Mar 17 2013

2013 W&M Environmental Law Symposium: Day 1

Published by at 9:28 pm under Miscellaneous,Water/Maritime and tagged: , , , ,

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The 2013 W&M Environmental Law Symposium, organized by the Environmental Law and Policy Review, Virginia Coastal Policy Clinic, and the Environmental Law and Policy Review, was held on March 15th and 16th. We had an excellent discussion about legal and policy issues facing the Chesapeake Bay, including the TMDL and sea level rise. Below are summaries of the speakers’ presentations.

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Joe Maroon

Mr. Maroon opened the Symposium with an overview of the history of the Chesapeake Bay starting with the first Chesapeake Bay Agreement in 1983 until today and the start of the TMDL (Total Maximum Daily Load). He praised the CB Partnership for making a lot of progress since its inception but indicated we still have a long way to go. He also said that over the years some have questioned if the annual governors’ meeting on the Chesapeake Bay was merely a photo op, but that he believed they are  incredibly important in bringing leaders together to talk about the Bay. Now, the TMDL is a big step forward for restoration because of the accountability measures, transparency, two-year milestones and possible federal backstops to require action.

Robert Nelson

Professor Nelson presented his paper called “Saving the Chesapeake Bay TMDL,” which criticized the TMDL for failing to implement an adaptive management strategy and stated that long-term blueprints with specific numbers don’t work well for issues that have uncertainties. He also argued that the cost of the TMDL hadn’t been considered but should have been. Finally, Professor Nelson proposed that the TMDL should be reworked to focus mostly on reducing pollution in agriculture and requiring a 150% offset for new development.

Russ Baxter

Mr. Baxter, of the Virginia DEQ, responded to Professor Nelson’s critique, saying that 150% offsets would be politically impossible to do. Instead, he urged everyone to think about the TMDL as an impetus for changing our ways. He stressed that current pollution reductions today won’t be from the industrial point sources that we’ve dealt with in the past. Instead, the current problems are mostly caused by all of us and the way we live. Therefore, the reduction requirements in the TMDL require everything by everybody everywhere to bring the Chesapeake Bay one more step on the road to health.

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George Kelly

Mr. Kelly gave a presentation on the relatively new idea of wetland banking and requiring mitigation for impacts on certain resources. He described the success of his own company in restoring 13,000 acres of wetlands. He then explained several different types of trading schemes for environmental protection, such as cap and trade (trading credits achieved after meeting a certain required amount of pollution reduction) and offsets (purchasing credits, tied to restoration of a resource elsewhere in the area, to balance out the impact that new development will have). Finally, he argued that environmental markets don’t exist without public regulatory drivers and enforcement of those regulations, so states need to update their regulations on mitigation banking to ensure they’re as effective as possible.

Wetland Mitigation Panel

The panel included Mr. Kelly, Mr. Carr, a lawyer specializing in environmental and land use law, Mr. Perry, a scientist from VIMS, Whitney Saunders, a lawyer also specializing in land use law and representing a mitigation bank, and Mr. Martin from the U.S. Army Corp of Engineers. Mr. Carr spoke first, arguing that the nature of the pollution problem in the Bay has changed from focusing on point sources to requiring lifestyle and societal changes. In this case, the TMDL’s success will require private investment. Mr. Martin stressed that a strong regulatory environment was necessary and Mr. Perry added that it was important to improve communication of the best science to the people running mitigation banks.

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Carla Pool and Elizabeth Andrews

Ms. Pool gave us an overview of the recent VDOT v. EPA decision out of the Eastern District of Virginia that held that EPA could not use storm water flow as a surrogate for the sediment in the Accotink TMDL. The reasoning is that the Clean Water Act defines the word “pollutant” and though sediment does meet the definition, storm water flow doesn’t. Ms. Pool said that this result might be different if the state had created the implementation plan governing storm water flow. Ms. Andrews, in the question and answer period, explained that using the various categories of impaired waters in the Clean Water Act might be a better approach.

Rick Parrish

Mr. Parrish provided a history of the TMDL program, started with it being largely ignored by the EPA while they worked on other aspects of the Clean Water Act. It wasn’t until an environmental law student group sued the EPA that lawyers began to sue to get the EPA to implement the TMDL program. Eventually, EPA told the Chesapeake Bay states to create a TMDL plan, but they asked the EPA to create one for them. Mr. Parrish then discussed the current litigation involving the TMDL, where the Farm Bureau is arguing that EPA doesn’t have the power to develop implementation plans or force states to do them.

Jeff Corbin

Mr. Corbin closed the first day of the Symposium by talking about why the TMDL is important for the Bay’s recovery. It means that we have everyone’s attention focused on cleaning up the Bay. He stressed, however, that implementing the TMDL was going to be a challenge because a lot of the low-hanging fruit already. He proposed a few possibilities, including nutrient credit trading and an agricultural certainty program to lessen the sting. Finally, Mr. Corbin concluded that the hard work required will be worth it because of the real, tangible benefits we’ll get from a healthy Chesapeake Bay. These benefits need to be talked about more, instead of just the costs.

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