Bay Foundation settles lawsuit with EPA

New measures, timetable to speed Chesapeake cleanup

May 11, 2010|By Tim Wheeler, The Baltimore Sun

The Chesapeake Bay Foundation president announced Tuesday a "historic" settlement with the Environmental Protection Agency, calling on federal regulators to improve bay waters largely by pressing state and local governments to crack down on polluters.

With top EPA officials present at the foundation's Annapolis offices, President William C. Baker said the agreement settles a lawsuit brought in the waning days of the Bush administration accusing the federal government of neglecting its legal responsibility to restore the bay.

"This agreement is a game changer," Baker said. "This agreement is going to lead to pollution reductions, and if it doesn't we'll be back in court."

The deal, announced the day before the Obama administration was to unveil a federal bay restoration strategy, was hailed by some as a major step in jump-starting the Chesapeake cleanup, which has shown little progress since it began 26 years ago. Others were skeptical, pointing out that the 27-page settlement doesn't commit the EPA to do much more than federal officials have already proposed.

Howard Ernst, a political science professor at the Naval Academy and a critic both of the government bay cleanup and the foundation, said, "I for one will withhold my excitement until the EPA actually follows through on its threats. Until they prove they are willing to deny permits to polluters, this is all bark and no bite, and it is all too familiar."

The settlement requires the EPA to issue a stringent pollution "budget" for the Chesapeake by the end of the year and to hold Maryland and the other five bay states accountable for reducing pollution enough to meet the new limits. The agency will review all new or renewed permits held by sewage plants and factories to ensure discharges are not fouling streams and rivers leading to the bay.

The EPA also pledges to draw up new regulations aimed at reducing polluted runoff from urban and suburban lands and farms. The agency said it would propose to expand federal limits on stormwater pollution by September 2011 and adopt them by November 2012. New rules for the use of animal manure and sewage to fertilize farm crops would be drafted by June 2012 and finalized within two years.

The settlement further commits federal regulators to take action against states if they fail to meet pollution reduction targets. One option: withholding federal funds or blocking permits needed for new or expanded businesses and growth.

The foundation sued the EPA in January 2009, shortly before the Obama administration took office, charging that the federal government had a legal duty to enforce the largely voluntary bay cleanup agreements state and federal officials had signed — and failed to fulfill — in 1983, 1987 and 2000.

The environmental group was joined in the legal action by Maryland and Virginia watermen's groups, the Maryland Saltwater Sportfisherman's Association, former Maryland Gov. Harry Hughes and a pair of former state lawmakers, retired Sen. Bernie Fowler of Calvert County and Del. Tayloe Murphy of Virginia.

Fowler, 86, a longtime bay advocate who attended Tuesday's announcement, said the settlement gave him hope he might still be alive when the bay begins to show improvement.

Deputy EPA Administrator Robert Perciasepe, a former Maryland environment secretary, called the settlement "a momentous occasion." He said Obama administration officials share the environmentalists' goal of restoring the bay and wanted to get the lawsuit out of the way and "move on" to focus on cleaning up.

The settlement still could be challenged by groups or individuals objecting to pollution reduction steps the EPA has agreed to. Local government agencies already have voiced concerns, and Valerie Connelly, legislative director of the Maryland Farm Bureau, said farmers doubt the EPA's authority to broaden oversight of their operations.

Others said the settlement essentially reiterates the plans to fulfill President Barack Obama's executive order that directs federal agencies to take a leading role in ramping up the bay restoration.

And though bay foundation officials portrayed the deal as legally binding, some experts said it was not as ironclad as a consent decree that would be enforced by a court. The EPA already is under the gun from a 1999 consent decree with other environmental groups to produce the bay pollution budget by year's end.

Beyond that, if the EPA fails to do what it pledged under the settlement, the foundation could revive its lawsuit. But it would still have to prove exactly what the agency is legally obligated to do to clean up the bay.

"I wish it was a consent decree," said Gerald Winegrad, a former Maryland state senator and outspoken critic of the bay cleanup to date. "That really holds your feet to the fire."

John Cannon, a University of Virginia law professor and former EPA counsel, said the settlement may not be as legally binding as a consent decree, but it still holds the federal government publicly and politically accountable.

Ann Swanson, executive director of the Chesapeake Bay Commission, said the detailed cleanup commitment by the Obama administration just adds "another piece of the puzzle" to multi-pronged efforts in Washington and elsewhere to reinvigorate the lagging restoration effort.

"I actually think we can do it," she said. "The question is do we have the political will?"

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