Chesapeake Bay Foundation settles suit against EPA

The U.S. Environmental Protection Agency and the Chesapeake Bay Foundation announced a legal settlement Tuesday that demands tougher regulation of farms, development sites and city storm systems in six states, including Virginia, in order to hasten the cleanup of the Bay.

The announcement came one day before the Obama administration is due to lay out its plans for restoring the Bay, a blueprint expected to include many of the measures outlined in the out-of-court settlement.

Reached after 15 months of negotiation, the agreement sets deadlines and requirements for state and federal officials to cap the amount of pollution entering the Bay and then reduce it to safe levels - even with growth and development occurring at the same time.

Real progress from the expected crackdown should be seen by 2017, according to EPA officials and environmentalists.

If not, "we would go back to court and restart our lawsuit," said William C. Baker, president of the Bay Foundation, an environmental group with offices across the mid-Atlantic, including ones in Richmond and Norfolk.

The foundation, along with former top government officials, watermen and sportfishermen in several Bay states, sued the EPA in 2009, charging that the agency had not done enough to revive the largest estuary in North America.

Under the settlement, failure to meet specific targets or timelines could result in states' having federal grants withheld, or the EPA stepping in and rejecting permits for new development projects that might add nutrient pollution to the Bay.

Another idea being pursued is called "offsetting." If a project such as a new sewer plant were to add nutrients to a creek already suffering from heavy pollution, the owner would have to buy credits elsewhere or take other action to counteract, or offset, the expected damage.

The plant owner, for example, might then have to pay a farmer in the same watershed to plant trees or shrubs to buffer against runoff pollution.

The settlement also calls for the EPA to track progress in reducing pollutants and complying with new regulations in each state near the Bay. It proposes to address air pollution that leads to problems in the Bay, and to toughen rules against storm-water runoff at new development sites and at livestock operations.

Runoff is the only pollutant increasing in the Bay today. The Bay suffers mostly from too much nitrogen, phosphorus and sediments that wash into the water and spark algae blooms. The algae and dirt cloud water quality, making it difficult for underwater plants to grow, while also gobbling up oxygen needed to sustain other aquatic life.

Excessive nutrients come from everyday items such as exhaust from cars and trucks; wastes related to growing food and livestock; fertilizers and chemicals used to tend gardens, lawns and farms; and dirty runoff from city streets and rural fields.

The settlement and its demand for new regulations will not be welcomed by many farm groups, developers, real estate interests and municipal governments that worry about paying for these cleanup tools, especially during a global recession.

Doug Domenech, Virginia's secretary of natural resources under Republican Gov. Bob McDonnell, has said he does not support additional regulations or a federally led charge in the name of the Bay. Under the voluntary approach followed by government and business over the past three decades, progress in the Bay has been made, and "we don't really see a need to change that," Domenech has said.

Bill Hayden, a spokesman for the Virginia Department of Environmental Quality, which would have to enforce new regulations of farms and storm systems, declined to comment, saying he had not seen the settlement yet.

Environmentalists said the real key to the settlement is its teeth.

"This is a legal document with legally binding requirements, and we've never had that before," Baker told reporters in a conference call.

"We will never restore it without a clear commitment and obligation from the EPA to exercise its overarching authority to ensure restoration occurs," said W. Tayloe Murphy Jr., a longtime Virginia lawmaker who was a plaintiff in the lawsuit.

Scott Harper, (757) 446-2340, scott.harper@pilotonline.com