Various Chesapeake Bay agreements signed over the years have typically been considered voluntary agreements, but a group of high-profile Bay advocates have outlined a legal argument that those agreements are legally binding.
In a letter that was scheduled to be sent to EPA Administrator Stephen Johnson on Oct. 29, the group argues that commitments in the Chesapeake 2000 agreement are required under law by Congress, and that the EPA has failed to meet its obligation.
They also say the agreement constitutes an enforceable interstate compact.
The letter notifies the EPA of their intent to sue. Such an action cannot take place for at least 60 days after the letter is filed with the agency.
"We are trying get a court to force the EPA to use its authority and to fulfill its responsibility to clean up the Bay," said Will Baker, president of the Chesapeake Bay Foundation, which drafted the letter. "The relief we are seeking is for the EPA to compel the states and the other federal agencies to meet the terms of those agreements."
Signing onto the letter is a who's who of past cleanup leaders. They include former Maryland Gov. Harry Hughes, former Virginia Secretary of Natural Resources Tayloe Murphy, former Maryland state Sen. Bernie Fowler and former District of Columbia Mayor Anthony Williams, all of whom have been involved in cleanup efforts for years and have expressed growing frustration with the slow pace of progress.
Also joining the complaint are the Virginia Waterman's Association and the Maryland Saltwater Sportfishermen's Association. The watermen claim their livelihoods are threatened by worsening water quality and the "catastrophic loss of blue crabs, fish, oysters and underwater grasses."
The letter argues that the EPA violated Section 117 of the Clean Water Act which specifically authorizes the Bay Program. It directs the EPA administrator to coordinate with other agreement signatories to "ensure" that plans are developed and implementation begun to "achieve and maintain" the Bay agreements' goals, including the nitrogen and phosphorus reduction goals necessary to support living resources in the Bay ecosystem.
The later Chesapeake Bay Restoration Act of 2000 specifically states that one of its purposes is to "achieve the goals established in the Chesapeake Bay Agreement."
Because the goals of the agreements have not been met, and likely would not be met for decades, the letter states that the EPA has "failed to comply with this Congressional directive."
It also argues that the agreements constitute legally binding interstate compacts.
Interstate compacts are agreements signed by the states that have the consent of Congress. The letter notes that the agreements were signed by the governors of Maryland, Virginia and Pennsylvania; the mayor of the District of Columbia; the chair of the Chesapeake Bay Commission, who represents state legislatures; and the EPA administrator.
The letter argues that although Congress did not use the word consent, "it most certainly implied its consent" in several pieces of legislation that specifically mention and support the goals of various Bay agreements, including the Chesapeake Bay Restoration Act of 2000, which approved funds specifically for the "Chesapeake Bay Agreement."
The signatories of the letter ask that a cleanup plan known as a Total Maximum Daily Load be completed for the Bay by 2010 with strict deadlines and "reasonable assurance" provisions to show those deadlines will be met. They call for the plan to be fully implemented by 2015.
The letter asks the federal government to ensure that all other signatories of the Chesapeake 2000 agreement meet their obligations under the agreement.
It also calls for other federal agencies to play a more active role in reducing pollution and presses for the release of the new agricultural best management practices funding approved for the Bay region in the 2007 Farm Bill. So far, that money has been held up by the White House Office of Management and Budget.
The letter also asks the EPA administrator to use his emergency powers authorized in the Clean Water Act that grant him broad authorities to deal with crisis situations which threaten "imminent and substantial endangerment to the health and welfare of persons where such an endangerment is to the livelihood of such persons, such as the inability to market shellfish."
The letter states that, "Undoubtedly such conditions exist in the Chesapeake Bay today."
It's unlikely the matter would be resolved during the final days of this administration, so the issue will most likely face whoever is named the next EPA administrator.
"We are nailing this to the door of the White House and making this front and center for the next administration to take action," said Jon Mueller, CBF director of litigation.
The CBF suggested in another letter that some of the numerous actions the EPA could pursue, or press states to act upon, are stronger air pollution controls at power plants; reducing the speed limit to 55 miles per hour to reduce pollution from cars; requiring all new pollution discharges into Bay tributaries to be offset by at least a 2-to- 1 ratio; establishing a cap on the amount of impervious surfaces in the watershed; better targeting of agricultural conservation funds to areas and practices that would have the most impact; and establishing permit requirements for all septic systems.