Mar 17 2013

2013 W&M Environmental Law Symposium: Day 2


Day two of the Environmental Law Symposium focused on the non-profit’s role in environmental progress, the TMDL program’s affect on localities, and sea level rise. Below are summaries of the day two speakers.

Peggy Sanner

Ms. Sanner’s presentation laid out the history of menhaden regulation through the current legislation implementing the ASMFC‘s new cap. She talked about how regulation for menhaden going through the legislature has caused problems in advancing protections for the fish outside of when it is required by the ASMFC, backed by the federal government. However, in this legislative session the new cap sailed through the general assembly with no votes against it. Ms. Sanner praised the general assembly for stepping up in this way.

Shana Jones

Ms. Jones gave an overview of the regional impacts of the TMDL, saying that a collaborative approach between nonprofits, government, and the people will be needed to make them effective. This is because the new pollution reductions need to be accomplished by a large variety of people in the community changing their behavior. She used the example of Lynnhaven River Now, which was formed to encourage citizens to take action to reduce pollution to the Lynnhaven River. They were so successful that the river went from 1% compliance with pollution standards to 40% compliance in only a few years. This demonstrates the power of government collaboration with non-profit groups.

TMDL Panel

Lewie Lawrence from the Middle Peninsula Planning District Commission, Whitney Katchmark from the Hampton Roads Planning District Commission, Arthur Butt of the DEQ, and James Davis-Martin of the Department of Conservation and Recreation discussed the regional compliance with the TMDL. Mr. Lawrence and Ms. Katchmark had slightly different perspectives about the local governments’ attitudes toward complying. Mr. Lawrence dealt with more rural localities who needed to feel that spending their limited resources on pollution reduction was absolutely required. Ms. Katchmark said that her bigger localities were trying to get ahead of schedule on meeting the requirements. Both types needed further guidance from the state and more money to implement these requirements.


Troy Hartley and Mark Luckenbach

Mr. Hartley first discussed his research on different types of policy implementation approaches: top-down and bottom-up. He argued that effective implementation needs both approaches in order to keep theory grounded in real problems. This approach also works best when the policy implementers (local governments, citizens, and other stakeholders) are involved in planning the policy from the beginning.

Dr. Luckenbach discussed the possibility of using shellfish aquaculture in order to generate pollution reduction credits, comply with the TMDL, and boost the local economy at the same time. This idea may be possible, he argued, but would require that commercial aquaculture find steps that would maximize removal of inorganic nitrogen from the water. Otherwise, it would barely make a dent toward meeting the nitrogen goals in the TMDL. He also pointed out that, when building an economy around removal of pollution, it may be possible to put that industry out of business once the water is clean.

James Davis-Martin and Arthur Butt

Mr. Davis-Martin discussed how the TMDL is divided between the “wasteload allocations” (WLA) and “load allocations.” The former are for point sources and the latter are for non-point sources. Modeling used by the Chesapeake Bay Program were used to determine the loads allowed for the various waterways. He said that if there is a reduction in the burden given to non-point sources, then it has to be made up with a greater burden on point sources.

Mr. Butt discussed a new study being done on chlorophyll in the James River. He said that it was started in order to reevaluate the load allocation for the James River in the TMDL. Because the model themselves can vary pretty widely, that means that the numbers could vary widely depending on the numbers used.


Tayloe Murphy

The theme of Mr. Murphy’s talk was that there are no free lunches and that letting people get away with polluting doesn’t save money, it only transfers the costs of that pollution onto other people. When the Bay is not healthy, fishermen pay by a lack of fish to take to market and citizens pay with a lack of health. Today, he said, we are paying the cost for the past free lunches for polluters that we have allowed to accumulate. He argued that the TMDL is the best way to achieve the reductions necessary because it provides a comprehensive and scientific approach.


Jessica Grannis

Professor Grannis provided an overview of her research into the legal implications of sea level rise and local government’s adaptation. She concluded that the actions localities might take to conserve the properties near the shoreline , such as downzoning, would be more vulnerable to takings challenges. Furthermore, there is some question about whether a locality is required to provide roads and other services to people living in houses that will be inundated by sea level rise.


Skip Stiles and Carl Hershner

Mr. Hershner began by giving an overview of the scientific research on sea level rise done by VIMS. He explained that we are currently on the path for the second highest estimate of sea level rise, which would result in losing 50-80% of tidal wetlands in Virginia. Mr. Stiles talked about how the current legal system doesn’t account for the possibility of sea level rise because for almost the whole of human history the sea level has been stable. However, now we face circumstances where certain properties are being raised at FEMA’s expense while the infrastructure necessary to serve them are being raised by taxpayers. The cost of these measures are not being reflected in the price of those homes and neither is the risk of sea level rise itself.


Congressman Rob Wittman

The second day of the symposium ended with remarks from Congressman Wittman of the 1st District of Virginia. He praised the efforts to improve the Chesapeake Bay’s health through the TMDL and stated that sea level rise is a serious problem that we need to be addressing. Furthermore, he talked about a new measure that would track how much money has been spent on Chesapeake Bay programs and assign an uninterested organization to asses the success of each program at a certain time period. Congressman Wittman concluded by saying that the best way to develop public policy that works is to involve all the interested parties at the very beginning to make them less resistant to change and make sure that everyone is invested in achieving the goal of restoring the Chesapeake Bay to the best health possible.


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