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Undermining the Bay Cleanup: Funk & Bolton's Dirty Water Team

PollutionkayakA Baltimore-based law firm is trying to drum up business by convincing rural Maryland counties to pay the firm to find legal reasons to avoid contributing their fair share for the Chesapeake Bay cleanup.

“Funk & Bolton has outlined a multi-pronged strategy to address the shortcomings of the various mandates and programs billed as Bay restoration actions,” attorney Charles D. “Chip” MacLeod wrote to Kent County’s commissioners on Sept. 20.  He advertised the effort as “an effort to save the citizens of your county an exorbitant tax burden.”

Funk & Bolton has already used this pitch to pocket fees from Dorchester, Cecil, Frederick, and Allegany counties, and it is now trying to convince Kent, Caroline, and Queen Anne’s counties to join their anti-cleanup club.

This is a free country, of course, and if local governments want to spend more money on lawyers instead of removing pollution from streams where their children play -– it is up to the voters to decide if that is a helpful expenditure.

Governor Martin O'Malley's blog yesterday warned that the Funk & Bolton effort "threatens to undermine our collective actions to restore the health of the Bay."

To take action against the anti-Bay organizing by Funk & Bolton, click here if you live in Carroll County, Maryland; here if you live in Caroline County; here if you live in Kent County; and here if you live in Queen Anne's County.

The Funk & Bolton scheme is based on some falsehoods about pollution in the Chesapeake Bay, and these need to be corrected. Here are some examples:

In the law firm’s Sept. 20 letter to Kent County officials, MacLeod asserts that EPA’s 2010 pollution limit for the Chesapeake Bay (which counties must now follow) is “fatally flawed because it neglects to take into account the largest contribution source” of pollution to the Bay, which he describes as “the Conowingo Dam during major storm events and on a day-to-day basis.”

What the attorney is referring to here is the fact that the hydroelectric dam on the Susquehanna River in north central Maryland has been catching sediment for decades, but the reservoir behind the dam is filling up -– so that storms wash muck and pollution from behind the dam downstream into the Bay.

This buildup of sediment behind the dam is indeed a problem, and it’s one the U.S. Army Corps of Engineers and Maryland’s environmental and natural resources agencies are spending $1.4 million to study, with a solution to follow. But it is factually wrong to claim that EPA failed to take the dam into account as it developed pollution limits for counties (in fact, EPA explicitly included the dam and its pollution removal capacity in its calculations). And EPA and the Bay region states, in carefully-formulated, science-based plans for reducing pollution into the Bay by 25 percent over the next 13 years, agreed that they would revisit the dam issue during their 2017 mid-point re-evaluation of the Bay region pollution limits.

So the words “fatally flawed” and “neglect” are just not based on reality.

Moreover, the rural counties that Funk & Bolton is wooing have significant local water pollution problems that would be solved by following Maryland's plan, also called the Chesapeake Clean Water Blueprint, to meet the EPA pollution limits -– but many of these local water pollution problems have little or nothing to do with the Conowingo Dam.  Finger pointing elsewhere will not solve these local issues.

For example, the upper Chester River in Kent County is not downstream from the Conowingo Dam.  But the upper Chester River is classified by the Maryland Department of the Environment (MDE) as impaired (polluted) with phosphorus and nitrogen. In fact, the pollution problems on the upper Chester are bad enough that MDE, back in 2006, created local cleanup goals for the river that still have not been achieved.  It would make no sense for Kent County to delay its investments in controlling stormwater and pollution flowing into the Chester River based on the notion it should wait for someone to dredge behind the Conowingo Dam -– because such work would have little or no impact on the upper Chester River.

If Kent County wants to see its local residents enjoying healthy fishing and swimming in the Chester River and its tributary streams, the county should step up to the plate and ignore the foot-dragger’s theme song sung by Funk & Bolton.

Here’s another inaccuracy.  Funk & Bolton, in its Sept. 20 pitch letter to Kent County, makes this claim about the Susquehanna River downstream from the dam.  “The sediment and nutrient (pollution) that occurs after … storm events (such as Hurricane Ivan and Tropical Storm Lee) completely destroys any Bay grass plantings and any oyster restoration initiatives,” the lawfirm wrote.

There is no evidence to support this dramatic claim. In fact, in the aftermath of storms such as these, the Maryland Department of Natural Resources (DNR) has found reasonably good conditions on oyster reefs.

For example, after Hurricane Ivan and Tropical Storm Lee, DNR’s 2011 Fall Oyster Survey concluded: “Although fall freshwater flows from … two tropical storms in late summer impacted oysters in the Upper Bay, this represented a relatively small proportion of the total oyster population.  The lower salinities provided to be beneficial to the majority of oysters in Maryland by reducing disease impacts to allow the yearling oysters to thrive.”

The  key words there, from Maryland’s oyster experts, are “majority” and “thrive.” Not the same as the words “completely destroy” from Funk & Bolton.

The lawfirm also is trying to sell a myth about the long-term impact of nitrogen and phosphorus pollution flowing down the Susquehanna River during storms.  This is also called “nutrient pollution,” because it feeds excessive growth of algal blooms that die and consume oxygen, creating fish-killing “dead zones.”

In Funk & Bolton’s letter to Kent County, the attorneys assert: “Such nutrient-laden sediments continue to release nutrients over a long period of time… Such nutrients have a longer term deleterious effect on water quality.”

Again, this is not what scientists have concluded.  In August and September 2011, Tropical Storms Irene and Lee flushed tons of sediment mixed with nitrogen and phosphorus pollution down the Susquehanna River into the Bay. But then, about 10 months later, the Chesapeake Bay enjoyed its healthiest levels of dissolved oxygen, and smallest “dead zones,” since 1985.  These high oxygen levels in the water suggest that the worst fears about the lingering effects of nutrient pollution from the storms (repeated by Funk & Bolton) did not materialize.

There is a lesson to the story here.  Do not let lawyers posing as scientists prey on your community’s worst fears.

The Chesapeake Bay restoration has been making gradual but measurable progress over the last quarter century.  From 1985 to 2010, the Bay region states met about half their goals for reducing pollution Bay wide.  This improvement will accelerate if all our local governments pitch in and contribute our local fair shares to meet EPA pollution limits for the Bay by improving sewage treatment plants, building better stormwater control systems, and taking other proven steps to clean our streams and rivers.

Let’s finish the job, not fall into Funk & Grumbling.

By Tom Pelton

Chesapeake Bay Foundation

(Photo at top by Skip Brown)

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