Group sues government over bay

Environmental foundation says EPA has not kept cleanup agreement

October 29, 2008|By Timothy B. Wheeler | Timothy B. Wheeler,tim.wheeler@baltsun.com

Pointing to more than two decades of failure to restore the Chesapeake Bay, the region's largest environmental group is threatening to sue the federal government for shirking its legal responsibility to reduce water pollution in the troubled estuary.

The Chesapeake Bay Foundation says it will formally notify the Environmental Protection Agency today that it intends to sue the agency for not living up to the latest in a series of bay restoration agreements. The pact calls for cleaning up the bay by 2010, a deadline the EPA acknowledges is unlikely to be met.

Foundation President William C. Baker said yesterday that the EPA has been an "absent partner" in the bay restoration effort, and the suit will seek a legally binding federal plan to clean up the bay and to spend the money to do it.

FOR THE RECORD - A headline in yesterday's editions incorrectly characterized action taken by the Chesapeake Bay Foundation over cleanup of the bay. The foundation is threatening a lawsuit against the federal government, having filed a notice of intent to sue.
THE BALTIMORE SUN REGRETS THE ERROR

"People are fed up with the government's failure to reduce pollution in this national treasure," Baker said. "We have no other course of action left but to go to court and try to get [the] EPA to comply with its own Clean Water Act."

Joining the Annapolis-based foundation are commercial and recreational fishing groups in Maryland and Virginia, as well as several former elected officials, including former Maryland Gov. Harry R. Hughes and former state Sen. Bernie Fowler of Calvert County, both longtime advocates for the bay.

The foundation's effort to force restoration of an entire ecosystem is "an innovative and creative approach," said Jane Barrett, director of the University of Maryland's Environmental Law Clinic. Environmental groups more often sue to enforce a particular law or regulation or to require cleanup of a specific plant or industry.

The foundation's action targets only the EPA, though others have pointed out that Maryland, Pennsylvania and Virginia also signed the bay restoration agreements in 1983, 1987 and 2000 and also have failed to achieve their cleanup goals.

The bay's water quality has gotten worse during the past two decades, monitoring by University of Maryland researchers shows.

Baker said the foundation is going after the EPA because lawyers advised that the strongest legal case could be made for the agency's failure to uphold federal pollution laws. While states have not done all they could, he added, he believes that unlike the EPA, they at least have made "good-faith efforts."

Fowler, though, said the states share in the blame for the bay's continued poor health.

"I think there's enough guilt to go around to everybody," said Fowler, 84, who for years has conducted an annual spring wade-in of the Patuxent River to assess progress in cleaning up the tributary.

"The Chesapeake Bay and Patuxent River in particular are on a death watch," Fowler said. In nearly four decades of pushing, he said he's only seen real progress at reducing pollution when lawsuits are filed or legislation is adopted requiring action.

Benjamin H. Grumbles, assistant EPA administrator for water, defended the agency's record, but acknowledged that "we are not making the progress we had hoped for."

"I think we're doing the best we can," said Grumbles, contending that the EPA lacks clear legal authority to regulate polluted runoff from farms and development, two major sources of the bay's degradation.

The agency is working with state officials to come up with a baywide pollution-reduction plan, he said, which should accelerate cleanup efforts. He said the plan should be ready in the next two years. He declined to say how long it would take to show results.

"Our focus has been on cooperation over confrontation," he said.

But Hughes, who helped draft the first bay restoration agreement in 1983, said the EPA "just seems to be dragging its feet" in regulating pollution afflicting the bay.

He also said it is time for the Bush administration to provide the federal funding needed to curb pollution. Congress approved $188 million this year to pay bay-area farmers to reduce runoff, but the administration has balked at releasing the funds.

Larry Simns, president of the Maryland Watermen's Association, which has sparred with the bay foundation over fishing restrictions, said he agreed to join the group's legal action because watermen believe they have been made the scapegoat for the loss of crabs, oysters and fish in the estuary.

Poor water quality has been a factor in the loss of about 4,500 crabbing-related jobs since 1998, the foundation agrees. Simns said the bay's fish won't come back until the pollution is cleaned up.

"We're not the problem," Simns said. "They could close us down and do away with us, [but] they're still going to have a problem."

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