Advocates For Bay Churn Waters

This summer came the revelation that computer models used by the Chesapeake Bay Program seemed to have inflated the progress made in reducing pollution. And there is a growing sense that no matter how progress is measured, the goals set for 2010 are still far off.

For instance, to meet the 2010 goals for reducing nitrogen -- a pollutant that causes harmful algae blooms -- bay states will have to make more progress in the next five years than they made in their first 17, according to Chesapeake Bay Program data.

The disconnect between these goals and reality has curdled the enthusiasm of many supporters. "We told everybody, 'Don't expect results overnight,' " said former Maryland governor Harry R. Hughes (D), who was in office when the first bay agreement was signed. "Well, it's been 20 years, and we still aren't anywhere near where we hoped to be."

Disgust with the status quo was evident when Maryland Watermen's Association President Larry Simns surveyed his membership about a potential class-action suit against polluters. There was a flood of phone calls and e-mail with the same message: "Sue the bastards," Simns said.

No suit has been filed, but Simns said the watermen are working with a D.C. lawyer who previously took on tobacco companies. Potential targets of the suit include sewage treatment plants and Pennsylvania farmers, both blamed for pollution-laden runoff that creates zones of oxygen-deprived water.

"When it comes down to watermen having to threaten to sue, it's pretty bad," Simns said. "Because watermen don't sue anybody."

The bay foundation has won some victories in court: A 1984 suit against Gwaltney of Smithfield Ltd. for illegal discharges into Virginia waterways went to the U.S. Supreme Court before the pork packer eventually paid a $284,000 fine and changed its practices.

But it has often stopped short of litigation, instead pushing for regulatory reform or legislation. This summer, though, it created a litigation arm, funded with a $1.25 million grant. The foundation has filed a petition asking the EPA to step up its enforcement against sewage plants, which could be a prelude to a huge suit. It has also filed suits against the state of Virginia and two alleged polluters there.

"Litigation is a tool that we may have to use more frequently," said Roy A. Hoagland, the foundation's executive director in Virginia.

In the past few years, citizen activists have become river keepers on the Potomac, Patuxent, Severn and South rivers, patrolling the waterways and advocating at meetings. Other changes may be brought by the offshoots of the New York-based Waterkeepers Alliance, headed by Robert F. Kennedy Jr.

One incident may foreshadow their impact: Last fall, Potomac river keeper Ed Merrifield noticed that spent ammunition from a Montgomery County skeet-shooting club was raining into Great Seneca Creek, a Potomac tributary.

Appalled by what he said was a three-inch accumulation of lead shot on the creek bottom, Merrifield said he sent the club and its landlords at the Maryland Department of Natural Resources a notice that he might sue them under the Clean Water Act.

"Within two weeks, they locked the gates" to the shooting club, Merrifield said.

These steps toward a more confrontational environment have brought some criticism.

Officials at the EPA's Chesapeake Bay Program say there is ample evidence that the cooperative approach is still working. This week alone, Virginia announced a plan to crack down on sewage plants, and a survey of "bad water" in the bay found that it was drastically reduced last month.

Rebecca Hanmer, the program's director, said complicated lawsuits would only slow the progress. "I don't really think that litigation is the secret to cleaning up the bay," she said.

On the other side of the debate are those who feel that the recent moves have not gone far enough. Perhaps no one feels this more strongly than Howard R. Ernst, a U.S. Naval Academy professor who wrote a book, "Chesapeake Bay Blues," about the failures of the cleanup effort.

Since the book came out last year, Ernst has embarked on his own campaign of speaking engagements, decrying the "do little and delay" approach.

Ernst tells his audiences that he wants more litigation, a more politicized Bay Foundation and more aggressive punishment for polluters from the EPA.

The only way those might happen, he said, is if people get mad. "The fact that we're starting to see the conflict," he said, "means that this restoration effort is really waking up."