We take full accountability for what occurred. The individuals who did not reapply for the permit are no longer with the company.”

When asked for clarification via email, Bill See, another Perdue spokesman, replied, “Our original statement stands on its own.”

In a separate case, MDE charges that Darling Ingredients, owner of the Valley Proteins poultry rendering plant in Dorchester County, has violated its October 2022 consent decree. Under that settlement, Darling Ingredients agreed to pay $540,000 to the state while fixing wastewater and stormwater problems at the troubled plant.

“I would say this facility is in no better shape than it was in 2021 when we filed the lawsuit,” said Matt Pluta, the Choptank Riverkeeper and director of riverkeeper programs at ShoreRivers, one of the environmental groups whose lawsuit triggered the decree. “In fact, it’s probably gotten worse.”

A few months after the settlement was signed, MDE renewed the plant’s discharge permit, allowing a nearly four-fold increase in the amount of wastewater it can release into the Transquaking River, a nutrient-impaired Chesapeake Bay tributary. Environmentalists had pushed MDE to impose tougher limits and not let the company expand until showing it could meet them, but the agency didn’t do so.

Problems have piled up since that approval. MDE inspectors say they uncovered 51 violations of the decree’s requirement to maintain at least 2 feet of freeboard – the distance from the surface of the wastewater to the top of the holding pits. In May, MDE announced plans to fine Darling $15,000.

The Texas-based company formally contested the fine, arguing that all the exceedances fell under an exception in the decree for lagoon levels to rise because of heavy rainfall.

MDE also contends that the plant has been hauling away production waste from the lagoons without going through the complete treatment process. Farmers use the material, known as “dissolved air flotation,” to fertilize their fields. But in adjoining Caroline County, the practice has sparked an outcry from neighbors about foul odors and prompted county commissioners to enact a moratorium on its storage.

Darling representatives have told the state they believe their current permit allows the hauling to continue. Ongoing upgrades to the wastewater treatment plant, required as part of the 2022 decree, will substantially reduce, if not eliminate, such hauling, they say.

“We have responded to the MDE and share its commitment to resolving this issue through the established MDE process,” Darling spokeswoman Jillian Fleming said in a statement.

The agency notified Darling in June that it was referring the hauling matter along with other recent violations to the state Attorney General’s Office.

By Jeremy Cox

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University of Maryland Gives Chesapeake Bay a C+ in Overall Health; Best in 21 Years

July 12, 2024 by Bay Journal
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The Chesapeake Bay’s health, which has waffled between middling and poor for decades, ticked upward in 2023 to its best condition in more than 20 years, according to the latest annual report from the University of Maryland Center for Environmental Science.

In a report card issued Tuesday, the university gave the Bay’s overall health a C-plus for 2023, a half-letter grade improvement from the previous year’s mark. It earned a 55% score, up four points from 2022.

How much real progress that represents is an open question. The university has only been issuing Bay report cards since 2006, but in looking back at water quality, habitat and underwater grass data for previous years, it found that the Bay’s health received exactly the same score in 2002.

This report card comes at a critical time, as the Bay restoration effort is falling short of key goals for the third time in its 41-year history. The state-federal Chesapeake Bay Program is now looking to tweak its most recent strategy, adopted in 2014, to extend it beyond its 2025 deadline. Some scientists and environmental advocates, though, contend that a fundamental overhaul is needed to set different and more realistic goals.

State and federal officials hailed the latest report card as evidence that massive public investments to upgrade wastewater plants and control runoff from farms and development are making headway in restoring the Bay’s water quality, habitat and fisheries.

Adam Ortiz, mid-Atlantic regional administrator for the U.S. Environmental Protection Agency, called the report card “a strong indicator of progress,” showing that the restoration effort is back on track and gaining ground. U.S. Sen. John Fetterman (D-PA) declared that the Susquehanna River, the Bay’s largest tributary and a major source of its pollution, is “the cleanest it’s been in two decades.”

Environmentalists, while acknowledging that the C-plus grade is an improvement, stressed that much more needs to be done. Chesapeake Bay Foundation Vice President Alison Prost said a report produced by a group of Bay scientists shows “there are approaches to Bay cleanup that could be more effective and efficient, and also help us optimize the use of resources.”

The UMCES report card found modestly improved conditions since 2022 in 11 of the Chesapeake’s 15 regions. The lower Bay scored highest at 70%, enough for a grade of B, followed by the upper Bay. Heavily influenced by the Susquehanna, the upper Bay garnered its highest-ever score of 61%.

“This improvement is a testament to efforts to reduce nutrients in the Susquehanna River watershed,” said UMCES Vice President Bill Dennison, “underscoring the hard work in the state of Pennsylvania on nutrient reduction and riparian buffers.”

At least some of the improvements, though, can be attributed to the weather: 2023 was a dry year, with river flows falling to record lows amid drought conditions. Lack of rainfall and snow melt reduced the amount of water-fouling nutrient and sediment pollution flushing into the Bay and its tributaries. By comparison, in 2019, a year of record rainfall, UMCES rated the Bay’s health much lower, at 44%.

Despite weather-influenced oscillations, UMCES scientists say the Chesapeake’s health has trended modestly upward since the restoration effort began in earnest in 1983. After earning a 55% score in 2002, nearly two decades into the cleanup effort, Dennison said that “the bottom dropped out” of the estuary’s condition in a rainy 2003, including the deluge of a tropical storm that blew right up the Bay.

“The good news is that it’s not going as low as it was,” he added, “and it’s steadily, slowly creeping up.”

Even with less runoff in 2023, though, the overall condition of the rivers and streams flowing into the Bay through its 64,000-square-mile watershed showed no improvement from the previous year. Their overall 52% score and C grade remained unchanged.

The highest scoring tributary was the upper James River, which earned a B-minus, while the lowest was the Choptank River, which rated a D-plus.

Most Bay tributaries on the Eastern Shore showed at least some improvement from 2022, which UMCES said might be attributed to dry weather in 2023 causing less farm runoff. But rivers on the upper Eastern Shore are still trending slightly downward. With 40% of the peninsula’s land devoted to farming, the report card suggested that controlling agricultural runoff is key to making real gains there.

UMCES has expanded its report card in recent years to evaluate a range of economic and social factors that could also be affecting the Bay’s health. Overall, it found the watershed lost ground or stayed the same on those fronts, with scores ranging from D-plus to B-minus on individual factors.

This year, UMCES said it is developing an assessment of another environmental threat: debris in the water. Scientists have teamed up with the Ocean Research Project to survey the Chesapeake for “micro-debris” on or near the water’s surface and in bottom sediments.

By Timothy B. Wheeler

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First Baby Eagles Hatch on Reborn Chesapeake Island

June 5, 2024 by Bay Journal
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Some eagle-eyed wildlife biologists have made a surprising discovery at Poplar Island.

That’s the island in Maryland’s portion of the Chesapeake Bay that the U.S. Army Corps of Engineers and Maryland Port Authority have been rebuilding over the last 25 years. What was once almost entirely open water is now more than 1,700 acres of rock-ringed land.

One of the primary aims behind creating the island was to reestablish some of the habitat that waterfowl and shorebirds have lost around the Chesapeake to rising seas, erosion and shoreline development. According to the latest count, about 40 different bird species have successfully nested on Poplar and produced young.

But one iconic species wasn’t among them — until now.

A federal wildlife official attached purple bands on the legs of two newly hatched eagles on Maryland’s Poplar Island in May 2024 to help identify them later. Photo by Craig Koppie/U.S. Fish & Wildlife Service

On May 2 this year, a veteran U.S. Fish and Wildlife Service scientist named Craig Koppie shimmied up a cottonwood tree on a spit of higher terrain on the north side of the island. He peered down into a stick-laden nest known to have been built by bald eagles the previous fall. Inside were a pair of newly hatched eaglets — a male and a female.

“It’s that quote where ‘If you build it, they will come,’” said Peter McGowan, a Fish and Wildlife biologist who has been involved in the Poplar project since the mid-1990s. “If you have this nice habitat, things will move in, and they will move in quick. You never know what’s going to show up, and that’s one of the great parts of the job.”

McGowan said he isn’t surprised that eagles would nest on the island. He thought it would only be a matter of time. Still, the dynamics behind the island’s reconstruction didn’t make it a likely candidate to host eagles.

The original Poplar Island once sprawled across more than 1,100 acres a few miles west of Tilghman Island on the Eastern Shore. At its height, Poplar was home to a population of about 100 people. There were several farms, a school, a church, a post office and a sawmill.

Like dozens of other low-lying islands around the Chesapeake Bay, though, Poplar was washing away. By the 1920s, the last of its residents had fled to higher ground. By the late 1990s, only a few acres of land remained.

Enter the Paul S. Sarbanes Ecosystem Restoration Project. Named after the U.S. senator from Maryland who championed the effort, the project is rebuilding the island using mud dredged up from Baltimore’s shipping channels to keep its port open to navigation.

The first mud delivery came in 2001, and the last is expected to arrive in the mid-2030s.

To make the island as hospitable as possible for water-loving birds, engineers designed Poplar to poke only slightly above the surrounding tide. The landscape is largely given over to marshes and mudflats. The only trees planted so far have been a handful in a small test plot.

That doesn’t bode well for eagles, who generally seek out trees as their nesting spots. But nature appears to have intervened on their behalf, McGowan said.

The cottonwood tree that harbors the young eagles sprang up on its own. It’s part of a clutch of trees on about an acre’s worth of slightly higher ground surrounded by marsh. Despite the harsh environment, some have grown more than 60 feet tall, McGowan estimates.

Eagles have been spotted flying overhead and hunting around Poplar since the earliest days of its restoration, he noted. A stone’s throw away from Poplar lies tree-lined Coaches Island and its cache of four eagle nests (two of which are active).

But McGowan and his colleagues had to wait about 20 years into the project before they noticed the first signs that eagles were trying to nest on Poplar. It started with a pair of eagles’ effort to build a nest on the metal grate top of a water-control structure in 2020.

“Obviously, it wasn’t the best place for an eagle to nest,” he said.

The nest didn’t last. A second attempt atop a spillway the following year also failed. Then, the scientists noticed a mound of sticks growing larger in a cottonwood tree where a crow’s nest had been. It was too big for the supporting branches and eventually tumbled out of the tree.

Another nest in the same tree started taking shape last fall. McGowan can’t say for sure whether its builders are the same eagles that had enlarged the crow’s nest, but he suspects they are. This time, the nest was more centered over the trunk and less likely to fall.

By March, the amount of time the eagles spent perched on the nest suggested that there were eggs inside of it. Koppie’s climb in May confirmed the presence of two eaglets. Before descending, he attached purple bands on their legs, identifying one bird as “09/E” and the other as “10/E.”

Disaster nearly struck toward the end of May when a strong storm knocked the nest out of the tree. Biologists quickly reconstructed a new nest on a nearby pole and put the eaglets in it. Soon, their parents were back to taking care of them, McGowan said.

The young birds will probably take wing by June, McGowan said. Will their parents try again in the future? McGowan is optimistic that they will.

“That’s a good place to raise a family,” he said. “So, they should come back next year and in following years.”

By Jeremy Cox

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Tree Cover Declines, Pavement Spreads across Chesapeake Watershed

October 3, 2023 by Bay Journal
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*Amputated tree trunks and mounds of shredded wood are all that’s left of a patch of woods off Aris T. Allen Boulevard in Annapolis that was cleared for development. Dave Harp*

When it comes to safeguarding the ecological health of the Chesapeake Bay and the rivers and streams that feed it, little is more pernicious than development and nothing more beneficial than trees.

Yet despite long-running, wide-ranging efforts to restore the Bay, high-resolution aerial survey data show that an area larger than the District of Columbia is being covered by pavement and buildings every five years. Over the same time period, an area the size of Arlington County, VA, loses tree cover, dwarfing watershedwide tree-planting efforts aimed at replacing cover already lost.

Those data, recently released by the Chesapeake Bay Program, highlight the as-yet unmet challenge of reversing the harm that development is causing to the Bay and its tributaries. The 2014 Chesapeake Bay Watershed Agreement signed by all six Bay watershed states and the District of Columbia pledges only to “evaluate policy options, incentives and planning tools” that local officials might use to curb forest loss and reduce the spread of runoff-inducing paved surfaces.

Comparing aerial imagery and other data gathered between 2013 and 2018, the nonprofit Chesapeake Conservancy, the U.S. Geological Survey and a University of Vermont laboratory tallied 3,012 square miles of the Bay watershed covered by buildings and pavement. Such impervious surfaces keep rainfall from soaking into the ground. Instead, the rain picks up pollutants as it washes toward local waterways. Stormwater runoff is a significant and, according to Bay Program computer models, growing source of pollution degrading the Bay.

While impervious surfaces currently cover less than 5% of the Bay watershed’s 64,000 square miles, they are spreading at the rate of 50,651 acres or 79 square miles every five years, the groups’ analysis found. The District of Columbia encompasses 68.3 square miles, by comparison.

The analysis found that buildings accounted for a little less than a third of the increase in impervious surfaces, while roads added 4%. Nearly two-thirds of the spread represented the cumulative impact of new driveways, parking lots, runways, rail lines and the like.

The aerial surveys found that 8,307 acres of trees had been planted across the Bay watershed from 2013 to 2018, with efforts in Maryland accounting for more than 80% of that. Yet communities throughout the watershed lost more than 25,000 acres of canopy, three times what was planted, for a net loss of about 16,000 acres, or 25 square miles. Arlington County, VA, covers 25.8 square miles, as a comparison. While Maryland had the largest acreage in tree plantings, it also had the greatest net loss of trees in that period, the groups found.

Trees provide a panoply of ecological and health benefits. They soak up rainfall, stabilizing soil and preventing runoff of nutrient and sediment pollution that harms water quality. They also reduce air pollution and provide shade that mitigates summer heat.

Bay Program participants called the data sobering but said they believed it could spur local officials to do more to curb the impacts of development.

“Data and technology can inform and empower the Chesapeake conservation movement like never before,” said Joel Dunn, president of the Chesapeake Conservancy. “In this case, land use decisions in the watershed will finally be informed by both the amount and the value of tree canopy status in every county, one of the most significant factors for water quality.”

Matt Stegman, a lawyer in the Maryland office of the Chesapeake Bay Foundation, called the data “a wake-up call for local jurisdictions to target reforestation projects and policy solutions in places most rapidly losing canopy.”

*Analysis of high-resolution imagery has revealed that pavement and buildings cover about 45% more of the Chesapeake Bay watershed than had been previously identified. Dave Harp*

The data released in August by the Bay Program largely tracks with preliminary analysis of the aerial surveys first reported in 2022 by the Bay Journal. At that time, the groups said the watershed was adding more than 12,000 acres annually of runoff-inducing pavement and buildings.

They also reported in 2022 that communities in the Bay watershed cumulatively suffered a net loss of more than 29,000 acres in urban tree canopy. That’s higher than the current net loss tally of about 16,000 acres, but further analysis found that some of those losses were offset by tree cover forming on otherwise developed lands, according to Bay Program geographer Sarah McDonald.

The latest analysis doesn’t mention another significant trend. In 2022, the groups’ preliminary analysis found the watershed was losing more than 20,000 acres of forest a year. McDonald said the overall forest loss number remains the same, but the groups chose not to report that to the public again because they are “working on better understanding land conversion,” particularly the generally permanent loss of forest to development versus the short-term but potentially replaceable loss of forest to timbering or farming.

By Tim Wheeler

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Getting to Know Serena McIlwain: New Secretary of Maryland Department of the Environment

August 3, 2023 by Bay Journal
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Serena McIlwain, secretary of the Maryland Department of the Environment, discusses the Chesapeake Bay and other topics during a Bay Journal interview in June. Photo by Dave Harp

When Serena McIlwain was appointed to lead the Maryland Department of the Environment earlier this year, she took charge of an agency at a crossroads.

Under Republican Larry Hogan’s governorship, which ended after eight years because of term limits, the department made several important strides toward restoring the Chesapeake Bay. But it was hobbled by a shrinking workforce and bruised by legal fights with environmental groups seeking better enforcement of pollution controls.

The new governor, Democrat Wes Moore, reached across the continent to hire McIlwain.

She had served for four years as undersecretary of California’s Environmental Protection Agency. That was after a short stint at the U.S. Environmental Protection Agency in Washington, DC, as director of the Office of Continuous Improvement during the Trump administration.

The veteran bureaucrat has worked in various roles across much of the federal government going back to 2003.

During an interview with the Bay Journal, McIlwain was quick to dispel any notion that she is merely a hired gun. She was born and raised in the Chesapeake Bay region, and she still considers it her home.

Below are excerpts from the interview, which took place in mid-June at MDE headquarters in Baltimore. It has been edited for length and clarity.

Question: You’ve moved across the country a couple of times now. Why did you want to come back to Maryland for this position?

Answer: I wanted to come home. And the more important reason is when I met with the new governor, Gov. Wes Moore, we talked about climate change. We talked about some of the issues in Maryland, and when we spoke, I saw the passion he had and the support that he would have for me and MDE, I was ready to pack up right then and there and leave my job and come here.

Q: What’s your favorite image when you think of the Chesapeake Bay?

A: My favorite image is really just the water. I love water. Water is my middle name. Not literally. But yeah, it’s just the image of the water and seeing the boats and people out there enjoying themselves.

Q: The University of Maryland Center for Environmental Science Bay report card recently gave the Bay ecosystem a C grade. Despite 40 years of effort, the big lift in aquatic health seems to elude us. Why haven’t we been able to overcome this?

A: It’s called climate change. Things keep changing. Every time we come up with goals that we think are suitable for restoring the Chesapeake Bay, more things are happening. And it’s just hard. We’re relying on other states that contribute [pollutants] to the Chesapeake Bay. We don’t really control that. We rely on the EPA to control those other states. It’s a constant battle challenge, but we’re making progress nonetheless.

Q: The biggest pollution reductions for the Bay need to come from the agricultural sector. That’s not news to anybody. But, so far, efforts such as cost sharing and best management practices haven’t been nearly effective enough. What can be done to get at this problem?

A: There’s a lot of nonpoint sources of pollution. I will tell you, as new secretary, I’m working very closely with the new [Department of Agriculture] Secretary Kevin Atticks on trying to really look at ways that we can do things differently in the agricultural area. It’s agriculture. We need it. But at the same time, you cannot pollute the environment. It’s a constant thing that we try to deal with and work with.

Q: The Chesapeake Bay program from the beginning has largely been based on reducing nutrients to reduce the size of the “dead zones” in the deep channel. With the 2025 deadline approaching to put actions in place, is it worth rethinking what those goals should be?

A: I think we’re at a good moment where we can start to reimagine how we’re going to restore the Bay. There was a recent report out [the Comprehensive Evaluation of System Response report], and it has a lot of recommendations in there as well. In that report, they’re talking about ways to start thinking differently. I know there’s a lot of hype about, “Oh, we’re not going to meet the 2025 TMDL [total maximum daily load].” I will tell you, that might be true. But Maryland — we’re on target to meeting it. We’re doing our part.

Q: Your agency is working on releasing an implementation strategy for the Climate Solutions Now Act, which calls for 60% reductions in greenhouse gas emissions by 2031. How do you see the state reaching this goal?

A: It hasn’t been released yet. But I do have an idea of what it’s going to take. And it is going to take a lot of coordination and partnership with state agencies. I will tell you this: It is possible to meet the 60% goal by 2031. We can do it, but it’s going to be a real heavy lift. That includes continuing the efforts that we have now with zero-emission vehicles and building more infrastructure [to support EVs].

MDE secretary roundtable — MDE Secretary Serena McIlwain, seated beside Maryland Gov. Wes Moore, speaks during a climate roundtable on April 3.

Executive Office of the Governor

Q: What about the gas stoves?

A: Yes, the gas stoves loved by chefs and cooks at home. But it is part of the solution that we need to be able to convert appliances to electric. It’s better for pollution, and it will definitely help us meet our climate goals. We plan to really look into changing appliances and making them cleaner.

Q: When you look at any environmental justice screening tool — University of Maryland’s, for example — you see different places light up in the DC suburbs and Baltimore, but also in rural places like Hagerstown and the Eastern Shore. What can this administration do over four or eight years to get wins when it comes to environmental justice?

A: I will be looking at everything that we do from an equity lens. And that’s from permits, to regulations, everything.

Q: The Climate, Labor and Environmental Equity Act did not pass this last legislative session. It would add more teeth to the idea of equity and permitting. Is that something you would support going forward?

A: I absolutely need it. I supported it. I want it badly. If it’s never passed, are we still going to move forward? I am. That bill was really important to me, and I hope to see it continue on [in next spring’s session].

Q: What other justice-related goals do you have in mind?

A: I have started listening sessions throughout Maryland. I started with Curtis Bay. And it was really enlightening for me. We’re starting to listen more. And it’s no longer rhetoric, as far as I’m concerned. So, I’m listening to their needs. We’re coming back here, and I’m keeping it at the forefront of all that we do.

Q: What was so enlightening about the Curtis Bay listening session? [Editor’s note: Curtis Bay is a majority Black community in Baltimore that neighbors several industrial sites.]

A: They brought up issues like, we have to continue to get our tires changed on our cars because of all the trucks going through. We [at MDE] don’t regulate the streets. But that was a concern to them. And it was a concern to us. They talked about the coal that’s in those trains that are right there, and I was able to go and see the dust. They were talking about how they can’t keep their windows open. That really resonated with me. I felt helpless because I can’t do anything about that coal. And that did not make me feel good. So, what I told them was, “It’s not my area, but I will partner with whoever I need to, to bring awareness to this issue.” That means talking to federal Department of Transportation, speaking with Maryland Department of Transportation, and I already have it scheduled to meet with them.

Q: This administration’s first state budget includes funding for 43 new positions at about $3.7 million to help clear the backlog of stormwater discharge permits that have expired but been allowed to continue standing. Why did this administration want to address that right out of the gate?

A: The public is really concerned about it. We need to make sure that everyone is in compliance. We need to do our jobs. I get reports weekly. I’ve made it clear that it’s a priority.

Q: It very much echoes another situation that involves your department. MDE and the Department of Health share oversight of septic permitting, where another backlog is occurring, particularly for the Eastern Shore. What can you tell folks who are saying, “Why can’t I get my darn permit?”

A: We are working with the Health Department. We’re going to be looking at making sure that the people who need the permits are getting five-star customer service. People are waiting for responses. That’s unacceptable. Period. So we’re going to correct it, we’re going to clean it up.

Q: Can you provide an update on the Conowingo Dam license negotiations with its owner, Constellation Energy, in the wake of the federal court ruling last year that nullified the 2018 agreement for it operating license? Do you see significant changes to those provisions in that settlement?

A: As part of the court decision, we are required to start the reconsideration process again. We’re going to reconsider whatever [Constellation’s representatives] bring forward. Once that process is over, then we will make a decision on what we need to do with the water quality certification.

We’re going to be and we have been very transparent. We’re letting the public be a part of it. We’re just trying to do the right thing by Marylanders.

Q: Under the 2018 agreement, Exelon (the dam’s owner at the time) was on the line to pay $200 million to address water quality concerns, and $700 million if you count in-kind projects. Do you see that amount changing much going forward?

A: I’m not sure about how much more money we will get, if any, because now we have to start all over. There are a lot of court cases and different things that have happened over the years. Because this case was drawn out too long, we’re not in a position as we could have been to be more forceful with the enforcement, or the amount. We’ve got court cases [released since 2018] saying we can’t do this and we can’t do that, in terms of asking for more money when it comes to fines.

[As for the original settlement payout], I think people on the outside thought, “That’s nothing. You could have gotten billions.”’ Honestly, there was a chance that we could have gotten zero. When I did start, I asked what happened with Conowingo Dam, what happened with the settlement. When I looked at everything, I understood why we decided to settle for $200 million. That was good for what we knew and what was in front of us.

Q: A timely question: Our region was literally choking on smoke caused by Canadian wildfires widely attributed to climate change. You lived in and worked in California, where wildfire fires have sadly become part of life. What was your takeaway from this latest experience?

A: My mind went to California. I thought, “Oh, communication.” When I was in California, we were very good at communicating to the public where we are and what does this mean. We didn’t really have that system in place here.

As we were getting through it [here], I saw misinformation. [Misinformation was spreading that said] it was getting worse. We were looking at the data, and it was going down. So, I made a decision that, “Hey, we need to get out there and get the message out correctly.”

By Jeremy Cox

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Supreme Court Wetlands Ruling ‘Serious Setback’ for Bay

July 29, 2023 by Bay Journal
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With a recent U.S. Supreme Court decision sharply curtailing federal oversight of streams and wetlands, environmental groups working to restore the Chesapeake Bay say they’re worried about gaps in state laws and enforcement practices that now leave those waters vulnerable to unrestricted development and pollution.

In a May 25 ruling the nine justices unanimously agreed that the U.S. Environmental Protection Agency overstepped its authority in declaring part of an Idaho couple’s home site wetlands and demanding that they get a permit to fill it.

But the court’s majority went further in Sackett v. EPA and, with a 5–4 vote, drastically redefined which streams and wetlands are protected under the Clean Water Act. In doing so, it sought to settle decades of debate by removing federal regulation of activities affecting isolated wetlands and tiny streams that flow with water only after heavy rains.

“I’m not aware of anyone who predicted this,” said Peggy Sanner, Virginia executive director of the Chesapeake Bay Foundation.

She called it a “serious setback” for environmental protection efforts in general, as well as for the Bay restoration effort.

Wetlands and those periodically dry stream beds help keep water-fouling nutrients and sediment from reaching the Bay while also providing critical habitat and soaking up floodwaters.

Farmers, developers and other business organizations welcomed the ruling. The Virginia Farm Bureau’s blog called it “a major victory for farmers and property rights,” while the chair of the National Association of Home Builders dubbed it a win against “federal overreach” and for “common-sense regulations and housing affordability.”

Passed in 1972, the Clean Water Act gave the federal government jurisdiction over “navigable waters” and set up a permitting program to regulate discharges of dredged or fill material into “waters of the United States,” including wetlands.

A legal and political dispute has flared on and off since then about how far upstream that authority applies. Congress amended the Clean Water Act in 1977 to specify that it also covered wetlands “adjacent” to navigable waters, but that hasn’t quelled the controversy. The Supreme Court has weighed in repeatedly since the 1980s, with shifting and conflicting opinions.

In 2015, the Obama administration sought to clarify what’s regulated with a rule that protected isolated wetlands and “ephemeral” streams with a “significant nexus” to navigable waters.

That drew fierce backlash from farmers, developers and energy companies. The Trump administration repealed it and proposed a much narrower rule that applied federal regulations only in cases where surface water contributes to the wetland or waterway in question. States and environmental groups sued.

A court threw out the Trump rule, and the Biden administration has been working on another, more expansive version.

Environmental lawyers say the Sackett ruling appears to restrict federal jurisdiction even more than the Trump regulation. The EPA and U.S. Army Corps of Engineers, the two agencies that regulate activities affecting wetlands and waterways, had estimated that the Trump regulation would have stripped federal protection from more than half of the nation’s wetlands and roughly one-fifth of its streams.

Bob Dreher, legal director for the Potomac Riverkeeper Network, estimated that the recent court decision removes protection from as much as 65% of wetlands nationwide and more than 80% of the streams.

In the Bay watershed, the impact is somewhat muted. Five of the six states and the District of Columbia provide at least some protection under their own laws for wetlands and streams now removed from federal jurisdiction. Delaware is the only outlier, one of 24 states nationwide that rely entirely on the Clean Water Act for safeguarding their waters, according to the Environmental Law Institute.

Maryland, Pennsylvania and Virginia each have comprehensive state laws that provide protection from disturbance for their wetlands and all waters, even groundwater, noted the Bay Foundation’s Sanner.

West Virginia law also contains a broad definition of “waters of the state” but, according to the law institute’s James McElfish, the state has not always required permits for activities in wetlands and streams that fall outside the federal interpretation.

New York last year strengthened its protections for freshwater wetlands, but the state only requires permits for activities affecting wetlands larger than 7.4 acres, unless they’re deemed to be of “unusual importance.”

David Reed, executive director of the Chesapeake Legal Alliance, foresees trouble, even in states with strong legal protections on the books. State and federal agencies have jointly reviewed applications for permits to disturb a wetland or stream. Now, with the federal role shrinking, he said, there won’t be a backstop for state regulators facing intense pressure to look the other way.

“It will push them inevitably toward laxer enforcement,” Reed said of the states. “It will be this insidious direction toward less and less protection.”

Before the court’s ruling narrowing federal jurisdiction, Virginia, for instance, had relied on the Army Corps to review developers’ delineations of wetlands and surface waters when they were seeking permits.

In late June, the state’s Department of Environmental Quality announced that it would take over that task and would prioritize those applications where the delineations are performed by certified private wetlands professionals. The agency said the change would “restore certainty in the permitting process and allow projects to move forward in a timely manner.”

The Bay Foundation’s Sanner said she was encouraged by DEQ’s “thoughtful” process for continuing to protect wetlands while ensuring efficient permitting. But she cautioned that “many questions remain” about the state’s response to the court ruling.

Another major concern is that most states do not offer their citizens the same right to go to court to enforce their laws as the Clean Water Act does. The federal provision for “citizen suits” has allowed environmental groups to go after polluters in federal court and often prod state regulators to act when they haven’t before, Reed said.

Environmentalists say the Supreme Court decision also puts a cloud over the section of the Clean Water Act that establishes federal and, by extension, state authority to regulate discharges of stormwater and other pollutants into dry stream beds or isolated wetlands.

Activists say the Supreme Court’s ruling means they’re going to have to press for stronger state laws and for staffing and budget increases for regulatory agencies to enforce them.

“If we’re going to have hope for states to be a little of a backfill here, we’re going to have to help states get up to speed,” said Betsy Nicholas, the Potomac Riverkeeper Network’s vice president of programs.

by Tim Wheeler

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

Debate Resumes on Conowingo Dam Pollution Problems

June 23, 2023 by Bay Journal
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Conowingo was built in 1928 to generate electricity, and it inadvertently acted as a trap for nutrient and sediment pollution flowing downstream to the Chesapeake Bay. Over the years, sediment buildup behind the dam has reduced its pollution-trapping capacity. Photo by Dave Harp

The long-running and litigious debate over Conowingo Dam’s impact on the Chesapeake Bay has resumed, with all sides still entrenched, at least for now.

Six months after a federal appeals court vacated Constellation Energy Corp.’s license to generate hydropower at the dam on the lower Susquehanna River, the Maryland Department of the Environment has called a parley with representatives of the company and of the environmental groups that successfully challenged the license. The initial meeting of the parties was June 21.

At issue is what the state will require of Constellation to reduce nutrient and sediment pollution flowing downriver through the dam to the Bay. In a letter inviting lawyers for the other two parties to meet, MDE officials said they were going to resume reconsideration of a tough water quality certificate, or permit, for the dam that it had issued in 2018, triggering a legal donnybrook in which both the company and environmental groups filed lawsuits.

“We’re not sure how this is going to go for all of us,” said Betsy Nicholas, a consultant to Waterkeepers Chesapeake, a coalition of 17 riverkeepers around the Bay watershed which with the Lower Susquehanna Riverkeeper, had sued. MDE has never dealt with a situation like this before, she said.

Completed in 1928, the 94-foot-high dam straddles the Susquehanna about 10 miles upriver from the Bay. Until about a decade ago, it captured a portion of the nutrients and sediments washing down the river. But now its 14-mile reservoir is mostly filled, and those pollutants from farm runoff, municipal wastewater and stormwater flow through Conowingo and into the Chesapeake, where they contribute to algae blooms and other water quality woes. Storms or heavy rains also flush a surge of pollution, trash and debris from behind the dam into the Bay.

Five years ago, after years of studies, MDE had ordered the company, as a condition to keep operating the dam, to either deal with that untrapped pollution or pay the state $172 million a year to have it done. The federal Clean Water Act effectively gives states veto power over federal licenses or permits for construction projects or facilities like the dam that may affect states’ waters.

But Constellation, then a part of Exelon Corp., sued MDE in response, contending that Maryland was placing an “unfair burden” on the company to address pollution its dam did not generate.

In 2019, MDE and the company reached an out-of-court settlement, under which it agreed to provide more than $200 million to rebuild eel, mussel and migratory fish populations in the river. It also offered help with nutrient and sediment pollution flowing into the Bay, though much less than the state had initially required. In turn, the state waived its right to impose its previous conditions on the dam’s operating license.

Environmental groups and others objected to the deal. But the Federal Energy Regulatory Commission, which regulates hydropower facilities, issued a new license for Conowingo with no other conditions. The waterkeepers groups then sued, and in December 2022, the U.S. Court of Appeals for the District of Columbia ruled that the commission should not have accepted the deal and vacated Constellation’s license to run the dam. The court said Maryland could either uphold its original certification or toss it and have the company apply for a new one.

After first engaging in private talks with Constellation, MDE wrote the company and environmental groups on June 1 inviting them to present any new or previously overlooked information they believe is relevant to assessing the dam’s impact on water quality downriver and in the Bay. MDE also is inviting public feedback on the issue, with Aug. 1 set as the deadline for all comments and new information.

“Ensuring a revitalized Chesapeake Bay for the benefit of all Marylanders is a top priority,” MDE Secretary Serena McIlwain said in a statement issued by the department. “As we move ahead with the reconsideration of the 2018 Water Quality Certification, we will be transparent, we will welcome input and we will work collegially with all parties for a healthier and more vibrant Bay.”

Environmentalists want MDE to stick to its original requirements.

“We’re hoping that they see at the end of the day that they made the correct choices in 2018,” said Lower Susquehanna Riverkeeper Ted Evgeniadis. MDE “provided a water quality certificate that was adequate to protect water quality,” Evgeniadis said, “and we hope they uphold that … without any changes.”

A Constellation spokesman indicated the company wants MDE to honor the deal they negotiated.

“While we believe another round of comments is an unnecessary step,” spokesman Bill Gibbons said in an email, “Constellation will participate in the re-opened reconsideration process to support the long-term future of the state’s largest source of renewable energy and to demonstrate that our settlement agreement with Maryland offers the best possible outcome for the state and the Bay.

Gibbons urged MDE to “come to a speedy conclusion” so the company could carry out the cleanup measures it agreed to in the deal, which it values at $700 million. Meanwhile, Constellation continues to generate power under a temporary extension of its expired license.

But MDE’s review may just be the opening round in another legal bout that could take several more years to conclude. Betsy Nicholas, a consultant to Waterkeepers Chesapeake, said if MDE sticks by its earlier requirements or substantially reduces them, one side or the other is sure to demand a “contested case hearing.” That is a trial-like process at which all sides can present evidence and testimony and cross-examine witnesses. And if anyone disagrees with the outcome of that hearing, they can then file a lawsuit in state court, with appeals possible all the way to Maryland’s Supreme Court.

Evgeniadis and Nicholas say that while they want to see MDE stand by the water quality requirements it originally set, they hope an acceptable compromise can be negotiated among all parties, one that deals with the pollution while perhaps adjusting Constellation’s financial burden.

One possible framework for a new deal is a plan Bay watershed states developed in 2021 for dealing with the pollution impacts of the dam. It calls for reducing the annual flow downriver of nitrogen by 6 million pounds and of phosphorus by 260,000 pounds. The estimated price tag: $53 million, only part of which the states have pledged so far to cover.

Alison Prost, the Chesapeake Bay Foundation’s vice president for environmental protection and restoration, said she believes Constellation has a role to play in reducing that pollution.

“I don’t believe they should take up the entire burden, Prost said. But, she added, “this is an opportunity to bring them into the fold.”

The Spy Newspapers may periodically employ the assistance of artificial intelligence (AI) to enhance the clarity and accuracy of our content.

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