Coalition Warns of Lawsuit On Bay
Group Blames EPA, Wants New Deadline To Be Set for Cleanup

By David A. Fahrenthold
Washington Post Staff Writer
Wednesday, October 29, 2008

A group of environmentalists, watermen and former politicians will announce today that it plans to sue the U.S. Environmental Protection Agency for botching the cleanup of the Chesapeake Bay, seeking to accelerate a 25-year-old program that has left the famous estuary just as troubled.

The announcement -- from the nonprofit Chesapeake Bay Foundation, the Maryland and Virginia watermen's associations, former D.C. mayor Anthony A. Williams (D) and several others -- marks a change in the tone of environmentalism around the bay. Previously, the groups had tried to prod the slow-moving, deadline-missing government cleanup program with statehouse lobbying or sobering "State of the Bay" reports.

Now they are threatening to bypass it.

In a letter to be sent to the EPA today, the advocates say they want a federal judge to force new deadlines on local, state and federal bureaucrats so that all the measures necessary for a healthy Chesapeake will be in place by 2015.

That would be five years after the current deadline for a clean bay, 2010, which EPA officials have conceded they will not meet.

"Sometimes you have to hit the mule in the head with a two-by-four to get his attention. That's what we're doing now," said former Maryland state senator C. Bernard "Bernie" Fowler, a longtime advocate for the bay and another member of the group that sent the letter. Given the decline in the Chesapeake's health, Fowler said, "we just didn't have another choice."

The letter, provided yesterday by the bay foundation, gives the EPA 60 days to respond before a suit is filed. It says the foundation has standing to sue because its members have been harmed by the bay's murky, oxygen-deprived water. "The value of the Chesapeake Bay is immeasurable and its virtues should not remain sullied by the federal government's failure to act," the letter says.

The letter was signed by an unusual coalition that includes watermen and groups they have battled in the past, environmentalists and recreational fishermen.

Ken Smith of the Virginia Waterman's Association said his group was forced to look for fresh tactics. New limits on crab harvests, imposed to halt the population's decline, started in the past week, and many watermen in Maryland and Virginia have said they had to stop crabbing as a result.

"The Virginia waterman . . . he has basically been une mployed," Smith said.

In response to the letter, EPA official Benjamin H. Grumbles conceded yesterday that the bay cleanup is moving too slowly, but he said this was partly due to a trend outside his agency's control: large population growth across the Chesapeake's 64,000-square-mile watershed. That has resulted in millions of new residents, new sewage plants and new oil-slicked parking lots, all of which create polluted runoff and make the bay's recovery more difficult, he said.

Grumbles said a lawsuit is not necessary because the agency is already trying to speed up the pace of the bay's recovery.

"We think that we can get more done in the watershed and in the communities than in courtrooms," said Grumbles, who is the assistant EPA administrator for water.

The bay, which Baltimore writer H.L. Mencken called an "immense protein factory" for its abundance of fish and shellfish, is a vast estuary troubled by microscopic contaminants. The pollutants nitrogen and phosphorus wash downstream from sewage plants, septic tanks and manure-laden farm fields, from western New York to Southside Virginia.

The pollutants are plant food, and in the Chesapeake they fuel unnaturally large blooms of algae, which suck up the oxygen that fish, crabs and other creatures need to live. The low-oxygen "dead zones" were the Chesapeake's main problem in 1983, when leaders from Pennsylvania, Maryland, Virginia and the EPA signed the first agreement promising to help the bay come back.

They remain a crippling problem today, despite subsequent agreements to clean up the bay by 2000 and then by 2010. Environmental groups have said that state and federal regulators have mired themselves in endless planning processes and avoided hard decisions that would have forced new rules or new costs on farmers and septic-system owners.

Next month, leaders from states around the bay watershed could set a new deadline at their annual meeting. Notes from a previous meeting indicate that Maryland and Virginia were in favor of a 2020 deadline, but New York and Pennsylvania officials wanted to wait before picking a date.

The groups behind today's letter say action must come sooner. William C. Baker, the bay foundation's president, said a judge could require the EPA to take more drastic steps, such as setting a moratorium on all new permits to pollute in the watershed or cutting funding to states or cities that lag behind their cleanup plans.

"Not one, not two, but three times, a signed agreement has failed to produce any significant action," Baker said. "So we don't see another option than to petition the federal court."