Going to court to clean up the bay

Friday, Nov. 14, 2008

Advocates for the bay are choosing a lawsuit. The Chesapeake Bay Foundation, the Maryland Watermen's Association, former governor Harry Hughes and Bernie Fowler, the champion of the Patuxent River, joined with others late last month to announce that they intend to go to court to force the U.S. Environmental Protection Agency to comply with pollution reduction mandates outlined in an agreement signed in 2000.

It's worked before. Well, it kind of worked. In the 1970s the three Southern Maryland counties sued the state and federal governments, charging that their policies were allowing the Patuxent River to be used as little more than a sewer pipeline by fast-growing upstream counties. With some allied scientists, Southern Maryland officials argued successfully that sewage effluent was degrading water quality. They asserted, in what later became widely accepted science, that nitrogen and phosphorus in the sewer water, as well as in fertilizer from fields and lawns, were creating unnatural algae blooms that robbed the water of oxygen.

Fowler, who was then a Calvert County commissioner and later became a state senator representing St. Mary's and Calvert counties, was the prime instigator behind the lawsuit. The fight ultimately changed state and federal policy on the Patuxent, led to cleaner sewage effluent and ultimately to a pledge to restore water quality to levels not seen since the 1950s.

That last promise was never kept, but at least the river was not abandoned and without that effort would probably be in far worse shape than it currently is.

But Fowler and other advocates for the Chesapeake have become discouraged by promises and lip service about cleaning up the bay and the rivers that feed into it. "After 38 years of pleading, begging … and court suits, we're at a point now where the Patuxent River is on death watch and so is the Chesapeake Bay," Fowler said. This despite agreements signed in 1983 and 1987, and the one signed in 2000 that is the centerpiece of the new lawsuit, that promised to reverse the trend in the Chesapeake. That 2000 agreement said that the bay and its tributaries would be clean enough to be removed from the federal impaired waters list by 2010. EPA recently admitted that won't happen and suggested pushing back the timeline to 2020.

The plaintiffs preparing the lawsuit against EPA don't want to wait another decade. They want the EPA to spell out exactly how these goals will be reached by 2015, and want a judge to impose penalties if they are not.

Cleaning up the bay's waters requires beefing up the half measures that have been put in place so far. It means eliminating the nutrients and other pollutants running into the water not just from sewer plants but from lawns, fields, parking lots and building sites.

So is going to court to ask a judge to force everyone to do what they all know needs to be done the ideal approach? Maybe not, but Fowler and his fellow advocates think it may be the only one left.