America Tonight

How the Chesapeake Bay became a new front in states' vs. federal rights

When six states surrounding the bay failed to clean it up, the federal government stepped in

ROCK HALL, Md. – Since the 1960s, Chesapeake Bay waterman Dave Kirwin has seen the waters where he earns his livelihood overwhelmed with a combination of agricultural and industrial runoff, sediment and wastewater from sewage-treatment plants.

“When they started using fertilizer, stepping that up in agriculture, and the runoff, that’s what killed all the grasses,” he said of the plants that once poked up along the entire coastline. “I’ve worked on this water for 48 years and I’ve seen a lot of changes. And not any of them good.”

For 30 years, the six states surrounding the bay have pledged to clean it up.

But with no financial penalties, their numerous voluntary agreements have failed to limit pollution in the watershed that’s home to 17.5 million Americans. So in 2009, President Obama stepped in, inadvertently setting off a fight that has made the bay an unexpected but critical battleground in the broader war between states' versus federal rights.

Domino effect

The bay’s problems caught the attention of the White House in 2009, after the nonprofit Chesapeake Bay Foundation sued the Environmental Protection Agency, charging that it had failed to enforce the Clean Water Act. Months into his presidency, President Obama signed an executive order declaring the bay a national treasure and calling on the EPA to restore it.

For the first time, the EPA managed to get the six watershed states – West Virginia, Virginia, Pennsylvania, Maryland, Delaware and New York plus the District of Columbia – moving in the same direction to help the bay heal. The agency imposed a maximum amount of pollutants a body of water can receive and still meet water-quality standards.

The EPA also set a deadline: a clean Bay by 2025.

“It took EPA to come in and say, ‘This is the law of the land. We are going to set limits. We are going to give you the flexibility but if you don’t meet your milestones, there will be consequences to pay,’” said Will Baker, president of the Chesapeake Bay Foundation. “And all of a sudden, everybody started to take it more seriously.”

But that executive order also drove attorneys general from as far away as Alaska to team up to stop the EPA’s cleanup out of fear that it could set a precedent for federal intervention.

“If this [cleanup] is left to stand … other watersheds, including the Mississippi River Basin, could be next,” reads the brief filed by 21 states, most of which are thousands of miles from the Chesapeake.

South Dakota Attorney General Marty Jackley
America Tonight

"We are a Missouri River state that flows into the Mississippi, so you are literally looking at affecting over 30 states," South Dakota Attorney General Marty Jackley told America Tonight, calling the EPA’s actions an “unprecedented encroachment on states’ rights."

The EPA says that it has no intention of applying the cleanup model anywhere else, but Jackley remains suspicious.

“I don’t believe them because of what we’re seeing in other areas, as well as the fact that they’re setting a precedent,” he said. “They are encroaching upon what are traditionally states’ rights. When you look at the Clean Water Act, it’s very clear on what its mandate is and what its limits are from Congress."

Overreach?

Waterman Dave Kirwin has been fishing in the Chesapeake Bay for decades, and his seen it transform firsthand.
America Tonight

Since 1972, the Clean Water Act has governed the integrity of American waters, requiring that they be fishable and swimmable.

“The Clean Water Act requires states to monitor all their waters and determine which ones are meeting clean water criteria [and] which ones aren’t,” said the EPA’s Jeff Corbin. In December 2010, the EPA enacted a sweeping “pollution diet” for the bay in hopes of helping the waters and wildlife recover.

“There’s 64,000-square-mile watershed, so we’re not just trying to restore this water body,” Corbin said. “We’re also trying to restore all the rivers and creeks that flow into it. It’s a big job.”

The 21 states are part of a lawsuit filed by the American Farm Bureau and groups like the Fertilizer Institute and the National Chicken Council to stop the EPA.

“What seemed like a watershed cleanup appeared to some as a power play by the federal government,” said Ellen Steen, general counsel and secretary of the Farm Bureau, adding that the EPA is overstepping its Clean Water Act authority.

“They’re intensely local decisions with intensely local implications,” she said. “And more important than why we think it’s bad policy is that Congress when it wrote the Clean Water Act, specifically withheld this type of authority over local land-use decisions from EPA.”

But environmentalist Baker says he doesn’t buy “tired old arguments about government overreach and the federal government overstepping its bounds.”

“All EPA is doing is enforcing the federal Clean Water Act and the judge who ruled on this already called it the finest example of cooperative federalism she’d ever seen,” he said.

Last year, a federal judge ruled that the EPA was within its rights to move forward with the cleanup plan, but the Farm Bureau is appealing. And more parties have joined the fray. Last week, six major U.S. cities filed a brief in support of the EPA's plan.

The future of the bay

Rock Hall's farm on Maryland's Eastern Shore
America Tonight

However the legal battle plays out, the stakes are high. Chesapeake Bay watermen fear pollution will continue to destroy their livelihood. But farmers around the bay fear the fight against pollution could destroy theirs.

“Since the dawn of time, people have needed fertilizer to grow their crops,” said Trey Hill, a fourth-generation grain farmer in Rock Hall. “Thousands of years ago they were using animal waste or human waste to grow crops, which is essentially nitrogen and phosphorous.”

Hill’s crops cover thousands of acres on Maryland’s Eastern Shore. As recently as 10 years ago, he would have farmed close to the water’s edge, putting fertilizer and pesticides down. He now plants buffer strips at the water’s edge to contain “nutrient runoff.” He’s also scaled back on the volume of chemicals used on his farm, investing in newer technology to help boost yield.

Hill says these changes were in effect before any EPA agreement, and he doesn’t need a federal agency to tell him how to manage his farm.

“The true impact of what we’re doing with the bumper strips might not be felt for 10 years,” he said.

The EPA’s Jeff Corbin says we’ve waited long enough for the bay to rebound without federal intervention.

“If we would have gotten there anyways, we would have gotten there already,” he said. “We’ve been doing this about 30 years.”

The legal battle may well end up in the Supreme Court.

Should the EPA ultimately lose, Baker says that will mean fewer jobs and a host of other setbacks.

“We’re talking about pollution that affects people’s health,” he said. “Swimming is already risky. We’re talking about drinking water problems. We’re talking about contaminated seafood.”

For the watermen like Kirwin, there’s little faith the warring parties will come to an agreement to save the bay and the businesses in his hometown that rely on it.

“It’s all politics and pollution,” he said. “I don’t think the bay’s ever going to come back to where it was in the ‘60s or ‘70s. I don’t know whether that’s possible any more today.”

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