Foundation sues to force EPA to clean up Bay

After 25 years of voluntary efforts, the Chesapeake Bay cleanup has failed and needs a new, get-tough approach, a leading environmental group charged Monday in a landmark lawsuit.

The federal suit, filed by the Chesapeake Bay Foundation, asks that a judge order the U.S. Environmental Protection Agency to enact and enforce mandatory limits on myriad pollutants harming the Bay, including nutrients and sediments from farms, city streets, development sites, factories and sewage plants.

William C. Baker, president of the foundation, said his group could not wait any longer for cooperative agreements and government promises to somehow restore the Bay's health.

"Despite EPA's assertions to the contrary, CBF believes that after 25 years of failed policies, the only way to ensure EPA does its job is to have a court order requiring it," Baker said in a statement.

The lawsuit was expected and has been brewing for years, as the foundation and other environmental groups have grown weary, and increasingly bellicose, about worsening conditions and static federal spending on the Bay's cleanup.

The suit comes 60 days after the foundation announced its intention to sue the EPA for not taking a firmer hand under the Clean Water Act to restore the Bay enough for its removal from the national dirty-waters list.

The 41-page claim was filed Monday in U.S. District Court in Washington, D.C. Plaintiffs include the foundation, a former Maryland governor, a former mayor of Washington, a former Virginia lawmaker and secretary of natural resources, the Virginia State Waterman's Association and two Maryland fishing groups.

The EPA responded Monday that it will continue to work for a cleaner Bay and is concerned that the lawsuit will only get in the way.

"We've had several good discussions with the Chesapeake Bay Foundation on ways to accelerate and sustain progress recently," said Benjamin H. Grumbles, the EPA's assistant administrator for water programs, "and we hope the lawsuit doesn't divert energy and attention away from the Bay's watersheds and tributaries to courtrooms and lawyers."

Several legal experts and environmentalists said the suit seems like an attention-getter aimed at the incoming - and presumably friendlier - administration of President-elect Barack Obama.

They said it likely will launch a round of negotiations with new environmental leaders in Washington that could result in an out-of-court agreement to enact new limits and set new benchmarks.

"The timing makes sense politically, for sure," said John Daniel, an environmental attorney and consultant in Richmond who worked on Chesapeake Bay issues while serving former Gov. Gerald Baliles.

"You're about to see a new EPA administrator with a reputation for change. And Carol Browner" - a former EPA head under President Bill Clinton - "is coming back to office with the Obama people," Daniel said.

Jim McElfish, a senior attorney at the Environmental Law Institute in Washington, said the arguments in the suit are not exactly "a slam dunk."

In other environmental cases brought by advocacy groups, "you can see right away that, yep, they're right. But here, it's kind of gray."

At the heart of the case, he said, is the EPA's requirement to complete a study of the Chesapeake's problems and remove the Bay from the national list of dirty waters by 2010. The EPA has admitted it will miss that deadline.

"They haven't failed entirely," McElfish said. "They've made progress and can argue, 'Hey, we're working on it.' It's the cases where the government has not done much of anything that environmental groups usually win."

Reacting to the lawsuit, Virginia's secretary of natural resources, L. Preston Bryant, said Monday that he can understand the frustration but questions the outcome.

"Whether the time is right for the federal government to mandate new regulations, well, that's debatable," Bryant wrote in an e-mail. "I will admit that it's not the 'Virginia way,' where we tend to look to more incentive-based and cost-share programs.

"However," he added, "I hear every day how tired folks are getting over the slow pace of Bay improvements. There is a great sense of urgency out there, especially as we see our declining crab and oyster populations and note the effects such is having on our watermen."

The foundation said it is open to negotiations with the EPA. It listed a number of starting points, including a commitment to pursue plans for an 80 percent reduction of nutrients by 2015; improving enforcement of existing laws; using a percentage of highway construction funds for curbing storm-water runoff from road projects; imposing stricter limits on city storm drains; and a pledge to address damage to watermen because pollution has killed so many fish and shellfish.

Scott Harper, (757) 446-2340, scott.harper@pilotonline.com