Millions of Gallons of Sewage-Contaminated Water Overflowing in Baltimore

How Baltimore City's Delayed Consent Decree Threatens Human and Environmental Health

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Photo courtesy of Blue Water Baltimore.

 It's horrifying: During heavy rains, Baltimore's failing sewer system continually overflows, contaminating residents' homes, local waterways, and Baltimore Harbor. In fact, after a recent February storm, 12.6 million gallons of sewage-laden wastewater steadily flowed into Baltimore's rivers, streams, and harbor. As appalling as this was, this wasn't the first time this has happened in Maryland's largest city.

We find this ongoing sewage overflow problem simply unacceptable. Baltimore City and its waters are still suffering from a 19th century problem in the 21st century. The city was supposed to have put an end to this problem by January 2016 yet the city's government, EPA, and MDE have let that deadline pass with little action.

CBF is demanding that a new consent decree be issued immediately with near-term, enforceable deadlines and that meet water quality standards. We have sent a letter to agency heads, city officials, and state legislators detailing what we hope to see in the new agreement. Click here to read it. It is our expectation and hope that current and future elected leaders in Baltimore make this the priority it needs to be.

In order to better understand this issue, we took a look back at how Baltimore got into this appalling situation...

What Is the Baltimore City Consent Decree?

Because Baltimore City's sewage system was allowing pollutants to enter local waterways and Baltimore Harbor, the United States and the State of Maryland sued the city to require that the problem be remedied to bring the city into compliance with the Clean Water Act. To avoid a court trial, the city entered into a Consent Decree (CD) with the United States and the State of Maryland on September 30, 2002. A CD is the settlement of a lawsuit in which a party agrees to take specific actions without admitting fault or guilt for the situation that led to the lawsuit. 

The Baltimore City CD required the city to eliminate all existing sanitary sewer overflows (SSOs) and combined sanitary overflows (CSOs) to prevent raw sewage from entering the waterways around Baltimore City. Additionally, the city was required to undergo comprehensive sewer evaluation and rehabilitation programs and perform continuous upgrades to their operations and maintenance.

Progress Toward Completing the Consent Decree

The CD provided a 14-year timeline, with all upgrades to be completed by January 1, 2016. The city missed the final deadline under the CD. According to a recent quarterly report, the city is a long way from completing the work required under the CD—it has only completed 31 of the 55 projects with deadlines provided in the CD.

Baltimore's failure to address the unresolved SSO and CSO structures is a significant water quality and human health hazard. Raw sewage from these structures flows into the Inner Harbor and Baltimore waterways and, on numerous occasions, has backed up into city homes. This not only leads to potentially harmful fecal bacterial and viral contamination, but causes financial losses, stress, and health risks to vulnerable residents in the affected areas. 

The sewage backups in homes pose a tremendous human health risk. What's more, those residents in Baltimore's wealthier suburbs do not see the same disregard from local authorities when sewage backs up in their homes. Baltimore City has challenged the majority of claims arising from damage caused by backed-up sewage (approving only nine percent of the damage claims). In the Grove Park, West Arlington, and Glen neighborhoods of Northwest Baltimore, residents filed 34 claims—all affected by sewage backups into their homes in the last three years and all of which were denied or unaddressed by the city for more than a year.

The Future of the Consent Decree

EPA and MDE are now working with the city to develop a new deadline to achieve the requirements of the CD. Baltimore has already asked for lengthy extensions in the deadlines for some of the CD's required construction projects, some reaching as late as 2019 and beyond. A short timetable and a new deadline for the CD is imperative to cleaning up the water around Baltimore and alleviating the harm to homeowners and residents of the city. Stretching the deadlines for construction projects many years into the future leaves residents susceptible to financial harm and health risks and puts the Inner Harbor and the waterways around Baltimore in danger of fecal bacterial contamination.

There is no reason to delay further. The current situation constitutes nothing less than a serious crisis for Baltimore City, the harbor, and the Bay. It is time to bring Baltimore into the 21st century with a sewage system that doesn't degrade its waters and the health and well-being of its citizens. 

—Gaby Gilbeau, CBF's Litigation Fellow

Take action right now to tell elected officials and environmental agencies that we must see a legally binding agreement that effectively tackles the sewage in Baltimore's streets.

And we want to hear from you! If you have experienced flooding in your basement, on your property, or on your street as a result of these sewer overflows, please send an e-mail with details to our Baltimore Director Terry Cummings at TCummings@cbf.org. We're working on documenting real stories and incidents related to these overflows, and your story could play a critical role in ensuring the new legal agreement to clean up Baltimore's failing sewage system is strong, timely, and has real consequences for failure.

 


This Week in the Watershed

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The United States Supreme Court upheld the legality of the Chesapeake Clean Water Blueprint Monday by denying to hear an appeal brought by a group of industry special interests led by the American Farm Bureau Federation. Photo courtesy iStock.

This week, the Bay claimed a victory over thirty years in the making. Bay state governors and the EPA administrator first agreed on plans to clean up the Bay in 1983.  However, decades of unmet promises and increasingly dirty waters led to the development of the Chesapeake Clean Water Blueprint in 2010. This established a framework by which the states and EPA worked cooperatively to identify science-based limits on the pollution fouling the Chesapeake Bay and its rivers and streams. Subsequently, each state developed its own plan to achieve those limits and committed to two-year milestones that outline the actions they will take to achieve those limits. Most importantly, EPA promised consequences for failure. Finally, the fight for clean water had some teeth. Shortly thereafter however, powerful special interests attacked the new agreement.

Led by the American Farm Bureau Federation, national agricultural and development industry groups challenged the Blueprint's pollution limits in court. After the legality of the Blueprint was upheld in federal District Court, the decision was appealed to the Third Circuit Court of Appeals where the three-judge panel unanimously affirmed the lower court ruling. The Farm Bureau then appealed the decision to the highest court in the land, the United States Supreme Court. Monday, the Supreme Court denied the Farm Bureau's request to hear the case, thereby allowing the ruling of the Third Circuit Court of Appeals to stand.

The fight is finally over. As Jon Mueller, CBF Vice President for Litigation, said, "For five years we have fought in the courts to defend a commonsense solution to reducing pollution, a solution borne of a cooperative relationship between the states, the federal government, and the citizens of the Bay Region. Today, that fight has ended. Now, we can all lay down the law books and focus on the hard work of restoring the Bay to a healthy and vibrant state." A pause for celebration has passed, and we are left with the reality that the success of the Blueprint—the Bay's best, and perhaps last chance, for real restoration—now depends entirely on it's implementation. We will build upon the framework of the Blueprint, and not cease in our efforts until the Bay, a true national treasure, is saved.

This Week in the Watershed: A Historic Victory for the Bay

  • Be sure to check out this editorial in support of the Supreme Court's decision to uphold the legality of the Chesapeake Clean Water Blueprint. (Virginian Pilot—VA)
  • Many news outlets covered the Supreme Court decision: Baltimore SunMD; Patriot NewsPA; Capital GazetteMD; Bay Journal; ThinkProgress; Richmond Times-DispatchVA; Daily PressMD; Washington Post—D.C.; York DispatchPA.
  • The momentous news of the week: the U.S. Supreme Court upheld the legality of the Chesapeake Clean Water Blueprint by rejecting to hear an appeal by the American Farm Bureau Federation and a group of other special interests. (CBF Press Release)
  • Pennsylvania released a plan to "reboot" its efforts in cleaning their rivers and streams. The reboot however is endanger of not receiving adequate fundinga scenario which would ensure its failure. (Bay Journal)

What's Happening Around the Watershed?

March 24

  • Richmond, VA: Enjoy tasty sweets and sweet knowledge at CBF's Desserts and Discussion, where we'll learn about different aspects of our local waterways! This month, Dr. Lesley Bulluck, assistant professor at VCU's Department of Biology and the Center for Environmental Studies will speak on her work with Prothonotary Warblers. Bring a dessert to share with the group and win a prize for the most delicious contribution! CBF will also provide coffee, tea, and other drinks. Stay tuned for a registration page! Questions? Contact Blair Blanchette at bblanchette@cbf.org or 804-780-1392.

March 26

  • Machipongo, VA: Learn how native plants can enhance the beauty of yards and gardens, attract beneficial birds and insects, and improve the health of local creeks and the Chesapeake Bay. A complimentary lunch will be provided. Click here to register!

Upcoming

 —Drew Robinson, CBF's Digital Media Associate


A Restored Chesapeake Bay Hanging in the Balance

American Farm Bureau Federation, et al. v. EPA


United_states_supreme_court_buildingWhat Happened
In December 2010, after more than 25 years(!) of failed agreements between states in the Chesapeake Bay Watershed to work together to clean up the Bay, EPA, using its authority under the federal Clean Water Act, issued the Chesapeake Bay Total Maximum Daily Load (TMDL). This "TMDL" is a scientific estimate of the maximum amount of pollution a body of water listed as "impaired" can accommodate and still meet water quality standards. 

All six Bay states and the District of Columbia developed and agreed to the pollution limits set in the TMDL, and they developed concrete plans to meet these limits by 2025. The pollution limits and the state plans combined are referred to as the Chesapeake Clean Water Blueprint. As part of the Blueprint, for the first time ever, the federal and state governments agreed to two-year incremental milestones for pollution reductions and established consequences for those states that failed to meet their assigned goals.

But less than two weeks after the Chesapeake Clean Water Blueprint was born, the American Farm Bureau Federation and the Pennsylvania Farm Bureau filed suit to try to stop the Chesapeake cleanup from moving forward. We, along with several other environmental groups and municipal wastewater treatment providers, moved to intervene in the case to support EPA and the plan to restore the Bay and its rivers and streams. The National Association of Home Builders and several large agricultural lobbying groups like the Fertilizer Institute and National Chicken Growers Association joined the Farm Bureau.

In September 2013, the Federal District Court for the Middle District of Pennsylvania upheld the legality of the Chesapeake Clean Water Blueprint, citing it as a model of "cooperative federalism." Yet, the Farm Bureau appealed to the Third Circuit Court and was joined as "friends of the court" by 20 states from outside of the Bay Region. On July 5, 2015, in an historic win for clean water, the Circuit Court upheld the District Court's decision in a unanimous ruling.

Recently, in the latest round of attacks on clean water restoration, the Farm Bureau petitioned the United States Supreme Court to hear its challenge to the Blueprint by filing a Petition for Writ of Certiorari on November 6, 2015. CBF and EPA filed Briefs in Opposition to the Petition for Certiorari on January 19, 2016.

What's at Stake
The Blueprint is a landmark planning tool, created cooperatively between the Bay states and EPA. It's our best—and perhaps last—chance at real clean water restoration in the Bay and the rivers and streams that feed it. Nitrogen, phosphorus, and sediment pollution flowing into the Bay from its tributaries cause dangerous algal blooms, create massive dead zones, and threaten oysters, blue crabs, and all the extraordinary creatures that call the Bay and its rivers home. The Blueprint will limit the flow of these harmful pollutants into the waters we all love. What's more, a recent economic report showed that a restored Bay will reap economic and recreational benefits of $130 billion annually!

The Farm Bureau argues that the Bay TMDL robs the Bay states of their authority, yet no state affected agrees. The states and EPA jointly developed the Bay TMDL and it is the state plans that determine how those pollution limits will be achieved. In fact, none of the Bay states legally challenged the Bay TMDL, and four of the six (and the District of Columbia) actually supported EPA in the court of appeals—they claimed that their rights would be threatened if the Bay TMDL was overturned. Virginia noted in their amicus curiae brief to the Third Circuit that upholding the Bay TMDL would "allow the Bay states and EPA to continue their work together."

What Happens Next
With Supreme Court Justice Scalia's recent death, the court is now comprised of eight justices. It takes four votes for the court to decide to hear the case. If the court rejects the appeal, the Third Circuit decision will stand and the Bay TMDL will be preserved. If the court decides to take the case, the appeal will be briefed over the summer and argued in the fall of 2016 with a decision either late in 2016 or early 2017.

Stay tuned for details on this critical fight!

—Gaby Gilbeau, CBF's Litigation Fellow

Click here to learn more about CBF's litigation efforts.

 

UPDATE: On Monday, Feb. 29, in an historic win for clean water across the region, the U.S. Supreme Court denied the request of the American Farm Bureau Federation and its allies to take up their case challenging the legality of the Chesapeake Clean Water Blueprint.

As CBF's Vice President for Litigation Jon Mueller said: "For five years we have fought in the courts to defend a commonsense solution to reducing pollution, a solution borne of a cooperative relationship between the states, the federal government, and the citizens of the Bay Region. Today, that fight has ended. Now, we can all lay down the law books and focus on the hard work of restoring the Bay to a healthy and vibrant state." Read more.

 


This Week in the Watershed

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Clean water is in our grasp with the Chesapeake Clean Water Blueprint. The Blueprint recently withstood a legal challenge from powerful special interest groups. Photo by Danny Motsko.

Conflict, and particularly conflict against a strong opposition, is fundamental to every good story. The story of saving the Bay is no different. Over the past several decades, voluntary commitments by states to clean their waterways were never met. Indeed, in a sea of good intentions, the water only became more polluted.

Enter the Chesapeake Clean Water Blueprint. The states in the watershed agreed to two-year incremental milestones of pollution reduction, with the EPA having the enforcement power to impose consequences for failure. Finally, the fight for clean water had some teeth. Shortly thereafter however, powerful special interests with enormous influence attacked the new agreement.

Led by the American Farm Bureau Federation, national agricultural and development industry groups challenged the Blueprint's pollution limits in court. In September 2013, Judge Sylvia Rambo ruled affirming the legality of the Blueprint. The fight continued as the Farm Bureau group appealed Rambo's decision, this time joined by attorneys general from 21 states supporting their efforts.

A new, and hopefully final, chapter in this conflict was written on Monday, with the Third Circuit Court of Appeals denying the Farm Bureau group appeal. With this victory for clean water the work to save the Bay and it's rivers and streams continues, focusing our efforts on the implementation of the Blueprint—the Bay's best, and perhaps last chance, for real restoration.

This week in the Watershed: A Historic Victory for Clean Water, Restoring Streams, and Loving Trees

  • As already noted, the big news this week was the court ruling upholding the legality of the Chesapeake Clean Water Blueprint. With such big news and accompanying coverage, it deserves a list of its own: CBF Press Release, Associated Press, Washington Post, Think Progress, Baltimore Sun, Bay Journal
  • We couldn't agree more with this editorial, claiming the need of the EPA's enforcement powers for the success of the Chesapeake Clean Water Blueprint. (Richmond Times-Dispatch—VA)
  • Arlington County in northern Virginia has been doing great work around stream restoration. (Arlington Connection—VA)
  • As reported last week, CBF went to court in Virginia, suing the state to fence farm animals out of streams. Jon Mueller, CBF VP for Litigation, argued on July 2, "We got to where we are today [with a polluted Bay] because [agreements to clean the Bay] were non-binding." (Richmond Times-Dispatch—VA)
  • Harry Campbell, CBF's Pennsylvania Executive Director, discusses the importance of trees in the fight for clean water. (The Sentinel—PA)

What's Happening around the Watershed?

July 11

  • Enjoy a leisurely guided hike along the Gwynns Falls Trail through Gwynns Falls/Leakin Park. A guest speaker will bring to life the history of this the second largest urban park in the country. Click here to register! Deadline to register is July 7.

July 16

  • Attend the U.S. Green Building Council's National Capital Region's "A Midnight Summer's Dream" Gala. This annual fundraiser has been the premier summer networking event for the DC metro area’s green building community for over a decade. Click here for more information!

July 23

  • Join CBF for an evening of exploring the unique and beautiful lower Susquehanna River. Explore a unique stretch of the Susquehanna, paddling by plants and animals that call these unique ecosystems home while discussing how land use and pollution have affected the overall habitat of the Chesapeake Bay watershed. Click here to register!

July 25

  • Folks on the Eastern Shore of Virginia are invited to learn about native plant landscaping at an exciting, educational event: "Trees, Bees, and Clean Water: Connecting the Dots." Experts will help attendees learn about the pollinating power of birds, butterflies, and bees, how to landscape to reduce polluted runoff, how to build a rain garden, and more! Space is limited and registration is required. E-mail Tatum Ford at TFord@cbf.org to reserve your spot!
  • Get on the water with a kayak trip on Bear Creek, near Baltimore. A unique experience on urban waters, you will see the impact of suburban development on the land and water, paddle close to the infamous Sparrows Point, and hear from a local environmental group about what's being done in the area. Click here to register! Deadline to register is July 17.

—Drew Robinson, CBF's Digital Media Associate


This Week in the Watershed

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Fencing animals out of streams is one of the most effective solutions in improving water quality. Photo by Justin Black/iLCP.

The work to save the Chesapeake Bay and its rivers and streams can be extremely complex. From wastewater treatment plant upgrades to stormwater retrofits, some of the solutions are big, intricate projects that are downright expensive. At the same time, many of the solutions—often in agriculture, the  biggest source of pollution and least expensive to reduce—are surprisingly straightforward and economical.

One of these solutions is fencing animals out of streams. This prevents streamside erosion and keeps manure out of our waterways, making a dramatic difference. In Virginia however, the state is failing to protect its streams, rivers, and the Bay by allowing animals from large livestock farms unfettered access to streams. We're taking the state to court, asking that stream fencing, one of the most effective best management practices, is implemented and enforced on all large livestock farms.

In the end, ideas are only as good as their execution. Throughout the watershed we will continue to fight for common sense solutions to save the Bay and its rivers and streams for us and future generations.

This week in the Watershed: Going to Court for Fences, Pennsylvania, and Solar

  • CBF's Merrill Center is getting 370 solar panels installed on its roof! The project will reduce the building's energy usage by 30 percent. (Capital Gazette—MD)
  • CBF is suing the state of Virginia to require large livestock operations to fence off rivers and streams from their animals. (Associated Press)
  • More info on CBF's legal action to challenge Virginia's rules for large livestock farms. (CBF Press Release—VA)
  • As has been reported, Pennsylvania is off track on pollution reduction. (York Dispatch—PA)
  • There is a clear consensus that Pennsylvania needs to accelerate its pollution reduction efforts. (Republican Herald Editorial—PA)
  • Harry Campbell, CBF's Pennsylvania Executive Director, writes that while Pennsylvania has fallen behind on its clean water commitments, there's still time for Pennsylvania to get back on track. (York Dispatch—PA)
  • CBF President Will Baker discusses the critical importance of the Susquehanna River and the need to save it for both Pennsylvanians and the Chesapeake Bay. (Huffington Post)

What's Happening around the Watershed?

July 9

  • 10,000 potted trees at CBF's Clagett Farm's Native Tree and Shrub Nursery need a little TLC! Come volunteer to help maintain these trees that will eventually be planted as a buffer against erosion, and a way to mitigate nitrogen, phosphorus, and sediment runoff into the Bay! Contact David Tana at MDRestoration@cbf.org to register.

July 11

  • Enjoy a leisurely guided hike along the Gwynns Falls Trail through Gwynns Falls/Leakin Park. A guest speaker will bring to life the history of this the second largest urban park in the country. Click here to register! Deadline to register is July 7.

July 16

  • Attend the U.S. Green Building Council's National Capital Region's "A Midnight Summer's Dream" Gala. This annual fundraiser has been the premier summer networking event for the DC metro area’s green building community for over a decade. Click here for more information!

July 25

  • Folks on the Eastern Shore of Virginia are invited to learn about native plant landscaping at an exciting, educational event: "Trees, Bees, and Clean Water: Connecting the Dots." Experts will help attendees learn about the pollinating power of birds, butterflies, and bees, how to landscape to reduce polluted runoff, how to build a rain garden, and more! Space is limited and registration is required. E-mail Tatum Ford at TFord@cbf.org to reserve your spot!

—Drew Robinson, CBF's Digital Media Associate


The Toothless Approach Didn't Cut It

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Tuesday, we were back in court defending the Bay from yet another attack by Big Agriculture and their allies. 

For more than three decades, we tried it their way—voluntary agreements. The toothless approach didn't cut it. Underwater "dead zones" grew and beach closures became commonplace.

We now have a binding, bipartisan federal/state partnership, called the Chesapeake Clean Water Blueprint, in place. Hard-working farmers, businesses, and local governments from all six Bay states and the District of Columbia are working together to reduce pollution. And it's working: Underwater grasses are rebounding; "dead zones" are shrinking; and oyster harvests are up.

But Big Ag is desperate to yank the teeth out of the Blueprint. They would rather protect their bottom lines than ensure clean water for future generations.

The irony is that cleaning up our Bay and rivers and streams means we'll have more productive and efficient farms, an increase of roughly $1.2 billion a year. Now that's something we can sink our teeth into!

Many of you will recall that in early 2011, just days after EPA established science-based limits for the amount of nitrogen, phosphorus, and sediment pollution the Bay can accommodate, the American Farm Bureau Federation and others sued EPA to derail those limits. We intervened in the case.

In September of 2013, Pennsylvania Federal Judge Sylvia Rambo rejected Big Ag's first attack on the Blueprint even complimenting it as a model of "cooperative federalism." But in short order, the American Farm Bureau Federation and its partners filed an appeal, recruiting 21 state Attorneys General to support their efforts to derail Bay cleanup.

Tuesday was the big day: We presented oral arguments to the Third Circuit Court of Appeals in Philadelphia again defending the Blueprint and telling the story of watermen having to leave their chosen vocations because pollution has limited their ability to catch crabs and oysters.

We don't know when the latest decision will be handed down. In the lower court, the ruling was 11 months in the making. But when it comes, we will be ready. This is the moment in time for Bay restoration, and a case we have to win.

We won't let Big Agriculture, who put their profits ahead of clean water, undermine what could be our last chance to save the Bay. Not now, just when the Bay's recovery is picking up speed!

—Will Baker, CBF President

Share the above image with your friends. We need everyone to know that the Blueprint and a saved Bay makes good economic and environmental sense.


A Litigation Boost

Ariel-Solaski_180In our fight to save the Bay, the litigation team just received a boost, thanks to the recent addition of CBF's first Litigation Fellow Ariel Solaski. The fellowship is designed to give the litigation team increased capacity to identify and address legal issues surrounding the Chesapeake Clean Water Blueprint—our best, and perhaps last, chance for real clean water restoration in our region.  

Jon Mueller, Vice President for Litigation, welcomed Ariel on board, saying, "Ariel comes highly recommended from Vermont Law School which has been identified with having the country's premier environmental law program. We are very excited to have her as Ariel has the smarts and training to provide CBF with superior legal counsel, plus, she has the right measure of grit and humor to work well with our team."

We sat down with Ariel to ask her a few questions about what drew her to environmental causes and to CBF.

Q: What first made you interested in environmental issues?
A: I spent every summer of my childhood at Watch Hill, Fire Island, a barrier island beach along the south shore of Long Island, New York. It is a federally designated National Seashore so there's very little development. The peacefulness and beauty of the undeveloped barrier beach, with the ocean on one side and the bay on the other side, is the most important place to me on earth. Then, as a young adult, I spent time in the private communities at the other end of the island that didn't have the same environmental protections. It was a very different scene and led me to realize the importance of protecting the natural environment.

Q: Why did you take this position as CBF's first Legal Fellow?
A: I went to law school to study environmental law and I knew that I wanted to participate in the environmental movement using legal tools. While in law school I found that water law was what really interested and excited me the most, and I took every opportunity to be involved in water law programs and courses. The Litigation Fellowship is perfectly focused on what I want to do in my career as an environmental lawyer.  

Q: What do you hope to achieve during your time at CBF?
A: I hope that as the first Litigation Fellow I establish the value of this position to the litigation team and the organization as a whole. In helping contribute to CBF's mission to save the Bay, I'm particularly interested in working on land use measures that preserve natural filtration systems. Examples of this include green infrastructure to filter out stormwater and other runoff, and filtration systems that encourage source water protection to protect drinking water supplies and habitats.

—Drew Robinson, CBF's Digital Media Associate


Bay States Prepare to Fight Outsiders Who Would Derail Cleanup

21 State Amici FINAL
The following first appeared in 
Bay Journal earlier this month.

The battle lines have been drawn in the fight to defend the numeric pollution limits, known under the Clean Water Act as total maximum daily loads or TMDLs, and the state implementation plans. Taken together, they form the Chesapeake Bay Clean Water Blueprint, a road map for Bay restoration.

Having lost in the federal district court, the Farm Bureau and its allies have appealed to the Third Circuit Court of Appeals in Philadelphia. Attorneys general from 21 states, none of which touch the Bay, have joined them by filing a friend of the court brief in support.

Their key argument is that the plan is an EPA over-reach, which they say gives the EPA control over land use. They claim the EPA can now tell farmers where to farm and builders where to build.

Kansas Attorney General Derek Schmidt said in a statement, "The issue is whether EPA can reach beyond the plain language of the Clean Water Act and micromanage how states meet federal water-quality standards. We think the clear answer is 'no,' and we would prefer to get that answer while the question surrounds land use in the Chesapeake Bay instead of waiting for EPA to do the same thing along the Mississippi River basin."

The Chesapeake Bay Foundation respectfully disagrees, and supports the lower court decision citing the Blueprint as a model of the "cooperative federalism" that the Clean Water Act intended.

A little background: After years of failed agreements and several lawsuits to clean up the Chesapeake Bay and the rivers and streams that feed it, the Bay states worked closely with the EPA to develop the Blueprint.

The pollution limits set the maximum pollution that rivers and the Bay can withstand and still be healthy. The states then worked with the EPA to assess how much pollution each state needs to reduce.

Knowing the numbers of pounds of nitrogen, phosphorus and sediment pollution that needed to be reduced to meet the goal, each state developed its own plan for how it could achieve the reductions. The choices were made by the states, based on how each state thought the reductions could best be achieved. The pounds that each state must reduce were determined using sophisticated watershed models and information provided by the states. Because the states had attempted to meet similar reduction goals at least two different times and failed, the states and the EPA agreed that the states would need to provide reasonable assurances that they could succeed.

Virginia's Attorney General Mark Herring has also weighed in with a friend of the court brief supporting the EPA. He said, "When the most promising plan to protect and restore the Bay comes under attack, I am going to stand up for the health of Virginia's families, for Virginia's economic interests, for Virginia's efforts to restore the Chesapeake Bay. Each Bay state, including Virginia, voluntarily entered into the current Bay restoration plan because of the economic, recreational, environmental and intrinsic value of a healthy Chesapeake Bay."

Lined up in support of the EPA are the other intervening parties, including: CBF; the Pennsylvania Municipal Authorities Association, which represents hundreds of Pennsylvania local governments; and the National Association of Clean Water Agencies.

In addition to the Virginia amicus brief, others filing amicus briefs in support of the Blueprint include Maryland, environmental groups led by the National Parks and Conservation Association and the West Virginia Rivers Coalition, a coalition of Florida conservation organizations, a group of law professors, and cities and towns like New York City and Annapolis.

This a historic moment in time for the Chesapeake Bay. It is the best, and perhaps last, chance for restoration. Progress is being made, pollution is being reduced, and jobs are being created to achieve the clean water goals.

We are confident that the federal district court's decision will be upheld and that we will be able to leave a legacy of clean rivers and streams to our children and future generations.

—Jon Mueller, CBF's Vice President for Litigation

Stand up for the Bay and the rivers and streams that feed it! Sign our petition.


21 States, 8 Counties Join Farm Bureau Challenge to Bay TMDL


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The following first appeared in Bay Journal News earlier today.  

Arguing that the Chesapeake Bay cleanup plan "strips states of their traditional rights to make land use decisions," the attorneys general of 21 states on Monday joined farm groups seeking to reverse a federal judge’s decision last year upholding the plan.

Their friend-of-the-court brief supports the appeal by the American Farm Bureau, the National Association of Home Builders and several agricultural trade groups who are seeking to overturn Federal District Judge Sylvia Rambo's ruling last September that the EPA acted within its authority to establish the Chesapeake Bay Total Maximum Daily Load, or pollution diet, in December 2010.

Only one of the states signing onto the brief, West Virginia, represented a portion of the Bay watershed. But eight counties from the Bay watershed filed a separate brief supporting the appeal.

Both the states and counties argued that the EPA exceeded its Clean Water Act authority in the Bay TMDL because it not only set limits on the amount of nitrogen, phosphorus and sediment that can enter the Chesapeake, but also set limits on the amounts of those pollutants that can enter from each major river basin and state. It further limited the amount that could come from major pollution sectors, such as wastewater treatment plants, agriculture, stormwater and septics.

The briefs argue that while the EPA might be able to set pollution limits for the Bay as a whole, the more detailed allocations in the TMDL have the practical effect of dictating local land use decisions, which the Clean Water Act leaves in the hands of state and local governments.

The attorneys general said that the EPA used the Bay TMDL "to micromanage sources of pollution that by tradition—and by statute—have been beyond EPA’s reach."

Kansas Attorney General Derek Schmidt, who filed the brief, said in a statement that "we would prefer to get that answer while the question surrounds land use in the Chesapeake Bay instead of waiting for EPA to do the same thing along the Mississippi River basin."

Most, though not all, of the states joining in the brief were in the Mississippi River drainage, where agricultural groups are worried that similar efforts may be made to force nutrient reductions from Midwest farms. The Mississippi is the major source of pollution to the northern Gulf of Mexico, which is also on the EPA's list of impaired waters.

"Congress deliberately structured the Clean Water Act to involve states in the decision-making process when nonpoint source runoff is being regulated," Schmidt said. "That's because runoff regulation inevitably implicates land use decisions and private property rights, and Congress did not intend to centralize those decisions in Washington, D.C."

In her 99-page ruling last October, Rambo said that EPA had not exceeded its authority, and noted that the Bay TMDL had been developed with the participation of all states in the watershed over a period of years. She called its development process an example of "cooperative federalism" and said it was "misleading" to suggest the allocations were set independently by the EPA. Rather, she said, they were largely developed by the states with considerable "back and forth" with the EPA.

The attorneys general argued that regardless of state participation in the process, the EPA lacked authority under the Clean Water Act to make such detailed allocations "and no acquiescence by any state can give it the authority it lacks."

Although a number of trade groups had joined the American Farm Bureau Federation in its original challenge to the TMDL, Monday's filings in support of the appeal was the first time that states and counties had joined in the case.

EPA officials had no comment as they had not had a chance to review the briefs.

Will Baker, president of the Chesapeake Bay Foundation—one of several groups that have intervened on EPA's side in the case—criticized the states for using concerns about the other watersheds to try to block Bay cleanup plans. 

"We say to Missouri, Indiana, Kansas, Alaska, and the other 17 states, don't tell us how to restore clean water in our backyard," Baker said. "Each of the six Bay states and the District of Columbia—including hard-working farmers, businesses, and individuals—are cooperating. Together, we are well on our way to making our rivers and streams safer, improving habitat, protecting human health, and strengthening local economies. Those are good things, at least here."

The attorneys general from Kansas, Indiana, Missouri, Alabama, Alaska, Arkansas, Florida, Georgia, Kentucky, Louisiana, Michigan, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming joined in support of the reversal. Most were Republicans, although three—those from Missouri, Kentucky and Arkansas—were Democrats.

The counties joining in a brief were Cambria, Clearfield, Lancaster, Tioga and Perry counties in Pennsylvania; Hardy and Pendleton counties in West Virginia; and New Castle county in Delaware.

The case is pending before the 3rd U.S. Circuit Court of Appeals in Philadelphia.

Karl Blankenship

Sign CBF's petition telling Alaska, Utah, Montana, Kansas, and the other 17 states they can't stop us from protecting the Bay for our children and grandchildren. 


CBF on WYPR Today at Noon

Today at noon (until 1:00) on Midday with Dan Rodericks on WYPR radio, former Baltimore Sun editorial writer Karen Hostler will be interviewing CBF Litigation Director Jon Mueller and Senior Scientist Beth McGee and at least one representative from the Maryland Department of the Environment (MDE) on the Sparrows Point steel mill, which has been discharging toxic chemicals into the air and water for years. Author and former Baltimore Sun reporter Mark Reutter, who has written extensively about Sparrows Point, will be on the show as well.

On Friday, May 29, 2009, CBF and Baltimore Harbor Harborkeeper notified EPA, MDE, and the current and former owners of the Sparrows Point steel plant of our intention to sue them in federal court to force a clean-up of pollution flowing from the plant site, to conduct an adequate assessment of risks to human health and the nearby ecology, and to address other violations of the law.