On Jan. 5, the Chesapeake Bay Foundation, along with four former government officials, a sport fishing group and two watermen's associations, filed suit against the EPA. Our goal is to require the United States to comply with the Clean Water Act and the Chesapeake 2000 agreement. The law and the agreement require the EPA to, among other things, improve water quality in the Bay by 2010 so that crabs, fish, oysters and underwater grasses can be restored and a way of life preserved.
But the EPA has admitted that this requirement will not be met by 2010 and may not be met until 2020 or perhaps 2040. Given what is at stake if such a delay is realized, we felt extraordinary action was required.
Why We Sued
When it passed the Clean Water Act more than 30 years ago, Congress made the EPA administrator the lead federal official responsible for cleaning up the nation's waters including the Chesapeake Bay. 33 U.S.C. Â§ 1251(d).
Later, Congress passed a special statute just for the Chesapeake Bay. 33 U.S.C. Â§ 1267(g). It requires the administrator to ensure that management plans are developed and implemented to attain the Bay agreement goals. Congress specifically stated that one of the purposes of that statute was to achieve the goals of the Bay agreements. 106 P.L. 457, Section 202(b)(2) Nov. 7, 2000, 114 Stat. 1967. One of those goals was to remove the Bay from the impaired waters list, 33 U.S.C. Â§ 1313(d), by 2010.
Over the last eight years, the CBF repeatedly asked the EPA to speed up its timetable for compliance with the Chesapeake 2000 agreement to meet the 2010 deadline. Our requests were ignored.
With the hope of moving things along, the CBF filed a petition in 2004 with the EPA asking it to impose strict, technology-based numeric limits on all significant dischargers of nitrogen in the Bay region. The EPA refused that request.
In 2007, the EPA admitted that the water quality goals of the Chesapeake 2000 agreement would not be met. Thus, we have alleged in our complaint that the administrator has failed to undertake a mandatory duty imposed by Congress.
We also have alleged that the Chesapeake 2000 agreement is an interstate compact, enforceable just like any other federal law. The agreement was approved by Congress in the Clean Water Act and by Congress' continuing appropriation of funds for, among other things, the EPA to operate the Chesapeake Bay Program office in support of the agreement. 33 U.S.C. Â§ 1267.
In addition, the Chesapeake 2000 agreement increased the power of the states over each other as it, for example, required them to set nitrogen, phosphorous and sediment load caps based on impacts to downstream state waters. Thus, we believe that the 2000 agreement is an interstate compact, the terms of which can be enforced by a federal court. See Cuyler v. Adams, 449 U.S. 433, 438 (1981) ("congressional consent transforms an interstate compact within [the Compact] Clause into a law of the United States").
More fundamentally, the 2000 agreement is a binding contract between the United States, the signatory states-Maryland, Pennsylvania and Virginia-and the District of Columbia that must be honored.
Some have argued that the agreement is simply a voluntary pact between the United States and the states. You and I voluntarily enter into agreements with our mortgage bank and yet are held responsible if we fail to pay our debts on time. Similarly, we believe that the federal government must honor interstate agreements like Chesapeake 2000 or else its written promises to us and the states are meaningless.
What We Hope To Achieve
Both in our notice letter to the EPA and in our complaint we have asked the United States to comply with the water quality and living resource goals of the Chesapeake 2000 agreement.
Surprisingly, the EPA has asked us what that means. Twenty-five years of work has clearly established what is necessary to remove the Bay from the impaired waters list. To clear up any ambiguity, in December 2008 we sent a letter to the EPA identifying 33 actions the agency can take to clean up the Bay. Here are five examples:
1. Develop a Baywide pollution reduction budget by 2010 and implement programs to reach 80 percent of that budget by 2012.
Because the 2010 deadline will not be met, the EPA is required pursuant to a court order in an earlier case to set specific amounts of nitrogen, phosphorous and sediment that may be discharged into the Bay. American Canoe Association v. EPA. This cap or pollution budget is known as a Total Maximum Daily Load. 40 C.F.R. Â§ 130.7. We understand that the EPA is working to develop such a cap; however, there have been varying reports about when that will be accomplished and how effective it will be at achieving its goal-removing the Bay from the impaired waters list.
Pursuant to previous Bay agreements, the states and the EPA have developed strategies to limit the amount of pollution from all major tributaries to the Bay. They are known as tributary strategies. Some of these strategies are very specific in the amount of pollution that must be eliminated and how pollution can be reduced from both point and nonpoint sources. We believe that the EPA can readily adapt these strategies as the basis for a Baywide TMDL and use them to provide the methodologies for implementing practices designed to reduce pollution now.
To be effective, the EPA must set strict timetables for the implementation of and compliance with these strategies along with some form of penalty for noncompliance.
2. To tackle nonpoint source pollution, the EPA must toughen municipal separate storm sewer system regulations and permits for construction, industrial and urban stormwater. For those areas where existing stormwater controls have failed to stop violations of water quality standards, the administrator of the EPA should exercise her residual authority and require dischargers to obtain permits that comply with nitrogen, phosphorous and sediment caps to reduce pollution. 40 C.F.R. Â§ 122.26(a)(9)(i)(C) and (D).
3. Recently, there has been a spate of suits challenging state wastewater treatment plant pollution limits. The EPA must take a more active role in reviewing all such permits and supporting these permits to ensure compliance with pollution reduction goals so that there will be no net increase in pollution loadings.
4. Air pollution also contributes to nitrogen and mercury pollution in the Bay watershed. The EPA should examine all existing and new pollution permits for power plants and require that they install existing technologies to reduce that pollution.
5. New and existing funding for agriculture must be geographically targeted to achieve the most pollution reduction. Federal transportation dollars must be directed to control highway stormwater.
It is uncertain whether the EPA will agree to take these steps to improve Bay water quality and lead to the restoration of crabs, grass, oysters and a centuries-old way of life. However, given that it has signed three agreements saying it would, we believe the United States will ultimately honor its commitments.For more about the lawsuit, visit www.cbf.org.