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.


The debate is hot in PA

Pennsylvania newspapers are filled with articles about municipalities who are frustrated about the costs of cleaning up the Chesapeake Bay. The cleanup is federally mandated--but unfunded, and if a 2010 deadline for meeting these mandatory water quality standards isn't met, the federal government could come down harder with even stricter standards. But local jurisdictions don't know how they're going to come up with the hundreds of millions of dollars it will take to comply. CBF has joined the call for the Rendell administration to provide funds to municipalities struggling to meet sewage treatment upgrade requirements.

If you live near Harrisburg, you might want to attend tonight's panel discussion on the Chesapeake Bay cleanup and its effects on sewage bills. The discussion will be held from 5 - 7 p.m. at the Holiday Inn West, 5401 Carlisle Pike, Mechanicsburg. Panel participants include Kathleen McGinty, secretary of the Dept. of Environmental Protection; John Brosius, deputy director of the Pennsylvania Municipal Authorities Association; and Scott Wyland, lawyer for the Capital Region Council of Governments.


Saving the Bay from the Bench

Nanticoke_015_3 Excerpt of a Baltimore Sun Op/ed written by Kim Coble, Executive Director of CBF's Maryland Office.

When citizens want to change how the government protects the environment, they generally work toward changing legislation, regulations or government leaders. Rarely do people think about judges.

But they should.

Maryland's judges are thoughtful people whose primary experience is with criminal and business law. But they are often unaware or insufficiently educated about the environment and the laws meant to protect it. Too often, these judges do not have a fundamental understanding of the complexity and importance of our natural resources...Lacking a larger understanding, they can be overly sympathetic to claims that protecting our water, air and land should be subordinate to an individual's property rights...As a result, in recent years, we have seen cases in which the legislature had to go back and rewrite legislation to repair damage done to environmental laws through misinterpretation by the court system.

...The courts and other judicial institutions (as well as many local planning offices) have chosen to ignore the cumulative impact of the next shopping center, apartment complex or industrial park. Each case is reviewed independently, and thus the courts look only at the impact of just this "one" case: One parking lot. One gazebo. One bed of underwater grasses destroyed. One wetland lost.

It's an argument developers routinely deliver, with amazing success. But the cumulative effects of these "ones" is death by a thousand cuts for our environment, our rivers and streams, and our bay.

...Sadly, the cost of mounting a legal challenge to each case is beyond the financial ability of most citizens. And special-interest organizations, willing to act on behalf of concerned individuals, are rarely even allowed to appear because of an overly narrow interpretation of who has "standing" - that is, who has the right to appear before the board or court.

...Judges who respect our natural resources and the common good, who have a demonstrated record of protecting the public interest, can help preserve and restore the land, air and water that belong to all citizens.

Maryland has good environmental laws. They could be stronger, but even the strongest and most well-crafted laws are only as good as those who enforce them.

Read the complete Op/Ed here...and recommend it when you're done.


Success Over Sewage

"CBF applauds the Virginia Department of Environmental Quality (DEQ) for redrafting the town’s pollution permit to require protective pollution controls,” said Ann F. Jennings, CBF Virginia Executive Director. "Obviously, much more needs to be done to correct the pollution problems in the Bay.  But the State Water Control Board and DEQ have now done what we originally asked of them on the Onancock permit, and that is why we are dismissing this lawsuit. If these pollution control measures are applied across the board to both large and small dischargers alike, we should start to see improvement in the Bay's water quality."

In the press release quote above, Jennings is talking about a three-year-old lawsuit CBF against the Commonwealth of Virginia that the Foundation has dropped after the state rewrote a pollution permit for the Town of Onancock, significantly reducing the amount of pollution from the town's sewage treatment plant.