Suit seeks cleanup of Md. waters Environmental groups allege failure to enforce the Clean Water Act

November 14, 1997|By Timothy B. Wheeler | Timothy B. Wheeler,SUN STAFF

Saying last summer's outbreaks of fish-killing microorganisms in Maryland could have been prevented, three environmental groups filed suit yesterday to force cleanup of the state's polluted waterways.

The lawsuit, filed yesterday in U.S. District Court in Baltimore, alleges that the Environmental Protection Agency has failed to enforce a 25-year-old provision of the Clean Water Act that required Maryland and other states to identify degraded waters and set pollution limits for them.

"If the things we're alleging should be done had been done, we would not have a Pfiesteria problem in Maryland. There wouldn't be one anywhere," said James R. May, director of the environmental law clinic at Widener University in Wilmington, Del.

The environmental groups want the EPA, and in turn, Maryland, held to legally binding priorities and deadlines for cleaning up the state's waters.

May's clinic, which has brought similar lawsuits in neighboring states, is representing the Sierra Club and the American Littoral Society, a New Jersey-based group concerned with the mid-Atlantic coast. The Earthjustice Legal Defense Fund in Washington, representing the Chesapeake Bay Foundation, filed the lawsuit yesterday.

The Maryland Department of the Environment has surveyed only 22 percent of its waters for pollution, despite the federal law's requirement that all be checked and cleanup steps taken by 1979.

Nutrients from farm and suburban runoff and from treated sewage are the main problem in 93 percent of the 138 Maryland bodies of water identified as impaired, said Thomas W. Grasso, director of the bay foundation.

The state found toxic pollution in 14 percent of the waterways surveyed, much of that in and around Baltimore harbor. (Some have more than one problem, so the figures don't add up to 100 percent.)

The Pocomoke River in Somerset County, the first and largest bay tributary hit by Pfiesteria-like fish kills, was listed in the state environmental agency's survey as Maryland's second-most impaired waterway, after Baltimore harbor. The state identified nutrients as the cause of the river's problems.

Research indicates that high levels of nutrients in the water can stimulate growth of Pfiesteria piscicida, the toxic microbe linked with fish kills and human health problems that prompted the closing of three bay tributaries last summer.

"What we need to do is reduce the man-made risks that are adding to the Pfiesteria problem we're having," said the bay foundation's Grasso.

No state has done what the law requires, and the EPA has not punished the inaction. Citizen and environmental groups have sued the EPA in 24 states and threatened to sue in five others over the federal government's failure to enforce pollution limits on impaired waters. Nine of those cases, including lawsuits brought in neighboring Delaware and Pennsylvania, have resulted in settlements or court orders to comply.

Virtually overlooked until the last few years, one section of the 1972 Clean Water Act calls for identification of all water bodies so polluted that fishing or swimming is barred. The law requires that limits, called "total maximum daily loads" be set on all sources, including factories and runoff from farms and suburban lawns.

Up to now, federal and state regulators have set enforceable pollution limits chiefly on industry and sewage plants that discharge directly into water.

But this provision of the law would force a review of all sources of pollution, including runoff not previously regulated. Furthermore, industries that have reduced discharges might be faced with tighter and more costly controls.

Environmentalists say states have been slow to tackle that job, partly out of fear of a political backlash from setting strict limits on new business and development in impaired watersheds.

"Some see them as growth-stoppers," said May, an associate professor of law at Widener. But he contended that "they're actually good for business" because clean water is attractive to manufacturers, farmers and developers. He said a nationwide EPA survey shows that real estate values average 25 percent higher in areas with unpolluted water.

Quentin Banks, spokesman for the Maryland Department of the Environment, said state officials have not seen the lawsuit, but he rejected allegations that they are dragging their feet. The department has proposed total maximum daily loads for some impaired waters, he said, and plans to complete the regulatory overhaul in six years, compared with the eight to 13 years other states say they are likely to take.

EPA officials said yesterday that they are already doing what the lawsuit seeks.

Robert W. Perciasepe, assistant EPA administrator for water and a former Maryland environment secretary, said that regulators could not have met the law's original deadline because pollution control technology was not sufficiently advanced. Only since the early 1990s have officials been able to broaden their efforts to consider the health of entire watersheds, he said.

"Over the last five years, we've been pushing it more and more," Perciasepe said. The agency aims to have pollution limits on impaired waters in every state over the next decade, he said, bTC and the Clinton administration has increased funding by nearly $20 million this year to help the states.

"This just basically holds our feet to the fire," said W. Michael McCabe, the EPA's mid-Atlantic regional administrator. "I don't have a problem with that. I don't like being sued."

Pub Date: 11/14/97

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