Wednesday, January 25, 2023

Prince William County and the Bay Act

The Chesapeake Bay Preservation Act (Bay Act) was enacted by the Virginia General Assembly in 1988 to protect and improve water quality in the Chesapeake Bay through land use management. Since that time there have been several amendments strengthening the Bay Act. Local governments have the primary responsibility for land use decisions, so the Bay Act deals primarily with the requirements of the local programs. Prince William County is one of the local governments subject to the requirements of the Bay Act.

Generally speaking, the Chesapeake Bay Act achieves its goals through requirements and standards for developments in the Chesapeake Bay Preservation Areas which are:

1. No more land shall be disturbed than is necessary to provide for the proposed use or development.

2. Indigenous vegetation shall be preserved to the maximum extent practicable, consistent with the use or development proposed. Mature trees shall be protected during development and only removed where necessary.

3. All development exceeding 2,500 square feet of land disturbance shall be accomplished through a plan of development review process.

4. Land development shall minimize impervious cover consistent with the proposed use or development.

5. Any land disturbing activity that exceeds an area of 2,500 square feet shall comply with the requirements of the local erosion and sediment control ordinance.

6. Any Chesapeake Bay Preservation Act land-disturbing activity shall comply with the requirements of 9VAC25-870-51 and 9VAC25-870-103.

7. Onsite sewage treatment systems shall have pump-out at least once every five years.

Those are the basic requirements for the Chesapeake Bay Preservation Area. There are stronger regulations pertaining to aquatic features and the land adjacent to aquatic features. The Regulations of the Chesapeake Bay Protection Act require that a vegetated buffer area of at least 100-feet wide be located adjacent to of all tidal shores, tidal wetlands, non-tidal wetlands, and along both sides of all water bodies with perennial flow within region. These aquatic features, along with the 100-foot buffer area, are called the Resource Protection Area (RPA) and serve to protect water quality by reducing excess sediment, nutrients, and potentially harmful or toxic substances from groundwater and surface water entering the Chesapeake Bay and its tributaries. Under the Bay Act the RPA areas must be delineated on a map and in Prince William County you can use the mapping function from the Assessors Department to view the area on any parcel. The RPA is one of the available mapping layers.

According to VA DEQ the RPAs are protected under the Bay Act because “Wetlands in their natural state perform ecological functions that are important to the environment and are costly to replace. Wetlands protect the quality of surface waters by retarding the erosive forces of moving water. They provide a natural means of flood control by reducing flood peaks, thereby protecting against loss of life and property. Wetlands also improve water quality by intercepting and filtering out waterborne sediments, excess nutrients, heavy metals and other pollutants.”

There are much stronger requirements for the RPA under the Bay Act. They are summarized by DEQ as:

Land development may be allowed in the Resource Protection Area, subject to approval by the local government, only if it (i) is water dependent; (ii) constitutes redevelopment; (iii) constitutes development or redevelopment within a designated Intensely Developed Area; (iv) is a new use established pursuant to subdivision; (v) is a road or driveway crossing satisfying specific conditions; or (vi) is a flood control or stormwater management facility satisfying specific conditions.

However, DEQ does allow for exception to the above rule.

 C. Exceptions.

1. Exceptions to the requirements of 9VAC25-830-130 and 9VAC25-830-140 may be granted, provided that a finding is made that:

a. The requested exception to the criteria is the minimum necessary to afford relief;

b. Granting the exception will not confer upon the applicant any special privileges that are denied by this part to other property owners who are subject to its provisions and who are similarly situated;

c. The exception is in harmony with the purpose and intent of the law and is not of substantial detriment to water quality;

d. The exception request is not based upon conditions or circumstances that are self-created or self-imposed;

e. Reasonable and appropriate conditions are imposed, as warranted, that will prevent the allowed activity from causing a degradation of water quality; and

f. Other findings, as appropriate and required by the local government, are met.

The Bay Act also dictates how exceptions should be granted:

1. Each local government shall design and implement an appropriate process or processes for the administration of exceptions. The process to be used for exceptions to 9VAC25-830-140 shall include, but not be limited to, the following provisions:

a. An exception may be considered and acted upon only by the local legislative body; the local planning commission; or a special committee, board or commission established or designated by the local government to implement the provisions of the Act and this chapter.

No exception shall be authorized except after notice and a hearing, as required by § 15.2-2204 of the Code of Virginia, except that only one hearing shall be required.

2. Exceptions to other provisions of this part may be granted, provided that:

a. Exceptions to the criteria shall be the minimum necessary to afford relief; and

b. Reasonable and appropriate conditions upon any exception granted shall be imposed, as necessary, so that the purpose and intent of the Act is preserved.

3. Additions and modifications to existing legal principal structures may be processed through an administrative review process, without a requirement for a public hearing. This provision shall not apply to accessory structures.

According to guidance issued by VA DEQ “Exceptions to the Regulations, particularly those related to requests for uses and development within RPAs, should be considered in those situations where the property owner can show that the property was acquired in good faith and where, by reasons of the exceptional narrowness, shallowness, size or shape of the property, or where by reasons of exceptional topographic conditions  or other extraordinary conditions associated with the owner’s property or of immediately adjacent properties, the strict application of the requirements would prohibit or unreasonably restrict the use of the property.

“Exceptions to the General Performance Criteria (9 VAC 25-830-130) (not RPPA criteria) may be granted through an administrative review process provided that the same findings required for use or development exceptions in the RPA are made in writing.”

The Virginia Department of Environmental Quality oversees the local programs and has issued guidance that states: “However, Local governments shall not grant exceptions to the General Performance Criteria and RPA Development Criteria requirements where:

 A Resiliency Assessment has not been conducted; or

 An Adaptation Measure proposes the use of fill in an RPA in contravention of the required conditions.

Amended Virginia Code § 62.1-44.15:72 requiring the State Water Control Board to develop criteria enabling local government Bay Act programs to encourage and promote “coastal resilience and adaptation to sea-level rise and climate change” as well as the “preservation of mature trees or planting of trees as a water quality protection tool.”

Prince William County has a Chesapeake Bay Preservation Area Review Board; however, there are no current members of the Board. There are four vacant seats and two expired terms. The last time the Board was convened was sometime around 2012 by the late Patty Dietz.  The County Environmental Engineer, Clay Morris has been administratively granting all exceptions both to general performance criteria and RPA’s without public hearing, evidence of water quality studies and standards. This was confirmed by Mr. Morris in an interview with the Prince William Times in 2022.

Meanwhile, according to the interview in the Prince William Times, “county officials have approved more than 60 exceptions for encroachment into the RPA without public hearing or the Chesapeake Bay Preservation Area Review Board review.” These exceptions have included the construction of new homes to be built entirely within an RPA’s boundaries and moving stream pathways.

VA DEQ states in their guidance document for the Chesapeake Bay Act:

"The requirements for consideration of an exception to the Development Criteria for Resource Protection Areas (9 VAC 25-830-140) require public notice, public hearing by a committee, board, commission or special body, and the review of the request according to very specific criteria resulting in findings.

Exceptions to the General Performance Criteria (9 VAC 25-830-130) may be granted through an administrative review process provided that the same findings required for use or development exceptions in the RPA are made in writing.

Exceptions to the Regulations should be granted in those situations only where the property owner can show that the property was acquired in good faith and where, by reasons of the exceptional narrowness, shallowness, size or shape of the property, or where by reasons of exceptional topographic conditions or other extraordinary conditions associated with the owner’s property or of immediately adjacent properties, the strict application of the requirements would prohibit or unreasonably restrict the use of the property in question.

Localities must review a WQIA prior to acting on an exception involving modification of or encroachment into an RPA."

There are more requirements, but Prince William County is hiding from public view its handling and granting of exceptions. The County is in violation of the Chesapeake Bay Act and is making exceptions without the participation of the Public and without consideration of the impact on water quality. Prince William County has justified their process by stating that the way the county now approves exceptions – while far different than surrounding counties – is legal, and the Virginia DEQ found “no compliance issues” with the county’s Chesapeake Bay review process during their program review in 2017.

If you have comments or concerns on the RPA issue in Prince William County please contact Justin Williams, Director, Office of Watersheds and Local Government Assistance Programs DEQ , (804) 659-1125, Justin.Williams@deq.virginia.gov. Also contact the Prince William BOCS at BOCS@pwcgov.org mfranklin@pwcgov.org, kboddye@pwcgov.org, vsangry@pwcgov.org, abailey@pwcgov.org, yvega@pwcgov.org, jlawson@pwcgov.org, chair@pwcgov.org

Sunday, January 22, 2023

Kariba Dam

The Kariba dam creates Lake Kariba,  one of the largest artificial reservoirs in the world that straddles the border between Zambia and Zimbabwe. The reservoir is an important resource for agriculture and fisheries; it is also a key source of hydroelectric power for the region with a storage capacity of 185 billion cubic meters of water.

Water first began to fill the reservoir in 1958, following the damming of the Zambezi River at the end of the colonial period. It was built to accelerate economic growth and ended up becoming central to the independent African states. With an installed capacity of 1,626 megawatts, today, Kariba provides the bulk of electricity consumed in both Zambia and Zimbabwe.

When the dam first was built the population of Zimbabwe was about 3.5 million and the population of Zambia was around 3 million. Today Zimbabwe has a population of 16 million and Zambia a population of 19.5 million. While Zimbabwe has been one of Africa’s agricultural powerhouses, Zambia has become urbanized and is a big global supplier of copper and cobalt that require energy-intensive production but are also crucial for battery manufacture and copper wire essential for power storage and energy transitions around the world.

For over a half-century, the lake level has seen ups and downs due to variations in water use and climate patterns. NASA now tells us that Lake levels plummet during El Niño years, when reduced rainfall upstream lessens the flow of rivers feeding Lake Kariba. Since 2000, El Niño events have been observed in 2002–03, 2004–05, 2006–07, 2009–10, 2014–16, and 2018–19. Nonetheless, the Lake has not been full since 2011. Lake Kariba is so low that Zimbabwe had to ration electricity because the hydropower from lake Kariba is Zimbabwe’s main electricity source. In truth, there are only a few hours a day when there is power. The drying up of the Kariba reservoir has devastating consequences not only for electricity generation but also for regional water supply.

 Zambia has managed their share of water resources better than Zimbabwe, so they still have a little bit of water available for power generation and public supply. Zimbabwe has suffered public sector corruption and mismanagement at the local and central government levels have exacerbated the problem. This appears to be a result of overuse and mismanagement of a slowly dwindling supply of water. You can’t simply point your finger at climate change. The river water flow is highly variable with weather and may be decreasing. However, the water use for power generation, urban populations, mining and agriculture has exploded. It is not and never was an unlimited resource. What once supplied the needs for 6.5 million people has failed to supply 35 million people. Hardly surprising.

                      

from NASA

Wednesday, January 18, 2023

Klein Property Development -again

Late last year the Planning Commission recommended Stanley Martin’s most recent plan to transform the Kline farm property into a mix of townhomes, “pocket parks” and neighborhood-style commercial development. Developer Stanley Martin is seeking to rezone 55.42 acres of the 100-acre Kline farm property from A-1, or agricultural, to “planned mixed residential” and B-1, or general business. In addition, Stanley Martin is offering a 20-acre site for an elementary school instead of monetary proffers to the school division and the county’s parks and recreation department; and offering to sell the adjacent 25 acres as a possible site for the new baseball complex to Prince William County.

The Kline Farm property encompasses a bit more than 100 acres and is generally located south and southeast of the intersection of Prince William Parkway and Liberia Avenue, and north of Buckhall Road. The property is located in a transitional area of the county that is adjacent to the City of Manassas. Stanley Martin needs to expand their proffer an expanded well testing and monitoring to ensure the viability and health of their water supply to the existing nearby well owning homeowners. 

Residents within the abutting Hynson Knolls community, homeowners bordering Buckhall Road and homes along Lake Jackson Drive rely on private wells for water and septic systems for wastewater disposal. In a “Preliminary Hydrogeological Assessment-Klein Site” prepared by SES/TrueNorth they do a very preliminary look at whether the development of the site is likely to have an adverse impact on surrounding private wells and septic systems. The properties in the development will be connected to public water from supplied by Prince William Public Service Authority and with surface water as the source supply. So, there will be no increase in the use of groundwater in the immediate area.

In the Preliminary Hydrogeological Assessment the consultants only reviewed the existing well construction records dating back about 40 years when Hynson Knolls was first developed; existing published hydrology and geology work by the U.S. Geological Survey dating to 1990 and earlier; development of a theoretical groundwater budget and a fracture trace analysis of a 1978 photograph to determining the general flow of groundwater. No physical testing of the aquifer was performed and no recent data records were used.

Private wells draw their water from groundwater. Geology, climate, weather, land use and many other factors determine the quality and quantity of the groundwater available. Within Prince William County Virginia there are four distinct geologic provinces: (1) the Blue Ridge, (2) the Culpeper Basin, (3) the Piedmont, and (4) the Coastal Plain. The U.S. Geological Survey divides the four geologic provinces of the county into seven hydrogeologic groups based on the presence and movement of the ground water calling them groups: A, B, B1, C, D, E and F. About 27 years ago the U.S. Geological Survey studied the groundwater systems within Prince William County. You can review that report if you wish to see the entirety it is by Nelms and Brokman.

The consultants for Stanley Martin Homes identify the site as located within Hydrogeological Group E. The Klein Farm and vicinity are within a fractured bedrock aquifer in which groundwater availability and flow are controlled by fractures and joints within the rock. Hydrogeologic group E consists of metasedimentary, meta-volcanic, and other metamorphic rocks. Rocks within hydrogeologic group E tend to have poor to moderate water-bearing potential, and thin- to thick cover of overburden. Ground-water storage tends to be predominantly in the overburden which is typically relatively granular and porous. This is a water table aquifer separate from but hydraulically connected to the underlying bedrock aquifer. According to that USGS report by Nelms and Brockman, some of the poorest yielding wells are located in hydrogeologic group E. Because of the local geology care should be taken to ensure that the existing homes are not impacted by the development.

The fracture trace analysis performed by Stanley Martin Homes consultant found a predominant west-northwest to east-southeast regional fracture orientation; however, there was a notable but less prominent southwest to northeast regional fracture orientation also present. The groundwater flow in Prince William county is generally to the east-southeast, but there is considerable variation and surprises in the flow as documented by monitoring at several cleanup sites in the county and suggested by the fracture analysis.

In developing the theoretical groundwater budget the Stanley Martin Homes consultant assumed that the groundwater recharge rate for the site was equivalent to the average groundwater recharge for Prince William County. This is unlikely to be true. Not only does the geology vary across the county with different water bearing and storage potential in the different hydrogeologic groups, but Prince William county was over 52% open space when that recharge rate was developed, including the Prince William Forest Park, the Manassas Battlefield Park, Quantico, and the Rural Crescent.

It appears that the USGS studies that determined an “average recharge” was based on took place at Cedar Run and Broad Run, not characteristic of the hydrogeologic group underlying Klein property and adjacent area. It is unlikely that this site in its current state recharges at the “average recharge rate for the County” and the actual recharge rate of groundwater underlying adjacent to this site needs to be determined by testing.

Flux estimates of components of the hydrologic cycle can be made by creating a water budget in which the various components must balance. Such a water balance approach can be reasonably accurate when all of the terms in the budget can be calculated or reasonably estimated. This approach is appropriate for the scale of the entire Commonwealth, but not on a smaller scale like the Kline property and adjoining neighborhood. On a small local scale these estimates are not at all accurate or appropriate methods of determining groundwater adequacy or impact. Most accurate methods used to estimate recharge are highly dependent on local measurements in both space and time (Healy and Scanlon, 2010) this would need to be done for the Kline property and the surrounding neighborhoods to provide a high level of certainty that the availability, quality and sustainability of groundwater supplying the adjacent neighborhood wells would not be impacted .

This information is necessary to ensure that the neighbor’s water supply will not be impacted over time by the development. If the county comprehensive plan and zoning amendments go through it is essential that the neighbors be assured that their groundwater supply will be adequate to serve their wells into the future and not be depleted slowly over time.

Stanley Martin Homes has proffered to engage an environmental professional to perform a well yield and limited water quality test on any lawfully operating household water supply well for residential property located within 800 feet from the Kline property line to establish a baseline for the closest wells. Those well owners may request a re-evaluation of their well if a negative impact is suspected. If the impact is confirmed by the reevaluation then there is a procedure for the homeowner to request one of three forms of resolution within 30 days; repairing the well, drilling a new well or connecting the home to the public water system.

Sounds good; however, 800 feet which is effectively the first line of homes may not include enough area to ensure no impact. The U.S. EPA standard for determining impact is a much greater radius typically including 2.0 miles for class II a groundwater under the EPA’s Groundwater Protection Strategy. The scope to testing should be defined and include all primary and secondary contaminants regulated under the Safe Drinking Water Act. Finally, 30 days is too short to determine if a well can be repaired, identify and permit a new well site with the County Public Health Department , or determine if the home can be or should be connected to the public water supply. In addition, depletion of groundwater can be a very slow but real process and it might take years for homeowners to notice impact to their wells.

Stanley Martin should proffer to engage an environmental professional to perform a well yield and broad based water quality test including all primary and secondary contaminants and pesticides under the Safe Drinking Water Act on any lawfully operating household water supply well for residential property located within 2 miles from the Kline property line. In addition, a test well should be installed and added to the USGS monitoring network at an agreed upon location (and existing well could be converted to this purpose with the homeowner’s permission and guidance from the USGS and DEQ for adaptions). The homes should be retested after 5 years.



 

Sunday, January 15, 2023

Fairfax Water and PFAS

Last Friday the Potomac Watershed Roundtable resumed in person meetings with a meeting at the H.I. Mooney Wastewater Treatment plant in Woodbridge and hosted by the Prince William Service Authority. I’ve toured the plant a couple of times, so my real interest was the speakers. The talk from Fairfax Water- From Source to Tap: Fairfax Water’s Insights on PFAS and Source Water Protection was the big draw for me. Susie Miller the Manager of Public Affairs and Greg Prelewicz the Manager Planning gave a great presentation that really summed up the challenges facing Fairfax Water and all drinking water suppliers. Let me see if I can give you the highlights and do their talks justice.

Fairfax Water is the largest drinking water provider in the Commonwealth of Virginia and one of the  largest in the nation. They supply drinking water to 2 million residents (1.13 million retail customers and 988,000 residents through their wholesale customers like our very own PWSA). Fairfax Water owns and operates the two largest water treatment facilities in Virginia with an average daily water production of 167 million gallons and a combined maximum capacity of 376 million gallons per day. The James J. Corbalis Jr. treatment plant is at the northern tip of Fairfax County and the Frederick P. Griffith Jr. treatment plant is on the northern edge of the Occoquan Reservoir in Fairfax County.

Last summer the U.S. Environmental Protection Agency (EPA) announced drinking water interim health advisory levels for four contaminants widely found in drinking water that are part of a group of compounds called PFAS (per- and polyfluoroalkyl substances) commonly referred to a "forever chemicals" because they do not breakdown in the environment.  Drinking water health advisories provide information on contaminants but are non-enforceable and non-regulatory. EPA plans to propose a PFAS maximum contaminant level (MCL) for some or all these chemicals under the Safe Drinking Water Act in March 2023. That level will be enforceable.

As EPA develops this proposed rule, the agency is also evaluating additional PFAS beyond the chemicals in the health advisory and considering actions to address other groups of PFAS. This is a very dynamic environment. The health advisories addressed four PFAS chemicals: perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS), and the chemicals that have replaced them in the United States in recent years, GenX and perfluorobutane sulfonate (PFBS). Fairfax Water along with all other water utilities in the United States is going to have to comply with the regulations when they go into effect.

As you can see in the chart below, the MRL, the minimum reportable level, is the minimum level that you can reliably detect a chemical using a specified analytical method. While scientists’ ability to detect lower and lower levels of chemicals is evolving very quickly, it still has not reached the level in the health advisory for PFOS and PFOA. Currently, the MRL of those chemicals is 4 parts per trillion (or nanograms per liter); and because PFAS is ubiquitous in our environment, it is extremely difficult to prevent contamination of a sample.


There are thousands of PFAS chemicals, and they are found in many different consumer, commercial, and industrial products. This category of chemical has been widely used for over 80 years mainly for their ability to repel oil, grease, water, and heat. We are all exposed to PFAS in everyday life. Stain-resistant carpeting, nonstick cookware, grease- and water-proof food packaging, fabric softeners, waterproof clothing, cosmetics, and through our diet and water. These forever chemicals have remained in the soil, been taken up into plants, and made their way into animals who eat those plants. Ms. Miller told us that diet is responsible for 66%-72% of exposures to PFOA and PFOS (the two chemicals that have been most widely studied). In some cases, they have also leached into both surface and groundwater. Water is responsible for 22%-25% of exposures.

In anticipation of future regulations, Fairfax Water hired an independent lab to test their water using current EPA-approved methods that can detect PFAS at much lower concentrations than previous methods. Fairfax Water also participated in the Virginia Department of Health (VDH) Occurrence Study that was completed in 2021. However, the practical quantitative limit was 4 ppt, significantly above the health advisory limit.

Some of Fairfax Water’s results for PFOS and PFAS were above the MRL and the ones below cannot be quantified down to the EPA’s Interim health advisory levels for PFOS and PFOA. Though, there is no knowing what the ultimate level for the EPA regulations will be, it is expected that EPA will propose both a non-enforceable Maximum Contaminant Level Goal (MCLG) and an enforceable standard, or Maximum Contaminant Level (MCL) or Treatment Technique.

PFAS dissolves in water, and combined with their chemical properties means that traditional drinking water treatment technologies used at water treatment plants are not designed to remove them, it is believed though, that carbon filtration does remove some. Activated carbon adsorption, ion exchange resins, and high-pressure membranes have been found to remove PFAS from drinking water, especially Perfluorooctanoic acid (PFOA) and Perfluorooctanesulfonic acid (PFOS), which have been the most studied of these chemicals.

Nanofiltration or reverse osmosis have been found to be extremely effective at removing PFAS. This technology depends on membrane permeability. Reverse osmosis membranes are tighter than nanofiltration membranes. A standard difference between the two is that a nanofiltration membrane will reject hardness to a high degree, but pass salts; whereas reverse osmosis membrane will reject salts to a high degree (which is why it’s used for desalinization).

According to Mr. Prelewicz, reverse osmosis, the most effective method, has a high capital cost (estimated to be $3 billion when all the other fixed assets of Fairfax Water are $2 billion) and is very energy intensive (has a high operating cost in the form of energy necessary to push the water through the membranes). In addition, about 20-25% of water would be lost as a waste stream. That would be up to 55 million gallons a day. In addition the waste stream containing the PFAS would have to be disposed of in a way that does not contribute of the problem. Fairfax Water is a passive receiver of PFAS.  They do not produce or manufacture PFAS.  Instead, these chemicals are present in source waters that are treated to produce drinking water.  However, if they need to dispose of PFAS removed from water they could be responsible for future contamination. 

Keeping PFAS out of the source water tis the real challenge when PFAS is in our diet and wastewater is reused in our drinking water supplies. Source water protection will have to part of the solution. With that in mind both Fairfax Water has developed an analytic framework which provides information about PFAS across the environment. This information will help them better understand potential PFAS sources in our communities and develop a road map to continue proving safe drinking water to Northern Virginia. Stay tuned for the EPA announcement and timeline coming in March 2023.

Wednesday, January 11, 2023

State of the Bay 2022

Last week the Chesapeake Bay Foundation (CBF) released their bi-annual State of the Bay health index score.  In 2022 they found the overall health of the Bay and its watershed unchanged from the 2020 score of 32, a D+ in their system of scoring. Of the 13 indicators they assessed, three improved and three declined. Phosphorus scores improved, but water clarity declined. A big improvement for oysters was tempered by a worrying drop for blue crabs. They state in the report that long-term data shows a shrinking of the annual dead zone; and state large-scale oyster restoration is working.

from Chesapeake Bay Foundation

The 2022 State of the Bay Report scores the health of the bay at 32 out of 100, a D+ according to their scoring system which measures the current state of the Bay against the unspoiled Bay ecosystem described by Captain John Smith in the 1600s, with extensive forests and wetlands, clear water, abundant fish and oysters, and lush growths of submerged vegetation would rate a 100 on their scale. That was a time when this region was 95% old growth forests and sparsely populated. It is unlikely that vision is compatible with the vision for population and industrial growth that the region has embraced.


The Chesapeake Bay Clean Water Blueprint appears not to be working to restore the health of the Bay if you are to judge by the scores that are awarded by the Chesapeake Bay Foundation. The current goals of Clean Water Blueprint is a grade of 40, by 2025. The Clean Water Plan is the name for the enforceable pollution limits for nitrogen, phosphorus, and sediment pollution in the Chesapeake Bay (formerly called the Bay TMDL) mandated by the EPA to the six Bay states and the District of Columbia. Each of the jurisdictions created a plan (approved by the EPA) called Watershed Implementation Plans or WIPs, to meet those limits by 2025. The states agreed to have the 60% of the needed programs and practices in place by 2017, and to complete the job by 2025.

Virginia remains on track to achieve its 2025 pollution-reduction commitments, largely due to wastewater treatment plants, which account for over 90 % of its nitrogen and phosphorus reductions since the Blueprint’s establishment. This progress currently keeps Virginia on track overall, even though the Commonwealth is not meeting commitments to reduce polluted runoff from agriculture and urban and suburban areas. Long term, this is not sustainable, especially when pollution from stormwater continues to grow.

Average water clarity decreased slightly between 2020 and 2022. Water clarity is measured as the depth in the water column to which sunlight can penetrate. Sunlight is vital to the growth of underwater grasses, which trap sediment, add oxygen to the water, and provide habitat for aquatic organisms.  

In 2022, the size of the Bay’s hypoxic dead zone was below average, in part due to the Chesapeake Clean Water Blueprint. Overall, though, far too much pollution still reaches waterways, and states are behind in their commitments to reduce it. Progress to date has relied heavily on pollution reductions at wastewater treatment plants. However, to ensure long-term water-quality improvements pollution from agriculture and urban and suburban runoff must accelerate. The impact of climate change, which scientists expect will intensify storms and wash more pollutants into waterways, must also be addressed. Climate change also threatens the watershed’s critical habitats- rising sea levels and intensifying storms that wash more pollution into the water.

Forests, wetlands, and underwater grasses are critical to the health of the Chesapeake Bay. They provide food and shelter to wildlife like blue crabs, and many other species. They serve as natural filters that reduce pollution flowing into rivers, streams, and the Bay. In communities, they slow flood waters, produce oxygen, and provide green spaces. Unfortunately, efforts to restore wetlands and plant forest buffers along waterways are languishing, with states meeting just a fraction of the goals established by the Chesapeake Bay Watershed Agreement. At the same time, approximately 95,000 acres of farms and forests transitioned to development across the Bay watershed during the most recent reporting period.

Sunday, January 8, 2023

Waters of the United States -round 5

Under the Clean Water Act, Congress explicitly directed the Agencies to protect “navigable waters.” Under the Clean Water Act, “the discharge of any pollutant by any person shall be unlawful.” 33 U. S. C. § 1311(a). “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12).

The Clean Water Act (CWA) of 1972 made it a crime to discharge pollutants from any point source into the "navigable waters of the United States." However, the U.S. EPA has continually tried to expanded what constitutes a "pollutant" or "navigable water" over the years as the understanding of how connected all waters are. Especially in this century, the U.S. EPA attempted to manage new problems by expanding the reach of old laws utilizing regulation rather than new laws.

Wetlands are important green infrastructure; among other functions, they are essential to clean water because they remove sediments and pollutants, including chemicals and excess nutrients from fertilizers, sewage discharges, and other sources. Wetlands provide habitat for migratory birds and food and essential habitat for many species of fish, shellfish, shorebirds, waterfowl, and furry creatures. Wetlands need to be protected but stretching the Clean Water Act may not be the way to do it.

In 2006 the Supreme Court split a ruling in which justices could not agree on the vague definitions within the act. Their decision added to the confusion when the opinion was split. A plurality of justices, in an opinion written by Justice Antonin Scalia, found that a “continuous surface connection” was the test to define a wetland to find protection under the Clean Water Act. But a separate opinion, by Justice Anthony Kennedy, found there needed to be a “significant nexus” to navigable waters, which means that if there wasn’t an obvious surface connection, research was needed to show that the wetlands played a role in assuring the integrity of the larger body of water, for wildlife habitat or for other ecological value.

Neither opinion held a majority. This lack of clarity has meant the protection of U.S. wetlands has been uneven. Those with a direct connection to navigable waters have largely been protected by the EPA and the U.S. Army Corps of Engineers or had their development somehow mitigated by other regulations like Virginia’s Chesapeake Bay Protection Act. Wetlands without a direct connection to navigable waters have been protected in some places and not in others.

In 2015 President Obama’s administration tried to administratively broaden the definition of navigable waters of the United States. This rule contained the definition of “waters of the United States” to include streams and wetlands and any body of water that the EPA previously needed to determine to be a “significant Nexus” to the “navigable waters of the United States” on a case by case basis. According to that version of the waters of the United States definition included navigable waterways and their tributaries, streams, regardless of their size of frequency of flow, wetlands and open waters in riparian areas and the 100 year floodplains.

The 2015 version of the Water of the United States rule unleashed a torrent of Federal litigation. Thirty-one states, many local governments, and private industry filed suite asserting that the rule unconstitutionally expanded the Clean Water Act’s reach and misapplied several Supreme Court decisions and long standing practice. Various Courts of Appeal challenges were consolidated before the Sixth Circuit in Cincinnati, which granted a nationwide wide stay in November 2015.

With that stay still in place the Trump administration withdrew the rule. On January 23, 2020, the U.S. EPA and the Department of the Army (Army) released their Navigable Waters Protection Rule to define “waters of the United States” (WOTUS). Restored what could be regulated under the law to point source pollution discharge into rivers, lakes, streams and adjacent wetlands.

Last fall the Supreme Court agreed to hear the Sackett case(Part 2).   The upcoming Supreme Court decision could finally settle that ambiguity and bring major changes to how wetlands are managed in the U.S. Concerned that this case could significantly reduce the number of wetlands that would be protected under the Clean Water Act, the EPA release a new definition of Waters of the United States that sits somewhat between what the EPA tried to achieve under President Obama and what the agency tried under President Trump. You can read the details here. Revised Definition of "Waters of the United States" (epa.gov)

The Supreme Court decision in the Sackett case is expected next spring or early summer. I am not convinced that this issue falls along conservative or progressive lines so we could be surprised. However, whatever the outcome there needs to be a reasonable, obvious and consistent standard for navigable waters of the United States to protect them from industrial and waste water discharge, but wetlands, too, need to be protected.

The proper way to protect the wetlands and seasonal streams that we now understand are so essential to a balanced ecology and healthy rivers and streams may be regulations for the application of fill material, land use, non-point source pollution and other local issues. These are not issues addressed under the Clean Water Act. These issues need to be consistently and properly addressed on the state and local level. Something that is often hard to do. The Clean Water Act may be  the wrong tool for a good cause. Congress may need to act to create the basic framework for laws to protect the sustainability of our water resources for our future. It is not the court’s job nor the agency’s job to create law.

Wednesday, January 4, 2023

We will still have coffee

At the end of last summer, Bloomberg News reported that Arabica farmers in Brazil were seeing bigger-than-expected losses for a coffee crop and might loose half their crop-threatening a shortage. The world’s Coffee Belt spans the globe along the equator, with cultivation in North, Central, and South America; the Caribbean; Africa; the Middle East; and Asia. Brazil is the world’s largest coffee-producing country. A failed crop there means less coffee and higher prices world wide. 

Having once read a very interesting article on growing coffee from the Department of Agriculture, I was concerned that weather extremes due to climate change may make coffee unavailable in the last years of my life. Computer modeling shows climate changes that could  cause severe declines in both yield and suitable growing conditions in the current cultivation zone for coffee over this century. Life in this country will require many adaptions and changes due to climate change. We will all have less. I just don't want my less to include the loss of my daily coffee. 

Today the global supply of coffee depends on two species: Arabica (Coffea arabica; around 55% of global production) and robusta (C.canephora; around 45% of global production). The optimal temperature range for growing arabica is 64°–70°F. Above that moderate temperature range, fruit development and ripening accelerate and degrades coffee bean quality. Continuous exposure to temperatures up to 86°F  can severely damage coffee plants, stunting growth, yellowing leaves, even spawning stem tumors. Hotter environments cannot support arabica.

A warming climate may also hurt coffee production by reducing growing area, increasing pests, and damaging the quality of plants. Much of the world’s coffee production depends on farmers living at a subsistence level, and many of them grow only coffee, not food crops. Less coffee, means less income for people living on the edge.  l but all is not lost. There is the possibility of development of new coffee crop plants.

 The idea of broadening the coffee crop portfolio, with new cultivars, hybrids and alternative species (including underutilized crop species) is receiving renewed attention with a focus on forgotten or underutilized species, particularly those that were once cultivated and exported at scale and natural species. (I was relieved that ideas did not run to gene splicing.) 

One species now receiving increased consideration and focus is liberica or Liberian coffee (Coffea liberica), as evidenced by the adoption of the plant by farmers in Africa and Asia. There are actually two species of liberica:  C. liberica: var. liberica and var. dewevrei. These two varities are known commonly as liberica and excelsa. Though the plant had not been widly cultivated for over a hundred years, the plant is naturally occurring and remained present in the environment in coffee growing regions.

In terms of flavor quality, excelsa has been reported as resembling Arabica coffee from in Ethiopia. Most of the plants being grown today (and the coffee being produced) are the excelsa variant of liberica with smaller seeds than the traditional liberica type. Contemporary assessments for liberica indicate a high levels of natural sweetness (a positive attribute for coffee quality), a rich, bold mouthfeel, low acidity and flavor notes of chocolate, jackfruit and other tropical and non-tropical fruits. 

Renewed interest in excelsa coffee is now clearly evident by the fact that you can buy it online. In Uganda, at least 200 farms are now growing excelsa, and this number is growing due to farmers shifting from farming robusta to farming mixed robusta–excelsa or farming excelsa only. The adaption of excelsa has been farmer-led rather than being based on advice from external sources (like seeds sold by agricultural congomerates) or agents; and excelsa is an indigenous plant of Uganda and South Sudan, where it occurs naturally in low elevation forests bordering the Democratic Republic of Congo. 

In a changing climate, excelsa offers the potential to grow commercially viable, and perhaps higher-value, coffee under much warmer conditions (and at lower elevations) than Arabica and may offer improved climate resiliency over robusta. However, the history of coffee farming shows that a coffee species is only likely to come into major use in response to drastic disruptions in the supply chain. A changing climate may prove to be that disruption. At least coffee will be able to adapt to climate change.