Fight for clean water locally becomes national issue

The Chesapeake Bay is polluted. High levels of nitrogen, phosphorus, and sediment from agricultural activities, wastewater treatment facilities, and stormwater cause “dead zones” where fish, crabs, oysters, and other aquatic life die due to low amounts of oxygen. Excess pollution has also harmed vital Bay habitats. The current oyster population is only 1 percent of historic levels and this decline over the past 30 years has meant a loss of $4 billion for the economies of Maryland and Virginia; the decline in blue crabs has led to losses of $640 million from 1998-2006.

While the Bay states have tried to clean up the Chesapeake for the past 30 years, their efforts have largely failed to meet pollution reduction goals. Finally, in 2010, the Environmental Protection Agency (EPA) exercised its authority under the Clean Water Act and established enforceable pollution limits for nitrogen, phosphorus, and sediment in the Bay (this pollution limit is technically referred to as a Total Maximum Daily Load, or TMDL), with the goal of removing the Bay and its tributaries from the nation’s list of impaired waters. Subsequently, the Bay states developed plans to meet those pollution limits by 2025.

After its release, the EPA’s pollution limits were challenged in federal district court by special interests, including the Farm Bureau, the Fertilizer Institute, and the National Association of Home Builders, claiming government overreach that violated states’ rights. Chesapeake Bay Foundation, PennFuture, National Wildlife Foundation and other environmental groups intervened on behalf of EPA and clean water and, last year, a federal judge ruled in favor of EPA and the TMDL.

Almost immediately, the decision was appealed and again, instead of spending their limited funds on restoring clean water, EPA and environmental groups had to devote their resources to litigation. Additionally, attorneys general from 21 states, mostly from the Mississippi River valley and Midwest but some from as far away as Alaska and Wyoming, filed a joint amicus curiae, or friend of the court brief, supporting the appeal and opposing the Bay states’ efforts to clean up local rivers and the Bay. These states fear that a successful TMDL in the Bay could serve as a model for clean up efforts in their part of the United States.

On the other side are amicus briefs from Virginia, Delaware, Maryland and the District of Columbia. The nation’s largest cities also support clean water, with amicus briefs coming from New York City, Chicago, Philadelphia, San Francisco, Los Angeles, and Baltimore. These cities support a holistic approach to water quality improvements that address all sources of pollution, not just easily regulated point sources, but non-point sources of pollution that historically haven’t been held accountable for their fair share of pollution. Professors of environmental, constitutional, and administrative law from across the country have also weighed in, supporting clean up efforts in the Bay.

Additionally, the ChooseClean Water Coalition has led the charge to organize environmental groups from the 21 aforementioned states to file a brief in support of the TMDL. This resulted in the National Parks Conservation Association, West Virginia Rivers Coalition, and 24 regional and national organizations filing a brief that supports restoring clean water in the Chesapeake and its tributaries. 

The case has far reaching implications for clean water initiatives across the country, with the Bay TMDL either serving as a model for other impaired waterways or as an example of special interest monies defeating everyone else’s interest in clean water. Oral arguments are expected this summer.

Jennifer Quinn is central Pennsylvania outreach coordinator for PennFuture and is based in Harrisburg. She tweets @QuinnJen1.