The Chesapeake Bay: Major Research Program Leads to Innovative Implementation

William Eichbaum

Editors' Summary: The Chesapeake Bay is a precious ecological and economic resource whose productivity is declining, apparently due to water pollution. A dozen years after enactment of the Federal Water Pollution Control Act, a comprehensive response to the industrial and municipal degradation of the nation's surface waters, the decline in Bay productivity continues. The author, head of Maryland's environmental protection programs, reports that a series of events have combined to produce regional action that could be effective in reversing the decline. A recently completed, long-term EPA study of pollution problems contributing to the deterioration of Bay plant and animal species has been the catalyst for unprecedented efforts by the several state and federal jurisdictions with responsibility for environmental protection in the Chesapeake Bay region to tailor special programs to save the Bay. In tracing the impact of the study, the author concludes that critical to this or any other effort to protect a large and complex interstate water body are management-sensitive research and innovative, regional solutions. By involving state and local agencies and the public in the conduct of the study, EPA ensured that the results would not only be scientifically valid, but would also immediately affect public consciousness and lay the foundation for constructive governmental response. The governmental responses, the author concludes, must build on existing federally mandated programs to tackle problems of special regional significance like agricultural runoff. The Bay study, coupled with a major regional conference, produced not only information on the ecological problems of the Chesapeake Bay, but also commitments by EPA and the states bordering the Bay to act quickly to solve those problems.

Mr. Eichbaum is Assistant Secretary for Environmental Programs in the Maryland Department of Health and Mental Hygiene.

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The recently completed Chesapeake Bay Study conducted by the Environmental Protection Agency (EPA) and the states bordering the Bay seems likely to produce unprecedented cooperative action to reverse the environmental decline of the Bay. The study casts new light on the continuing environmental degradation of the Bay and the resulting deterioration in its rich biological community. It did not, however, paint a new picture of the nature or gravity of the problems. Earlier studies had produced similar scientific evidence of pollution-caused damage to the Bay and its inhabitants. But unlike its predecessors, the 1983 Chesapeake Bay Study has resulted in individual commitments from EPA and the four states bordering the Bay and its major tributaries both to take individual action to combat the decline of the Bay and to work together to ensure that the solutions are comprehensive.

Why does this most recent study of the Chesapeake Bay appear to be resulting in a broad and deep new commitment to restore the quality of the aquatic resource? The answer may be found in the heavy involvement of agencies with relevant environmental management responsibility in the design and conduct of the study. What policy conclusions reached in this process are applicable in other environmental systems? The Bay Study suggests lessons for dealing with water pollution problems, such as agricultural runoff and toxic discharges, that are not well regulated under existing federal law. In the final analysis, the Chesapeake Bay Study may prove to be an invaluable prime on action-oriented research and the cleanup of interstate bodies of water.

Since its discovery by English colonizers over 350 years ago, Chesapeake Bay has been described in phrases that seem to strain to give credence to its great productivity and natural beauty.¹ This is hardly surprising since it is [14 ELR 10238] the largest estuarine system in North America and one of the most productive fisheries in the world. The Bay stretches approximately 200 miles from the mouth of the Susquehanna River in Northern Maryland to the Atlantic Ocean at the Virginia Capes. At Annapolis it is at its narrowest width of four miles and at the Potomac the distance to the Eastern Shore is 30 miles. The average depth of water is under 30 feet, although there are several deep trenches where depths extend to over 100 feet. The Bay is fed by over 50 tributary rivers with the largest of these being the Susquehanna, which provides over half of the freshwater flows. The drainage area reaches in the north to New York State and west to West Virginia and in total encompasses some 64,000 square miles in six states and the District of Columbia. Adjacent to the Bay proper there are over 425,000 acres of marsh.

Because of the differing chemical composition of the freshwater and in-flowing ocean water and the way in which these waters circulate in an estuary, these ecosystems are among the most biologically productive on earth. This productivity is well illustrated by the average commercial catch of several species. The Chesapeake Bay is the largest producer of oysters, blue crabs, and soft-shelled claims in the United States. These shellfish, together with the finfish of the Bay, are at the apex of one complex food web depending upon the estuarine system. Another significant end point in the food web of the Bay is the vast population of waterfowl that are especially prevalent in the winter when the Bay provides the southern resting area for numerous species that migrate from the northern tundra of Canada. All of these derive their food from a complex biological process that begins with the production of vast populations of zooplankton and phytoplankton feeding on the basic chemical constituents available in the estuarine system created through the delicate mix of fresh- and saltwater in an environment covering over 4,000 square miles.

The threat posed to the continued functioning of this complex system is the disruption caused by human activity in the adjacent land areas. The human population of the Bay's drainage area now stands at some 13 million and is projected to increase to 16 million by the year 2000. In fact the Bay and its tributaries are in the midst of the megalopolis that stretches from Boston to Richmond. It is not surprising that this carefully balanced system should be perturbed by the impact of intense and steadily increasing human activity.²

The Study

Concern about the deleterious impact of human activity on the Bay and its resources is not new. The recent book, CHESAPEAKE WATERS: POLLUTION, PUBLIC HEALTH AND PUBLIC OPINION, 1607-1972³ recounts the fitful attention that governments and individuals paid to this problem for over 300 years. In the last 50 years the Bay and its tributaries have been among the most studied aquatic systems in the world. Much of this modern effort can be attributed to the excellent efforts of scientists at the Chesapeake Biological Laboratory, founded in 1928 at Solomon's Island, Maryland, and the Virginia Institute of Marine Sciences at Gloucester Point. Even before the scientists at these and other institutions identified serious problems, issues of broader public concern caused significant actions to be taken. In 1912 the most advanced municipal sewage treatment plant in the United States was constructed to treat the wastes of Baltimore before they entered the Bay.⁴ Notwithstanding the continued concern of the scientific community and responses by the political community the trend seems to have been one of continued deterioration in Bay quality, probably because scientific understanding of the full impact on the resource was incomplete. In addition, the current state of degradation can probably be attributed to the cumulative effect of earlier human activities.

As national concern over environmental quality increased in the last 20 years so did interest in the Bay. During the early 1960s, the Public Health Service began to develop a basin-wide perspective on the Susquehanna/Chesapeake System. Starting in 1963, it established a formal Chesapeake Bay/Susquehanna River Basin Project to perform basic water quality studies and develop a basin-wide framework within which water quality and related management decisions could be made. The Project completed a number of specific studies but never published a comprehensive discussion of the issues affecting the water quality of the Basin. In 1965, Congress authorized the Army Corps of Engineers "to make a complete investigation and study of water utilization and control of Chesapeake Bay Basin … including … navigation, fisheries, flood control, control of various wastes, water pollution, water quality, beach erosion and recreation." To aid in this study, the Corps was authorized to build a physical model of the Bay at an eventual cost of approximately $15 million. The resulting study covered a span of approximately 10 years and led to the publication of the multivolume EXISTING CONDITIONS REPORT and FUTURE CONDITIONS REPORT.⁵ While this study clearly documented the negative impact on Bay resources of future growth patterns, there was little response from governmental water quality regulatory agencies. Perhaps the most obvious reason for this was that the published results were only descriptive and did not contain specific recommendations for corrective actions.

It is important to recognize that the history of the Bay during the 1970s was not solely one of declining quality and ineffectual studies. New national attention regarding environmental concerns resulted in federal and state legislation,⁶ strengthened regulatory programs, and renewed commitment to construction of adequate sewage treatment plants. One of the most significant results for the Bay of this new trend was theadoption by EPA, Maryland, and Pennsylvania of an Upper Bay Phosphorus [14 ELR 10239] Limitation Strategy, which required the removal of phosphorus from most sewage treatment plants in the upper Bay and the lower Susequehanna and provided for federal funding assistance. As a result, virtually all significant plants now discharging above the Bay Bridge are, or will soon be, removing the nutrient phosphorus from their discharges.

Fortuitously, in the mid-1970s the then junior senator from Maryland, Charles Mathias, spent a few weeks cruising on the Bay and was appalled at the environmental conditions that he saw as he sailed from cove to cove along the Bay's great length. Returning to Washington he consulted with then EPA Administrator Russell Train, and, in 1975, caused to be inserted in the EPA appropriation bill a directive that the Agency carry out a comprehensive study of the Bay. The tasks to be completed were the following: (1) assess the principal factors having an adverse impact on the environmental quality of Chesapeake Bay; (2) analyze all environmental data presently being collected on Chesapeake Bay; (3) establish a continuing capability for collecting, storing, analyzing, and disseminating such data; (4) institute a sampling program; (5) determine what units of government have management responsibility for the environmental quality of Chesapeake Bay; and (6) review ways to improve existing Chesapeake Bay management mechanisms and new alternatives.⁷ Thus began what is perhaps the most exhaustive analysis of any environmental system — a study that lasted nearly seven years and cost approximately $27 million.

The start of this monumental effort was accompanied with a substantial number of organizational and thematic problems. However, eventually two important concepts emerged. The first had to do with defining the particular environmental problems of the Bay that should be studied. Three were chosen — over-enrichment of the Bay system by nutrients causing eutrophication, adverse impacts of toxics on the aquatic resources of the Bay, and finally determination of the causes for the rapid decline in the submerged aquatic vegetation of the Bay. These fundamental environmental concerns were chosen over such issues as dredging, oil spills, or impacts of recreational boating because it was felt that they were fundamental to the changes in water quality that seemed to be linked to decreasing aquatic resources. The second major issue concerned the process by which EPA would manage the conduct of the study. It was eventually determined that this responsibility would be carried out by a broadly based management committee. The management committee represented interests far beyond the research component of EPA. It had among its members representatives of the states most directly involved, and these members included those responsible for water quality management and, in the case of Maryland, fisheries management. In addition, a member represented the general public. Thus, through the structure of the management committee the EPA study was conducted not only by research interests but also those with water quality protection responsibilities and fisheries management duties. In addition, the public had a role in the deliberations through the entire process of study and recommendations.

Equal in importance to the markeup of the committee was the role that it played. It was not merely advisory to EPA but in large part directed the conduct of the study. This role was effectuated by determining allocation of the annual budget to particular research projects and by demanding that all research products be subject to a thorough process of external peer review. The management committee also insisted that the research projects not be solely oriented to academic analysis of the Bay's problems but be focused on analyzing those problems in a way that related to the widely understood decline in Bay resources. Even more importantly, the committee developed a process for analyzing the scientific findings in a manner that suggested specific actions that could be undertaken to bring about improvements. As a result the Bay study concluded with a practical set of recommendations. In a unique way EPA gave over management of the Bay Program research effort to concerned state and citizen interests. As a consequence, the final products of the research effort are especially valuable for formulating and directing future regulatory policy and ensuring that the public sentiment supports these changes in direction.

The final products of the Bay Program are five in number. On October 1, 1982 the first three were delivered to Congress along with an Executive Summary. The reports were:

CHESAPEAKE BAY: INTRODUCTION TO AN ECOSYSTEM — a brief explanation of the important ecological relationships of the Bay.

CHESAPEAKE BAY PROGRAM TECHNICAL STUDIES — A SYNTHESIS — a lengthy summary and explanation of the technical knowledge gained from over 40 research projects in the areas of technical interest.

CHESAPEAKE BAY PROGRAM: TECHNICAL PROJECT SUMMARIES — summaries of the findings of specific research projects available through the National Technical Information Services or in professional journals.

On October 1, 1983 the final two reports of the Bay Study were provided to Congress. These were:

CHESAPEAKE BAY: A PROFILE OF ENVIRONMENTAL CHANGE — analysis relating the scientific findings on water quality to shifts in living resources in an attempt to characterize the past and present state of the Bay.

CHESAPEAKE BAY: A FRAMEWORK FOR ACTION — recommendations for actions to restore and maintain the ecological integrity of the Bay.

Thus after seven years of effort by EPA, the states, and concerned citizens, a program of findings and recommended actions was presented to Congress. What did it conclude and what would it mean to those who value the Bay?

The Findings

The conclusions of the EPA Bay Study can be grouped into two general categories. The first is concerned with trends for the living resources of the Bay and the second concerns the changing water quality conditions. With respect to living resources the study documented:

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In the upper Bay there has been a significant increase in algae blooms since the 1950s.

Throughout the Bay submerged aquatic vegetation has dramatically decreased in abundance and diversity since the 1960s.

There has been a major shift in the landings of fish, with marine spawners such a menhaden and bluefish increased while fresh water spawners such as shad and rock fish (striped bass) significantly declined.

Oyster harvests have declined throughout the Bay and, especially on the western shore, reproduction of oysters has decreased significantly.

These trends, which indicate a deteriorating quality in the estuarine environment, were paralleled by specific conclusions about water quality changes:

Increasing levels of the nutrients phosphorus and nitrogen are reaching the Bay system causing serious over-enrichment especially in the tributaries and the upper Bay.

In response to this excessive nutrient load, the amount of water in the main Bay that has low or no dissolved oxygen increased about 15-fold between 1950 and 1980.

High concentrations of toxic organic compounds and metals have been found especially in bottom sediments of the main Bay near areas of industrial activity such as Baltimore and Norfolk.⁸

In summary, the Bay Study concludes that "it is clearly established that nutrient loadings have substantially increased, that massive quantities of toxicants have entered this system, and that the unchecked increases of these pollutants threatens important resources." Perhaps of greatest interest was the realization that the Bay does not flush wastes to the ocean but acts as a sink and concentrates the wastes thus multiplying their harmful impact on aquatic resources.

Although the Bay Program made important contributions in describing the continued decline in water quality and related impacts on aquatic resources, perhaps its greatest success was in determining the source of the pollutants and thus providing a framework for action by government to control these sources. The relationship between toxic contamination and industrial activity was readily apparent; however, the greatest contribution was to detail the degree to which agricultural activities are a significant source of the excessive nutrient loadings to the Bay and its tributaries. The study demonstrated for the first time that agricultural practices are a critical source of nutrients in several of the Bay's tributary systems, where the non-point source influence overwhelmed the contribution from sewage treatment plants. Water quality in those areas cannot be expected to significantly improve unless these diffuse sources are controlled. In other basins nutrient loading from sewage treatment plants remains significant and must also be controlled.

In summary, the Bay Program found that certain pollutants, namely nutrients and toxics, were adversely affecting the Bay and its living resources. In addition, the study targeted the most significant sources and articulated strategies to control and reduce their contribution. This targeting was especially important in demonstrating the critical contribution of non-point sources such as agriculture. The vast range of detailed recommendations is set forth in the final EPA publication entitled CHESEAPEAKE BAY: A FRAMEWORK FOR ACTION, which was 186 pages long plus an appendix of 600 pages.

The Response

It has been the habit of the Bay community to respond to challenges through the medium of the Bay Conference. The first such conference was held at the Wye Institute in 1968. A second conference entitled "The Bi-State Conference on the Chesapeake Bay" was held at the Patuxent Naval Air Station in 1977. Inevitably, it evolved that the response to the conclusions of the Chesapeake Bay Stucy of 1983 would be proposed, tested, and committed to at yet another Bay Conference. This event was held from December 7 to 9, 1983 at George Mason University in Virginia and was sponsored by Virginia, the District of Columbia, Maryland, Pennsylvania, and the U.S. Environmental Protection Agency. Substantial preparatory work was done by both the governments involved and a widely representative group of citizens concerned about the Bay. The centerpiece of the Conference became the articulation on the third day by each jurisdiction of the new actions it was prepared to take to reverse the decline in the Bay's condition. This was a dramatic departure from previous conferences, which had focused on identifying problems and what government was already doing to solve them. In 1983 both government sponsors and citizen attendees knew that new pollution control initiatives were needed if the Chesapeake Bay was to be saved.

Each state laid before the Conference a specific action agenda that it proposed to implement. These agendas required legislative approval of both budgetary increases and changes in substantive statutes. In the case of Maryland and Virginia, the 1984 legislative sessions have ended and the administrations' recommendations have been enacted essentially as proposed. In the case of Pennsylvania and the District of Columbia, legislative action is [14 ELR 10241] pending at this writing. Although not proposed at the December conference, the executive branch of the federal government subsequently proposed an appropriation of $10 million in EPA's 1985 budget, of which $8.75 million would be available to the states on a cost-share basis for Bay pollution control activities not otherwise supported by federal funding.

The specific proposals of the several jurisdictions can be grouped into four broad categories: pollution control; resource enhancement; land management; and institutional improvements. While the proposals varied substantially, in each case the proposed program targeted those sources of pollution within the state that contributed most significantly to the pollution of Chesapeake Bay.

In the area of pollution control the proposals address three specific needs. First, the states identified steps to improve the levels of treatment of sewage so that excessive nutrients would be removed. Especially in the case of Maryland, Virginia, and the District of Columbia this requires a continued commitment to the use of wastewater treatment techniques that will remove pollutants, especially phosphorus, now discharged into the upper Bay and certain tributaries. Second, the proposals recognize that greatly improved efforts need to be made to reduce pollution from non-point sources, especially agriculture. Maryland, Virginia, and Pennsylvania all proposed programs substantially increasing both financial and technical assistance to farmers to reduce farm runoff. In addition, both Maryland and the District of Columbia, the most intensely populated areas, proposed initiatives to reduce pollutants from land development activities. All jurisdictions proposed new or enhanced efforts to limit the discharge of toxic material from industrial facilities into municipal sewerage systems or directly to the waters tributary to the Bay.

Resource enhancement is a second critical element of the proposals, because basic biologic stocks need to be maintained while pollution control activities improve water quality and habitat. The proposed efforts range from substantial increases in shell-and finish hatching to the planting of aquatic grasses in areas where they should thrive as water quality enhancement proceeds. Maryland and Virginia, which share jurisdiction over the Bay itself, will conduct most of the resource enhancement activities.

Perhaps the most dramatic new program presented at the Conference was Maryland's proposal to manage land development activities on the Bay's edge so that they will not cause adverse impacts on the Bay over the long term. This issue is especially critical in Maryland because the substantial southern growth of megalopolis is spreading into lands adjacent to critically important spawning areas in the freshwater tributaries of the state. Virginia, D.C., and Maryland also proposed programs that would regulate pollution from development.

On of the most striking lessons in the state proposals is the need to go beyond the basic national programs established by federal law. A close examination of the initiatives proposed by Maryland shows that existing federal law and state law patterned on the federal model do not support the comprehensive effort needed to restore the aquatic system of the Bay. Several examples selected from Maryland's initiatives demonstrate that on a localized basis maximum progress towards environmental protection must build on, yet go beyond, national programs.

The first example concerns sewage treatment facilities. As indicated above, nutrients, especially phosphorus from sewage treatment plants, are a major contributor to the over-enrichment of the Bay. Following strict review by EPA, advanced wastewater treatment facilities for removing phosphorus are eligible for federal funding assistance under Title II of the Federal Water Pollution Control Act (FWPCA).⁹ Of critical concern to Bay cleanup efforts is the fact that amendments in 1981 to this title reduce the federal share of such costs from 75 to 55 percent as of October 1, 1984. In many states the nonfederal share has been divided equally between the state and local units of government. This has meant that the local share of construction costs has been only 12.5 percent. The effect of the 1981 amendments would be to increase this share to 22.5 percent at a time when the Bay study suggested that even more had to be done to construct advanced facilities to treat municipal sewage. Maryland has elected to increase the state's share of such projects to 32.5 percent, thus keeping the local share at 12.5 percent. Thus, the state has elected to replace the reduced federal funding at a cost that may amount to as much as $15 million per year more than the current state share of the cost of such facilities.

Pretreating industrial discharges before they enter municipal sewerage systems has been an unresolved issue for some time. Although language was added to the FWPCA in 1977 to give greater impetus to this regulatory effort,¹⁰ little has been accomplished either nationally or in the Bay system.¹¹ The Bay Study indicated that such discharges are an important source of toxic materials that may be adversely affecting aquatic resources. Accordingly, Maryland has focused on creating an effective pretreatment program at the state level. This initiative provides additional enforcement and regulatory staff, but more important, includes an amendment to state law that brings industrial discharges to sanitary sewers under direct legal control of the state for the first time. In concert with this first significant effort at implementing the pretreatment requirements of the FWPCA will be entirely new efforts to regulate discharges by both municipalities and industries in terms of their toxicity to aquatic organisms, where necessary going beyond the water quality standards or effluent limitations provided for in the Act. In both Maryland and Virginia highly sophisticated biomonitoring and bioassay techniques will be employed to determine the toxicity of particular effluents and permit requirements will be imposed, independent of FWPCA requirements, requiring removal of materals determined to be toxic to Bay aquatic species. In Maryland the analytical costs of this process will be paid for from the proceeds of a newly imposed permit fee for all industrial dischargers within the state.

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A further source of both toxic and nutrient pollutants is runoff from urban areas. Several state efforts will address this problem, which is virtually unregulated under federal law. Maryland has an existing erosion, sedimentation, and storm water program addressing newly developing areas. These will be strengthened either through financial assistance to counties, in the case of storm water management, or direct state enforcement, in the case of erosion and sedimentation requirements. In addition, Maryland will attempt to reduce pollution from already developed land through a series of experimental programs targeted at state-owned facilities or implemented through special grants to local governments.

The problem of controlling agricultural runoff to the Bay is one for which the several states have had to develop programs that go far beyond the provisions of federal law. During the 1970s, in responseto the mandates of the FWPCA § 208¹² planning process, many states suggested schemes for controlling the pollution from agricultural sources. Maryland was among those that followed this course, but did little to change the practices of the agricultural community because it did not adopt a rigorous regulatory program, or provide the technical or financial assistance necessary to implement local control programs. In Maryland, as elsewhere in the Bay region, the state has proposed to change this stagnant condition by resolving two long-standing problems. First, technical resources for advising farmers as to how to reduce runoff pollution have not been available at the soil conservation district level. Second, farmers have been given little financial assistance to curb erosion. Maryland has determined to reverse both of these conditions. Over 40 new technical specialists will be assigned to critical areas in the state to work with farmers to ensure that conservation plans implementing "best management practices" (BMPs) are in place in the next five years. Additionally, a cost-share program at a funding level of between $5 million and $8 million per year will provide up to 87.5 percent of the cost of implementing BMPs for farmers. This program will provide up to $5,000 for each project with a maximum of $25,000 for each farm. The state has also determined that, given the availability of these new resources, if a farmer remains recalcitrant in controlling agricultural pollution, then enforcement action by the pollution control agency is necessary and will be pursued.

One of the most perplexing problems that the national environmental protection program has not adequately addressed is how to measure the actual environmental benefits achieved by particular regulatory efforts. Too frequently, attention has centered on surrogates for environmental restoration, such as permits issued or enforcement actions initiated. In order to overcome this tendency, the states and EPA have agreed to establish an annual Bay monitoring program that will cost in excess of $2.5 million. This program will look not only at trends in classical water chemistry parameters, but also at the status of the living organisms. It is in this latter set of parameters that the true success of Bay restoration efforts will be measured.

The initiatives of the states demonstrate that restoration of the Bay is dependent upon the base established by federal law. However, actually to be effective, additional state efforts must build upon that federal base and go beyond it. This exploratory effort can provide a testing ground from which new EPA programs can be derived. But the overall program illustrates that protection of regional resources can only be achieved through application of federal law with a liberal gloss of local requirements tailored to local conditions. And while the federal law may provide a base upon which the states elaborate detailed programs, much of the actual implementation is carried out at the local level. Municipalities must build sewage treatment plants and need assistance in financing them. Similarly, county governments play a vital role in programs to control non-point source pollution. This is especially true for agricultural runoff where the soil conservation districts can help retard soil loss and improve water quality.

The foregoing discussion only highlights the details of selected actions that the several jurisdictions proposed to restore the quality of the Chesapeake Bay. They stand unique, however, in the history of Bay Conferences as commitments to act. Beyond this, the political leadership of the Bay region committed to create a management entity to ensure that these and other necessary steps would be carried out. On the final day of the Conference, EPA Administrator William Ruckelshaus joined with Governors Robb of Virginia and Hughes of Maryland, D.C. Mayor Barry, and Lieutenant Governor Scranton of Pennsylvania in creating an Executive Council to oversee the effectiveness with which the several jurisdictions and EPA moved to implement the Conference commitments to restore the Chesapeake Bay.

Why the New Beginning?

The foregoing brief analysis of the last several years of Bay history illustrates two unique facts. For the first time, the political leadership of the entire Bay region publicly recognized at George Mason University that trends in the bay's ecological health were bad. Having made that historic admission they also made a commitment to avert the Bay's further deterioration and even to return its quanity to that of an earlier era when resource productivity was far greater. The factors which account for this wholly unique political response to the condition of the Bay are complex but important.

Of central importance in explaining this historic response has to be the very manner in which EPA's research into the Bay's condition was conducted. As indicated, this study was not solely an undertaking by the research staff of EPA and the scientific community of the Bay. From the earliest stages the regulators and managers charged with environmental protection in the several states were involved with the design and analysis of the ongoing research efforts. Through the medium of the management committee these interests attempted to guide both the research and the manner of its final presentation so that it would easily become the basis for specific actions to redress adverse conditions. Of equal importance was the intimate involvement of the public, especially through the use in the latter stages of the study of resource users such as industrialists, farmers, and watermen, who analyzed the scientific findings and evaluated [14 ELR 10243] the practical utility of remedial alternatives offered by EPA researchers. Each group, government managers and public users of Bay resources, had a special interest in seeing that the research could be used to correct the conditions of the Bay. Through the management committee and related activities these interests ensured that the results of the research were oriented toward action.

A second important feature of the management committee was that it represented the three jurisdictions most interested in the outcome of the study — Maryland, Virginia, and Pennsylvania. Through the committee's public member, citizens of the several states were also involved. This regional representation was extraordinarily important in assuring that the study would become part of the fabric of these several jurisdictions and not just reflect the scientific perspective of the Bay's research community. The effort was to ensure that, in an imperceptible fashion, over the several years of the study a collective regional commitment to solve problems would emerge. The cohesive perspective that in fact emerged was far different from the historic divisions that have divided the several states as they have considered their own interests in the Chesapeake Bay. As a result a coherent multistate goal to protect the Bay was forged at both the state government and citizen level. This created a context in which the political leadership of the Bay region and national leadership could easily respond with a collective program for the Bay.

Perhaps of greatest importance was the fact that the average person interested in the Bay could see that changes for the worse were actually taking place. Those who merely used the Bay for recreational boating recognized that the Bay grasses had disappeared to an alarming extent. Whereas the concern of the 1950s had been to remove grasses so that navigation channels would not be clogged, by the early 1980s everywhere the bottom appeared to be clean. Even more striking was the ban by the State of Maryland on the taking of shad in 1980. For the first time, the culinary harbinger of spring could no longer be caught in Maryland waters. And, although not banned, the favorite fish of the Bay — the rockfish — seemed to have nearly disappeared. In fact in the late 1970s the unimaginable happened — bluefish began to replace rockfish as a delicacy on the menus of the Bay's seafood restaurants. Finally, as the catch of the Bay's oysters and crabs became more irregular, wholesalers began to turn to sources of supply further to the South. Indeed, anyone who looked closely saw real trends suggesting that the productivity of Chesapeake Bay was in serious decline.

A final factor which must be considered was the emerging national character of the Chesapeake Bay. Although always a major producer of seafood and a definer of national character going back to colonial times, the Bay had escaped national attention as a critically important natural resource. White this fact may have been welcomed by many with a parochial perspective, it also allowed for inattention by those immediately responsible for the Bay's care. This period of Bay isolation ended once and for all with the publication of James Michener's CHESAPEAKE¹³ and William Warner's BEAUTIFUL SWIMMERS.¹⁴ Each book projected appreciation of the Bay's values onto national sensibilities, and thereafter state managers had a national responsibility that the Bay Study focused.

In summary, it is clear that the EPA study, while critical to the renewed commitment to save Chesapeake Bay, was not the only factor. Of equal importance were a variety of factors that conspired to prevent that study from merely taking up space on library shelves. These factors ranged from bureaucratic involvement to national awareness. All dictated that dramatic new ideas would be applied to the restoration of the Bay's water quality and the enhancement of its resources.

What New Policy?

An examination of the conduct of the EPA study suggests a very important lesson about ensuring that a study is carried forward into implementation. Beyond this, the specific pollution control aspects of the study carry important policy implications. They confront major water pollution problems left unsolved in our current national clean water program.

The most important water quality policy implication is that the Bay Study and the resulting corrective programs were not concerned primarily with trends in water quality. In the final analysis the concern is the natural resources of the Bay region and the impact that trends in water quality have on those resources. A major consequence of this thrust is seen in the implementation actions that the states have planned in response to the Bay Study's conclusions. While significant attention is addressed to improving a variety of pollution control programs, equal attention is paid to restoring or maintaining fisheries and other resources pending the achievement of improved water quality. Maryland is especially concerned about the indirect effects of growing population on the quality of water and habitat in critical spawning areas for rockfish and shad. In order to address this problem a Chesapeake Critical Area Commission has been established that will oversee local land use decisions in a zone within 1,000 feet of the Bay and its tributaries. Finally, the states and the federal government will monitor the Bay and its tributaries with intensity unparalleled in any other environmental system in the country. Of special interest is the fact that this program will not only examine physical and chemical water quality parameters but also will examine the state of the biological community. The fundamental purpose of the overall implementation effort is to restore the abundance of aquatic resources through improvements in both water quality and habitat. This holistic approach to environmental protection is a major contribution of the Bay Program.

A second major contribution has been the documentation of the role of agricultural runoff in a major water system. Eutrophication is a dominant adverse trend in the Bay. While the role of point sources, especially sewage treatment plants, was confirmed, the fact that agricultural practices are a significant contributor was conclusively shown for the first time. Thus, even if sewage treatment plants are equipped with state-of-the-art removal equipment for nutrients, it is clear that improvement in critically important watersheds and in total loadings to the Bay will not come about unless controls are applied to agriculture. This has been a major finding of the Bay [14 ELR 10244] Study and in consequence all three states propose to initiate major efforts to reduce contributions of nutrients from farms.

With regard to toxic pollutants, the findings of the Bay Study were less conclusive, but suggest that an alternative approach to analyzing toxic water pollution be taken. Although high concentrations of toxics were found, especially in bottom sediments in industrialized areas such as Baltimore and Norfolk, little could be shown to demonstrate other than localized effects on the aquatic resources of the Bay. Few researchers or managers find cause for solace in this absence of scientific correlation, however. The toxics may so subtly affect the developmental stages of aquatic life that gross analysis simply cannot detect the point or causative agent of adverse impact. This suggests that in the future, aquatic resources, such as fish, must be examined essentially from an individual health effects perspective in order to determine the possible adverse impact of toxics in the environment. Examination of the physiology of individuals and abnormalities must be emphasized. Once conditions are defined researchers will need to examine those qualities of the environment that are causing the change. This suggests an entirely new approach to considering the effects of toxics in the environment; one focusing primarily upon the adverse health effects of particular identified toxics on specific species.

One of the initial thrusts in Senator Mathias' direction of EPA to study Chesapeake Bay was that it consider and recommend new institutional arrangements that might be considered. Many have long been concerned that the varied responsibilitiies of the several states and the various federal agencies needs to be focused on the Chesapeake Bay in a more coherent fashion. While several regional entities were created during the 1970s, namely the Susquehanna River Basin Commission and the Interstate Commission on the Potomac, they seem to have contributed little directly to improving the water quality of the Bay. In the early 1980s, Virginia and Maryland formed two new entities to address problems of the Chesapeake Bay. These are the Chesapeake Bay Bi-State Working Committee, created by gubernatorial executive order and focused on executive agency responsibilities, and the Chesapeake Bay Commission, established by the two states' legislative bodies, which focuses on legislative concerns in the two states and is made up of members of the respective legislatures. As the Chesapeake Bay Study drew to a close in 1983, the practical experience regarding effectiveness of either of these institutions was not sufficient to conclude that they would be wholly adequate to provide the mechanism for future coordination of regional Bay restoration efforts.

In order to assess whether some further entity was required, EPA examiined the experience elsewhere in the country. This research indicated that where a particular environmental problem involved as many different agencies as is the case in the Chesapeake Bay, and also involved the interests of a large number of jurisdictions, highly formal regional institutions were generally not successful. It was also apparent that Maryland and Virginia were increasingly comfortable with the informal collective decision-making role carried out by the Bi-State Working Committee, the Chesapeake Bay Commission, and the Management Committee. Accordingly, it was concluded that no new legal institution should be created to which the several jurisdictions would cede legal jurisdiction to regulate the Chesapeake Bay.

However, state leaders recognized the need to provide effective coordination and policy oversight of regulatory actions. In addition, it was essential that the political leadership of the Bay form some mechanism by which they could account to the public for the degree to which future efforts would succeed in protecting the Bay and its tributaries. In recognition of this major responsibility an Executive Council for Chesapeake Bay was created at George Mason University on December 9, 1983. The signatories were EPA Administrator Ruckelshaus, Governor Harry Hughes of Maryland, Governor Charles Robb of Virginia, and subsequently, Governor Richard Thornburgh of Pennsylvania and Mayor Marion Barry of the District of Columbia.¹⁵

This landmark agreement recognizes that multi-jurisdiction cooperation is an essential basis for every action designed to improve Chesapeake Bay. This cooperation, however, is not based upon creation of a new super agency but is rather formulated upon the principal of explicit commitment and public accountability by the existing institutions in the Bay region that have political responsibility for the state of the Bay's health.

Conclusion

On May 29, 1984, at a ceremony at Sandy Point State Park on the shore of the Chesapeake, Governor Hughes of Maryland signed the bills enacted by the Maryland General Assembly that embodied Maryland's response to [14 ELR 10245] the condition of the Bay. For the several hundred elected officials, government employees, and citizens in attendance, the sense of accomplishment was keen; however, even more dominant was the sense of opportunity for new progress for the Bay. Notwithstanding the scientific investigation and political commitment of the past several years, success will crucially depend upon vigorous action by government and vigilant attention by the citizens of the Bay region. These latter components are essential to the success of any environmental protection program.

1. H. L. Mencken wrote, "Baltimore lay very near the immense protein factory of Chesapeake Bay, and out of the Bay it ate diversely." HAPPY DAYS (1940).

2. Many of the factual descriptions of the Bay herein are more fully set forth in EPA, CHESAPEAKE BAY: AN INTRODUCTION TO AN ECOSYSTEM (1982).

3. CAPPER, POWERS, & SHIVER, CHESAPEAKE WATERS (1983).

5. BALTIMORE DISTRICT, U.S. ARMY CORPS OF ENGINEERS, CHESAPEAKE BAY EXISTING CONDITIONS REPORT (1973). BALTIMORE DISTRICT, U.S. ARMY CORPS OF ENGINEERS, CHESAPEAKE BAY FUTURE CONDITIONS REPORT (1977).

6. E.g., the Federal Water Pollution Control Act (FWPCA) amendments of 1972 and 1977, 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

7. SENATE COMM. ON APPROPRIATIONS, DEP'T OF HOUSING AND URBAN DEVELOPMENT — INDEPENDENT AGENCIES APPROPRIATIONS BILL, S. REP. NO. 326, 94th Cong., 1st Sess. (1975).

8. These findings were not unique or original. A major conference regarding Bay matters was held in 1977. Among its findings were the following:

Extensive algae blooms and changes in the natural flora have been observed in some years in the waters of the upper Bay, the Potomac and some other areas, indicative of excessive nutrient loading.

Serious reductions in desired submerged aquatic plants have occurred in recent years ….

Bluefish, a "boom or bust" species, has been in such high abundance along the coast that availability as they move into the Bay will be very good.

The American shad and herrings are scarce.

Striped bass … is much less abundant than in most recent years ….

Large amounts of nitrogen and phosphorus come into the Bay ….

[M]an's activities have increased the frequency, extent and duration of low oxygen zones.

Input of metals from domestic and industrial wastes has produced massive accumulations in the sediments of some harbor areas.

Proceedings of the Bi-State Conference on the Chesapeake Bay 42-45 (1977). The specific 1983 findings are little different from those of 1977, yet the public reaction has been dramatically different. The following sections of this article will attempt to explain why that has been the case.

9. FWPCA §§ 201-219, 33 U.S.C. §§ 1281-1299, ELR STAT. 42117-23.

10. See FWPCA § 307, 33 U.S.C. § 1317, ELR STAT. 42129-30.

11. For a general discussion of the pretreatment program and analysis of recent pretreatment litigation, see Neuman, Third Circuit Clears Way for National Pretreatment Program, 14 ELR 10039 (Feb. 1984); Want, Third Circuit Reopens Basic Water Act Issues by Invalidating FDF Variance, 14 ELR 10047 (Feb. 1984).

12. 33 U.S.C. § 1288, ELR STAT. 42122:2-22:4.

13. (1978).

14. (1976).

15. We recognize the findings of the Chesapeake Bay Program have shown a historical decline in the living resources of the Chesapeake Bay and that a cooperative approach is needed among the Environmental Protection Agency (EPA), the State of Maryland, the Commonwealths of Pennsylvania and Virginia, and the District of Columbia (the States) to fully address the extent, complexity, and sources of pollutants entering the Bay. We further recognize that EPA and the States share the responsibility for management decisions and resources regarding the high priority issues of the Chesapeake Bay.

Accordingly, the States and EPA agree to the following actions:

1. A Chesapeake Executive Council will be established which will meet at least twice yearly to assess and oversee the implementation of coordinated plans to improve and protect the water quality and living resources of the Chesapeake Bay estuarine system. The Council will consist of the appropriate cabinet designees of the Governors, the Mayor of the District of Columbia, and the Regional Administrator of EPA. The Council will initially be chaired by EPA and will report annually to the signatories of this agreement.

2. The Executive Council will establish an implementation committee of agency representatives who will meet as needed to coordinate technical matters and to coordinate the development and evaluation of management plans. The Council may appoint such ex officio non-voting members as deemed appropriate.

3. A liaison office for Chesapeake Bay activities will be established at EPA's Central Regional Laboratory in Annapolis, Maryland to advise and support the Council and the Committee.