Chesapeake Bay

The war over Chesapeake Bay

The government just paid this family to pull up productive farmland—in a huge scheme that stretches the limits of the law, but just might help save a jewel.

By Annie Snider

Linn Moedinger's farm has been in his family for 10 generations, dating back to 1711, 150 acres of rich fields and meandering streams nestled in the heart of Pennsylvania Dutch country. As long as the family has owned it, it’s been a working farm; today Moedinger leases the fields to a neighbor who grows corn, wheat and soybeans. The family relies on the crop income to keep up the historic farmhouses they call home.

Nonetheless, Moedinger recently surrendered 12 acres of property along his tiny, unnamed streams to plant wide strips of oak trees, dogwood shrubs and other native plants, paid for by the government. If all goes according to plan, that land will never produce crops again.

The trees are part of perhaps the most ambitious—and, some would say, overreaching—federal water cleanup plan underway in America. The streams on the Moedingers’ property flow into Mill Creek, which drains into the Conestoga River, which flows into the Susquehanna River, which dumps roughly 25 million gallons of water each day into the Chesapeake Bay. Right now, that water includes tons of agricultural runoff that the government has been all but powerless to remove. By encouraging landowners like the Moedingers to plant trees as a kind of filter between their cropland and local waterways—and by pressuring the six states in the bay watershed to sink enormous amounts of staff time, political capital and taxpayer dollars into programs to stop farm fertilizer and animal manure from draining into the distant bay—the government hopes to solve a problem that has plagued the region for three decades: persistently high pollution that’s killing one of America's most iconic bodies of water.

In the five-and-a-half years since the Obama administration announced the Chesapeake Bay cleanup plan, it has become one of the most contentious environmental battles in the U.S. To its advocates, it’s a long-overdue move by Washington to own up to its responsibility to plug the holes in U.S. water law. To opponents, it represents typical Obama excess, using the 1972 Clean Water Act as a blunt instrument to accomplish something it was never intended to do. The act gives Washington no actual power to regulate farmers; the cleanup plan gets around this by setting pollution goals for the Chesapeake Bay and then imposing limits on upstream states, effectively forcing state officials to prod their farmers into conservation programs. Without actually rewriting the law, the plan has changed land and water policy across 64,000 square miles of the mid-Atlantic. This spring, the plan narrowly survived a Supreme Court challenge, when a divided court declined to hear an appeal in a lawsuit against the government.

For the Moedingers, the decision wasn’t easy, but it wasn’t a fight, either. The family liked the idea of being good stewards of their land, and the state of Pennsylvania and the U.S. Department of Agriculture made it worth their while—at least for now—by not only covering the cost of the seedlings and labor, but also paying the Moedingers rent on the land taken out of production for 15 years.

“I’m not a big fan of super strict regulations, but the only way to avoid them is to be proactive, and this was something small we could do,” Moedinger said on a recent visit as wind whipped through the tall streambank grasses, carrying with it the faint scent of wild meadow mint.

So far, more than 125,000 acres of forested buffers have been planted along rivers and streams in Pennsylvania’s portion of the bay watershed alone. The cleanup plan, which targets all sources of pollution, has spurred states and localities to upgrade wastewater treatment plants with state-of-the-art technology, build storm-water retention ponds that slowly filter grimy water into the ground rather than allowing it to overwhelm local streams, and pay farmers to plant cover crops that bind nitrogen and phosphorus.

But as the plan takes hold, and pressure ramps up to reshape more acres of farmland to accommodate its goals, two big doubts are growing. One is among critics elsewhere in the U.S., that fear the Chesapeake Bay plan—ambitious as it is—is just the thin end of a wedge, and that the bigger target is a cleanup of the Gulf of Mexico marked by pollution that pours down the Mississippi River from farms in 31 states. They look at Obama’s Chesapeake Bay effort as a framework that could bring equally sweeping, and unwelcome, changes to the American heartland, impacting such things as farm policy, homebuilding and even how much Americans pay for day-to-day necessities like food and energy.

Another concern is that the plan, as aggressive as it is, won’t be enough to save the bay. It takes decades for nutrients to work out of groundwater and for trees to mature, so it will take years to know whether the changes being made today are even working. Already, early research suggests we may have underestimated the challenge.

The Chesapeake Bay cleanup plan, along with a contentious Obama administration rule to solidify protections for small streams and wetlands, is an acknowledgment that the nation’s rivers and lakes are far more difficult to protect than believed when lawmakers wrote the foremost water law. As this plan lurches forward, it’s a high-stakes experiment into just how possible it is for government to protect our most crucial resource, and whether our modern way of life can ever be compatible with clean water.

THE CHESAPEAKE BAY once teemed with aquatic life: When explorer John Smith arrived in the 17th century, he found a bay enlivened by blue crabs, sturgeon, rockfish and trout, and wrote that the oysters “lay as thick as stones.” The bay is the nation’s largest estuary, and was once one of the most productive water bodies in the world—but it has been on life support since the 1970s. The bay receives all the fertilizer runoff, wastewater and stormwater from one of the most populated swaths of America. Its watershed stretches from Cooperstown, New York, to Norfolk, Virginia, and is home to 18 million people and growing. The result: Today the bay’s iconic oyster population stands at just 2 percent of what Smith saw, and other species haven’t fared much better. The blue crab population—the source of prized Maryland crabcakes—plummeted so low, thanks to ailing waters and overfishing, that regulators shut down the fishery for seven years straight recently to let the population recover. And underwater grasses, the base of the food chain and important habitat for fish, insects, ducks and crabs, were choked out by slimy algae and sediment-laden waters.

The Clean Water Act was supposed to clean up bodies of water like the Chesapeake. When it was passed in 1972, U.S. rivers had become so fouled by sewage and industrial pollution that the Cuyahoga River famously caught fire in 1969. The law mandated massive upgrades to wastewater treatment plants and other industrial facilities, and created a whole new framework for evaluating and protecting the health of the nation’s rivers, lakes and seas. In many ways, it was a huge success. Within a few short years, the raw sewage and soap bubbles that Americans had seen in their rivers and lakes disappeared. But slowly, experts realized that the nation’s water bodies, especially big ones like the Chesapeake Bay, weren’t all bouncing back. And the reason was something the Clean Water Act hardly addressed: What happened on the land.

Every time it rains, excess fertilizer washes off rural farm fields and suburban lawns and into local waterways. In cities and towns, stormwater sweeps over roads and parking lots, collecting grime and chemicals on its way to the sewer. As American agriculture has shifted from small family farms to large-scale, industrial production, and suburban sprawl has converted fields and forests to parking lots and big-box stores, pollution has only grown.

Today, agricultural runoff and stormwater are the largest sources of pollution in most U.S. waterways. In one sense, that's a victory for the Clean Water Act. It worked as intended, and industry and sewage are no longer the things choking rivers. But it raises a new challenge: The sources that now matter most are essentially unregulated. The entire law was written to give federal regulators the power to reduce pollution that comes out of a pipe, not pollution washing off the landscape. But as runoff surpassed industry as the main source of pollution, regulators realized that they were still left with a massive pollution problem, but had little more to use than their power of persuasion to solve it.

And the problem goes beyond fish and wildlife. In Des Moines, Iowa, nitrogen pollution from upstream farms regularly fouls the city’s source water. Last year, it forced the city’s drinking water plant to spend more than $1.5 million to make water safe for consumption. Excess phosphorus from agricultural operations in Lake Erie’s watershed feeds massive algae blooms on the Great Lake each summer. In 2014, one of those blooms containing a dangerous toxin reached the city of Toledo’s drinking water intake pipe, forcing the city to turn off its taps for an entire weekend.

The pollution is worst at the bottom of the system, where estuaries like the Chesapeake Bay receive all the fertilizer runoff and other chemicals from an entire watershed. Agricultural runoff isn't a poison like a toxic chemical: Rather, it's a rich stew of nutrients that oversaturates the water and feeds massive algae blooms that block out sunlight and suck up oxygen when they decompose. Each summer, these blooms spawn massive dead zones that suffocate or drive away marine life. The Chesapeake Bay’s dead zone regularly covers a full cubic mile during the peak of summer.

THE LONG FIGHT to do something about the Chesapeake Bay has roots that go as far back as the Clean Water Act itself. Sen. Charles “Mac” Mathias, a Republican from western Maryland, had been hearing concerns from bay residents about declining seafood harvests and industrial and municipal waste fouling a bay that he remembered from childhood as crystal clear. After a five-day, 450-mile tour of the bay in 1973 to see for himself, Mathias returned to Washington alarmed, and eventually persuaded colleagues to fund a comprehensive study of the estuary.

When the study was completed in 1983, it painted a bleak picture: decimated oyster harvests, crab yields and landings of freshwater fish—all, embarrassingly, right in Washington's backyard. The study helped fuel political will not just in Washington, but in the region’s state capitals: Just months later, the governors of Maryland, Virginia and Pennsylvania signed the first agreement aimed at cleaning up the watershed. William Baker, the longtime president of the Chesapeake Bay Foundation, said the initial agreement was short on substance, but was “incredibly important symbolically,” since officials in the region had long fought any suggestion that the bay had a problem.

“The phrase ‘Save the Bay’ was actually considered critical of this region because it implied this was not the land of pleasant living, it needed to be saved,” Baker said in an interview at the foundation’s bay-front headquarters in Annapolis, where ospreys glide past walls of glass windows, carrying branches for their nest and compostable toilets flush with sawdust instead of water.

The next year, President Ronald Reagan proposed a notable boost in the Environmental Protection Agency budget, in part to aid the new effort. He even mentioned the Bay in his 1984 State of the Union address. In 1987, the three states and the District of Columbia signed a new agreement setting the first numeric goals for reducing pollution. But by the time the new century rolled in, states were nowhere near the goal. They signed yet another agreement, this time including the bay’s “headwater states” of Delaware, New York and West Virginia, and with even more aggressive targets set for 2010. But by 2008, it was clear those goals were going to fail as well. State officials and environmentalists knew what they needed to make the next agreement more than just another written exercise: They needed the feds.

The idea, hatched by conservation groups and state environmental officials who had seen firsthand the pitfalls of the previous, failed efforts, was to use the framework created by the Clean Water Act along with the EPA’s existing powers to put real pressure on state and local governments to crack down on runoff. Under the act, when a body of water is declared polluted, a state is required to write a “pollution diet,” defining how much of each pollutant a waterway can handle, and then chart out how much each sector would need to reduce its pollution to achieve those numbers. If a state fails to write that pollution diet, the EPA is supposed to step in to do it for them. But no one had ever tried to write a diet for a watershed the size of the Chesapeake Bay’s.

And environmentalists didn’t want just any pollution diet. They wanted one with teeth. While the Clean Water Act is clear that diets must be written, the reductions are essentially voluntary. The results have been about what one would expect: The Government Accountability Office found in a 2013 report that for waterways overburdened by pollution from farms and urban runoff, only 1 in 5 of their diets had actually been implemented after more than five years. It also included the astonishing estimate that it would take 1,000 years to clean up all of the streams, rivers and lakes ailing today with the voluntary approach.

The Chesapeake Bay Foundation and others wanted the EPA to use its powers to prod states into following through. While the agency can’t force farmers to fence their cattle out of streams or require suburban towns to build rain gardens, it can withhold grant money from communities that don’t follow through with their promises to do these things. Or, if pollution continues apace, the agency can crack down on the sources it does have control over, setting stricter permit requirements for wastewater treatment plants and industrial sources.

In January 2009, the Chesapeake Bay Foundation filed a lawsuit against the EPA, saying the agency was failing to comply with the Clean Water Act, and had violated the terms of the cleanup agreement of 2000 with the states. The goal was to force the agency to write the tough type of pollution diet that seemed necessary to clean up for the massive watershed.

The Chesapeake Bay lawsuit was one of the first major issues to land on EPA Administrator Lisa Jackson’s desk when she took office in 2009, after President Obama was sworn in. In May 2010, she signed a settlement that had the agency write the diet in collaboration with states. The goal: Get enough conservation practices in place by 2025 to reduce nitrogen flowing into the bay by 25 percent, phosphorus by 24 percent and sediment by 20 percent—amounts, it was thought, that would eventually improve water quality enough to end the bay’s dead zone.

Those total pollution reduction targets were then broken down across 92 different stream and river segments, each with its own limit. It was up to the states to write their own plans for how to hit those targets, but the cleanup plan gave the EPA a powerful oversight role. And, crucially, it laid out heavy hammers the feds could use against any state that fell short on following through.

Since then, Pennsylvania, which contributes nearly half of the nitrogen pollution that pours into the bay each year, has set ambitious goals to get farmers to write the required plans for managing nutrients and erosion on their property, and also to help them implement the plans by pushing programs like the forested buffer strips on the Moedingers' farm, which prevent excess nutrients from reaching the water. The state now puts up nearly $150 million a year for such programs.

Across the 64,000-mile watershed, researchers estimate state, local and federal authorities are pouring roughly $5 billion each year into the massive cleanup plan, covering the cost for farmers to install conservation measures, paying inspectors to visit thousands of fields, footing the bill for towns to upgrade or remove septic systems and cities to build settling ponds to store and infiltrate stormwater. Five-and-a-half years in, the effort has already had profound changes on the way people across a broad swath of the nation’s landscape use the land.

ALTHOUGH REGULATORS IN the Bay states were on board, industry groups were not.

The American Farm Bureau Federation and other agricultural and development groups filed suit almost immediately after the agency finalized the diet in late 2010. Twenty-one state attorneys general from Kansas to Florida to North Dakota—but none of the key players within the watershed—later sided with challengers, arguing the approach intruded on their rights to manage their own waters and make decisions about land use.

To farmers, this violated the deal they thought they had with the EPA. Agricultural interests enjoy major exemptions under the Clean Water Act, and have long argued that the law deliberately steered clear of telling farmers what to do. Restrictions on whether and how their land is used can hit a farmers’ bottom line hard, since most compete in the global commodities marketplace that prevents them from simply raising their prices when their own costs go up. “When Congress passed the Clean Water Act in 1972, they clearly did not want to hand EPA the authority to direct land use,” said Don Parrish, senior director for regulatory relations at the American Farm Bureau Federation.

The groups warned that the Chesapeake Bay would be just the beginning. They were worried that the EPA could expand the approach to other large, ailing watersheds—notably the 31-state Mississippi River watershed, which last year sent so much pollution into the Gulf of Mexico that it spawned a dead zone the size of Rhode Island and Connecticut combined. The attorneys general argued that the plan "has far-reaching implications for States across the country."

The court battle lasted nearly five years, but at each step along the way, judges upheld the bay cleanup plan. A district court judge concluded in 2013 that in the sprawling watershed, “EPA's role is critical to coordinating the Bay Jurisdictions' efforts to ensure pollution reduction.” Two years later, a three-judge appellate court panel ruled for the EPA, calling challengers’ arguments “long on swagger, but short on specificity.”

The Farm Bureau appealed the latter decision to the Supreme Court, where its petition was considered this February in the justices’ first conference after Antonin Scalia died. Looking at a potential 4-4 split on the issue, the justices declined to take up the case, allowing the district court ruling to stand but setting no precedent. That leaves the plan the law of the land in the Chesapeake Bay watershed—and it means nobody knows whether it would hold up if the EPA tried it elsewhere.

FOR ALL THE legal victories the bay cleanup effort has racked up, one huge question still hangs over the plan: Is it working? The bay has seen some recent improvements, including steep gains in the recovery of underwater grasses that provide habitat to fish, crabs and other species, and hold down sediment that can worsen water-quality problems.

But states are already falling short of their goals. Pennsylvania is particularly lagging; despite the tens of thousands of acres of forested buffers installed there and more than $4 billion poured into cleanup efforts in the past three decades, the state is sending 16 million more pounds of nitrogen downstream each year than it is supposed to under its goal for next year. Officials have already acknowledged that its 2017 target will be missed.

What happened? Democratic Gov. Tom Wolfe, who took office in January 2015, has pointed the finger at his Republican predecessor for deep budget and staffing cuts to the state’s Department of Environmental Protection. He has vowed to “reboot” cleanup efforts, but that would be expensive—a Penn State University study found that Pennsylvania would have to spend $380 million a year on agricultural practices alone to make its goals—and it’s not clear how Wolfe and the Republican-controlled state Legislature would agree on how to find the money. The state’s bay cleanup efforts suffered another blow on Friday when Wolfe’s Secretary of Environmental Protection resigned amid concerns he was too much of an activist to strike compromises. His move, following recent departures of two other high-level aides, appears to leave the governor’s bench of top-level environmental experts empty.

As punishment, the EPA has withheld nearly $3 million in federal grant funding, but even the agency's own officials acknowledge that also hurts the effort, since that’s also funding that can help the state get back on track. And so far, the Obama administration has declined to take harsher steps like cracking down on wastewater treatment permits—in part because it’s a move that could hit residents’ pocketbooks and cause political headaches for the Democratic governor.

The EPA "has been doing its job all along to make sure that we're providing the appropriate backstop," Administrator Gina McCarthy said last summer, defending the agency’s choice not to step in more strongly. "But honestly, you are not going to tackle the issue of restoring the Chesapeake one permit at a time, or one grant at a time. It has to be a really systemic, collaborative approach, and that is what we are supporting."

EVEN IF STATES get back on track, will the Chesapeake Bay plan really work? That’s a question even its advocates have a hard time answering with certainty. Changes in runoff and nutrient levels aren't the kind of thing that can be measured day to day. The plan's achievements, like tree planting and new urban stormwater systems, require years to show improvements in local waterways. The whole plan is premised not on daily water sampling in rivers and streams, but on a complex computer model that attempts to calculate the water-quality impacts of different changes on the landscape.

Already, scientists have realized they got some of the modeling wrong. For example, researchers long thought that planting fields with minimal tilling was an all-around win, reducing soil erosion and sequestering carbon that contributes to global warming. But in recent years, scientists have come to understand that when farmers don’t till the soil, extra phosphorus stays in that uppermost layer and easily washes away when a rainstorm passes through. This is an especially large problem on Maryland’s Eastern Shore, right next to the Bay, where chicken producers dispose of the manure by spreading it on fields. Suddenly, state officials realized they had hundreds of farms with fields oversaturated with phosphorus—and farmers who thought they were doing something good for the environment were told they had actually been pumping gobs of harmful nutrients straight into the estuary.

Now, as the bay cleanup plan nears its midpoint next year, scientists are preparing to update the massive model underpinning the effort so it incorporates this type of new science. It will also account for changes expected to come to the bay system as the climate warms—something the current model does not account for. And as they did in Maryland, these changes could significantly move the bar for states that already struggle to meet their current goals.

People who have been grappling with water pollution issues for years, like Patrick Parenteau, a Vermont Law School professor and former state and federal regulator, say they have become realists about the chances for success. “These problems are so unbelievably serious and difficult,” Parenteau said, “They are not going to be cleaned up on anybody’s lifetime.”

These days, he tells his students: “You can’t expect success. You can only work as hard as you can, make as much progress as you can, and call it good.”

Even as the Chesapeake Bay effort remains an unproven experiment, however, calls are coming from around the country for the EPA to bring the same approach to bear in other watersheds. After a toxic algae bloom on Lake Erie fouled the city of Toledo’s water supply for a full weekend in the summer of 2014, the mayor pressed for the administration to step in with a similar effort in the farm runoff-plagued basin.

But the EPA has been reluctant; the agency’s top water official, Joel Beauvais, said the agency is “not currently planning” any pollution diet of the size or scope of the one in the Chesapeake Bay. “The agency believes the most effective way to address nutrient pollution in other large watersheds is to continue to build on the EPA’s existing cooperation with and assistance to the states, as well as collaboration with other federal agencies such as the U.S. Department of Agriculture,” Beauvais said in a statement.

Agricultural groups and state officials have made it crystal clear that if the EPA ever decides to treat the vast Mississippi River watershed the way it treats the Chesapeake, it would provoke a gloves-off brawl. Even local efforts in the Midwest to reduce farm pollution have met with quick, fierce slapdowns. For example, a creative lawsuit filed last year by the Des Moines Water Works against upstream agricultural districts over its nitrate-polluted drinking water supply drew immediate blowback from Iowa Gov. Terry Branstad, who charged that the utility had “declared war on rural Iowa.”

None of the remaining presidential candidates have signaled any intention of picking a more national fight. The Obama administration’s controversial water efforts drew plenty of fire from Republican contenders during the lead-up to Iowa caucuses in February; on the Democratic side, candidates Hillary Clinton and Bernie Sanders have focused more on municipal water infrastructure after the lead contamination crisis in Flint, Michigan.

Whether water-quality challenges are a top priority for the next administration may not matter in the Chesapeake Bay, where the cleanup plan is settled law and the chief question is whether its measures can really turn such a massive system around. “We don’t have to get the next administration to create it," said Baker, the Chesapeake Bay Foundation president. "We just have to get them not to kill it.”

In Lancaster, the Moedingers are wondering if their small part of the effort will leave the next generation anything more to show for it than a patch of trees. “We’re doing this on our property, but the next three aren’t doing it," Moedinger said. "Will it really make a difference? Who knows." He shrugged, watching the water at his feet rush downstream.