LITIGATE - Bay Agreement Suit Against EPA

Suit Homepage | EPA's Broken Promises | What We Want | FAQ
Calendar | Sign Our Petition | Don't Delay Rally
Complaint Filed (pdf) | Notice of Intent (pdf)
Litigate Home

EPA’s HISTORY OF BROKEN PROMISES

Failed Federal Leadership on the Chesapeake Bay

The Environmental Protection Agency (EPA) is supposed to be America’s clean water cop. But time and again over the last 25 years, the law officer has been missing from duty in the Chesapeake Bay.

The result of this neglect has been a tragic loss. As the cop slept, polluters have taken a treasure from 17 million people in the Chesapeake Bay watershed—a jewel that is the center of their identity, economy, and well being. Watermen are out of work. People are warned to limit their fish consumption due to pollution. Harmful algal blooms and dead zones are commonplace each year. Blue crab and oyster populations are near historic lows. Fish kills plague our rivers and streams.

Some facts about the EPA’s history of failure in the Chesapeake:

• The 1972 Clean Water Act set a goal of making the nation’s waterways including the Chesapeake Bay “fishable and swimmable” by 1983. EPA hasn’t even come close to meeting this standard. Nearly a quarter century later, in 2007, more than 80 percent of the Bay and its tidal rivers had too little oxygen to support a healthy ecosystem, according to EPA Chesapeake Bay Program figures. Eighty three swimming beaches in Maryland and Virginia in 2007 tested positive for unhealthy levels of bacteria typically associated with human waste, according to a report by the Natural Resources Defense Council. Swimming areas on the Susquehanna River in Pennsylvania, like City Island Beach in Harrisburg, were closed last year with bacterial levels more than four times safe standards.
  
• By 1979, states by law were supposed to create regulatory pollution caps for all polluted waterways on a federal list of “impaired waters.” EPA was to approve or disapprove the caps submitted by the states, with disapproval to result in EPA setting the caps or maximum allowable amounts of pollution. Nearly two decades later, in 1997, EPA had taken little action on creating these pollution caps, called “Total Maximum Daily Loads,” or TMDLs, and so CBF and other environmental groups filed legal actions. Today, TMDLs still have not been written for many polluted waterways. And most of those that have been written have not resulted in substantial improvements to water quality, often because there are no timelines and few requirements for implementation.
  
• In 1983, EPA signed the first Chesapeake Bay agreement with Maryland, Virginia, Pennsylvania, and the District of Columbia. This agreement was strengthened in 1987 with a commitment for a 40 percent reduction in nitrogen pollution by 2000. A measurable goal, never met.
  
• In 2000, EPA and the Bay states signed the Chesapeake 2000 agreement. It re-affirmed the 40 percent reduction goal of the 1987 bay agreement and promised that the estuary would be cleaned and off EPA’s “impaired waters” list by 2010. According to EPA data, the Bay is nowhere near that goal. Monitoring showed 317 million pounds of nitrogen smothering the nation’s largest estuary in 2007. That was more than 100 million pounds in excess of the levels promised by EPA. As early as 2006, EPA announced that it would not meet the 2010 deadline. EPA and its state partners recently have been talking about either setting another deadline 10 years into the future (2020), or perhaps having no firm deadline at all for Bay cleanup.
  
• An October 2005 report of the U.S. Congress Government Accountability Office concluded that the EPA Bay Program was not communicating with the public candidly about Chesapeake Bay restoration efforts. “The lack of independence in the Bay Program’s reporting process has led to negative trends being downplayed and a rosier picture of the bay’s health being reported than may have been warranted,” the GAO report said.
  
• A November 2006 report of the EPA inspector general concluded that “at the current rate of progress, the (Bay) watershed will remain impaired for decades.” The report said EPA “must improve its coordination and collaboration” with the Bay states, the U.S. Department of Agriculture, and farmers to better reduce the runoff of nutrient pollution and sediment into the estuary.
  
• In February 2007, The Washington Post reported: “In the world of missed deadlines, it’s hard to find anyone who does it on the scale of the EPA.” The Post documented several examples of open-ended pollution cleanup promises by EPA, including one involving Washington DC’s Blue Plains sewage treatment plant, the largest single source of pollution in the Chesapeake Bay Watershed. In 2006, EPA required the plant to reduce its nitrogen pollution, but didn’t say when it had to be done. So the Chesapeake Bay Foundation sued, asking the courts to set a timeline.
  
• A September 2007 report of the EPA Office of the Inspector General said that the EPA’s Bay restoration efforts would not only miss their goals for 2010, but that pollution trends from new construction were heading in the wrong direction. “New development is increasing nutrient and sediment loads at rates faster than restoration efforts are reducing them,” the report said. “Opportunities abound for the EPA to show greater leadership in identifying practices that result in no net increases in nutrient and sediment loads from new development.”

The Chesapeake Bay Foundation and our allies decided we had no alternative but to sue EPA for failing to keep its promises. The federal agency has fallen well short of three interstate Chesapeake Bay cleanup agreements it signed on behalf of the federal government in 1983, 1987, and 2000.

“We need to get saving the Bay back on track, and EPA is just dragging its feet,” said former Maryland Gov. Harry Hughes, who is a partner in CBF’s legal action. “It’s over 20 years now, and progress is still not coming.”

Former Maryland state senator Bernie Fowler, a longtime environmental activist and one of the partners in the CBF’s legal action against the EPA, said he’s grown impatient with the lack of action.

“Since 1970 I’ve been working to try to make a change (in the Bay), and we are worse shape today than in 1970, when I first got started,” Fowler said. “It seems to me, the only progress we’ve had in the past has been two sources: mandatory legislation and court action.”