CBF, feds settle cleanup lawsuit

Bay group's Baker: 'This agreement is game-changer'

By PAMELA WOOD, Staff Writer
The Capital, Published 05/12/10

Pamela Wood — Staff Writer Bob Perciasepe, right, of the Environmental Protection Agency, explains why the federal government agreed to settle a lawsuit with the Chesapeake Bay Foundation. The bay foundation’s president, Will Baker, listens and holds a copy of the settlement at left.

The Chesapeake Bay Foundation and the Environmental Protection Agency settled a long-standing lawsuit yesterday, but it remains unclear how much of a difference the agreement will make in restoring the health of the polluted bay.

In the agreement unveiled at a news conference at CBF headquarters in Bay Ridge, the bay foundation and the EPA agreed on a series of cleanup steps the federal government must take.

While most of the steps are actions that the EPA already has promised to complete, bay foundation officials stressed that putting the actions into an enforceable, legal document was a victory.

"This agreement is a game-changer," bay foundation President Will Baker said yesterday morning as he announced the settlement. "This agreement is going to lead to pollution reductions in the Chesapeake Bay, and if it doesn't, the Chesapeake Bay Foundation will be back in court."

Howard Ernst, a Naval Academy political science professor and author of two books on the bay, was not impressed with the deal.

"Call me a skeptic, but this really seems familiar," Ernst said. "The fact is, we already have a binding agreement that requires the Environmental Protection Agency to reduce pollution across the watershed - it is called the Clean Water Act and it was passed in 1972."

Ernst said the settlement simply "restates" the federal government's existing responsibilities under the Clean Water Act.

The bay foundation had alleged in its January 2009 federal lawsuit that the EPA was missing in action when it came to improving the bay's health. By failing to take significant steps to assist in the cleanup effort, the EPA was violating the federal Clean Water Act, the lawsuit charged.

The bay foundation and the EPA had been in settlement talks over the course of the past year and were facing a June 30 deadline imposed by the judge in the case.

The settlement requires the EPA to:

Complete its baywide "pollution budget" by the end of this year.

Make sure states have plans for complying with the pollution budget by late 2011.

Withhold federal funding or deny construction permits as a consequence if statesdon't comply with the pollution budget.

Adopt rules governing polluted runoff from stormwater and large animal farms in the next few years.

Require new pollution sources to be offset by pollution reductions elsewhere.

Develop a tracking system so the public can see progress in reducing pollution discharges.

Include air pollution in the pollution budget as one of the sources of nitrogen that harms the Chesapeake.

Most of those steps already have been promised by the federal government.

Baker said that before the settlement, there would have been no legal recourse if the government didn't fulfill its promises. Now, he said, the bay foundation can go back to court if the EPA drops the ball.

Baker noted that all of the past agreements to clean up the bay drafted over the years had no means of enforcement.

"1983, 1987, 2000 - good words on paper, but they were all voluntary. This is a legal document. … We've had promises before, but never a legal document," Baker said.

Baker said the bay foundation did seek more concessions from the government, but weren't able to get them in the settlement. "We didn't get everything, but we felt we got enough to come to a settlement," Baker said.

The EPA, for its part, appeared relieved to have reached a settlement.

Bob Perciasepe, the EPA's deputy administrator, joined Baker and others at the press conference at the bay foundation's waterfront headquarters in Bay Ridge.

"We want to get on to doing this work, as opposed to continually discussing how we should do it," said Perciasepe, who served as Maryland's secretary of the environment earlier in his career.

Many of EPA actions covered in the settlement are already in the works. They were prompted by an executive order issued by President Barack Obama last May that prodded federal agencies to improve their bay-saving actions.

The agencies' final responses to the executive order were expected to be discussed this morning at an event in Washington, D.C.

Legendary bay champion Bernie Fowler, who was a co-plaintiff with the bay foundation, was thrilled.

"I'm beginning to see the light at the end of the tunnel and that makes me happy," said Fowler, a former state senator from Calvert County who has worked on the bay for decades.

In addition to the bay foundation and Fowler, the plaintiffs in the lawsuit included the Maryland Watermen's Association, the Virginia State Waterman's Association, the Maryland Saltwater Sportfishermen's Association, former Washington, D.C., mayor Anthony A. Williams, former Maryland governor Harry R. Hughes and former Virginia natural resources secretary W. Tayloe Murphy Jr.

(Revised Mayl 2010)