28 ELR 10317 | Environmental Law Reporter | copyright © 1998 | All rights reserved

Pfiesteria Piscicida: A Regional Symptom of a National Problem

Editors' Summary: Pfiesteria piscicida, a sometimes toxic microorganism, is responsible for the death of millions of fish in Delaware, Maryland, North Carolina, and Virginia. Although the problem of Pfiesteria-related fish kills is associated with the Mid-Atlantic region, other toxic microorganisms have threatened fish and marine wildlife throughout the world. Scientists attribute this "global epidemic" of toxic microbes to excessive nutrient loading from nonpoint sources of pollution. Thus, toxic outbreaks of Pfiesteria appear to be a symptom of the national problem of nonpoint source pollution. This Comment discusses the probable causes and demonstrated effects of toxic forms of Pfiesteria. It summarizes existing federal and state laws that can be used to reduce nonpoint source pollution and lessen the likelihood of future outbreaks of Pfiesteria. It also examines how different entities, including federal and state governments, environmental organizations, and industry groups, have responded to toxic outbreaks of Pfiesteria. This Comment concludes that federal controls on nonpoint source runoff are needed to achieve the FWPCA's goals and to reduce the likelihood of future outbreaks of and other toxic microbes.

Elaine Bueschen is an Assistant Editor of ELR — The Environmental Law Reporter. She received a J.D. from American University's Washington College of Law in 1997 and graduated from Colby College in 1992 with a major in biology and a concentration in environmental science. The author is grateful for the helpful comments of Jim Satterfield and Jim McElfish. The views expressed in this Comment are not necessarily shared by the Environmental Law Institute.

[28 ELR 10317]

With warmer weather on the way, fishers, farmers, policymakers, environmentalists, and scientists alike are all wondering if the "cell from hell" will make a return appearance in a sequel to last summer's fish kills in tributaries of the Chesapeake Bay. Pfiesteria piscicida, a tiny and sometimes toxic one-celled microbe, has been responsible for the death of millions of fish in the mid-Atlantic region. So far, Pfiesteria and Pfiesteria-like organisms have been linked to fish kills in Delaware, Maryland, North Carolina, and Virginia.¹ A benign form of Pfiesteria has also been found in the Gulf of Mexico.² Scientists believe that Pfiesteria has existed for millions of years. Yet, its presence went unnoticed until millions of fish turned up dead as a result of toxins this microbe produces.

While Pfiesteria appears to be a regional problem, other toxic one-celled organisms have threatened fish and marine wildlife throughout the world, making Pfiesteria part of what has become a "global epidemic."³ For instance, one-celled plants killed hundreds of brown pelicans in California's Monterey Bay, and more than 160 dolphins in Mexico's Sea of Cortez.⁴ In Florida, one-celled organisms produced a red tide that killed over 300 manatees.⁵ And scientists report that the number of harmful outbreaks of microorganisms, such as Pfiesteria, has doubled over the past two decades.⁶

Although this Comment focuses on Pfiesteria, it is important to keep in mind that Pfiesteria appears to be part of a national problem — nutrient loading from nonpoint source pollution.⁷ Nutrient overenrichment "result[s] in excessive growth of macrophytes or phytoplankton and potentially harmful algal blooms … [and] has also been strongly linked to the large hypoxic zone in the Gulf of Mexico and to recent [28 ELR 10318] outbreaks of Pfiesteria along the mid-Atlantic Coast."⁸ Any region that is susceptible to these types of attacks can benefit by this Comment's examination of responses to toxic outbreaks of Pfiesteria piscicida by industry, environmentalists, and federal and state governments.

This Comment begins by discussing Pfiesteria, the causes of its toxic outbreaks, and the effects these outbreaks have on the environment and humans. Next, it summarizes existing federal and state laws that can be used to reduce the likelihood of future toxic outbreaks. It also explores how federal and state governments, environmental groups, and Maryland's poultry industry have responded to this fish-killing microbe. And this Comment concludes that federal regulation of nonpoint pollution is necessary to address the leading cause of America's water quality problems — polluted runoff — and to reduce the risk of future outbreaks of Pfiesteria and other harmful microorganisms.

Toxic Outbreaks of Pfiesteria: Causes and Effects

Causes

Classified in the Kingdom Protista, Pfiesteria piscicida is neither a plant nor an animal. In physiological terms, Pfiesteria is described as a dinoflagellate because it has two tails that it uses to propel itself forward.⁹ With a complex life cycle consisting of at least 24 stages or forms, Pfiesteria is extremely difficult to identify.¹⁰ In most of these phases, Pfiesteria is a harmless microbe whose presence goes unnoticed. In some forms, however, Pfiesteria releases a toxin that can be lethal to fish and harmful to humans. Scientists believe that fish secretions and excretions trigger the transformation of Pfiesteria from a nontoxic to a toxic form.¹¹ Therefore, in order for Pfiesteria to enter into a toxic form, fish must be present.

Scientific studies, both in the field and in the lab, indicate that Pfiesteria thrives in water that is overenriched with nutrients such as phosphorous and nitrogen, because Pfiesteria feeds on algae that blooms in waters overloaded with nutrients.¹² A commission formed by the governor of Maryland to study Pfiesteria stated after hearing hours of scientific testimony,

It appears that excessive nutrient loadings help create an environment rich in microbial prey and organic matter that the Pfiesteria use as a food supply. By increasing the concentration of Pfiesteria, nutrient loads increase the likelihood of a toxic outbreak when adequate numbers of fish are present.¹³

Furthermore, "after considering the best available science," the Maryland commission concluded "that decreasing nutrient loads in the [Chesapeake] Bay will likely reduce the risk of these outbreaks."¹⁴

There are three primary sources of nutrient pollution: sewage waste from septic tanks and treatment plants; agricultural runoff containing fertilizer or animal waste; and air depositions from utilities and vehicles.¹⁵ Agricultural runoff, however, "is the most extensive source of water pollution, affecting 70 percent of impaired rivers and streams, and 49 percent of impaired lake acres."¹⁶ Moreover, a study by the Maryland Department of Natural Resources estimates that approximately 82 percent of the phosphorous load and 74 percent of the nitrogen load in the Pocomoke watershed, where Pfiesteria had a deadly effect on fish, are from agricultural activities.¹⁷

While agricultural runoff has not been conclusively linked to toxic outbreaks of Pfiesteria, some other suspected causes have been ruled out. Pesticides, for example, are no longer considered a potential culprit for Pfiesteria outbreaks.¹⁸ In addition, it is unlikely that concentrations of copper and other trace metals contribute to Pfiesteria outbreaks.¹⁹ In short, what is known about the causes of toxic outbreaks of Pfiesteria is that fish must be present and that "there is a very strong association" between this microbe and nitrogen and phosphorous.²⁰ It is also known that agricultural runoff, which contains substantial amounts of both of these nutrients, is the nation's leading contributor of nitrogen and phosphorous loadings in U.S. waters.²¹

Many environmentalists and scientists believe that agricultural runoff from poultry farms in Maryland and hog farms in North Carolina is responsible for the Pfiesteria outbreaks.²² The amount of nutrients entering waterways from these animal feeding operations is staggering. On Maryland's Delmarva Peninsula, there are 6,000 poultry farmers that grow approximately 600 million chickens each year. The chickens raised at these and other farms around the [28 ELR 10319] Chesapeake Bay produce as much manure as a city with one million people.²³ In Virginia, there are over 1,400 poultry farms, which generate 4.4 billion pounds of manure each year.²⁴ With huge amounts of chicken manure to dispose of, poultry farmers often spread the animal waste on their fields as fertilizer. Eventually, rains wash the manure, laden with nitrogen and phosphorus, into nearby waterways. In North Carolina, there are approximately 2,800 hog farms,²⁵ which produce about 200 million pounds of nitrogen each year.²⁶ Hog farmers store hog waste in lagoons, which have been known to overflow during heavy rains and leak or even collapse if not properly maintained.

Effects on the Environment

Pfiesteria has been linked to fish kills in Delaware, North Carolina, Maryland, and Virginia. In 1987, 125,000 fish turned up dead on the Indian River in Delaware. Recently, Dr. JoAnn Burkholder, the scientist credited with first identifying Pfiesteria, confirmed that toxic forms of Pfiesteria were present in water samples that were collected by state officials immediately after the fish kill.²⁷ In 1991, Pfiesteria was responsible for a massive fish kill on North Carolina's Albemarle-Pamilco estuary.²⁸ Another toxic outbreak of Pfiesteria occurred on North Carolina's Neuse River in 1995.²⁹ The outbreak was attributed to five major spills from lagoons holding swine waste that discharged 30 million gallons of nutrient-rich hog waste into the Neuse River.³⁰ It is estimated that this outbreak killed 10 million fish.³¹ In addition to the massive fish kills in 1991 and 1995, hundreds of thousands of fish have died in North Carolina from smaller Pfiesteria outbreaks in other years.³² In 1997, for instance, Pfiesteria killed approximately 450,000 fish in North Carolina.³³

During the summer of 1997, Pfiesteria also plagued rivers in Maryland. In August, 10,000 to 15,000 fish, primarily menhaden, were found dead along the Pocomoke River.³⁴ In addition, at least 2,000 fish turned up dead on a stretch of the Pocomoke that flows through Virginia.³⁵ Pfiesteria-related fish kills also occurred in two other Maryland watersheds, the Chicamacomico River and Kings Creek.³⁶

Effects on Humans

In addition to the obvious effect that Pfiesteria has on fish, this tiny organism impacts humans as well, affecting both the economy and human health. Nationwide, the National Oceanic and Atmospheric Administration (NOAA) projects that Pfiesteria and other harmful microorganisms have caused over $ 1 billion in damage to the seafood industry.³⁷ The seafood industry in Maryland alone, experienced $ 15 to $ 20 million in losses when sales dropped by 70 percent after the Pfiesteria-related fish kills.³⁸ One seafood retailer in Maryland reported that his fish sales were down by 50 percent last summer.³⁹ After the fish kills, many restaurants and grocery stores stopped selling seafood from the Chesapeake Bay and its tributaries.⁴⁰ As a result, seafood wholesalers reported declines in sales ranging from 30 to 90 percent.⁴¹

Aside from its effects on the economy, Pfiesteria may also be harmful to human health. Medical schools at the University of Maryland and Johns Hopkins University have reported that 11 out of 28 Maryland residents who complained of health problems after exposure to waters where toxic outbreaks of Pfiesteria occurred exhibited a "'distinctive clinical syndrome characterized by chronic difficulties with learning and memory.'"⁴² Maryland researchers believe that exposure to Pfiesteria can result in symptoms such as rashes, memory loss, fatigue, severe nausea, and breathing difficulties.⁴³ Exposure to waters harboring these toxic microbes may also lead to minor brain damage. Fortunately though, memory loss and learning problems from exposure to toxic forms of Pfiesteria seem to disappear over time.⁴⁴ Although symptoms such as breathing difficulties and immunity impairments linger longer, complete recovery from exposure to the neurotoxin that Pfiesteria emits appears to [28 ELR 10320] be possible.⁴⁵ A North Carolina study, however, yielded different results. A study of 34 North Carolina residents who were exposed to toxic outbreaks of Pfiesteria found no evidence of health problems.⁴⁶ When reporting the study's results, North Carolina researchers cautioned that the subjects may have had symptoms that subsided before the study was conducted.⁴⁷ In response to the potential health hazards that Pfiesteria poses to humans, six mid-Atlantic states have agreed to share medical and scientific information.⁴⁸

Existing Federal Laws and Regulations

Enacted in 1972, the Federal Water Pollution Control Act (FWPCA)⁴⁹ has effectively addressed water pollution from point sources. Commemorating the FWPCA's 25th anniversary, Vice President Al Gore applauded the Act for "stopping billions of pounds of pollution from flowing into our rivers, lakes, and streams, and doubling the number of waterways that are safe for swimming and fishing."⁵⁰ Yet, Gore also recognized that "the health of our people continues to be threatened by exposure to harmful organisms in our waters; consumption of fish from many of our waters presents a threat to the most vulnerable among us; polluted runoff has for too long eluded control under conventional regulatory measures."⁵¹ Essentially, Gore acknowledged that the FWPCA successfully regulates point source pollution, but fails to adequately address nonpoint source pollution.

Although "the success in cleaning up pollution from point sources (e.g., factories and sewage treatment plants) has not yet been matched by controls over polluted runoff,"⁵² there are some existing federal laws that address polluted runoff. In fact, the FWPCA regulates some animal feeding operations as point sources. In addition, the FWPCA contains an underutilized provision that requires states to meet certain water quality standards regardless of the source of the pollutants.⁵³ Furthermore, both the FWPCA and the Coastal Zone Act Reauthorization Amendments (CZARAs) require states to develop programs to control nonpoint source pollution.⁵⁴

Concentrated Animal Feeding Operations

Agricultural runoff is the greatest contributor of pollution in America's impaired rivers, streams, and lakes.⁵⁵ In the United States, 130 times more animal waste is produced than human waste each year. Although the land application of manure and other animal waste practices are known to be a leading cause of water pollution, there are no federal regulations dealing with the handling, use, and disposal of animal waste. The FWPCA, however, does regulate discharges from concentrated animal feeding operations (CAFOs) as point sources. The FWPCA defines point sources as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, [CAFO], or vessel or other floating craft, from which pollutants are or may be discharged."⁵⁶ The U.S. Environmental Protection Agency (EPA) regulations define CAFOs as facilities with more than 1,000 animals units or facilities that are deemed by EPA or a state to be a significant contributor of pollution.⁵⁷ Accordingly, any animal feeding operation⁵⁸ that fits the CAFO definition is subject to § 301's point source effluent limitations and is required to obtain a national pollutant discharge elimination system (NPDES) permit.⁵⁹ Thus, by including some CAFOs within the definition of point sources, the FWPCA does set some limits on agricultural pollution.

Still, a significant amount of agricultural discharges, from both CAFOs and smaller animal feeding operations that do not meet EPA's definition of CAFO, go unregulated. "Agricultural stormwater discharges and return flows from irrigated agriculture" are expressly exempted from the FWPCA's definition of point source.⁶⁰ In addition, agricultural operations that have less than 1,000 animal units entirely escape federal regulation. In fact, most poultry farms are not federally regulated as CAFOs because they house fewer than 1,000 animal units.⁶¹ EPA, however, has proposed expanding its CAFO definition to include smaller animal feeding operations and tightening existing regulations.⁶²

FWPCA § 319: Nonpoint Source Management Programs

In 1987, as part of the Water Quality Act Amendments, § 319 was added to the FWPCA to address nonpoint source pollution. FWPCA § 319 requires states to develop nonpoint source management programs and establishes federal grants for these programs.⁶³ FWPCA § 319 directs states to compile reports that identify waters requiring special measures to control nonpoint source pollution in order to comply with the goals of the FWPCA.⁶⁴ In their reports, states must classify [28 ELR 10321] nonpoint source pollution into categories and subcategories and, if appropriate, identify particular nonpoint sources that significantly contribute to the listing of the water.⁶⁵ These reports must also set forth "best management practices" to control different categories of nonpoint source pollution and to reduce such pollution as much as possible.⁶⁶ Finally, states are required to develop programs for controlling nonpoint source pollution and improving the water quality of those waters identified on their § 319 list.⁶⁷

FWPCA § 319 provides an opportunity for each state to develop programs that effectively control nonpoint source pollution. Although FWPCA § 319 requires states to develop voluntary programs for controlling nonpoint source pollution and improving water quality, it does not require states to implement enforceable laws to control polluted runoff. Therefore, to comply with the mandates of § 319, most states develop voluntary programs, provide some financial incentives, and offer technical assistance to control nonpoint source pollution.⁶⁸ Some of these voluntary measures have been effective. Yet, the presence of large amounts of nutrients in rivers where Pfiesteria-related fish kills occurred suggest that voluntary programs are not always successful, and enforceable laws to control nonpoint source pollution may be needed. Moreover, despite the implementation of FWPCA § 319 nonpoint source pollution control programs, states report that polluted runoff is the principal cause of remaining water quality problems.⁶⁹

CZARAs: Coastal Nonpoint Pollution Control Programs

In 1990, Congress amended the Coastal Zone Management Act by enacting the CZARAs.⁷⁰ Similar to FWPCA § 319, the CZARAs require each coastal state to develop a coastal nonpoint pollution control program.⁷¹ States that fail to submit approveable programs may lose federal funding.⁷² The purpose of the program is "to develop and implement management measures for nonpoint source pollution to restore and protect coastal waters."⁷³ Congress intended for this program to update and expand FWPCA § 319 nonpoint source management programs.⁷⁴ State coastal nonpoint pollution control programs must identify land uses that contribute to the degradation of coastal waters, identify critical coastal areas, and provide for management measures to address harmful land uses.⁷⁵ Management measures must conform to EPA's Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters.⁷⁶ States must also develop enforceable policies and mechanisms to implement the management measures in the coastal zone.⁷⁷ Due to Pfiesteria's affinity for saline water and warm temperatures, warm coastal states are most susceptible to Pfiesteria outbreaks. The CZARAs, therefore, provide states with yet another tool to control the amount of nutrients entering the coastal zone via nonpoint source pollution.

FWPCA § 303(d): Total Maximum Daily Loads

In addition to setting forth effluent limitations for point sources and requiring nonpoint source management programs, the FWPCA provides a backup plan to ensure that our nation's waters meet certain water quality standards. This backup plan is set forth in FWPCA § 303(d), which requires states to establish total maximum daily loads (TMDLs) for rivers, streams, and other waters that are not adequately protected by other sections of the FWPCA.⁷⁸ FWPCA § 303(d) requires states to attain water quality standards for their waters regardless of the source of the pollution.⁷⁹ To implement the TMDL process, a state must begin by identifying waters that do not meet their applicable water quality standards.⁸⁰ After compiling a list of these identified waters, states must "establish a priority ranking for such waters."⁸¹ The next step of the process is establishing TMDLs for listed waterways. TMDLs are the sum of waste load allocations for point sources and load allocations for nonpoint sources and naturally occurring nutrient loading.⁸² Finally, states must submit their lists, priority rankings, and TMDLs to EPA for approval.⁸³ If EPA approves a state's listing and loadings, the state must incorporate the approved TMDLS into its water quality management plan.⁸⁴ If the state fails to submit such a list or EPA disapproves, then EPA must identify waters requiring TMDLs and establish loads for these waters.⁸⁵

[28 ELR 10322]

Although TMDLs were designed to bring all waters into compliance with water quality standards, so far not a single state has achieved the water quality standards for all its waters.⁸⁶ Overall, states have done a poor job in implementing TMDLs for their impaired waterways.⁸⁷ As a result, numerous lawsuits regarding the failure of states and EPA in implementing § 303(d) have been filed in almost 30 states.⁸⁸ Because "TMDLs are designed to attack pollution regardless of its source,"⁸⁹ TMDLs can be used to control nonpoint source runoff and to lessen the risk of outbreaks of harmful microbes, such as Pfiesteria. In fact, TMDLs may be the most effective federal legal tool that can be used to compel states to control nonpoint source pollution in order to meet requisite water quality standards.

Existing State Laws and Regulations

States use various approaches to control nonpoint source pollution.⁹⁰ Because Pfiesteria is thought to be a symptom of the larger problem of polluted runoff,⁹¹ state mechanisms that control nonpoint source runoff could, in some cases, be used to reduce the likelihood of future outbreaks. Most states have general discharge prohibitions that, to varying degrees, can address nonpoint source water pollution.⁹²

About one-half of the states have fish and game laws that prohibit discharges that are harmful to fish.⁹³ These types of laws usually require proof that the discharge could be harmful to fish and/or other aquatic life, but they do not require proof that the fish were actually injured by the discharge.⁹⁴ Perhaps the state with the most far-reaching provision prohibiting discharges that are harmful to fish is Massachusetts. In Massachusetts, the state fishery agency is authorized to prohibit or regulate "the discharge of waste or material from any source" in order to protect fish found in any inland water body.⁹⁵ It is easy to imagine how such a provision could be applicable to polluted runoff that results in fish kills.

Some states have laws that prohibit nonpoint source discharges that kill fish. Unlike the prohibitions on discharges that are harmful to fish, these laws often require proof of actual, not potential, injury to fish.⁹⁶ Of particular interest in the Pfiesteria context is a Maryland law that appears to proscribe fish kills that are caused by sediment.⁹⁷ Under this provision,

it is unlawful for any person to add, introduce, leak, spill, or otherwise emit soil or sediment into waters of the State or to place soil or sediment in a condition or location where it is likely to be washed into waters of the State by runoff of precipitation or by any other flowing waters.⁹⁸

This law, however, exempts agricultural activity that is implemented pursuant to an approved soil and water conservation plan.⁹⁹

In addition to fish and game laws, some states have agricultural laws that control nonpoint source pollution. A few states have statewide erosion control requirements, which provide that the discharge of agricultural sediment into nearby waters must comply with soil and water conservation plans.¹⁰⁰ Agricultural "bad actor" laws, on the books in some states, allow states to respond to farming practices that are causing nonpoint source water pollution.¹⁰¹ State CAFO regulations that are similar to, and sometimes stricter than, the federal requirements also impose restrictions on some agricultural activities.¹⁰² Some states exceed federal CAFO regulations by establishing siting requirements and limitations, linking the development of nutrient management [28 ELR 10323] plans to CAFOS or water pollution threats, or regulating CAFOs that are smaller than those subject to federal requirements.¹⁰³

Florida has a unique law designed to reduce phosphorous loading in the Everglades. The law establishes an agricultural tax. Taxes are imposed on individuals who do not meet yearly collective reduction targets. Agricultural operators who meet their yearly reduction targets are excused from paying the tax. In addition, tax credits are available for individuals who take voluntary actions on certain lands.¹⁰⁴ This innovative law could serve as a model for other states that are interested in developing mechanisms to reduce nutrient loading from agricultural activities in a particular watershed.

Finally, statutory nuisance provisions and the doctrine of common-law nuisance are available in every state.¹⁰⁵ Many states, however, have laws that exempt agricultural operations from certain types of nuisance suits.¹⁰⁶

Federal Responses to Toxic Outbreaks of Pfiesteria

Although toxic outbreaks of Pfiesteria appear to be a regional problem, this fish-killing microbe has been associated with the national problem of nutrient overenrichment from nonpoint source pollution, and other areas of the country are also experiencing outbreaks of harmful microbes. Recognizing that Pfiesteria is part of a national problem, the federal government has responded to toxic outbreaks of Pfiesteria in a variety of ways. The initial legislative approach was congressional appropriation of funds to research the causes and effects of toxic Pfiesteria outbreaks. Spending bills for the 1998 fiscal year allocated an extra $ 12 million to EPA, the National Institutes of Health (NIH), and NOAA to study Pfiesteria outbreaks and other harmful algal blooms.¹⁰⁷ On September 11, 1997, the House amended an appropriations bill to give the Centers for Disease Control and Prevention (CDC) $ 7 million to research Pfiesteria's effects on human health.¹⁰⁸ In addition, U.S. Department of Labor funds were earmarked for developing a strategy to identify and monitor Pfiesteria's effects on humans in Delaware, Florida, Georgia, Maryland, North Carolina, South Carolina, and Virginia.¹⁰⁹

In September 1997, bills entitled the Pfiesteria Research Act of 1997 were introduced in both the House and the Senate.¹¹⁰ The House and Senate bills both call for "the establishment of a research and grant program for the eradication or control of Pfiesteria piscicida and other aquatic toxins."¹¹¹ If enacted, the Pfiesteria Research Act would authorize appropriations to EPA, the U.S. Department of Commerce's National Marine Fisheries Service, the National Institute of Environmental Health Sciences, the CDC, and the U.S. Department of Agriculture (USDA) to establish research programs and make grants to educational institutions in affected states to study Pfiesteria and other aquatic toxins.¹¹² The Senate Committee on Environment and Public Works reported favorably on the bill,¹¹³ and the bill is currently undergoing consideration in the relevant House committees and subcommittees.

More recently, bills aimed at regulating the handling of animal waste at animal feeding operations were introduced in the Senate and House. The Senate bill, entitled The Animal Agriculture Reform Act, would impose federal restrictions on animal waste handling and require intensive live-stock operations to develop waste management plans.¹¹⁴ Under the Senate bill, the USDA would have the primary responsibility for approving and enforcing waste management plans. The House bill, entitled the Farm Sustainability and Animal Feedlot Enforcement Act, would amend the FWPCA to expand the definition of CAFOs that are required to obtain permits to discharge pollutants and would also require CAFOs to operate in conformance with approved waste management plans.¹¹⁵ Under the House bill, EPA would administer its provisions.

The executive branch has also taken steps to address water quality problems associated with nonpoint source pollution. On October 18, 1997, the 25th anniversary of the FWPCA, Vice President Gore announced the Clinton Administration's Clean Water Initiatives, which in large part are geared toward reducing polluted runoff.¹¹⁶ The Clean Water Initiatives directed the Secretary of Agriculture and the EPA Administrator, along with other federal agencies, to develop a comprehensive action plan to strengthen water pollution control.¹¹⁷ In a memorandum addressed to the heads of departments and agencies, Gore said that the action plan should function to decrease public health threats caused by water pollution, to control polluted runoff more effectively, and to promote water quality protection within watersheds.¹¹⁸ Specifically, Gore directed EPA to identify all major sources of nitrogen and phosphorous and to develop a plan to reduce runoff from these sources. In addition, EPA is to "expedite its new strategy from animal feeding operations that produce polluted runoff, and include in that strategy specific commitments to revise outdated regulations" in order to prevent polluted runoff.¹¹⁹ Final regulations for polluted stormwater runoff are to be enacted by [28 ELR 10324] March 1, 1999.¹²⁰ EPA, in conjunction with NOAA, must also develop a strategy to address coastal nonpoint pollution.¹²¹ The Clean Water Initiatives also call on the USDA to expand its Conservation Reserve Enhancement Program,¹²² and to develop a farmer assistance program that would help farmers to decrease polluted agricultural runoff and to comply with applicable standards.¹²³

On October 20, 1997, shortly after announcing the Administration's Clean Water Initiatives, Vice President Gore, along with Agriculture Secretary Glickman and Maryland Governor Parris N. Glendening, announced a joint federal and state effort, entitled the State Enhancement Program (SEP), to help protect the water quality of the Chesapeake Bay and its tributaries.¹²⁴ Although the idea for this program was conceived before last summer's Pfiesteria outbreaks, it could help to guard against future outbreaks of Pfiesteria by creating buffer zones that would reduce agricultural runoff.¹²⁵ Maryland and the USDA plan to pay landowners up to $ 200 million to plant trees along streams and restore wetlands to control agricultural runoff.¹²⁶ Under the SEP, the USDA will "rent" land from farmers for a period of 15 years and Maryland will pay farmers for permanent conservation acres on 20,000 acres of land.¹²⁷ In addition, land-owners will receive from Maryland and the USDA 87.5 percent of the cost of planting buffer strips, restoring wetlands, and taking other conservation measures.¹²⁸

If successful, this voluntary, incentive-based program could convert as much as 100,000 acres of plowed fields to buffer zones and protect up to 5,000 miles of stream banks.¹²⁹ Vice President Gore explained that "by protecting the lands adjacent to the tributaries of the bay and by restoring wetlands, we can significantly reduce the amount of nutrients, sediment and pesticides that reach the water."¹³⁰ According to scientists, replacing row crops with buffers of trees, grass, and shrubs can reduce the pollution that reaches waterways by up to 90 percent.¹³¹

EPA has also been busy responding to outbreaks of Pfiesteria. Testifying before a House subcommittee, Robert Perciasepe, Assistant Administrator of EPA's Office of Water, stated, "Although the science on the ecology and human health effects associated with Pfiesteria is relatively new, the apparent public health and environmental impacts are immediate, and require immediate response."¹³² EPA's response to Pfiesteria has been threefold. First, EPA is providing support to state responses. EPA is supplying experts to monitor water conditions and determine sources of nutrient pollution, it is providing information for educational and outreach purposes, it is assisting states in identifying "at risk" sites, and it is helping states to develop "response plans."¹³³ Second, EPA, along with NOAA, is working to coordinate research among federal agencies. The federal government is focusing its research efforts on the causes and effects of Pfiesteria outbreaks.¹³⁴ Third, and most significantly, EPA plans to reduce phosphorous and nitrogen loading from all sources. As part of this effort, EPA is reviewing and strengthening a number of existing programs, including the FWPCA § 319 and CZARA nonpoint pollution control programs, CAFO regulations, and the TMDL process set forth in FWPCA § 303(d).¹³⁵

Pursuant to the Clinton Administration's Clean Water Initiatives and after receiving much criticism, EPA is currently in the process of reviewing and strengthening its CAFO regulations. EPA has suggested expanding the definition of CAFOs to cover facilities with less than 1,000 animals, and placing additional controls on manure management.¹³⁶ In addition, EPA has discussed eliminating the stormwater discharge exemption.¹³⁷

On February 19, 1998, the Clinton Administration released its Clean Water Action Plan. Developed by EPA, the USDA, and other federal agencies, the action plan "charts a course toward fulfilling the original goal of the Clean Water Act — 'fishable and swimmable' waters for all Americans."¹³⁸ The plan adopts a watershed approach, calls for stronger federal and state standards, encourages natural resource stewardship, and pledges to make more water quality information available to the public.¹³⁹ It contains 100 proposed actions to reduce water pollution. Most of the proposals deal with decreasing polluted runoff — the leading contributor of water quality problems in the United States. Specific measures to reduce polluted runoff include strengthening state FWPCA § 319 nonpoint pollution control programs by developing guidance for states on implementing anti-degradation policies to maintain existing levels of water quality, promoting the establishment of enforceable state authorities, and increasing federal funding of voluntary state programs.¹⁴⁰ The plan also proposes a number of measures to reduce nutrient overenrichment such as developing nutrient criteria for various types of water bodies and ecoregions [28 ELR 10325] by the year 2000, reducing air deposition of nitrogen, and improving subsurface sewage disposal.¹⁴¹ Another key component of the plan to reduce polluted runoff involves continuing EPA efforts to expand FWPCA controls to cover stormwater runoff from cities with populations under 100,000 and construction sites under five acres as well as pollution from animal feeding operations.¹⁴² President Clinton is asking Congress for $ 2.3 billion over the next five years to fund the Clean Water Action Plan.¹⁴³

Other federal agencies are researching ways to combat Pfiesteria. For example, the U.S. Geological Survey's Biological Resources Division is performing field sampling, experiments, and laboratory analysis to determine what factors are contributing to the presence of fish lesions.¹⁴⁴ In addition, the National Institute of Environmental Health Sciences is attempting to "further isolate and chemically characterize the toxins" from Pfiesteria to determine their potential danger to human health.¹⁴⁵

State Responses to Toxic Outbreaks of Pfiesteria

North Carolina

Criticized for being slow to react,¹⁴⁶ six years after North Carolina's first documented Pfiesteria-caused fish kill, North Carolina finally seems to be responding to this toxic microbe. On August 27, 1997, North Carolina Governor Jim Hunt signed into law H.B. 515. The law, entitled the Clean Water Responsibility Act, imposes a two-year moratorium on the construction and expansion of swine farms and animal waste management systems for swine farms.¹⁴⁷ Permits, however, may be issued to new and expanding hog farms that employ innovative waste management systems that do not use anaerobic lagoons.¹⁴⁸ In addition, the bill authorizes county commissioners to impose zoning rules over hog farms with more than 5,000 hogs, which were previously exempt from zoning.¹⁴⁹

In September 1997, Dr. David Bruton, the Secretary of North Carolina's Department of Health and Human Services established a task force "to advise the Department on risk management and appropriate studies needed to more completely understand and manage" the public health response to the fish kills.¹⁵⁰ Finally recognizing that Pfiesteria may pose a health problem to humans, North Carolina state officials posted temporary warning signs along waterways associated with toxic outbreaks of Pfiesteria last fall.¹⁵¹ The signs warned people not to swim in or eat fish from waters with fish containing the tell-tale Pfiesteria lesion.¹⁵² The state eventually plans to post permanent warning signs.¹⁵³ In another effort to curtail criticism for being slow to react, a panel of medical specialists was formed to study the health effects that Pfiesteria has on people.¹⁵⁴ The study of 34 North Carolina residents that were exposed to toxic forms of Pfiesteria found no harmful health effects.¹⁵⁵

Maryland

Generally, Maryland has been applauded for its timely response and for "'erring on the side of protecting public health.'"¹⁵⁶ In October 1996 and again in April 1997, fishers who worked the Pocomoke River in Maryland reported that many of the fish in their catches had strange lesions on them.¹⁵⁷ Initially, these reports elicited little response from local and state authorities. On August 6th through the 9th, however, a massive fish kill occurred in the Pocomoke River.¹⁵⁸ State and local authorities quickly responded by closing the affected portion of the Pocomoke River from August 7th through August 13th.¹⁵⁹

Throughout August, Pfiesteria continued to plague the rivers of Maryland's Eastern Shore. Consequently, the Chicamacomico River and Kings Creek, were also closed due to public health concerns.¹⁶⁰ To Maryland Governor Parris N. Glendening, the microbe's presence in other watersheds besides the Pocomoke "suggested the seriousness of the problem."¹⁶¹ And from August 29th until October 3d, concerns over the effects of Pfiesteria on human health prompted the closure of a seven-mile portion of the Pocomoke River.¹⁶²

In addition to ordering river closures, Governor Glendening formed the Blue Ribbon Citizens Pfiesteria Action Commission to recommend strategies for combatting Pfiesteria. After holding 12 public meetings, the Commission ultimately reported its findings to the governor and Maryland's General Assembly on November 3, 1997.¹⁶³ The [28 ELR 10326] Commission concluded that decreasing nutrient loads in the Chesapeake Bay watershed would help to curtail the risk of future outbreaks of Pfiesteria.¹⁶⁴

Recognizing that the regional problem of Pfiesteria is part of a greater national problem of nutrient overenrichment in coastal waters, the Commission concluded that the federal government should take the lead role in research,¹⁶⁵ but also recommended that Maryland continue to monitor its waters and take measures to reduce nutrient loading. The Commission suggested several land-based solutions to reduce nutrient loading such as using soil analyses and educating the public on fertilizer application on lawns and golf courses, and mandating the use of best management practices (BMPs) at all new on-site disposal systems.¹⁶⁶ The Commission also recommended measures to reduce nutrient loading from agricultural practices, including adopting phosphorous and nitrogen nutrient management plans; requiring farmers to enroll in these plans by the year 2000; establishing a trial program to remove chicken manure from the Eastern Shore; applying phytase, an enzyme that enables chickens to break down phosphorous, to chicken feed; and providing state funds for manure storage sheds to non-animal growers who fertilize their fields with manure.¹⁶⁷ Furthermore, the Commission recommended alternative uses for redistributing chicken manure so that its application to land is less concentrated, such as composting manure, burning poultry litter, planting buffer zones, and practicing tillage.¹⁶⁸ In order to address public health concerns, the Commission suggested instituting a registry system that would survey and record potential and confirmed outbreaks of Pfiesteria, studying how exposure to Pfiesteria toxins affects human health, and researching how to identify the presence of Pfiesteria toxins in edible seafood.¹⁶⁹

The Commission also reported that a number of Maryland state agencies are investigating the causes and effects of toxic Pfiesteria outbreaks.¹⁷⁰ For instance, Maryland's Department of Agriculture directed local soil conservation districts in counties where Pfiesteria has been identified to survey farmers on the use of BMPs. Together, Maryland's Department of Environment (MDE) and Department of Mental Health and Hygiene have issued public health advisories. The MDE also conducted an evaluation of point and nonpoint sources of pollution. Furthermore, in conjunction with the CDC and the NIH, Maryland's Department of Health and Mental Hygiene is working to learn more about Pfiesteria's effects on human health. In addition, the state's Department of Natural Resources has aggressively monitored fish and water quality.

In an effort to coordinate state efforts and share information, Governor Glendening hosted the "Governor's Summit" in Annapolis, Maryland, which was attended by governors of mid-Atlantic states in September 1997.¹⁷¹ In his State of the State Address on January 21, 1998, Governor Glendening announced a new initiative to reduce the amount of phosphorous that reaches waterways to lessen the risk of future toxic outbreaks of Pfiesteria.¹⁷² The governor's plan closely follows the recommendations of the Blue Ribbon Commission. The plan would require mandatory participation by farmers in programs, which are currently voluntary, that restrict how much fertilizer farmers can apply to their fields.¹⁷³ The program would also require farmers to develop fertilizer management plans by the year 2000 and to implement these plans by 2002. State officials would inspect the farms on a regular basis to ensure progress to plan development and adherence during the implementation phase. Sanctions would be imposed on farmers who do not comply. In order to ease the economic burden on farmers, the program would offer tax credits to farmers who switch from manure application to alternative uses of fertilizer that are less harmful to the environment.¹⁷⁴ In a 32 to 14 vote, the Maryland Senate passed Governor Glendening's proposal to set mandatory restrictions on fertilizer use.¹⁷⁵ The House, however, passed a competing bill favored by the poultry industry.¹⁷⁶ The House bill would implement the fertilizer restrictions at a later date, and provide exemptions to farmers in the case of drought or the state's failure to provide promised financial support.¹⁷⁷ At presstime, Maryland House and Senate leaders reached a compromise, and the General Assembly approved legislation to control agricultural runoff into the Chesapeake Bay. Mandatory restrictions on the use of fertilizer, including commercial fertilizers, animal waste, and sludge, will be imposed on farmers, but the restrictions will be phased in more gradually and the penalties for non-compliance will be milder than originally proposed by Governor Glendening.¹⁷⁸

Virginia

Virginia was also criticized by environmentalists for being slow to respond. Although Virginia officials closed a five-mile [28 ELR 10327] stretch of the Pocomoke River in response to fish kills,¹⁷⁹ the state did not close any portion of the Rhappahannock and Great Wicomico Rivers when fish with Pfiesteria-like lesions were discovered there.¹⁸⁰ And in stark contrast to Maryland investigators who collected samples from Pfiesteria-infested water in protective suits, gloves, and respirators, Virginia investigators wore shorts while they gathered samples in waters where the presence of Pfiesteria was suspected.¹⁸¹

Justifying the decision not to close these rivers, state officials claimed that the situation in Virginia was less serious than in North Carolina and Maryland. Virginia's acting-state epidemiologist explained that fish with Pfiesteria-like lesions discovered on the Rhappahannock were sick but not dying, which indicated that the levels of toxin were lower than in the Maryland and North Carolina rivers where Pfiesteria-related fish kills occurred.¹⁸² In addition, then-Governor George Allen defended his decision not to close any portion of the Rhappahannock and Great Wicomico Rivers by pointing out that Virginia residents were not suffering from any of the symptoms, such as skin rashes or memory loss, associated with exposure to the toxic form of Pfiesteria.¹⁸³ Governor Allen said that he wanted to avoid "premature conclusions that may unnecessarily frighten our citizens"¹⁸⁴ and that responses to Pfiesteria should be based on sound science and not hysteria.¹⁸⁵ Although subjected to much criticism, Virginia's wait and see approach gained some credence when tests confirmed that Pfiesteria piscicida was not present in water samples taken from Virginia rivers where the presence of Pfiesteria was suspected.¹⁸⁶

In line with his theory that responses to Pfiesteria should be based on sound science, Governor Allen requested $ 2.2 million a year for the next five years from the federal government to study Pfiesteria's effects on human health and to encourage farmers to reduce polluted runoff containing fertilizers and animal wastes.¹⁸⁷ Governor Allen also allocated $ 800,000 of state money for agencies researching Pfiesteria.¹⁸⁸ In addition, he authorized the establishment of a research facility for scientists from the Virginia Institute of Marine Science to conduct research and identify Pfiesteria toxins.¹⁸⁹ And before leaving office in January, Governor Allen proposed a $ 63 million spending bill aimed at cleaning up the Chesapeake Bay and reducing nutrient pollution into its tributaries.¹⁹⁰ Since entering office, Governor Gilmore has endorsed this plan.¹⁹¹

In May 1997, a task force, made up of various state officials, was established to guide and facilitate a coordinated state response to Pfiesteria-related fish kills.¹⁹² Virginia reports that its agencies are working cooperatively with a specialist from Old Dominion University to monitor water samples from four rivers and the Chesapeake Bay for the presence of Pfiesteria.¹⁹³

Most recently, a bill directing the state Water Control Board to regulate poultry waste was passed by the Virginia House of Delegates by a vote of 55 to 44.¹⁹⁴ A similar measure, however, was rejected by the Senate 8 to 31.¹⁹⁵

Environmental Organizations' Response

Environmentalists were among the first to suggest that agricultural runoff containing animal waste was the cause of toxic Pfiesteria outbreaks. Due to the magnitude of the poultry industry and the vast quantities of chicken manure that it produces, the Chesapeake Bay Foundation quickly linked animal waste from poultry farms on Maryland's Eastern Shore to the Pfiesteria-related fish kills.¹⁹⁶ Many environmentalists believe that enforceable laws that set mandatory controls on agricultural runoff are necessary to tackle water quality problems such as toxic outbreaks of Pfiesteria.¹⁹⁷ Mark Van Putten, president of the National Wildlife Federation (NWF), summed up the need for federal legislation that addresses nonpoint source pollution like this, "Pfiesteria is a wake-up call to America that water quality regulations are not about federal bureaucracy or meddling. They're about taking common-sense precautions [28 ELR 10328] to protect our health."¹⁹⁸ The Natural Resources Defense Council (NRDC) also believes that federal regulation is necessary and has suggested amending the FWPCA to regulate agriculturalpollution.¹⁹⁹ In addition, the NRDC recommends establishing records of existing farms through permits and inspections.²⁰⁰ Also hoping that federal legislation addressing nonpoint source pollution will be enacted, the president of the Chesapeake Bay Foundation, William C. Baker, asked states to institute a moratorium on new hog and poultry farms in the Chesapeake Bay watershed until federal nutrient limits are in effect.²⁰¹

The Chesapeake Bay Foundation has taken a prominent role in responding to the Pfiesteria-caused fish kills that have plagued the tributaries of the Chesapeake Bay. Tom Grasso, the Maryland executive director of the Chesapeake Bay Foundation, is focusing his efforts on the legal issue of who actually owns the poultry manure.²⁰² In the poultry industry, poultry farmers contract with large poultry producers, which provide the chickens and feed to the farmers.²⁰³ The contracts are very specific, spelling out exactly how farmers are to raise the chickens. Explaining the relationship between the producers and the growers, one poultry farmer stated, "We're like sharecroppers…. They call us independent contractors, but they have absolute control over us. We're told what to do on a daily basis. How hot to keep the houses. How high to keep the feeders and the drinkers. When to move birds. What wattage light bulbs to use."²⁰⁴ Although the producers legally own the chickens and the feed, the producers do not take legal responsibility for the waste produced by their chickens. In fact, poultry producers do not view chicken manure as waste because farmers can apply it on fields in lieu of chemical fertilizers.²⁰⁵ Because farmers do not have the financial capability to solve the problem, the Chesapeake Bay Foundation believes it is important for poultry producers to take responsibility for the waste its business produces.²⁰⁶ Accordingly, the Chesapeake Bay Foundation has challenged at least one major poultry producer to start taking responsibility for the industry's waste.²⁰⁷

In Virginia, the Chesapeake Bay Foundation urged former Governor Allen to close portions of the Rappahannock and Great Wilmico Rivers where fish with Pfiesteria-like lesions were found.²⁰⁸ The group also wrote a letter to Governor Allen, suggesting a number of measures to address Pfiesteria and other water quality problems related to nutrient pollution. Key measures included imposing a moratorium on new and expanding hog operations while additional safeguards are developed, identifying waters that are susceptible to Pfiesteria, strengthening permit requirements for CAFOs, encouraging farm conservation practices, and funding the 1997 Virginia Water Quality Improvement Act, which would assist farmers and municipalities in reducing nutrient pollution.²⁰⁹

Some environmental groups have focused their efforts on the broader, more national, problem of nonpoint source pollution, which is believed to contribute to harmful algal blooms and toxic outbreaks of Pfiesteria and other microbes. The Environmental Defense Fund, for instance, was involved in developing the SEP that was discussed above.²¹⁰ Additionally, the NWF issued a report encouraging the use of TMDLs to control nonpoint source pollution. The report states that had TMDLS been properly implemented, "it is reasonable to believe that [states] could have been spared from the current Pfiesteria crisis."²¹¹

Poultry Industry's Response

Poultry farmers and poultry producers are at odds over who should take responsibility for the chicken waste generated from raising chickens. Poultry farmers argue they do not have the means to take responsibility for the waste. Farmers complain that they are barely making a profit without the additional burden of mandatory controls on agricultural runoff.²¹² Yet, poultry producers refuse to take legal responsibility for the waste.²¹³

Although poultry producers and farmers may not agree on who should take responsibility for poultry waste, they do agree on two things. First, both agree that there is a lack of scientific evidence linking chicken manure to toxic outbreaks of Pfiesteria.²¹⁴ Second, both oppose mandatory controls on agricultural runoff. Afraid that mandatory regulations could put poultry farmers at a competitive disadvantage and arguing that the animal waste has not been conclusively linked to toxic outbreaks of Pfiesteria, Richard Nelson, head of Maryland's Somerset County Farm Bureau, said he favors voluntary measures and more research.²¹⁵ Pointing to inconclusive evidence linking poultry farms to Pfiesteria outbreaks, the poultry industry urged Maryland state officials to wait until research efforts that are underway are completed before placing regulations on the poultry industry.²¹⁶ The chairman of Perdue Chicken stated that mandatory controls on animal waste could force the poultry industry [28 ELR 10329] to move its operations to another state where production costs are lower.²¹⁷

In response to Maryland Governor Glendening's proposal to set mandatory controls on the handling of animal waste, poultry farmers argued that the standards and sanctions are too stringent and the 2002 deadline for implementing the required fertilizer management plan is unrealistic.²¹⁸ Many farmers also wonder why they should be subjected to mandatory controls when they are already taking voluntary measures to control runoff.²¹⁹ Most of all though, farmers resent being told what to do on their land.²²⁰

In line with its belief that more research is needed, the Delmarva Poultry Industry pledged to spend $ 1 million over the next four years to research needs and pilot programs "aimed at transporting chicken manure from the Lower Eastern Shore."²²¹ In addition, agricultural groups have asked for more federal and state assistance to help farmers manage manure better.²²² Industry representatives have responded positively to finding alternative uses for chicken feces, provided that mandatory restrictions are not imposed on poultry farming.²²³ Some possible alternatives to landbased manure application on the Eastern Shore include transporting the manure, burning it, composting it, or transporting it and selling it as commercial fertilizer.²²⁴ Modifying chicken's diets in ways that would reduce the content of phosphorous in poultry manure is another solution that the poultry industry may be amenable to.²²⁵

Recommendations

Like most environmental problems, toxic outbreaks of Pfiesteria require the balancing of environmental and economic costs. As always, economic and environmental costs are the dividing factors in how different interest groups propose to respond to environmental problems. Those more concerned with the economic costs urge policymakers to adopt a wait and see approach to environmental problems. Those more concerned with the environmental costs advocate a no regrets approach that calls for immediate action.²²⁶

This dichotomy is most apparent in the different responses proffered by environmentalists and the poultry industry. Environmentalists advocate imposing mandatory regulations. Any delay, they argue, could result in additional and unnecessary damage to the environment and human health. Farmers, however, fervently oppose mandatory regulations. They contend that imposing mandatory controls on the handling of animal waste before it is conclusively liked to Pfiesteria would unfairly place the blame on them and cause them to incur unnecessary costs. Therefore, the poultry industry has pleaded with policymakers to hold off on imposing mandatory regulations until agricultural waste is conclusively linked to toxic outbreaks of Pfiesteria.

While it would be unfair for animal feeding operators to be blamed and shoulder the costs for something they are not responsible for, the fact is that "agricultural runoff, including nutrients from animal waste, is the largest contributor to pollution" in America's impaired rivers and streams.²²⁷ Given this, the regulation of agricultural runoff seems inevitable, regardless of whether animal waste is determined to be the culprit of toxic outbreaks of Pfiesteria. Policymakers are moving away from asking whether to regulate agricultural runoff to considering how to regulate it.

As discussed above, states have taken a variety of steps to address agricultural runoff and Pfiesteria. These efforts, however, need to be bolstered by enforceable federal laws to ensure that this problem is addressed nationally. In Maryland, poultry farmers complain that onerous state restrictions will place them at a competitive disadvantage and narrow their already small profit margins. Furthermore, both farmers and state officials worry that state legislation requiring poultry producers to take responsibility for poultry manure will spur the poultry industry to move out of Maryland.²²⁸ On the other hand, environmentalists complain that Maryland's efforts to reduce nutrient loading will be undermined by Virginia's refusal to regulate the poultry industry.²²⁹

Both the concerns of industry and environmentalists can be effectively addressed by federal laws that place restrictions on runoff containing manure and other sources of nonpoint pollution. Laws created at the national level create an even playing field. Consequently, Maryland poultry farmers would not be placed at a competitive disadvantage if federal controls were enacted. Federal laws would also prevent states from competing for business based on the absence of regulation and would remove the incentive for animal feeding operators to relocate to states with lower standards.²³⁰ Furthermore, one state's efforts to reduce nutrient loading would not be frustrated by a neighboring state's lack of controls on polluted runoff.

Another reason that federal controls on nonpoint sources [28 ELR 10330] of pollution are appropriate is the fact that polluted runoff is a national problem. Toxic outbreaks of harmful microbes, such as Pfiesteria, and algal blooms are regional symptoms of this national problem. Therefore, the best way to respond to toxic outbreaks of Pfiesteria may be a strategy that addresses not just Pfiesteria, but the whole family of harmful microbes that are wreaking havoc on fish and marine wildlife.²³¹ According to Don Scavia, the director of NOAA's coastal ocean program, the best approach would deal with the Chesapeake Bay's Pfiesteria problem, "brown tide" attacks on scallops in New York, paralytic shellfish poisoning in New England and California, and "red tides" responsible for killing fish in the Gulf of Mexico.²³² Reducing nutrient loading by placing enforceable controls on nonpoint sources of pollution is exactly the kind of comprehensive strategy that is necessary to lessen the likelihood of harmful algal blooms, reduce the risk of future outbreaks of toxic microbes, and improve the overall quality of our nation's waters.

Although this Comment advocates the adoption of federal controls, states also have important roles to play in responding to toxic outbreaks of microorganisms and addressing nonpoint source pollution. States must be the first-line responders to such problems. It is paramount for states to monitor their waters for signs of nutrient pollution and outbreaks of toxic microbes. Therefore, states should develop action plans for dealing with toxic outbreaks of microbes and have in place plans for closing stretches of waterways that are dangerous to human health. States are also more familiar with the needs and interests of their citizens. Consequently, states should be given some leeway in tailoring federal controls to meet the needs and interests of their citizens. States should also be given the lead role in monitoring compliance with federal laws so that mandatory controls are effectively enforced. Finally, states that have not done so already should consider placing moratoriums on new and expanding animal feeding operations until enforceable controls on agricultural runoff are in place.

Conclusion

In 1972, the Cuyahoga River burst into flames due to excessive amounts of water pollution. This dramatic event prompted Congress to enact the FWPCA, which over the past 25 years has successfully reduced point source pollution. Perhaps not as dramatic as the Cuyahoga River bursting into flames, the outbreaks of toxic microbes, such as Pfiesteria, carry the same message — that our waters are not safe. Harmful algal blooms and toxic outbreaks of Pfiesteria and other toxic microbes are regional symptoms of a national problem — nonpoint source pollution. Having successfully reduced point source pollution, nonpoint source pollution has become the leading cause of water quality problems in the United States. Unfortunately, voluntary measures have not been effective in reducing nonpoint source pollution. Enforceable federal laws are needed to carry out the FWPCA's goal "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."²³³ Mandatory controls on nonpoint sources of pollution will result in cleaner and safer waters and are likely to have the additional benefit of reducing the risk of future harmful outbreaks of Pfiesteria as well as other toxic microbes.

1. See Shari Maguire & Dan Walker, Pfiesteria Piscicida Implicated in Fish Kills in Chesapeake Bay Tributaries and Other Mid-Atlantic Estuaries, WATER SCI. & TECH. BOARD NEWSL., Oct./Nov. 1997, at 1 [hereinafter WSTB NEWSL.].

2. See National Wildlife Fed'n, Troubled Waters, ANIMAL TRACKS (Dec. 1997) http://www.igc.org/nwf/atracks/current/dec97.html; NATIONAL WILDLIFE FED'N, POLLUTION PARALYSIS: STATE INACTION PUTS WATERS AT RISK 18 (1997) [hereinafter POLLUTION PARALYSIS].

3. Joby Warrick, Tiny Plants Threaten Bounty of Seas, WASH. POST, Sept. 23, 1997, at A1 (stating that some marine ecologists believe that the Pfiesteria outbreak is part of a "global epidemic, an uprising by a host of seaborne saboteurs capable of wreaking havoc on coastal economies and ecosystems").

4. See id. at A10 ("Between 1972 and 1995, the number of U.S. beaches and estuaries with major, recurring attacks by harmful microbes more than doubled, from 16 to 36, according to a federally funded 1995 study.").

5. See id.

6. See id.

7. See U.S. EPA & U.S. Department of Agriculture (USDA), Clean Water Action Plan: Restoring and Protecting America's Waters (last modified Feb. 14, 1998) http://www.epa.gov/cleanwater/action/toc.html [hereinafter Clean Water Action Plan].

8. Id.

9. See WSTB NEWSL., supra note 1, at 2.

10. See id.

11. See id.

12. See North Carolina State University Aquatic Botany Laboratory, Pfiesteria Piscicida Home Page (last visited Mar. 27, 1998) http://www2.ncsu.edu/unity/lockers/project/aquatic_bot-any/pfiest.html. Scientists do not know whether phosphorous or nitrogen or organic or inorganic nutrients are more important in stimulating the growth of Pfiesteria. The Cambridge Consensus: Forum on Land-Based Pollution and Toxic Dinoflagellates in Chesapeake Bay (last modified Oct. 16, 1997) http://www.gacc.com:80/dnr/ccc.html [hereinafter Cambridge Consensus].

13. BLUE RIBBON CITIZENS PEIESTERIA ACTION COMMISSION, REPORT OF THE CITIZENS PFIESTERIA ACTION COMMISSION 10 (1997) [hereinafter COMMISSION REPORT].

14. Id. at 13.

15. See Pfiesteria Piscicida: Hearings on H.R. 2565 Before the Subcomm. on Human Resources of the Comm. on Government Reform and Oversight, 105th Cong. (1997) (testimony of Robert Perciasepe, Assistant Administrator, Office of Water, U.S. EPA) [hereinafter EPA Testimony] (last modified Nov. 18, 1997) http://www.epa.gov/owowwtrl/estuaries/pfiesteria/testimony.html.

16. See Clean Water Action Plan, supra note 7.

17. See WSTB NEWSL., supra note 1, at 3.

18. See COMMISSION REPORT, supra note 13, at 11.

19. See id. One theory on the cause of the outbreaks was that the presence of copper and other trace metals reduce populations of organisms that feed on Pfiesteria, thereby reducing the probability of a toxic Pfiesteria outbreak. A group of scientists concluded, however, that this is "highly improbable because in organic-rich waters such as the Pocomoke dissolved metal ions are bound by large organic molecules rendering trace metals non-toxic even if their concentrations are high." Cambridge Consensus, supra note 12.

20. EPA Testimony, supra note 15.

21. See Clean Water Action Plan, supra note 7.

22. See Susan Bruninga, Governor's Proposal Focuses on Farmers to Control Water Pollution, Pfiesteria, 28 Env't Rep. (BNA) 1987 (Jan. 30, 1998) (reporting that the research of Dr. JoAnn Burkholder, the leading scientific authority on Pfiesteria, showed "a significant correlation between the presence of the microbe in its toxic form and increased nitrification of estuaries from human sewage and swine waste"); POLLUTION PARALYSIS, supra note 2, at 19 (describing link between Pfiesteria and concentrated animal feed lots).

23. See Dan Fesperman & Timothy B. Wheeler, Chicken Waste Linked to Toxin in Pocomoke, BALT. SUN, Sept. 7, 1997, at A1.

24. See Virginia AP News, House Tentatively Approves Bill to Regulate Poultry Industry (Feb. 17, 1998) http://www.gatewayva.com/pages/staterul/internet/2179hoel.htm.

25. See James Eli Shiffer, Senate Acts to Clean Waterways, Limit Hogs, NEWS & OBSERVER, June 19, 1997, at 1A.

26. See Hearings on Pfiesteria Before the House Subcomm. on Fisheries Conservation, Wildlife, and Oceans of the Comm. on Resources, 105th Cong. (1997) (testimony of Richard J. Dove, Neuse River Foundation, Inc.).

27. See Peter S. Goodman & Todd Shields, Pfiesteria Suspected in '87 Fish Kill, WASH. POST, Sept. 17, 1997, at A1.

28. See WSTB NEWSL., supra note 1, at 1.

29. See James Rosen, Pfiesteria Finds Its Way to Capitol Hill, NEWS & OBSERVER, Sept. 26, 1997, at 1A.

30. See POLLUTION PARALYSIS, supra note 2, at 18.

31. Minority Staff of the U.S. Senate Committee on Agriculture, Nutrition, & Forestry for Sen. Tom Harkin, Animal Waste Pollution in America: An Emerging National Problem (last visited Feb. 20, 1998) http://www.senate.gov/agriculture/animalw.htm [hereinafter Animal Waste Pollution in America].

32. See Justin Gillis, Md.'s Reaction to Microbe Has N.C. Second-Guessing Its Stance, WASH. POST, Oct. 17, 1997, at B1.

33. Animal Waste Pollution in America, supra note 31.

34. The Washington Post reported that the Pfiesteria outbreak on the Pocomoke River killed 20,000 to 30,000 fish. Todd Shields & Eugene L. Meyer, New Fish Kill Found Miles From Pocomoke: Maryland Officials Close Section of Bay Tributary, WASH. POST, Sept. 11, 1997, at A24. Fishers estimated that up to 50,000 fish died along the stretch of the Pocomoke infected with toxins from Pfiesteria. See Dail Willis & Thomas W. Waldron, Pocomoke Is Partially Closed Off, BALT. SUN, Aug. 8, 1997, at 1A.

35. Rex Springston, Officials Downplay Fear of Microbe, RICHMOND TIMES-DISPATCH, Sept. 16, 1997, at B1.

36. Maryland Reopens River Closed by Toxic Microbe, N.Y. TIMES, Oct. 4, 1997, at A28.

37. See id.

38. See id.

39. See John J. Fialka, U.S. Government Fishes for Answers to Outbreak of Micro-Organisms Hurting Seafood Industry, WALL ST. J., Oct. 9, 1997, at A20.

40. See WSTB NEWSL., supra note 1, at 1; Eugene L. Meyer, Pfiesteria Torpedoes Sales of Maryland Seafood, WASH. POST, Sept. 25, 1997, at A1 (reporting that Legal Seafoods and Crisfield Seafood Restaurants stopped ordering seafood from the Chesapeake Bay, and Giant and Fresh Fields stopped selling rockfish from the Chesapeake Bay).

41. See Meyer, supra note 40, at A1.

42. See Lawrence Latane III, Allen: Va. Approach Is Different, RICHMOND TIMES-DISPATCH, Sept. 20, 1997, at A1 (quoting University of Maryland and Johns Hopkins University School of Medicine's summary report of Marylanders affected by Pfiesteria).

43. See Shields & Meyer, supra note 34, at A24.

44. See Catherine Clabby, 20 Specialists Will Study Effects of Pfiesteria on N.C. Residents, NEWS & OBSERVER, Nov. 11, 1997, at 3A.

45. See id.

46. Ann O'Hanlon et al., Metro in Brief, WASH. POST, Mar. 28, 1998, at B3.

47. See id.

48. See Timothy B. Wheeler & Marcia Myers, 6 States to Study Water Toxins, BALT. SUN, Sept. 19, 1997, at 1A.

49. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

50. Clean Water Act; Vice President's Initiatives, 62 Fed. Reg. 60448 (Nov. 7, 1997) [hereinafter Vice President's Initiatives].

51. Id.

52. Clean Water Action Plan, supra note 7.

53. 33 U.S.C. § 1313(d), ELR STAT. FWPCA § 303(d).

54. Id. § 1329, ELR STAT. FWPCA § 319; 16 U.S.C. § 1455b.

55. See Animal Waste Pollution in America, supra note 31.

56. 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14) (emphasis added).

57. 40 C.F.R. § 122.23(c), app. B(a)(10). Under Appendix B, a concentrated feedlot with more than 1,000 cattle, 2,500 swine, 100,000 chickens (if the facility has continuous overflow watering), or 30,000 chickens (if the facility has a liquid manure system) are CAFOs that are subject to the NPDES program.

58. EPA regulations define an animal feeding operation as a farm where "animals … are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12 month period, and … crops, vegetation, forage growth, or post harvest residues are not sustained in the normal growing season over any portion of the lot or facility." 40 C.F.R. § 122.23(b)(i)-(ii) (1997).

59. 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14) (listing CAFOs as a point source); 40 C.F.R. § 122.23(a) (1997).

60. 33 U.S.C. § 1362(14), ELR STAT. FWPCA § 502(14).

61. See EPA to Hold Large Poultry Processors Responsible for Runoff From Farms, INSIDE EPA, Nov. 7, 1997, at 3.

62. See infra text accompanying notes 136-37.

63. 33 U.S.C. § 1329, ELR STAT. FWPCA § 319.

64. Id. § 1329(a)(1)(A), ELR STAT. FWPCA § 319(a)(1)(A).

65. Id. § 1329(a)(1)(B), ELR STAT. FWPCA § 319(a)(1)(B).

66. Id. § 1329(a)(1)(C), ELR STAT. FWPCA § 319(a)(1)(C).

67. Id. § 1329(a)(1)(D), ELR STAT. FWPCA § 319(a)(1)(D).

68. See James M. McElfish Jr., State Enforcement Authorities for Polluted Runoff, 28 ELR 10181 (Apr. 1998).

69. U.S. EPA, Office of Water, What Is Nonpoint Source (NPS) Pollution? Questions and Answers, taken from EPA-841-F-94-005 (1994) (EPA's Polluted Runoff brochure), (last modified Dec. 30, 1997) http://www.epa.gov/OWOW/NPS/qa.html.

70. 16 U.S.C. § 1455b.

71. Id.

72. Id. § 1455b(c)(3).

73. Id. § 1455b(a)(1).

74. Id. § 1455b(a)(2).

75. Id. § 1455b(b).

76. See U.S. EPA, GUIDANCE SPECIFYING MANAGEMENT MEASURES FOR SOURCES OF NONPOINT POLLUTION IN COASTAL WATERS (1993).

77. 16 U.S.C. § 1455(d)(16), ELR STAT. CZMA § 306(d)(16). Enforceable mechanisms may include regulatory approaches, such as permit programs, local zoning, and direct state statutory requirements, or nonregulatory approaches such as economic incentives and disincentives and other innovative approaches. See U.S. EPA, COASTAL NONPOINT POLLUTION CONTROL PROGRAM: PROGRAM DEVELOPMENT AND APPROVAL GUIDANCE (1993).

78. 33 U.S.C. § 1313(d), ELR STAT. FWPCA § 303(d).

79. See Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 ELR 10391, 10399-401 (Aug. 1997) (asserting that TMDLs apply to both point and nonpoint sources of pollution).

80. 33 U.S.C. § 1313(d)(1)(A), ELR STAT. FWPCA § 303(d)(1)(A). Water quality standards are defined as "provisions of State or Federal law which consist of a designated use or uses for the waters of the United States and water quality criteria for such waters based upon such uses." 40 C.F.R. § 130.2(d) (1997). They are designed to "protect the public health or welfare, enhance the quality of water and serve the purposes of the [FWPCA]." Id.

81. 33 U.S.C. § 1313(d)(1)(A), ELR STAT. FWPCA § 303(d)(1)(A).

82. 40 C.F.R. § 130.2(i) (1997).

83. 33 U.S.C. § 1313(d)(1)(c), ELR STAT. FWPCA § 303(d)(1)(C).

84. 40 C.F.R. § 130.7(d)(2) (1997).

85. 33 U.S.C. § 1313(d)(2), ELR STAT. FWPCA § 303(d)(2); 40 C.F.R. § 130.7(d)(2) (1997).

86. See POLLUTION PARALYSIS, supra note 2, at 3; see also Susan Bruninga, Water Pollution: More Research Needed on Pfiesteria Threat, Harmful Algae Blooms, Subcommittee Told, 28 Env't Rep. (BNA) 1221, 1222 (Oct. 17, 1997) ("'Not one of the 50 states has done what the law requires to prevent nonpoint pollution or to safeguard the waters or people, communities and wildlife that depend on them.'") (quoting Mark Van Putten, NWF president).

87. See POLLUTION PARALYSIS, supra note 2, at 3-5 (ranking state TMDL programs).

88. See id. at 7-12; see also John H. Cushman Jr., Courts Expanding Effort to Battle Water Pollution, N.Y. TIMES, Feb. 28, 1998, at A1 (describing how TMDLs are being used more frequently as an enforcement tactic to improve the overall quality of watersheds by environmental groups); Lee A. DeHihns III, Suit Over Water Quality Spark Action, NAT'L L.J., Mar. 16, 1998, at B7 ("In no other environmental regulatory area has so much litigation erupted over a single program.").

89. See POLLUTION PARALYSIS, supra note 2, at 2.

90. The discussion on existing state laws and regulations that can be used to address problems associated with toxic outbreaks of Pfiesteria and the larger problem of polluted runoff is based on an ELR article by Jim M. McElfish Jr. entitled State Enforcement Authorities for Polluted Runoff, see supra note 68.

91. See Vice President's Initiatives, supra note 50, at 60448 (insinuating that the presence of harmful organisms in our waterways is due to polluted runoff).

92. See McElfish, supra note 68, at 10185-88, Of particular interest to this Comment are the general discharge prohibitions of Delaware, Maryland, North Carolina, and Virginia. According to McElfish,

Delaware [law] requires a permit for any activity "which may cause or contribute to a discharge of a pollutant into any surface or groundwater." [7 Del. Code 6003.] The adopted implementing regulations appear limited to point source discharges to water and land, but the statute is not so limited. Delaware maintains that this authority also applies to nonpoint sources, and its nonpoint programs rely in part upon this authority…. Maryland law prohibits the discharge of a pollutant without a permit or other authorization, and allows the imposition of permit requirements for activities that could cause or increase the discharge of pollutants. [Md. Code Ann., Envir. 9-322, 9-323(b)….] Virginia law prohibits the discharge of wastes or any "noxious or deleterious substances" or the pollution of waters without a permit[, Va. Code 62.1-44.5, as well as] the placement of any substance that may contaminate or impair the lawful use or enjoyment of waters of the state, except as permitted by law. [Va. Code 62.1-194.1….] North Carolina prohibits the discharge of wastes and certain other discharges without a permit[, N.C. Gen. Stat. 143-215.1(a); of] perhaps greater immediate utility in the nonpoint context is its authority to issue "special orders" to "any person … responsible for causing or contributing to any pollution of the waters of the state within the area for which standards have been established." [N.C. Gen. Stat. 143-215-2.]

Id. at 10185-86.

93. See id. at 10188.

94. See id. at 10189.

95. See id.

96. See id.

97. Personal communication with Jim McElfish, Senior Attorney, Environmental Law Institute, and author of State Enforcement Authorities for Polluted Runoff (Mar. 30, 1998), see supra note 68.

98. MD. CODE ANN., ENVIR. § 4-413(a) (1996).

99. See id.

100. See McElfish, supra note 68, at 10195-96.

101. See id. at 10196.

102. See id. at 10196-97.

103. See id.

104. See id. at 10197 (citing FLA. STAT. ANN. § 373.4592 (West 1997 & Supp. 1998)).

105. See id. at 10190-91.

106. See id.

107. See WSTB NEWSL., supra note 1, at 3.

108. Charles Babington & Todd Shields, Md. Poultry Farmers May Feel Heat in War on Pfiesteria,WASH. POST., Sept. 12, 1997, at A22. The CDC announced that it will provide $ 3.2 million to six states to study the heath effects that Pfiesteria piscicida has on humans. It will award $ 154,000 to Delaware, $ 198,000 to Florida, $ 1.07 million to Maryland, $ 958,460 to North Carolina, $ 160,000 to South Carolina, and $ 690,779 to Virginia. See CDC to Award $ 3.2 Million to Study Effects of Pfiesteria, WASH. POST, Mar. 25, 1998, at B4.

109. See Babington & Shields, supra note 108, at A22.

110. The Senate bill, S. 1219, was introduced by Sen. Lauch Faircloth (R-N.C.) on September 25, 1997. The House bill, H.R. 2565, was introduced by Rep. Walter B. Jones (R-N.C.) on September 26, 1997.

111. H.R. 2565, 105th Cong. (1997); S. 1219, 105th Cong. (1997).

112. See id.

113. See S. REP. No. 105-132 (1997).

114. S. 1323, 105th Cong. (1997).

115. H.R. 3232, 105th Cong. (1998). Under H.R. 3232, the threshold capacity for regulated CAFOs would be 500 slaughter steers and heifers, 350 mature dairy cattle, 1,000 swine weighing over 55 pounds each, and 50,000 laying hens and broilers. See id.

116. Vice President's Initiatives, supra note 50, at 60448.

117. See id. The plan is the Clean Water Action Plan, which was released February 19, 1998. See infra text accompanying notes 136-43.

118. See Vice President's Initiatives, supra note 50, at 60448.

119. Id.

120. See id.

121. See id. at 60449.

122. See id.

123. See id.

124. U.S. EPA, Pfiesteria piscicida, The Clinton Administration's State Enhancement Program (SEP) (last modified Nov. 13, 1997) http://www.epa.gov/OWOW/estuaries/pfiesteria/goreplan2.html [hereinafter Clinton Administration's SEP].

125. See Richard Tapscott, Md. Farmers Cautious About Buffer Plan, WASH. POST, Oct. 21, 1997, at B1.

126. See Pfiesteria piscicida, Vice President Gore Announces New Federal and State Effort to Protect the Chesapeake Bay Watersheds (last modified Nov. 13, 1997) http://www.epa.gov.OWOW/estuaries/pfiesteria/goreplan1.html. The SEP links Maryland's effort to restore wetlands and plant buffers with funding from the USDA's Conservation Reserve Program. See Maryland Adopts EDF Plan to Control Farm Runoff, ENVTL. DEF. FUND LETTER, Jan. 1998, at 1 [hereinafter EDF LETTER].

127. See Clinton Administration's SEP, supra note 124.

128. See id.

129. See id.

130. John H. Cushman Jr., Planting Trees and Not Crops to Fight Water Pollution, N.Y. TIMES, Oct. 21, 1997, at A16.

131. See id.

132. EPA Testimony, supra note 15.

133. Id.

134. Examples of specific research studies that EPA is involved in include the Ecology and Oceanography of Harmful Algal Blooms research program and the National Environmental Monitoring and Research Initiative study. See id.

135. See id.

136. EPA Plans Review of Clean Water Act Regulations for Animal Feedlots, INSIDE EPA, Oct. 31, 1997, at 3.

137. See id.

138. Clean Water Action Plan, supra note 7, at Letter to the Vice President.

139. See Clean Water Action Plan, supra note 7, at Clean Water Action Plan Overview.

140. See Clean Water Action Plan, supra note 7, at ch. 11.

141. See id.

142. See id.

143. See Joby Warrick & Peter S. Goodman, President Proposes Spending Billions to Clean Polluted Waters, WASH. POST, Feb. 20, 1998, at A15.

144. See U.S. Geological Survey, Fish Lesions and Fish Kills: The Role of USGS (last modified Sept. 19, 1997) http://www.usgs.gov/outreach/fishlesions.

145. National Inst. of Health, NIH News Release: NIH Project to Characterize Pfiesteria Toxins and Explore Their Potential Danger to Humans (Sept. 25, 1997) http://www.nih.gov/news/pr/sept97/niehs-25.htm.

146. See Fialka, supra note 39, at A20 ("Virginia and North Carolina have been more cautious, sometimes appearing skeptical about whether there is a problem" compared to Maryland); Gillis, supra note 32, at B1.

147. See North Carolina: Governor Signs Water Quality Measure to Limit Nitrogen, Phosphorous in Streams, 28 Env't Rep. (BNA) 870 (Sept. 12, 1997); Bob Williams, Bill to Clean Up Rivers Gets Final OK, NEWS & OBSERVER, Aug. 27, 1997, at 3A.

148. See Williams, supra note 147, at 3A.

149. See id.

150. N.C. Dep't of Health & Human Servs., Fish Kill Task Force Established (visited on Jan. 4, 1998) http://www.state.nc.us/DHR/pressrel/releoooo2.htm.

151. See Pfiesteria Warning Signs Posted on Neuse, NEWS & OBSERVER, Oct. 10, 1997, at 3A.

152. See James Rosen, Pfiesteria Finds Its Way to Capitol Hill, NEWS & OBSERVER, Sept. 26, 1997, at 1A.

153. See supra note 151, at 3A.

154. See Clabby, supra note 44, at 3A.

155. See supra notes 46 and 47 and accompanying text.

156. See Gillis, supra note 32, at B4 (quoting Dr. JoAnn Burkholder, marine botanist at North Carolina State University).

157. See COMMISSION REPORT, supra note 13, at app. 2.

158. See id.

159. See id.

160. Maryland Reopens River Closed by Toxic Microbe, N.Y. TIMES, Oct. 4, 1997, at A28.

161. Amy Argetsinger & Peter S. Goodman, Maryland Closes Third Waterway, WASH. POST, Sept. 15, 1997, at A1.

162. See COMMISSION REPORT, supra note 13, at app. 2; see supra note 160, at A28.

163. See COMMISSION REPORT, supra note 13, at 1.

164. See id. at 13.

165. See id. at 43.

166. See id. at 16.

167. See id. at 20-26. Currently, only animal growers (i.e., poultry farmers) are eligible for state funds for manure storage sheds even though crop farmers (who do not raise animals on their farms) also use manure, often obtained from poultry farmers, to fertilize their fields.

168. See id. at 26-28.

169. See id. at 35-37.

170. See id. at app. 2.

171. See Babington & Shields, supra note 108, at A22.

172. See Daniel LeDuc & Peter S. Goodman, Md. Governor Seeks Controls to Protect Bay, WASH. POST, Jan. 22, 1998, at A1. Governor Glendening's proposal did not make poultry producers legally responsible for chicken waste. See id.

173. See id.

174. See id.

175. Peter S. Goodman, Md. House and Senate Split Over Pfiesteria, WASH. POST, Mar. 6, 1998, at B4.

176. See id.

177. See id.

178. See Peter S. Goodman, Md. to Curb Fertilizers That Harm Chesapeake, WASH. POST, Apr. 11, 1998, at A1. The agreement would require most farmers to develop fertilizer management plans and to begin testing soil by 2001. All farmers would be required to have plans in place by 2004. Farmers would face penalties of up to $ 2,000 per year for failing to comply with these deadlines. The compromise would also provide for $ 3 million in state funds to assist the poultry industry in transporting chicken waste away from the Eastern Shore to other areas where the land application of phosphorous is less concentrated. Farmers who use poultry manure as fertilizer would have until 2005 to reduce phosphorous application to land. See id. On April 13, 1998, the last day of the congressional session, the Maryland General Assembly approved legislation placing restrictions on agricultural runoff, requiring the use of phytase in chicken feed to reduce phosphorous content in poultry manure, and mandating the transport of chicken waste away from the Eastern Shore. See Charles Babington and Daniel LeDuc, Maryland Bolsters Its Own Tobacco Suit, WASH. POST, Apr. 14, 1998, at A1.

179. See Rex Springston, Va. Team to Study Toxic Germ, RICHMOND TIMES-DISPATCH, Sept. 17, 1997, at A1.

180. See Wheeler & Myers, supra note 48, at 1A.

181. See Charles Babington & Ellen Nakashima, Sick Fish Discovered in Va. River, WASH. POST, Sept. 13, 1997, at A1.

182. See Springston, supra note 35, at B1.

183. See Lawrence Latane III, Allen: Va. Approach Is Different, RICHMOND TIMES-DISPATCH, Sept. 20, 1997, at A1.

184. See Wheeler & Myers, supra note 48, at 1A.

185. See Rex Springston & Michael Hardy, Report on James Challenged, RICHMOND TIMES-DISPATCH, Sept. 26, 1997, at B1.

186. See Lawrence Latane III, Study: No Pfiesteria in Va. Waters, RICHMOND TIMES-DISPATCH, Oct. 30, 1997, at B1. Although water samples from the Rappahannock contained Pfiesteria-like organisms, there were no Pfiesteria toxins found in the samples. See id.

187. See Lawrence Latane III, Allen Asks U.S. for Funds to Study Pfiesteria, RICHMOND TIMES-DISPATCH, Sept. 27, 1997, at A1.

188. See id.

189. See A.J. Hostetler, Special Lab Set at VIMS for Study of Pfiesteria, RICHMOND TIMES-DISPATCH, Nov. 14, 1997, at B4.

190. See Spencer S. Hsu & R.H. Melton, A Partisan Fever Grips Richmond, WASH. POST, Jan. 14, 1998, at B1.

191. See Ellen Nakashima & Peter S. Goodman, Chicken Waste Votes Tell Tale of Two States, WASH. POST, Mar. 3, 1998, at D7.

192. Va. Dep't of Health, Chesapeake Bay Fish Lesions and Pfiesteria (last modified Sept. 12, 1997) http://www.vims.edu/welcome/news/pfiesteria/pfiesteria.htm. The task force consists of members from various state agencies including the Virginia Marine Resources Commission, the Department of Health, the Department of Environmental Quality, and scientists from the Virginia Institute of Marine Scientists and Old Dominion University. Unlike the Maryland's Blue Ribbon Commission, Virginia's task force was established to coordinate state agency response to Pfiesteria, not to recommend strategies to reduce the likelihood of future outbreaks. See id.

193. Va. Dep't of Health, What You Should Know About Pfiesteria and Virginia's Waters (last modified Nov. 3, 1997) http://www.vdh.state.va.us/misc/alert.htm.

194. See Spencer S. Hsu & Ellen Nakashima, General Assembly 1998: How Northern Virginia Legislators Voted on Key Bills, WASH. POST, Mar. 26, 1998, at V6 (announcing vote in favor of H.B. 1207 sponsored by Del. W. Tayloe Murphy Jr. (D-Westmoreland County)).

195. See id. The Virginia Senate Agricultural, Conservation, and Natural Resources Committee killed an earlier version of the bill by a vote of 12 to 3 after heavy lobbying by poultry farmers. See Nakashima & Goodman, supra note 191, at D7.

196. Thomas V. Grasso, Maryland Executive Director of the Chesapeake Bay Foundation, Panel Discussion on Pfiesteria Hysteria: Fear and Lesions in the Chesapeake Bay at the D.C. Bar's Environment, Energy, and Natural Resources Section (Dec. 9, 1997).

197. See Joby Warrick & Todd Shields, Maryland Counties Awash in Pollution-Causing Nutrients: Reports Suggest State Faces Battle Controlling Agricultural Runoff Into the Bay, WASH. POST, Oct. 3, 1997, at A22.

198. National Wildlife Fed'n, States' Failure to Obey Clean Water Act Put People, Environment, and Economy at Risk, PFIESTERIA REPORT NEWS (Oct. 9 1997) http://www.igc.org/nwf/water/news/pfiesrls.html.

199. Margaret Kriz, Pfiesteria Hysteria, 29 NAT'L J. 1783 (1997).

200. See id.

201. Wheeler & Myers, supra note 48, at 1A.

202. See Grasso, supra note 196.

203. See Dan Fesperman & Timothy B. Wheeler, Chicken Waste Linked to Toxin in Pocomoke, BALT. SUN, Sept. 7, 1997, at 1A.

204. Douglas M. Birch, Microbe vs. Chicken Little, BALT. SUN, Sept. 17, 1997, at 1A.

205. See Fesperman & Wheeler, supra note 203, at 1A.

206. See Warrick & Shields, supra note 197, at A22.

207. See Carole Morison, The Cell From Hell and Poultry Farmers … Do They Have Anything in Common?, SHORE J. (Aug. 31, 1997) http://www.shorejournal.com/9708/cam0831a.html; Kriz, supra note 199, at 1783.

208. Babington & Nakashima, supra note 181, at A1.

209. See Lawrence Latane III, Allen Asked to Control Pollution, RICHMOND TIMES-DISPATCH, Oct. 5, 1997, at B6.

210. See supra text accompanying notes 124-31; see also EDF LETTER, supra note 126, at 1.

211. POLLUTION PARALYSIS, supra note 2, at 1.

212. See, e.g., Birch, supra note 204, at 1A (reporting that "growers count their profits in fractions of a penny per pound").

213. See Fesperman & Wheeler, supra note 203, at 1A.

214. See, e.g., id. (stating that James A. Perdue, chairman of Perdue Chicken, "accused Maryland officials of peddling bogus science in proclaiming that chicken manure is washing off the land and fueled last summer's outbreaks of pfiesteria"); Birch, supra note 204, at 1A.

215. Peter S. Goodman & Richard Tapscott, Poultry Industry Urgers Md. to Delay Restrictions on Animal Waste, WASH. POST, Oct. 10, 1997, at B5.

216. See id.; Warrick & Shields, supra note 197, at A22 (quoting local president of Farm Bureau as saying, "People are coming up with a solution before they know the answer …. People are saying the farmer is the problem when the facts aren't in.").

217. See Peter S. Goodman, Perdue Enters Public Debate Over Pfiesteria, WASH. POST, Feb. 11, 1998, at B4.

218. See Bay Alert for Maryland, Virginia, WASH. POST, Feb. 22, 1998, at C6.

219. See Peter S. Goodman, Farmers Fight Plan to Limit Fertilizer Use, WASH. POST, Feb. 14, 1998, at C4.

220. See id. (describing how farmers see mandatory controls as a threat to their property rights).

221. See COMMISSION REPORT, supra note 13, at 22.

222. Kriz, supra note 199, at 1783.

223. See Peter S. Goodman, Panel to Suggest Ways to Rid Md, of Chicken Feces, WASH. POST, Oct. 17, 1997, at B4.

224. See id.

225. Univ. of Md. College of Agric. & Natural Resources, Agriculture and Its Relationship to Toxic Dinoflagellates in the Chesapeake Bay, (Oct. 16, 1997) http://www.agnr.umd.edu/pfiesteria/agpro2.htm. Suggested measures included spraying phytase, an enzyme that reduces the amount of phosphorous in manure, on poultry feed and using low phytic acid corn in feed. Id.

226. See Tom Horton, New Crisis, New Chance to Learn, BALT. SUN, Sept. 5, 1997, at 2B (discussing benefits of a "no regrets" approach). Tom Horton explains that the "no regrets" is often advocated by scientists in areas, such as global warming, where the science is still emerging. In the context of global warming, a "no regrets" approach calls for actions, such as the manufacturing of lower emission vehicles, that are certain to result in cleaner air and likely to reduce global warming. Id.

227. Animal Waste Pollution in America, supra note 31.

228. See Fesperman & Wheeler, supra note 203, at 1A ("If regulating manure spreading on the Eastern Shore raises the cost of producing chickens, it could prompt Perdue and other major producers to move elsewhere.") (citing Scott Angle, agronomy professor at the University of Maryland).

229. See Nakashima & Goodman, supra note 191, at D7.

230. See Glendening Urges National Curbs on Farm Pollution, WASH. POST, Apr. 3, 1998, at A20 (testifying before the U.S. Senate Committee on Agriculture, Nutrition, and Forestry, Governor Glendening said that national standards are needed to prevent poultry producers from shifting operations to states with looser environmental regulations).

231. See Fialka, supra note 39, at A20.

232. See id.

233. 33 U.S.C. § 1251, ELR STAT. FWPCA § 101.

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