As cleanup deadline looms, Virginia mulls pushing Chesapeake Bay Act’s reach westward

By: - September 9, 2019 12:01 am

Snowy egrets and mallard on eroding marsh near Poplar Island in Talbot County, Md., on May 20, 2010. (Photo by Alicia Pimental/Chesapeake Bay Program)

You can catch more flies with honey than vinegar, the saying goes.

But when it comes to persuading Virginia’s western localities to join Chesapeake Bay cleanup efforts, it’s far less clear whether promises of water quality improvements will be enough to win over local officials wary of interfering with development and agriculture.

“Anyone who’s not going to be impacted financially is going to say, ‘Sure, this is a great idea,’” said Ann Mallek, a member of the Albemarle County Board of Supervisors. But for small farmers like herself, who would face heightened reporting requirements and increased land-use restrictions if they were brought under the purview of state regulations governing the bay cleanup, “it’s a risky business,” she noted.

More than 30 years after the Virginia General Assembly passed the Chesapeake Bay Preservation Act to restore water quality throughout the watershed of North America’s largest estuary, officials are mulling whether that legislation went far enough.

“Far enough” is in this case quite literal. This summer, a work group convened by Gov. Ralph Northam began weighing the merits of expanding the CBPA’s jurisdiction westward beyond Interstate 95.

The idea isn’t new. Over the years, various proposals for expanding the act have been floated without success, and various local governments have adopted specific chapters of the state law to meet particular water quality aims. But Northam’s work group, which counts Mallek among its members, represents one of the most serious and sustained examinations of the idea yet.

“This is an effort to really hear from the stakeholders,” said Ann Jennings, Virginia’s deputy secretary of natural resources for the Chesapeake Bay. No decisions have been made, she hastened to point out — everything “is up for discussion.”

Only about 35 percent of Virginia’s portion of the bay watershed, comprising 17 cities and 29 counties largely east of Interstate 95, is subject to the CBPA. By law, these localities must designate “environmentally sensitive” lands around water bodies as preservation areas and incorporate water quality protection measures into their local ordinances.

Ultimately, those steps are intended to reduce the amount of nitrogen, phosphorus and sediment pollution that flows into the bay, where it leads to overgrowth of algae, the death of underwater grasses and the death of fish and other marine species.

Current Chesapeake Bay Preservation Act area
Current localities that fall under Virginia’s Chesapeake Bay Preservation Act, which a work group is considering expanding westward. (Virginia Department of Conservation and Recreation)

But while the Bay Act was explicitly written to allow local governments flexibility in meeting its requirements, localities broadly face the same to-do list. They must limit development in their preservation areas, however they define them. They must conduct regular pump-outs of septic systems. They must craft — and enforce — plans to reduce and control erosion and stormwater runoff. And they must ensure that owners of agricultural and forested land conduct soil assessments and follow best management practices.

In return, the bargain goes, they get cleaner waters. Fish and wildlife are better preserved, for the benefit of both the environment and local economies. Developers and farmers have clearer guidelines for what they can and can’t do, instead of facing a confusing hodgepodge of prior decisions and conflicting ordinances. Local governments with fewer resources can turn to the state for technical assistance or for backup when facing resistance to cleanup efforts.

Yet despite those benefits, many localities have balked, both 30 years ago and now, at the idea of state intervention into what they perceive as an area of local authority — a particularly sensitive issue in a Dillon rule state where local governments’ powers are limited to what the state has explicitly granted them. In 2011, for example, Loudoun County voters struck down a proposal to adopt the CBPA over concerns about infringement of land use rights.

From its inception, the Bay Act was “in some ways viewed as a major step by the state into local land use planning and decision making,” recalled Virginia Environmental Endowment executive director Joe Maroon, who participated in the 1986-87 roundtable that paved the way for the legislation and later oversaw the state’s cleanup efforts as head of the Department of Conservation and Recreation in the 2000s.

That likely influenced the General Assembly’s decision to limit the law’s jurisdiction to the eastern localities, he said. Also, the Tidewater region was already defined in state code, while there was less understanding of the importance of headwaters — the parts of a river that lie near its source — to the watershed’s overall health.

Today that knowledge is widespread and to some an argument for expanding the act’s jurisdiction to encompass all, or at least more, of the watershed.

“We own the headwaters, for crying out loud,” said Mallek of Albemarle County, where the Rivanna River originates. “We should be doing what we can to keep from muddying up the headwaters.”

Few disagree that the state should take further action to clean up its waters. With the 2025 deadline to meet water quality goals under the multistate Chesapeake Bay Agreement approaching, Virginians “really have to look at virtually every possibility for pollution reduction that there is,” said Maroon. Currently the Bay Act is the single most comprehensive tool available to address the effect that land use decisions have on water quality.

“There are clear connections between what is required under the Chesapeake Bay Preservation Act and what is needed to improve the Chesapeake Bay and to meet our commitments,” said Jennings.

But not everyone sees expansion as the best path toward achieving those goals. Skepticism is particularly high among the agricultural community, where many are loath to embrace new state restrictions and regulations in an economic environment where its increasingly hard for farmers to stay afloat.

“Mandating [the act] across the board or across the state as a whole doesn’t make a whole lot of sense,” said Kyle Shreve, executive director of the Virginia Agribusiness Council. “You’re dealing with different soils in the eastern part of the state than the western part of the state, and you’re dealing with different crops.”

In lieu of expanding the act’s jurisdiction, Shreve would like to see the state stick to the status quo. Currently, localities outside the CBPA area are free to adopt those provisions of the law they like and ignore those they don’t. Those that have been voluntarily embraced outside Tidewater vary, but agricultural provisions are consistently unpopular.

To Shreve, that’s partly because since the act’s inception, the state has developed other technical and cost-share programs, largely through soil and water conservation districts, to encourage farmers to adopt best management practices that benefit water quality. Those efforts have been successful, he noted — so why change tack now?

With so many factors to weigh, the work group has so far drawn no conclusions, focusing instead on information gathering.

Mallek, for one, said that she hasn’t made up her mind yet about whether or not she’d support an expansion.

“We need to be very clear about any conclusions or any suggestions and what is a requirement and what is not,” she said. Discussion may be the best way to build consensus, she said, but “whether it’s status quo or step-by-step change, I can’t predict what that may be.”

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Sarah Vogelsong
Sarah Vogelsong

Sarah is the Mercury's environment and energy reporter, covering everything from utility regulation to sea level rise. Originally from McLean, she has spent over a decade in journalism and academic publishing and previously worked as a staff reporter for Chesapeake Bay Journal, the Progress-Index and the Caroline Progress. She is the recipient of a first place award for explanatory reporting from the Society of Environmental Journalists and has twice been honored by the Virginia Press Association as "Best in Show" for online writing. She was chosen for the 2020 cohort of the Columbia Energy Journalism Initiative and is a graduate of the College of William and Mary. Contact her at [email protected]