The Chesapeake Bay Foundation announced yesterday it will sue the U.S. Environmental Protection Agency, contending that the Bush administration is not doing enough to control sewage pollution.
The foundation is trying to force the regulatory agency to place discharge limits on sewage treatment plants, a major source of pollution because of the nitrogen they routinely dump into the bay.
The lawsuit, to be filed today in the U.S. District Court for the District of Columbia, marks the latest step in the foundation's get-tough strategy, made possible by a new $1.25 million grant for litigation. This year, the foundation also sued Virginia for violating the Clean Water Act.
Bay foundation President Will Baker said EPA's reluctance to set limits on the amount of nitrogen that sewage plants can discharge violates the Clean Water Act. He said the foundation filed the lawsuit after numerous attempts to resolve the issue through negotiations.
"The bay community has been promised for years that nitrogen would be controlled. There comes a point where you have to draw a line in the sand and say the only recourse is litigation," Baker said.
EPA officials have said they are planning to impose such limits, a move that would cost treatment plants billions of dollars.
Jon Capacasa, the EPA's regional director of water protection, said he expects the agency to have the limits in place by next year. "There's no question that tighter nutrient limits are needed to restore water quality in the bay, and our intent to is to do it as quickly as possible," Capacasa said.
But he said he disagrees with the foundation's demand for a uniform standard of discharge limits across the watershed, arguing that such an approach would amount to over-regulating the bay. Rather, he said, the agency is trying to tailor permit discharge limits to individual tributaries.
"To over-regulate beyond what the bay needs is not wise policy," Capacasa said.
The foundation's lawsuit doesn't seek a monetary settlement; rather, it asks that a federal judge force the agency to respond to a petition it filed last year raising many of the same complaints. EPA officials issued a letter in July outlining future plans to control nutrient pollution, but said the letter was not a response to the foundation's petition.
Roy Hoagland, an attorney who serves as a foundation vice president, said EPA's July announcement and its current assertions that it will address discharge limits lack teeth.
"If you look at all the details of it, you'll find that it's no commitment at all," Hoagland said. "It's full of disclaimers."
Poor water quality
The foundation has been looking increasingly toward legal action in recent months amid reports that bay grasses have declined and water quality remains poor in many parts of the watershed, which includes Maryland, Pennsylvania, Virginia, West Virginia, Delaware, New York and the District of Columbia. In July, the foundation received a $1.25 million grant from the Lenfest Foundation for a new watershed litigation project. Foundation officials plan to raise money to match that grant, which is spread over five years.
After the grant was announced, the foundation sued Virginia over nitrogen-discharge permits the commonwealth issued to tobacco company Philip Morris and the town of Onancock. The company and the Eastern Shore town are also parties in the lawsuit.
Over the years, other groups have sued the EPA and the states to force change when a conciliatory approach has failed.
Perhaps the most famous local case occurred 30 years ago, when three Southern Maryland counties sued state and federal regulators for allowing too much untreated sewage from suburban counties upstream to flow into the Patuxent River. The counties prevailed, and the state agreed to reduce the amount of pollution flowing into the river. That lawsuit became the building block of the interstate bay restoration effort.
`A sad day'
Some involved in bay restoration say the foundation lawsuit will erode the partnership approach to cleanup and slow plans to create river-specific water-quality standards. "It's a sad day in the history of Chesapeake Bay cleanup," said David Bancroft, executive director of the Alliance for the Chesapeake Bay. "It's almost a throwback to the philosophy of the 1960s that the federal government can solve most of the problems."
Former Chesapeake Bay Program Executive Director Bill Matuszeski agreed, calling the lawsuit "a confusing sort of lateral action" that the foundation filed because the litigation grant was "burning a hole in their pocket."
But Towson attorney G. Macy Nelson, who represents citizens and environmental groups in lawsuits against industry and regulators, said he is glad to see the well-funded foundation enter the legal fray.
"The regulatory agencies just ignore the requirements, and you have to beat them over the head," he said. "These [regulators] won't do anything until you sue them."
