The Baltimore Sun reports this week that a federal appeals court upheld the U.S. Environmental Protections Agency’s authority to order pollution reductions by Maryland and other states that drain into the Chesapeake Bay. USEPA, acting after more than 25 years of little or no cleanup progress, had set a “total maximum daily load” (TMDL) for nutrients and sediment washing into the Chesapeake from the six bay states and the District of Columbia. The agency set a deadline of 2025 for the states to adopt measures needed to reduce all sources of pollution, or face possible federal sanctions.
The 16-kilometer (10-mile) stretch of the Missouri River where it passes Great Falls,Montana, was once so swift, roiling, and precipitous that, in 1805, the Lewis and Clark expedition spent 11 days hauling equipment and boats on an overland portage to continue their transcontinental journey.
Earlier this year, the same fast-flowing reach again came to national attention, when the United States Supreme Court unanimously clarified the ownership of the riverbed beneath the Missouri and two other Montana rivers, the Madison and the Clark Fork.
In February’s 9-to-0 ruling — which overturned a previous decision by the Montana Supreme Court from March 2010 — the high court also asserted, emphatically, that states have the authority to protect the public’s use and enjoyment of rivers, regardless of who owns the bottom. In doing so, the U.S. Supreme Court confirmed a state’s authority to implement and enforce river safeguards to prevent interference with public use and environmental harms.
What might, at first glance, appear to be a loss for Montana has actually set a precedent to protect water as a public trust in the United States during an age when water is increasingly being viewed as a commodity.
The Marcellus shale formation stretches through a wide swath of the Chesapeake Bay Watershed, underlying large parts of the states of New York, Pennsylvania, Maryland, West Virginia and Virginia. Energy extractors have been planning large-scale natural gas “fracturing” operations for the past decade. State environmental regulators are attempting to understand the process and impacts of these operations. The permitting processes, to date, have been catch-as-catch-can in many instances. At least in Pennsylvania, that is about to change, thanks to a recent court ruling on behalf of the Chesapeake Bay Foundation (CBF).
The obvious impacts of shale fracturing are the above ground pipelines, drilling and staging areas. The not-so-obvious impacts are those on the ground water in the adjacent aquifers. The Pennsylvania Department of Environmental Protection, charged CBF, neglected the needed protections in favor of a streamlined process that would make it easier and faster for drilling operations to move forward in Pennsylvania. Trout Headwaters is pleased to see that the CBF is actively monitoring these developments. A recent finding by a Pennsylvania court as summarized in a recent CBF press release, found at (www.cbf.org/page.aspx?pid=2561)
The lessons learned in Texas, and other more mature “fracture” shale fields of exploration, demonstrate that careful analysis, monitoring and mitigation are essential throughout the lifetime of these extraction activities. CBF’s oversight and actions to ensure such compliance should be commended.