With the opening of our Annapolis office and addition of two full time staff members, the Chesapeake Legal Alliance has developed into a viable resource for individuals, community groups and organizations seeking legal assistance in protecting the Bay. We are proud to report that the number of our volunteer lawyers grows steadily and we have provided legal expertise to over forty individuals and organizations. Our goal for the coming year is to further increase the number of matters we are involved in throughout all six states, and the District of Columbia, that comprise the Chesapeake Bay watershed.
Recent scientific studies find signs of gradual Bay recovery and reductions in pollutants that cause dead zones in the Bay. The Environmental Protection Agency and other regulators are in the midst of implementing the most ambitious regulatory program in decades aimed at Bay restoration. The time is ripe to build on this progress by enforcing and strengthening the laws and programs in place to protect the Bay and empowering those who work on behalf of the Bay watershed with legal representation.
We hope that you will consider making a tax-deductible contribution to support us in our work to achieve these objectives. Please see our Donations webpage to make a donation using PayPal.
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On December 29, 2010, EPA published the largest Total Maximum Daily Load (“TMDL”) for pollutant loadings ever under the Clean Water Act, covering the Chesapeake Bay and its 92 tidal segments. Think of it as a “pollution budget”, placing limitations on the 3 pollutants primarily responsible for poor water quality in the Bay: nitrogen, phosphorus and sediment. The budget cannot be exceeded without bad effects on the health of the water body and the creatures who live in it or use it—including humans. The TMDL applies to the entire Chesapeake Bay watershed, which covers 64,000 square miles in Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia. Thousands of rivers and streams carry pollutants from numerous activities—most of them human—to the Bay. While our demands on the Chesapeake and its tributaries continue to grow, the ability of the Bay and its tributaries to absorb these pollutants does not.
As a result, for the past half century, water quality has been getting steadily worse. Populations of crabs, oysters, and numerous fish species are a small fraction of their historic high, with the result that thousands of watermen have been put out of work and recreational fishing and other uses of the Bay have suffered. In addition, degradation of tributaries, including such large river systems as the Susquehanna and the Potomac, have impaired drinking water supplies for millions of residents throughout the region.
The “pollution budget” requires that, to achieve water quality objectives, annual loadings must be limited to 201.6 million lbs. of nitrogen, 12.5 million lbs. of phosphorus and 6.5 billion lbs. of sediment. This represents a 25% reduction of nitrogen, 24% reduction of phosphorus and a 20% reduction of sediment loadings below current levels. The deadline set to put in place all of the necessary programs and practices designed to meet these loading goals is 2025, with the states taking the lead.
Starting in 1983 the Chesapeake Bay states began serious efforts, in coordination with EPA, to restore the Bay. These efforts were embodied in a series of “Bay agreements” to develop strategies to improve water quality and adjacent wildlife habitat and wetlands. However, despite increasingly stringent measures, the largely voluntary collection of programs failed. The Clean Water Act gives states the initial responsibility to set water quality standards, and to develop TMDLs where water quality is failing to meet standards. But because of the interstate nature of the pollution involved, with rivers flowing through multiple states and tidal effects carrying pollutants across state boundary lines, the Bay states in 2007 asked EPA to take the lead in developing a comprehensive TMDL.
President Obama gave this effort a major boost in May, 2009, when he issued an Executive Order entitled “Chesapeake Bay Protection and Restoration.” The Order declared the Chesapeake to be a “national treasure” and directed a major restoration of “the health, heritage, natural resources, and social and economic value of the nation’s largest estuarine ecosystem and the natural sustainability of its watershed.” This has triggered major efforts directed at habitat preservation, land conservation, green building practices, and “smart growth” planning at the county and local level. The TMDL has been at the heart of the water quality restoration effort. For a more extensive account of the development and initial implementation, see my article The Chesapeake Bay TMDL in The Environmental Forum, v.28, No. 3 (May/June 2011). [insert hyperlink]. The full text of the TMDL, along with EPA guidance and related documents can be found at EPA’s Chesapeake Bay TMDL web site: http://www.epa.gov/chesapeakebaytmdl/ [insert hyperlink]
The Clean Water Act requires that water quality standards be attained within a reasonable period of time, and it provides in Section 303(e) for a “continuing planning process” led by the states. For the Chesapeake Bay TMDL, EPA and the states have agreed that each state would adopt a Watershed Implementation Plan (“WIP”) which embodies a combination of permit restrictions on direct discharges and best management practices (“BMPs”) to reduce or prevent nonpoint source discharges. The WIP also describes the legal authority, financial and technical resources, and programs to be adopted by each state to ensure eventual achievement of the necessary pollution reduction. EPA developed the TMDL in close consultation with the states, assigning reductions in loadings to each of the states in proportion to their contributions. Under the WIPs, the states have the first cut at deciding how to allocate the TMDL loadings among the various sources of pollution within their boundaries.
The initial WIPs (Phase 1) were developed during the late summer and fall of 2010. The TMDL issued by EPA in December was based almost entirely on the choices made by the states in their WIPs. EPA and the states agreed that more detailed Phase 2 WIPs would follow during 2011-12 to incorporate any appropriate revisions based on initial implementation experience. Phase 3 WIPs are planned for shortly after 2017, by which 60% of the loading reductions are to be achieved.
The Phase 2 WIPs are being developed primarily at the county and local levels, where sources of pollution are being identified and discussions are taking place over what resources can most effectively be applied, and over what time period, to reduce pollution. On March 30, 2011, EPA posted on its web site guidance for development of Phase 2 WIPs. However, states, counties and municipalities are all strapped for funds, and this is posing significant challenges. Communities are facing hard choices. A restored Bay will create jobs and enhance property values, but up front investments will be required to get there.
For many counties, a substantial part of the pollution is created by nonpoint source discharges, including stormwater runoff and farming activities. Despite the availability of federal and state funds to assist farmers in adopting nutrient management plans and BMPs (such as winter cover crops, no-till planting, stream buffers, etc.), there is a shortfall in technical assistance to help make this happen.
A number of the states have adopted trading programs which, like Maryland’s, would allow nonpoint sources to reduce their pollution below what the WIP requires and thereby generate marketable “credits” which can be sold to point sources for whom the per unit cost of pollutant reduction is much greater. These trading programs are a promising way to address future growth in the region, as well as pollution reduction. Enforcement would be through the NPDES permit issued to the purchaser of the credit. However, verification that the pollution reduction levels, and expected water quality improvement, are actually being achieved will take time. EPA has committed to “adaptive management” as the TMDL program moves forward, retaining flexibility to adjust strategies and requirements as new information is gathered.
As of this writing, EPA is scheduled to make 2 minor modifications to the nitrogen, phosphorus and sediment allocations by June 30, 2011, to reflect updated information on the effectiveness of nutrient management plans and forested land use. After comments by the states and others, EPA expects to finalize these by July 15. Draft Phase 2 WIPs are to be submitted to EPA by December 1 and final WIPs by March 30, 2011.
The progress tracking program includes two-year milestones. The first review will take place at the end of 2011, and milestone commitments for the next two-year period will be submitted to EPA by January 3, 2012. Meanwhile, the political currents are running in different directions from one state to another. In Maryland state agencies under the leadership of Governor O’Malley are working hard to achieve pollution reduction goals ahead of schedule. But WIP implementation has not been as strong in Virginia and Pennsylvania, where restoration of the Chesapeake and its tributaries is not as high on those Governors’ agendas.
Finally, a group of trade associations representing industrial agriculture has brought suit in the U.S. District Court for the Middle District of Pennsylvania against EPA challenging the TMDL on the grounds that EPA exceeded its legal authority in issuing it. American Farm Bureau Federation et al. v. EPA, Case No. 11-c-0067, filed January 10, 2011. Two motions to intervene in support of EPA have been filed, one by a number of environmental groups, including the Chesapeake Bay Foundation, Citizens for Pennsylvania’s Future and Jefferson County Public Service District, and the other by the National Association of Clean Water Agencies and the Maryland and Virginia Associations of Municipal Wastewater Agencies. In due course the Court will rule on those motions, and an index to the enormous administrative record will be filed. The case will then be addressed on the merits, probably in the context of cross-motions for summary judgment.
The most impressive feature of this effort is the extent to which it has mobilized the public at all levels to recognize how much all of us who live in the Chesapeake Bay watershed rely on the Bay, its tributaries and associated natural resources. The efforts at all levels to reduce our pollution, conserve our resources and clean up a badly damaged ecosystem are extraordinary. They will need to be extraordinary for the foreseeable future if this priceless resource is to be saved.
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Contact: Terri Bartos Eckert, Communications Coordinator (410) 216-9441 teckert@chesapeakelegal.org
Annapolis, MD August 29, 2011. The Chesapeake Legal Alliance (CLA), a non-profit organization that coordinates pro bono legal services for groups working to protect the Chesapeake Bay, is pleased to announce the appointment of a new Executive Director and Communications Coordinator and the opening of their new office in historic Annapolis.
CLA has engaged Jacqueline Sincore Guild as its first Executive Director. Ms. Guild has over 20 years of environmental law experience including litigation of environmental contamination claims and toxic tort matters. Ms. Guild also has provided regulatory and legislative advocacy services for leading trade associations. She is a graduate of the University of Virginia School of Law and James Madison University. “I look forward to expanding our network of talented pro bono attorneys along with the variety of resources we provide to citizens and other environmental groups in need of legal support. Our ultimate objective is to achieve a clean and healthy Chesapeake Bay,” said Ms. Guild.
Also on board is CLA’s new Communications Coordinator, Terri Bartos Eckert. Ms. Eckert brings a wealth of marketing and communications experience to CLA. She has worked with several trade alliances and currently serves on the Board of Directors of two local non-profit organizations. Ms. Eckert said, “As a life-long Marylander, I am very excited to be able to contribute to the efforts of an organization whose mission I share passionately.”
The Chesapeake Legal Alliance is dedicated to using the law to protect and restore the Chesapeake Bay and its watershed by providing pro bono legal services to individuals, environmental organizations and citizens groups working to improve the health of the Bay. CLA’s volunteer lawyers have worked on a variety of matters including review of zoning and permitting laws, providing comments on proposed legislation to strengthen the Clean Water Act and providing legal representation in numerous actions in an effort to safeguard the Chesapeake Bay from pollutants. Please visit CLA’s website at www.chesapeakelegal.org.
For more information, please contact Terri Bartos Eckert, Communications Coordinator at (410) 216-9441.
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