Bay Brief Quarterly

Fall 2011

Implementing the Chesapeake POLLUTION BUDGET 

Progress Made in SPARROWS POINT Litigation

Chesapeake Bay Battered by SUSQUEHANNA FLOODING

CLA Launches SUMMER INTERN Program

COMPUTER EXPERTS to the RESCUE!

Other Recent CLA MATTERS

Mark Your Calendar!

Join Our Mailing List

On August 1, Terri Bartos Eckert joined CLA‘s staff as the first Communications Coordinator.   Terri comes to CLA with a background in marketing, public relations and fund raising as well as experience with the Maryland House of Delegates.  Terri’s primary duties will be in media relations, publicity, fundraising, and development of CLA’s newsletter, website and social networking pages.  Terri will also work closely with the Executive Director on CLA program initiatives.  “Our ability to publicize our services and expand the capacity of CLA has grown exponentially in just the two months since Terri has joined CLA.  I look forward to what we are able to achieve as a team in the coming year,” says CLA Executive Director Jackie Guild.

Terri Bartos Eckert, Communications Coordinator

Actual questions and statements by attorneys from real court records :

"So, you were gone until you returned?"

"The youngest son, the 20-year old, how old is he?"

"Now doctor, isn't it true that when a person dies in his sleep, in most cases he just passes quietly away and doesn't know anything about it until the next morning?"

An attorney, realizing he was on the verge of unleashing a stupid question, interrupted himself and said, "Your Honor, I'd like to strike the next question."

We Need Your Support!

Chesapeake Legal Alliance is funded 100% by contributions from law firms, corporations, foundation grants and individuals like you.

Please support our work by mailing your tax deductible donation to:

Chesapeake Legal Alliance

67 Franklin Street

Annapolis, MD 21401

or click on the link below to use your credit card. 

I WANT TO DONATE NOW!  

 We're Planning a

HOLIDAY OPEN HOUSE!

Join CLA to celebrate a great year

at our Annapolis, MD office

Thursday, December 15, 2011

from 4:00 pm

Details coming soon!

Other Recent CLA MATTERS

Sidley Austin LLP (Washington, D.C.) is providing pro bono assistance to the Potomac Riverkeeper in opposing the location of a quarry in West Virginia that would pose harm to a tributary of the Potomac River.

Goodell, DeVries, Leech & Dann (Baltimore, MD) is providing pro bono assistance to the American Chestnut Land Trust in opposing the location of a major power conversion facility next to a land conservation area.

BayLaw, Inc. (Annapolis, MD) is representing South Arundel Citizens for Responsible Development (SACReD) in opposing development on a wetland in Deale, Maryland.

Russell Stevenson (Severna Park, MD) has provided pro bono assistance to Save Your Annapolis Neck citizens group concerning development concerns in Annapolis.

Latham & Watkins (Washington, D.C.) is providing pro bono counsel to Arlington, Virginia citizens group concerning stormwater management practices by Arlington County.

Hollingsworth LLP (Washington, D.C.) is providing pro bono assistance to the Potomac Riverkeeper in conjunction with stormwater controls on construction of I-495 HOT lanes.

Hoon & Associates LLC (Chestertown, MD) is providing pro bono corporate planning counsel to the Waterkeepers Chesapeake.

Computer Experts to the Rescue!

In early 2011, CLA began to experience one of those “good problems” – as it grew, it was apparent that a database was needed to keep pace with the rapidly growing organization. This task was beyond the resources of current staff and the end product would need to be flexible and evergreen.  To the rescue came Alexandria, Virginia based database consultant Bruce Parker who had been considering how he could use his skills to contribute to the environment.  Throughout this year, Bruce has volunteered his time and skills in building and enhancing CLA’s database that allows us to quickly access network attorney information, update client matters, track funding, produce e-mail blasts and invitations, and generate reports that are essential to our grant application process and end of the year accounting.   

CLA’s website is the product of another computer expert, Doug Green of Charlottesville, Virginia.  Doug volunteered his skills as a website designer in creating CLA’s website and has continued to enhance the website and provide hosting services.   Doug’s experience and creativity have been essential to CLA as he has guided us and facilitated our recent move to more advanced website software.   Look for enhancements to the CLA website in the coming months! 

 CLA appreciates tremendously the volunteer efforts of Bruce and Doug in helping CLA spread the word about our services and keeping our organization running smoothly.

SAVE THE DATE!

Thursday, May 17, 2012

6:00 pm to 8:30 pm

Chesapeake Legal Alliance's

Spring Fling

at the

Potomac Boat Club

in

Washington, D.C.

Details coming soon!

Executive Director's Message

Welcome to our First Issue of Bay Brief Quarterly!

It is hard to believe that in just three more months I will have served a full year as CLA’s first Executive Director.  It has been a year of firsts – our first office in Annapolis, our first Board retreat and strategic planning session, our first summer legal intern program, the hiring of our first Communications Coordinator, and now I am pleased to bring you our first issue of Bay Brief Quarterly.  In each issue we will feature articles on issues of importance to the Bay, profile our volunteers, and provide updates on client matters and our efforts to protect and restore the Chesapeake Bay.

In just our first two years of operation, our volunteer attorneys have provided assistance to over 40 individuals and organizations and have expended thousands of attorney hours in the process.  This pro bono assistance represents millions of dollars in legal fees that these individuals, community groups and organizations would not otherwise be able to afford.  I am pleased to report that I am meeting talented attorneys every week that are interested in joining our pro bono network.  These new attorneys allow CLA to meet a rapidly growing number of requests for assistance and to expand our activities further into the Bay watershed. 

As CLA grows, we envision CLA as a “go to” destination for a variety of resources for citizens and environmental groups in need of legal support.  To facilitate that growth, we have recently improved and further developed our attorney, matters and funding databases with the volunteer assistance of database consultant Bruce Parker.  In addition, we have retained computer design and support specialist, Doug Green to assist us with further enhancements to our website.   Doug volunteered his time to develop our website.   

This is an exciting time for the Bay as EPA and President Obama appear committed to taking action to produce real and lasting improvement to the Bay’s water quality.  EPA has promulgated its most ambitious plan for Bay restoration with the Total Maximum Daily Load or “pollution diet” for the Bay.  (Read more about the TMDL in CLA Vice President Ridgway Hall’s featured article.)   However, the path to a clean Bay will require much work.  With your continued support, I am confident that our network of attorneys can make significant contributions towards achieving a clean and healthy Chesapeake Bay.  With over 20 year of environmental legal experience, I am proud and excited to lead CLA in achieving that goal. 

For additional information about our mission and organization, please visit our website at www.chesapeakelegal.org.  

I welcome your input and suggestions and will be happy for you to visit us at our new location at 67 Franklin Street in historic Annapolis.

Sincerely,

Jacqueline Sincore Guild

Executive Director

Implementing the Chesapeake Pollution Budget

Ridgway Hall

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 three 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).  The full text of the TMDL, along with EPA guidance and related documents can be found at EPA’s Chesapeake Bay TMDL web site.  Click HERE for the EPA-Chesapeake TMDL website.

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.

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.

Ridgway M. Hall, Jr. is a founding partner of Crowell & Moring in Washington, D.C. where he started the firm’s Environmental Law Group. He retired at the end of 2009. Prior to joining Crowell & Moring, Mr. Hall was Associate General Counsel for Water at the U.S. Environmental Protection Agency. Mr. Hall has spoken widely on all aspects of environmental law, regulation and litigation. He is a member of the American Law Institute, a past officer of the Environmental Law Institute, and a member of the American College of Environmental Lawyers.               

The fight to clean up hazardous wastes illegally discharged from the Sparrows Point steel plant for decades began long before the July 2010 lawsuit filed by the Chesapeake Bay Foundation, the Baltimore Harbor Waterkeeper and several nearby residents and is not likely to be over anytime soon.  However, recent rulings by the court in the lawsuit against the past and present owners of the steel plant show that the owners of the site will be held accountable and remediation work will occur.  Importantly, the plume of contamination that has migrated to adjacent waterways will be addressed as part of the disposition of this matter.  Benzene, chromium, lead, naphthalene and zinc have been found in nearby Bear Creek and the Patapsco River.  The question remains as to the extent of the remediation to be required by the court.  Volunteer attorneys from Finnegan, Henderson, Farabow, Garrett & Dunner (Washington, D.C.) with the assistance of attorney Ridgway Hall represent the interests of the Baltimore Harbor Waterkeeper as an intervenor in this important litigation.

Due to an unusually wet spring, by June of this year, Pennsylvania discharged through the Susquehanna River as much pollution to the Chesapeake Bay as it does during a typical year.  The assault of pollution brought by the recent flooding only capped that massive load.  While the visible effects of the debris and chocolate brown water are slowly dissipating as solids settle to the Bay’s floor, the long-term impacts of the flooding are yet to be determined.

Dead zones, fostered by excess nutrients and sediments washed into the Bay from farmland, roadways and overburdened storm sewers, typically stretch throughout the Bay during the spring and summer but scientists are seeing signs of late season dead zones spurred by the surge of nutrients and decomposing flood debris.  In addition, Bay grasses are smothered by sediment loads from flooding.  It is estimated that when the Conowingo Dam opened is floodgates on the Susquehanna, the force of the river scoured 4 million tons of sediment from behind the dam, an accumulation that had been growing and of concern for many years.  In the days after the flood, the plumes of sediment were visible from space.  Bay grasses provide habitat for fish and young aquatic life, produce oxygen, and hold existing sediment in place.  When sediment settles, it also smothers the already depleted oysters and covers the hard surfaces necessary for new oyster growth.

Such disastrous events, remind us of the connectivity that the entire watershed has to the Chesapeake Bay.   Sediment build-up behind the Conowingo Dam and its removal and disposal (including recycling options) poses a continuing concern for Lower Susquehanna Riverkeeper, Michael Helfrich.  CLA has been exploring options for assisting the Riverkeeper in his efforts to address these concerns when the dam’s FERC permit, which expires September 2014, is considered for relicensing.

CLA Launches Summer Intern Program

This past summer, CLA launched its first summer legal intern program.    Rising second year law students, Katharine Hill of the Catholic University of America Law School and Ingrid Seggerman of the  Georgetown University Law Center spent six weeks with CLA researching issues of law and drafting documents that will become part of the legal resource library we are building at CLA.    These documents include separate manuals on Maryland stormwater regulations and Maryland zoning law, both of which include references to state and local government staff charged with these programs and other useful resources, and a memorandum on citizen suit standing requirements in watershed states.  CLA wishes Katharine and Ingrid continued successes in their legal careers.

CLA is accepting resumes for our 2012 summer legal intern program and will conduct campus interviews early in 2012.  Resumes may be submitted to jguild@chesapeakelegal.org.

www.chesapeakelegal.org

(410) 216-9441