The settlement requires EPA to take specific actions by dates certain to ensure that pollution to local rivers, streams, and the Chesapeake Bay is reduced enough to remove the bay from the federal "dirty waters" list, said Chesapeake Bay Foundation President William Baker.
"When we filed our notice of intent in October 2008, EPA had been missing in action for years. The Bush administration had 60 days to respond, but consistent with its previous eight years it did nothing," said Baker.
"We filed suit on January 5, 2009, and began negotiations with the new administration. While it has taken longer than we would have liked, we are very pleased with the results and commend Lisa Jackson and her senior staff for their willingness to work through the bureaucracy to obtain this game-changing agreement," he said.
Chesapeake Bay Foundation President William Baker, left, and EPA Deputy Administrator Bob Perciasepe announce the settlement. (Photo courtesy CBF)
EPA Deputy Administrator Bob Perciasepe said, "Because EPA and the co-plaintiffs share the same goals of clean water in the Chesapeake Bay and the waterways flowing through communities in the region, we felt that a settlement building on our common goals was far more positive than defending a lawsuit filed in the Bush administration."
The settlement resolves the lawsuit Fowler v. EPA, filed in federal district court for the District of Columbia.
Perciasepe said the terms of the settlement are consistent with the regulatory and other actions that EPA has initiated or pledged to take under the Obama administration to restore water quality in the Chesapeake Bay and its tributaries.
On May 12, 2009, President Barack Obama signed an Executive Order that recognizes the Chesapeake Bay as a national treasure and calls on the federal government to lead a renewed effort to restore and protect the bay and its watershed.
Tomorrow, EPA will announce the final federal strategy for the Chesapeake Bay, implementing the President's executive order. Many of the commitments in the settlement agreement will be reflected in the strategy.
An algae bloom called a mahogany tide in Spa Creek, a tributary of the Chesapeake Bay at Annapolis, Maryland. October 2009. (Photo courtesy Chesapeake Bay Program)
Under the settlement, the EPA will establish a stringent Chesapeake Bay total maximum daily load, TMDL, putting in place an effective implementation framework, expanding its review of Chesapeake Bay watershed permits, and initiating rulemaking for new regulations for concentrated animal feeding operations and urban and suburban stormwater.
By December 31, 2010, the EPA will establish the Chesapeake Bay TMDL, a tool of the federal Clean Water Act, that sets a strict "pollution diet" to restore the Chesapeake Bay and its tributaries, Persiasepe said.
The Chesapeake TMDL will be the largest and most complex ever developed in the nation, he said, involving pollution sources throughout a 64,000-square-mile watershed that includes six states and the District of Columbia.
In 2009, EPA announced that it expects the six watershed states and District of Columbia to provide detailed strategies for reducing pollutant loads to meet water quality standards.
EPA also expects detailed schedules for implementing pollution controls and achieving pollution reductions. Progress will be measured through milestones every two years, and EPA may take action for inadequate plans or failure to meet the milestones.
Jonathan Cannon, director of the University of Virginia's Law School's Environmental and Land Use Law Program and former EPA general counsel said, "The settlement between EPA, CBF, and the co-plaintiffs raises the bar for governmental commitment to restore the bay."
"The settlement helps ensure, on an ongoing basis, that EPA will play its essential role in setting targets for bay restoration and holding the states accountable," said Cannon. "This is an excellent outcome and marks a further strengthening of our collective resolve to reverse the Bay's decline."
CBF's co-plaintiffs in the lawsuit included: former Maryland Governor Harry Hughes, retired Maryland Senator Bernie Fowler, former Virginia legislator and Natural Resources Secretary W. Tayloe Murphy, former Washington D.C. Mayor Anthony Williams, the Virginia State Waterman's Association, the Maryland Watermen's Association, and the Maryland Saltwater Sportfishermen's Association.
"We have a firm agreement that would be most difficult for the U.S. government to renege on," said Fowler. "I am reasonably convinced that our suit, in no small way, was the stimulus for the Presidential Executive Order and subsequent plan, which is the first of its kind for the Chesapeake Bay. We retain the option for future litigation should the U.S government fail to honor the agreement. We must succeed, and we will succeed, there is no alternative."
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