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Bacterial Pollution

The headwaters of all waterways in Northumberland County are restricted for the harvesting of shellfish because of high fecal coliform bacterial levels, as is also true of most other tidewater counties. The Shellfish Sanitation Division of the Virginia Department of Health (VDH) (www.vdh.virginia.gov/shellfish) does an excellent job of monitoring the waterways monthly and updating closures as appropriate. There exists no agreement regarding the source of the bacteria. Many scientists like myself believe that wildlife, especially raccoons, deer and birds, are primarily to blame, and this assumption is supported by a variety of observations. There is no correlation between the number of houses (septic systems, dogs etc.) and concentrations of bacteria. Small creeks with few houses are just as contaminated as are waterways where housing density is high. There has been no demonstrable increase in bacterial levels as the population has increased. The headwaters of waterways always have higher concentrations of bacteria than the mouths, partly because saline water, characteristic of the mouths of the waterways, is more lethal to bacteria than is less saline water characteristic of the headwaters. But it is also true that the headwaters of the waterways always have fewer houses than the mouths and receive more runoff. When it is analyzed, bacterial concentrations in the runoff are very high. In some cases “spikes” in bacterial concentrations coincide with rainfall events, but exceptions are just as common. Huge isolated and unexplained spikes in bacterial concentrations that do not correlate with rainfall are common, and have been blamed on “flocks of birds.” Heavy rainfall events do not always result in high bacterial concentrations. With a few notable exceptions, high quality Bacterial Source Tracking (BST) technologies have not been employed, and when lower quality technologies have been employed, the results are equivocal.

A complete rainfall record from my pier on the Little Wicomico River, Northumberland County, permitted testing some “conventional wisdom” about bacterial contamination. The data indicate that when elevated concentrations of bacteria were recorded, many stations were affected, supporting the contention that the vectors of contamination operate river-wide. It is likely that the most important vector of contamination is runoff. Rainfall, especially heavy rainfall a week or more prior to sampling, accounts for most of the observations. Yet rainfall does not always cause high levels of bacterial contamination and high levels of bacterial contamination are not always associated with recent rainfall. Other variables such as water temperature, degree of ground saturation, duration of runoff, wildlife behavior, the availability of substrate for bacterial growth, patterns of predatory protozoan abundance and other biological factors such as “blooms” associated with seasonal biological progression could all exert river-wide controls on the observed concentrations of fecal coliform bacteria in the water. A full analysis is presented in the document L_wic_bacteria.pdf.

My initial concern was that the land-application of Class B sewage sludge would contaminate waterways because of runoff, wind, animals and especially gulls. Correspondence began 11/08/01 with the Director of VDH Shellfish Sanitation, Dr. Croonenbergs (Croonenbergs.pdf). Dr. Croonenbergs suggests that State agencies will do nothing to correct these kinds of problems until directed to do so by the General Assembly. He is absolutely correct. The Virginia Administrative Code contains many regulations (12VAC5-585, for example) devoted to the land application of sewage sludge, that are continually and laboriously undergoing micro-changes as more and more objections are raised about the practice. I have evolved into believing that Virginia will never do anything meaningful about this highly polluting practice until it is mandated to do so by EPA or the courts. The farm lobby is simply too powerful and too many elected officials are ignorant and/or corrupt, or believe (but are unwilling to articulate that) agricultural profits trump Bay water quality.

Dr. Stroube’s (Dr. Croonenbergs’ boss) 12/21/01 reply (Bac3RStroube.pdf) to my letter of 11/27/01 (Bac2Stroube.pdf) is replete with nonsense. Not only does he claim that birds are not vectors of contamination, but that his staff have “… not observed any significant bird activity …” (because his staff almost never monitor the land application process.) His point that contamination from sewage sludge (biosolids) by birds has never been demonstrated is nit-picking but constitutes an excellent example how officials misuse science to defend an indefensible position. It is well documented that birds can be contaminated with bacteria from sewage outfalls, landfills, etc. (birdbib.pdf) and cause contamination of nearby bodies of water. Just because there aren’t studies specifically involving the land-application of sewage sludge is meaningless. Forcing science to dot every “i” and cross every “t” is just an excuse to postpone action and keep lawyers employed. No competent microbiologist would waste time proving something that is so obvious. Dr. Stroube’s (and Mr. Welsh’s – Welsh.pdf) claim that there is no scientific evidence that “… sewage sludge has caused disease” is not defensible (www.sludgefacts.org). EPA no longer advocates that the land application of sewage sludge is “safe” and admits that more research is needed.

Bird-photo-A.jpgIn my reply of 02/28/02 (Bac3Stroube.pdf) two specific questions were asked. Dr. Stroube’s 03/18/02 response (Bac3RStroube.pdf) did not answer either question and contains undocumented opinions, as in the last sentence of the second paragraph. The (false) promise that the Total Maximum Daily Load (TMDL) process will provide useful data is discussed below. I fired another round on 06/06/02 (Bac4Stroube.pdf) and included a bibliography (birdbib.pdf) demonstrating that birds are vectors of bacterial contamination along with two photographs of birds following a tractor incorporating sewage sludge.Bird-photo-B.jpgThe reply (Bac4RWoods.pdf) from theSecretary of Natural Resources on 06/27/02 merely defends the land-application process and parrots the opinion that “… there is no evidence that bird activity will contribute significant numbers of biosolids-borne microorganisms to adjacent waterways …”

The dictum that someone is “innocent until proven guilty” is a foundation of our legal system and protects individuals and society. But why should polluters be protected from society because proof of contamination is required? Why shouldn’t society be protected from polluters and the polluter required to prove that contamination will not occur? The alternative to having to provide detailed proof for every potentially harmful practice is essentially the “Precautionary Principle” (www.sehn.org), which is simply stated “Better safe than sorry.” The Precautionary Principle is not widely mandated because of the immediate economic consequences that would entail for special interests, never mind the long-term economic consequences for society.

The TMDL process begins
As the result of a lawsuit (American Canoe Association, Inc. and the American Littoral Society v. EPA and EPA – Region III, No. 98-979-A) a consent decree was signed setting out an 11-year schedule to establish TMDLs for all water quality limited segments (WQLS) on Virginia’s 1998 Section 303(d) list, including waters impaired for the harvesting of shellfish. VA DEQ is mandated to develop TMDL reports for all restricted water bodies. The process began in Northumberland County on 05/23/03 and 07/22/03 with public meetings regarding the Little Wicomico (where I live) and Coan Rivers. I voiced my concern regarding bacterial contamination from Class B sewage sludge on 06/02/03 (AllingDEQ.pdf) and subsequently complained on 03/16/05 to EPA (TM2DEQ_EPA.pdf) that the TMDL process was flawed for two reasons. First, bacterial contamination is inconsequential in comparison to nutrification of the creeks. The discharge of nitrate and phosphate is ultimately the reason the Clean Water Act is being violated, dead zones exist and no SAV exists. Second, the BST (Bacterial Source Tracking, or MST – Microbial Source Tracking) methodology being used (antibiotic resistance) is unreliable. EPA responded on 03/29/05 (TMEPAR.pdf) that “… the state does not have a numeric standard for nutrients …” and two pages of verbiage. Subsequent to two more public meetings, on 11/30/05 and 01/26/06, I submitted public comments to DEQ and EPA on 02/17/06 (TAC3pubcom.pdf) and attached some previous correspondence (TM2DEQ_EPA.pdfBac2Stroube.pdf and birdbib.pdf). The excerpted reply to my public comments (TMFr.pdf) disputes the findings of a single researcher that bacteria are resident in the sediment, ignoring the references cited in that publication and on p. 56 of the June 2006 Scientific American, an indication of the level of science practiced at DEQ. The claim that “limited resources” are available to research an obvious problem is a common, and completely unjustified, excuse to simply ignore the problem. Subsequently, DEQ has accepted that sediments are a source of bacterial contamination.

I complained on 03/24/06 that a DEQ staff member was misinforming the public by claiming there were no bacteria in Class B municipal sewage sludge (TM4All.pdf) and provided data from VDH and the Blue Plains wastewater treatment facility that bacterial concentrations are commonly between 10 and 1000 Colony Forming Units per dry gram, or billions of bacteria per truck-load of sludge.

The TMDL issue re-emerged in late 2007 with regard to Cockrell Creek, where Reedville is located. DEQ claimed that discharge from the ships harvesting menhaden for Omega Protein contaminated the creek with bacteria while they were in port. My public comments (AllingDEQ2.pdf) recommended three actions: 1) Declare “No Discharge Zones” for all waterways restricted for the harvesting of shellfish because of high bacterial levels, 2) Change the discharge laws in Virginia to conform to Maryland’s laws so as to make the overboard discharge policy uniform throughout Chesapeake Bay, and 3) Ban the land application of sewage sludge in counties where waterways restricted for the harvesting of shellfish are located. Of course, all of Chesapeake Bay should be a “No Discharge Zone” for ballast water (think Zerbra Mussels) and all other forms of pollution, as scientists have been urging for decades. It is just one more example of how a powerful lobby, in this case international shipping interests, influences government and avoids restrictions that might reduce their profits, never mind the economic consequences to others or that the additional cost would be spread over millions of citizens.

The TMDL issue reappeared regarding bacterial contamination of Machodoc creek in Westmoreland County, just west of Northumberland County (www.deq.virginia.gov/TMDLDataSearch/DraftReports.jspx). My comments (Machdoc.pdf) disputed that DEQ had successfully identified the source(s) of bacterial contamination, and criticized DEQ for ignoring a major potential source of bacterial contamination, namely the land application of Class B sewage sludge. On July 13, I requested by email that in addition to taking into account the bacterial pollution caused by the land application of sewage sludge, DEQ must also consider the land application of poultry litter as an additional source of bacteria (Survival, Transport, and Sources of Fecal Bacteria in Streams and Survival in Land-Applied Poultry Litter in the Upper Shoal Creek Basin, SW Missouri, 2001-2002 – US Geological Survey Water-Resources Investigations Report 03-4243 by John G. Schumacher, http://mo.water.usgs.gov/Reports/wrir03-4243-schu/report.pdf). The last paragraph of the “Summary and Conclusions” is particularly relevant. Additionally, I copied the email message to Ms. Betsy Bowles at DEQ to ensure that the above-cited publication was made available to a Technical Advisory Committee convened to address the land application of poultry litter, the vast majority of which was essentially unregulated in Virginia at that time.

DEQ responded to my comments of 06/03/08 and 06/13/08 (Machreply.pdf). Regarding my comment 5 about the unreliability of DEQ’s BST data, the document cited does not provide the requested information and DEQ has still not demonstrated that conventional, critical, analytical protocols are being followed. In their response to my comment 10, DEQ claims that “DEQ has found that biosolids applications typically do not result in fecal coliform water quality water standard violations.” No documentation of any DEQ studies are presented to confirm this statement, and since oversight of the land application of sewage sludge had only recently been transferred to DEQ from VDH, and few applications are monitored by any state officials, the statement seems just to have been fabricated. There are so many vectors for contamination, especially gulls, that a scientifically valid study to address this question would be nearly impossible, and certainly very expensive. As for comment my 11, the reason DEQ found “… no records of poultry litter being transferred into the watershed in question.” is that 85% of poultry litter is land-applied in Virginia without regulations or records.

DEQ held another meeting 09/29/08 regarding the bacterial impairment of four creeks (Indian, Dymer, Tabbs, and Antipoison) in Northumberland County, and the power-point presentation is available at www.deq.virginia.gov/tmdl/mtgppt.html, as is also true for other creeks in the State. My response (TMDL1008.pdf) of 10/15/08 suggested that DEQ would be more efficient if they considered most of the impaired creeks in the Northern Neck together rather than treating them piecemeal. Variations in land use between creeks are less than the ability of the bacterial source tracking methodology being used to detect differences between the creeks. I also questioned how DEQ proposes to reduce bacterial contamination beyond what is already being done, and even if this effort is necessary at all. “Given that it is impossible to eliminate bacterial contamination from wildlife and from bacteria already resident in the sediment, and given that human health is protected by strict, effective laws relating to [the very few!] shellfish grown in restricted waters, why is bacterial impairment a problem?”

DEQ responded (summarized within quotes) to my six comments:

  1. DEQ presented no action plan. “Action plans to reduce bacteria levels are developed in the “Implementation Plan” (IP) phase of the TMDL process.” The Department of Conservation and Recreation (DCR), not DEQ, is responsible for the IP (see below.) Pass the buck.
  2. BST data are suggestive only. “The results should not be considered as precise.” But DEQ keeps citing them and using the data.
  3. Why deal with each creek separately? “The greater number of creeks which are involved in a TMDL the more cumbersome and difficult the organization and development becomes as you are not only dealing with a larger area, but typically more permitted discharges, and several different localities.” Not convincing when the land-use is so similar and there are so few permitted discharges, which are already regulated. Hollow excuse.
  4. DEQ has not proposed solutions . “… it is strongly advised to the attendees that … they begin implementing their own “backyard strategies” now.” Meaningless. Volunteerism hasn’t improved Chesapeake Bay water quality, but that is what their IP calls for (see below.)
  5. Fencing livestock out of the RPA. “DEQ does not take actions to fence livestock out of areas of standing and running water.” Presumably, agricultural interests would raise so many objections that legislation mandating such a common-sense preventative measure would be impossible.
  6. Given that contamination from wildlife cannot be eliminated, and human health is protected by oyster relaying laws (Virginia Administrative Code 4VAC20-310), why is bacterial impairment a problem? “DEQ is obligated to restore the water quality of creeks with bacterial impairments via the Clean Water Act of 1972 ..” (www.epa.gov/reg3wapd/tmdl/law.htm.) EPA is the real culprit here, requiring DEQ to jump through unnecessary and meaningless hoops, purportedly to solve a problem (bacterial contamination that restricts the harvesting of shellfish) that is likely insolvable, but also meaningless because existing laws adequately protect human health. DEQ could claim that “Naturally occurring pollutant concentrations prevent the attainment of the use.” through a Use Attainability Analysis or UAA, government-speak for “we can’t fix the pollution.” But that would mean that DEQ staff would need to spend their time and our tax dollars doing something useful to address nutrient pollution and gore agriculture’s ox.

A second, final, meeting was held 11/14/08 regarding the same four creeks and I responded on 12/12/08 (TMDL1208.pdf) that volunteer actions to reduce bacteria would have little effect, just as volunteer actions have had virtually no effect in reducing nutrient pollution of Chesapeake Bay. Given the fact that about half the local land is forested and another third is agricultural, wildlife are likely the primary sources of bacteria, and reduction of contamination from wildlife is “not actionable.” Necessary mandated actions at the Federal/State/County level that might reduce bacterial levels, especially those of human origin, include: 1) Ensure that failed/failing septic systems are repaired immediately and that funds exist to assist legitimate “hardship” cases. 2) Strengthen Virginia’s overboard boat discharge laws to conform to Maryland’s so that the policy throughout Chesapeake Bay is uniform. 3) Require that all livestock be fenced out of the RPA. 4) Ban the land application of municipal sewage sludge and poultry litter in the impaired watershed. 5) Require that the waste from kennels be disposed properly and that feral dogs be eliminated. 6) Revise Virginia’s antiquated greywater laws so that only toilets (black water) need be discharged into septic tanks.

All these actions would also reduce nitrogen and phosphorus pollution. DEQ responded on 12/23/08 that a ban on the land-application of poultry litter and municipal sewage sludge would require “legislation by the General Assembly,” that VDH was responsible for Virginia’s “greywater” laws and that “any citizen may nominate a water body for a No Discharge Zone.” DEQ apparently has no authority or intention to actually do anything and is just pursuing this charade because of the EPA requirement and to avoid having to deal with nutrient pollution for as long as possible.

The final TMDL report for impaired creeks in Northumberland County bundled six creeks, all draining northward into the Potomac River along a relatively short stretch of coastline between the Coan River and Smith Point. Despite very different densities of homes (septic systems, pets, etc.) and very different amounts of tidal exchange with the Potomac, bacterial concentrations are very similar. My comments (Potcreeks.pdf) pointed out that it is unlikely that bacterial concentrations are controlled by variables such as degree of “urbanization,” supporting the contention that wildlife and fecal coliform bacteria in the sediment are more important sources of bacterial contamination than is human activity. In a more highly urbanized watershed, Simmons (1995, Water Resources Update 100: 64-74, www.ucowr.siu.edu/updates/pdf/V100_A10.pdf) concluded that raccoons were one of the most important sources of bacteria, and proved it by nuking the raccoons. I also pointed out that “Variations in land use between all the watersheds in Northumberland County are likely encompassed by variations between the watersheds of the six creeks under consideration by this, the final, TMDL for the Northumberland County. It is obvious that a single Implementation Plan will suffice for all of Northumberland County just as a single TMDL suffices for these six creeks.”

Implementation Planning begins
Several citizens living on Greenvale Creek, in Lancaster County, were irritated that DEQ’s TMDL process had been completed and approved by EPA on 08/02/06, but no further action was being undertaken. So we wrote an “Implementation Plan” (IP) for DEQ, based on one written in 2004 for Lynnhaven, Broad and Linkhorn Bays, and modified for the specifics of Greenvale Creek. Fundamentally, it consisted of the six actions outlined above. The IP was provided to DCR, along with selected senior State administrators and local elected officials on 12/23/08.

DEQ rejected the citizen-generated IP because it had not followed protocol, but they did schedule a formal meeting to begin the IP process for Greenvale Creek on 03/03/09. They refused to include other creeks and rivers for which TMDLs in Lancaster County have been approved despite the land use being nearly identical. DEQ responded to the “Six practical, common-sense actions” to reduce bacterial contamination, which formed the essence of the IP the citizens proposed, in an email of 02/17/09:

  1. Require that failed/failing septic systems be repaired immediately and identify a source of funds that can be used by the few citizens who demonstrate “hardship.” DEQ Reply: DEQ agrees that failing septic systems are an important cause of fecal coliform bacteria in waterbodies. Failed or failing septic systems are regulated by the Virginia Department of Health and they work with citizens in order to ensure that these systems are repaired. There are grant funds/ programs available to those who demonstrate hardship.
  2. Impose “No Discharge” in Virginia waters for boaters, as is done in Maryland, making the policy uniform throughout Chesapeake Bay. DEQ Reply: There is currently legislation under the review of the General Assembly [it passed into law] associated with a No Discharge Zone classification for Virginia State waters [HB1104]. Recently DEQ suggested that Lancaster and Northumberland County tidal waters could be a starting point for new NDZ recommendations. Please contact your local representative to support the legislation. On a smaller scale, any waterbody may be recommended for No Discharge Zone classification.
  3. Ensure that no livestock enter the RPA, as the RPA is defined in the “Bay” Act. DEQ Reply: This is often accomplished by livestock exclusion fencing recommended as “BMPs” in the IP. DEQ does not have the authority to enforce RPA distances as defined in the “Bay” Act. Please contact the Chesapeake Bay Program or Chesapeake Bay Local Assistance regarding these concerns.
  4. Ban the land-application of poultry litter and municipal sewage sludge because these practices import trillions of fecal coliform bacteria per truckload into the watershed. DEQ Reply: DEQ has found no sampling evidence to implicate biosolid applications as a contributor of fecal coliform bacteria. No Virginia bacterial TMDLs developed to date have found that biosolids contribute a significant bacterial impact. The banning of biosolids and poultry litter are not actions which DEQ will promote. Please contact your local representative regarding concerns on this matter.
  5. Ensure that fecal material from kennels and other congregations of dogs is disposed properly, and eliminate feral dogs. DEQ Reply: Proper disposal of fecal material from kennels and other congregations of dogs is supported by DEQ. DEQ does not recommend the elimination of feral dogs. Feral dog populations should be discussed with the local Animal Control office and possibly the Department of Game and Inland Fisheries.
  6. Change Virginia’s “greywater” laws so as to allow water from sources other than the toilet to bypass the septic tank and discharge to infiltration trenches, cisterns, etc.

DEQ Reply: DEQ believes that fecal coliform bacteria do exist in laundry grey water, however, the Virginia Department of Health permits and regulates privately owned onsite sewage systems. Please contact the local health department or your local representative regarding Virginia’s “greywater” laws.

The first two sources of bacteria are probably being adequately addressed. VDH conducts a “shoreline survey” periodically, literally walking the shoreline looking for problematic discharges from homes. Periodic septic system inspection and pump-out if necessary, mandated by the Chesapeake Bay Act in 1988, is finally being enforced by tidewater Counties after nearly a quarter century. What more can be done? The delay in mandating No Discharge Zones is partly the fault of EPA, who insists that there must be enough pump-out stations or otherwise boaters (who can afford to have boats with heads) would be inconvenienced. DEQ apparently has no authority, nor do they have intent, to meaningfully address the other bacterial contamination problems, so taxpayer dollars are being spent just to spin bureaucratic wheels. DEQ is more concerned with a few fecal coliform bacteria in “laundry grey water” than it is with the trillions of fecal coliform bacteria being land applied in impaired watersheds in every truckload of sewage sludge or poultry litter, a process which also cause massive nitrogen and phosphorus pollution. The DEQ position proves once again that Virginia authorities are more concerned with the profits of agriculture, especially poultry interests, and the wastewater disposal industry than they are with improving water quality in Chesapeake Bay.

During the summer of 2009, DEQ/DCR generated a draft Implementation Plan (IP) for bacterial contamination of Greenvale Creek. Although the public hearings were poorly attended, at least the process was initiated. Actions to reduce bacterial impairment in the draft IP were entirely voluntary, with a purported cost of $362,700 for the tiny watershed. No source of funding was identified. On 10/24/09 the Northumberland Association for Progressive Stewardship (NAPS) offered to assist with educational efforts if a County-wide IP was approved for Northumberland County (NAPSTMDLletter.pdf) and advanced rational for a single IP (CountyIP.pdf). No acknowledgement or response has been received as of 01/01/10. Having produced the required TMDL plans, Virginia has satisfied Federal mandate. The Virginia Water Quality Monitoring, Information and Restoration Act of 1997 (but not EPA) requires that Implementation Plans be developed (Code of Virginia § 62.1-44.117) but, like many State regulations, enforcement is lacking. The excuse, that an unfunded mandate cannot be followed, is obviously purposeful on the part of the legislature. Mandate something to pacify the public, but don’t fund it and it won’t happen.

Summary
High bacterial concentrations that result in restricted harvesting of shellfish are a violation of the Clean Water Act, and EPA requires Virginia to submit TMDL reports for each water body. EPA does not require Implementation Plans. There is no agreement among scientists as to the source of the bacteria, but there is absolutely no doubt that wildlife and already contaminated sediments contribute. It is obviously impossible to “sterilize” the creeks and it is even doubtful that bacterial concentrations can be reduced significantly. Contamination from septic systems is being carefully monitored, and although violations may occur, they are quickly remedied. Nobody has ever had a serious health issue because of the presence of the fecal coliform bacteria at the very low levels (14 MPN/100 ml as opposed to 200 MPN/100 ml for recreational closure) set for commercial shellfish harvest. A similar statement cannot be made for the land application of sewage sludge. Few oysters are harvested from restricted waters because diseases and over-harvesting have decimated stocks. Strict laws exist to regulate the few cases where oysters are harvested from or grown in contaminated waters for the commercial market. Virginia refuses to institute common-sense restrictions like fencing livestock out of streams and banning the import of bacteria-laden animal waste into watersheds.

Bottom Line
This is all a waste of taxpayer dollars to address a problem that is not solvable and doesn’t matter anyway. Bureaucrats would better serve society by addressing nutrient pollution, but that would involve actually goring somebody’s ox. Better to anesthetize the public consciousness by appearing to be doing something than enrage the ire of special interests who might close their pocketbooks.