Direct Testimony of Thomas M. Hildebrand - Consumer Advocate ...

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the reduction amounts are virtually guaranteed if the technology is properly
implemented. Even so, I would argue that greater per-dollar reduction could
have been achieved by shifting this investment by the state and locality to nonpoint
source controls,
The Commission's five other strategies are ail plans that are viable and currently
in practice on small scales, or are simply under-funded. I am not arguing that
the capacity increase for the regional sewer authority is unwarranted, but if this
spending is aimed primarily at cleaning up the bay, there are other options that
could be more cost effective and achieve greater reductions. In total all six
investments are only projected to meet three quarters of the reductions needed.
Litigation
While the state has largely ignored the significant water pollution associated with
agricultural systems, environmental groups have started questioning the legality
of their continued high rates of pollution. Three environmental groups have
joined forces and threatened a federal suit against two corporations for
overwhelming the SIL wastewater facility in Timberville, Virginia. The waste in
question is primarily poultry and meat processing waste, and its overproduction
is allegedly causing the facility to pollute substantially beyond their permitted
discharge. This case is claiming violations under the CWA, challenging the
corporations' argument that once their waste reaches the SIL treatment facility
they are no longer liable for its release as pollution. While the wastewater facility
is considered a traditional point source and has discharge permits under the
CWA, this allegation is unique in that it is attempting to shift liability from the
permitted facility onto the producers of the waste.
This pending case is similar to the federal Concerned Area Residents for the
Environment v. Southview Farm case. In this case the courts held that some
forms of large industrial agriculture, which are often considered the biggest nonpoint
source polluters, can be classified as point sources due to their
concentration of nutrient pollution into collection ponds and ditches. This
designation called for Southview Farms, a dairy and crop farm, to be subject to
the same best management practice standards and permitting process as
contained animal feed operations (feedlots), which are regulated as point
sources under the Clean Water Act. Initially the Southview case followed the
same 60 day notice of CWA violations as have been given in the pending Virginia
case. If this new case follows the course of Southview and the violations are not
addressed, the next step will be for a Judge to find that the processing
companies are alleging continuing violations of the CWA. This finding will be
sufficient grounds for the environmental groups to bring a citizens suit, as
decided in Gwaltney of Smithfield v. Chesapeake Bay Foundation.
This litigation can be seen as a barometer for public opinion. Citizens are calling
for non-point source polluters to take responsibility for the damage they are
causing to the Bay. Such regulation fits into the action plan the Chesapeake Bay
Foundation has been calling for, and there is some promise for help on the
federal level. The farm bill, due for renewal in September, could contain
provisions quadrupling federal aid to the Chesapeake Bay watershed, totaling
$262.5 million, which would then be matched by the states. One proposal calls
for this funding to be managed by a regional authority, and under this direction
real progress could be made in regulating non-point source pollution in the Bay's
watershed. Unfortunately our legislatures national, state and local have done
very little to help the matter in the past. The Bays' problems have been clearly
evident for decades, but the legislators do not seem at all interested funding a
real solution, rather they have been putting it off by long speeches, studies and
generally finessing it until after the next election.
Saving the Bay
In the long term, several changes must be made if we are to elevate the
Chesapeake from its current classification of "dangerously out of balance" with
its score of 29 by the Chesapeake Bay Foundation to "saved," a score of at least
70. Both point and non-point sources must be rigorously managed, and this
management must extend even beyond the agricultural controls that many are
considering. Land use shifts from agriculture to development have incurred high
water pollution in sprawling regions of the Bay's watershed. Removing forests
that naturally clean runoff and remove nutrients and replacing them with
landscapes that are at susceptible to high amounts of erosion is a trend that
must stop. Future developments must be mandated to manage runoff and