Baltimore Law Firm Urges Counties to Delay Implementation of the Clean Water Blueprint


Local water quality is at risk of continuing to suffer in some rural Maryland counties. Claiming pollution coming down the Susquehanna River from New York and Pennsylvania and trapped behind the Conowingo dam needs to be addressed first, several counties on the eastern and western shores of Maryland are considering not moving forward with their part of the Clean Water Blueprint and protecting their local water quality.

The Baltimore law firm Funk & Bolton is urging them to delay. CBF is concerned and will fight any delay. The counties are being led down a risky path. If they fail to implement their parts of the Blueprint, the state will have to find other ways to achieve the pollution limit goals. That could mean, among other things, denying new permits. 

At the same time, CBF is sympathetic to the counties that are struggling to figure out how to pay for pollution reduction and has already begun working with counties to secure funding and design funding innovative strategies specifically for local governments to reduce pollution. We believe this is a much more productive approach.

Poorly Researched Idea Shouldn't Sidetrack Counties

The law firm Funk & Bolton relies upon several highly inaccurate themes in its attempt to convince Maryland counties to step back from their responsibilities under the Clean Water Act. Specifically, Funk & Bolton commonly asserts: (1) pollution reduction efforts are not helping the Bay; (2) pollution sources upstream of Maryland are the reason for local water quality problems. Not only are these assertions misinformed and misleading, but also they have the potential significantly undermine Maryland's promising work to improve local and Bay water quality.

1)  Funk & Bolton understates Bay water-quality improvements

Funk & Bolton's advocacy letters repeatedly assert that environmental measures have not improved the Bay's water quality and that nutrient management actions resulted in no meaningful change in the level of nutrients in the Bay from 1985-2006. These statements are demonstrably false. A study released by USGS in 2010 demonstrates that one-third of monitoring sites showed improvement in sediment concentrations. i Two-thirds of these sites showed improvement in nitrogen concentrations, and almost all showed improvement in phosphorous concentrations.ii The report also notes that results will be most evident many years after the strategies are implemented.iii Local pollution reduction plans must be implemented sooner rather than later.

A study published in the November 2011 issue of Estuaries and Coasts, conducted by researchers from The Johns Hopkins University and the University of Maryland Center for Environmental Science, determined that the size of the dead zone in mid-to-late summer has decreased steadily since the late 1980s and that the duration of the dead zone is directly linked each year to the nutrients delivered to the Bay.iv

This improvement is despite dramatic population growth. Between 1985 and 2005, the human population of the Bay watershed grew by about 3 million, from 13.5 million to 16.6 million.

2) Local water quality problems must be addressed on a local level, and Funk & Bolton cannot eliminate counties' obligations to make these local improvements

Funk & Bolton attempts to point the finger entirely at sources outside of Maryland, when in fact the counties contribute considerably to local water pollution. In some cases, the counties contribute almost exclusively to the local water problems. For example, the Choptank River is considered "impaired" under the Clean Water Act because of its high levels of nitrogen, phosphorus, total suspended solids and fecal coliform. As the Choptank River is not impacted by the Susquehanna, these pollutants are all coming from local sources in Queen Anne's county, Talbot County, and Caroline County.  

Funk & Bolton simply misunderstands or misrepresents many facts about the Bay:

  1. Funk & Bolton: State of the art technology installed at sewage plants "will not enhance the water quality of the Bay."
    Fact: Sewage plant upgrades of this sort have reduced nitrogen pollution by an estimated 9 million pounds a year into Maryland streams and rivers alone. 
  2. Funk & Bolton: "The sediment and nutrient loading (from the Susquehanna River and Conowingo Dam) that occurs after such storm events [as Hurricane Ivan and Tropical Storm Lee] completely destroys any Bay grass planting and any oyster restoration initiatives that may have taken place between such storm events."
    Fact: There is no evidence to support this statement. The 2011 Fall Oyster Survey conducted by the state found that "oyster populations are doing well in most parts of Maryland's Chesapeake Bay… The lower salinities proved to be beneficial to the majority of oysters in Maryland. 
    Similarly, researchers were pleased to find that the huge, dense underwater grass bed on the Susquehanna Flats, which had increased three-fold in size since 1991, persisted through the major storms and demonstrated how resilient such grass beds can be to water quality disturbances.
  3.  Funk & Bolton: On average the Susquehanna is dumping more pollution into the Bay each year because the Conowingo Dam can't trap as much pollution as it used to. About 31 percent of the nitrogen pollution in the Bay for the entire year of 2011, for instance, came from spillover at the dam from one storm in 2011, Tropical Storm Lee.
    Fact: Funk & Bolton simply misinterpreted a government report. The report actually said of all the pollution the Susquehanna dumped in the Bay in 2011, about 31 percent came from Tropical Storm Lee.
  4. Funk & Bolton: Pollution coming through the Conowingo Dam on the Susquehanna River "significantly eclipses the loading from all Maryland sources."
    Pollution from the Susquehanna River is significant: about 41 percent of the nitrogen pollution entering the Bay, for instance. But that means nearly 60 percent comes from other tributaries and sources. The Susquehanna contributes about three times the amount Maryland tributaries and sources contribute—a great deal—but the amount hardly "eclipses" Maryland's share.

i. Langland, Michael, Blomquist, Joel, Moyer, Douglas, and Hyer, Kenneth, 2012, Nutrient and suspended-sediment trends, loads, and yields and development of an indicator of streamwater quality at nontidal sites in the Chesapeake Bay watershed, 1985-2010: U.S. Geological Survey Scientific Investigations Report 2012—5093, 26 p.
ii. Id.
iii. Id. 

More About the Conowingo Dam

A draft report summarizing the results of studies of the impacts of the sediments from behind the dam and potential options and costs is expected to be released for public comment in September 2014. Public meetings have already been scheduled for mid-September. What are the facts behind the current debate? What's going on with relicensing of the dam? What's CBF doing about it? Find out.

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