Editor’s note: This commentary is by James Ehlers, executive director of Lake Champlain International. It is an open letter to the U.S. Environmental Agency he wrote on behalf of the LCI board of directors.
Re: Lake Champlain International Comments Phosphorus TMDLs for Vermont Segments of Lake Champlain
[D]espite the enormity of effort, hours, financial resources, and good intentions, it is our position that these TMDLs will unequivocally fail to meet their respective water quality targets for several reasons.
First, and in keeping with the Government Accountability Office’s (GAO) report to Congressional Requesters, “CLEAN WATER ACT: Changes Needed If Key EPA Program Is to Help Fulfill the Nation’s Water Quality Goals,” while EPA appears to be “reasonably assured” by Vermont Act 64, we remained unconvinced that the state has taken the necessary steps through the force of law to ensure nonpoint-source pollution runoff measures are effected. The overriding emphasis with respect to compliance from agricultural polluters throughout the act is one of “may” rather than “shall.” While we appreciate the agency’s close partnership with the administration and individuals within it, there is no evidence to suggest that the EPA will enjoy such a relationship with the next state administration nor that the next administration will be philosophically committed to the goals of the EPA with respect to clean water. We agree with the GAO findings when it states: “Without changes to the program’s voluntary approach to implement projects in waters impaired by nonpoint source pollution, the act’s goals are likely to remain unfulfilled.” Likewise, we concur when GAO finds: “Furthermore, without the force of regulations …, TMDLs are likely to do little to attain water quality standards, particularly the designated uses of fishing, swimming, and drinking.”
Second, the primary objective of a TMDL, according to the U.S. Environmental Protection Agency (EPA), is “to determine the loading capacity of the water body.” Loading capacity, otherwise known as “assimilative capacity,” is at best an estimate in the models. Be that as it may, the very concept of assimilative capacity is an attempt to bend immutable ecological principles to socio-political-economic constructs of the given times. By EPA’s own definition, loading capacity is “the greatest amount of a pollutant (in this case, the nutrient phosphorus) that a water can assimilate and still meet water quality standards,” or in other words, dilution is the solution to pollution. This is a false premise, standing in stark contrast to the goals of antidegradation. There is absolutely no empirical evidence, nationwide or elsewhere, that supports that a natural system — waterbody — can sustainably endure ongoing marketplace-generated phosphorus loads ad infinitum without some deleterious impact manifesting itself in the ecosystem’s inability to support the EPA’s stated, and legally mandated, goals of swimmable, drinkable and fishable waters. If there is one such example, we ask that the EPA produce it for our review.
Given we are now on our second TMDL plan for Lake Champlain, the first being adopted in 2002, and the consistent decline of our waters’ health under that plan, there is little reason to be optimistic, despite the enhanced modeling of this latest effort, that the false premise of assimilative capacity is now somehow a scientific truth. While perhaps not explicitly stated in the morose outlook for several segments of the lake under the best of circumstances, the 2015 TMDL accepts impairment and lack of attainment of water quality standards for the next several decades and, in some cases, half century. This comes as no surprise given the tenuous pretense of attempting to solve a problem with the same sort of thinking that created it.
Third, and closely tied to the second, any cleanup plan that does not strictly incorporate the basic laws of physics and chemistry — the conservation of mass/matter — as opposed to the pseudo-scientific notion of assimilative capacity in the case of nutrients, is doomed to failure. Any energy added to the Lake Champlain system in the form of anthropogenic nutrients will not simply be assimilated as we might hope and stubbornly insist, but rather will be transformed, eventually manifesting itself as it will in the ongoing and ever-worsening proliferation of cyanobacteria outbreaks and all the human misery and economic fallout that accompany such calamities. Lake Carmi, its 2009 TMDL predicated on assimilative capacity, and its failed implementation plan are further witness to the preceding. It will only be through the capture of and conversion of nutrients from ecosystem liability to that of societal commodity, in abeyance with the conservation of mass/matter, that we have any hope of restoring the natural equilibrium to the system, slowing its accelerated and reckless eutrophication. The notion of dilution is as misguided as using our rivers as sewer pipes and our bays and lakes as cesspools is arcane.
The notion of dilution is as misguided as using our rivers as sewer pipes and our bays and lakes as cesspools is arcane.
Fourth, assuming our position is intellectually flawed and a plan based on dilution is in fact viable, the financial resources committed to the plan are woefully inadequate — a margin of 10 by conservative estimates. As outlined in the Vermont Agency of Natural Resources Act 138 Report to the Legislature, the funding necessary to address water impairments stands at $156 million annually. While the source of the funding is a matter of reasonable debate as is whether all of those funds are necessary to address phosphorus impairment, there is still no identified sources that combine to reach this figure even remotely. Additionally, the lack of accountability with respect to one often cited source for funding, U.S. Department of Agriculture (USDA), remains a matter of concern for both our organization and GAO. Our skepticism is warranted in light of the aforementioned GAO report, as well as when one considers the recent report from the senior economist at the USDA’s Economic Research Service in which it is stated, “Despite billions of dollars of investment in conservation measures over the past several decades agricultural NPS policies do not appear to be enough to address landscape-scale water quality problems. … The voluntary approach has generally not led to an aggregation of conservation effort in impaired watersheds sufficient to produce measurable improvements in water quality.”
Given EPA’s identified reductions of 60 to 80 percent in phosphorus loads within Champlain segments dominated by agricultural activity, and this despite the millions of these types of dollars having been directed to those segments in the past decade, we stand reasonably unassured, regrettably, that neither the state policies now in place or under consideration will be sufficient due to their voluntary nature and insufficient investment.
The lack of financial commitment to achieve the implementation plan closely parallels, if not represents, the lack of urgency associated with remediating a resource critical to public health and economic prosperity and flouts the EPA’s mandate to have achieved swimmable, drinkable, fishable waters throughout the nation by July 1983 with the elimination of all pollutant discharges by 1985. It is unconscionable that the EPA or the state would have us accept a plan that suggests it will be 80 years in total for the people of the state to be able realize the public trust.
Fifth, given the agricultural sector market forces at work currently, the goals of water quality and industrial agriculture production are innately at odds. The manifestation of such is clearly seen in the murky rivers and cyanobacteria-laden waters of South Lake, St. Albans Bay and Missisquoi Bay. A market that rewards volume at the lowest possible price will continue to externalize its costs across the landscape, exploiting both our waters and those downstream. Should EPA’s commitment to environmental justice be taken seriously, it is our opinion that it is incumbent that EPA addresses it peers at the USDA to formulate a farm bill that ensures the agriculture community be adequately compensated for its fair treatment of both our environment and our farm laborers. The current system is abusive, profiting only those truly “upstream.” We urge the EPA to encourage the White House to take a position that supports a food system that is rewarded for its environmental stewardship rather than for its exploitation of our natural world and those who depend on it. Those who profit must share in the responsibility of shepherding the resources from which they prosper. Until such time, we regret that we do not believe we will see much progress in the watersheds most impaired due to agricultural activity.
Sixth and final, we strongly urge EPA to insist the state place an increased emphasis on natural infrastructure remediation and advanced biological nutrient removal systems coupled with biogas and electrical generation within both the agricultural and municipal sectors, swifter and sterner enforcement of environmental laws, and an incorporation of ecological services economics when considering the practicality and/or feasibility of implementation. It is imperative that our environmental policies function within a 21st century economy that protects our waters rather than the current paradigm which prospers through their poisoning. We only have one Lake Champlain. Its remediation and protection are no doubt expensive. Not to be wholly unexpected when we consider the objective is priceless.
Please let me know if our comments need further elaboration. We understand and appreciate that EPA can only work within the bounds of current federal law and that its authority to address all of our concerns may be limited. In this spirit, it is our hope that our comments could stimulate a broader conversation and movement towards more effective state and federal policy so that we may attain our mutually shared objectives of swimmable, drinkable, fishable waters. I would be happy to speak or meet with you at your convenience.
Thank you for your consideration and your service to the people of our nation and our state.
