States to Sue EPA Over Chesapeake Bay Restoration Failures

Tangier Island, Va., a fishing community in the middle of the Chesapeake Bay. (Bob Brown/Richmond Times-Dispatch via AP)

RICHMOND, Va. (CN) — A group of states and environmentalists said Monday they will sue the Environmental Protection Agency based on claims that a long-running plan to tackle pollution in Chesapeake Bay is not being enforced well enough to meet its 2025 goals.

Two notice of intent to sue letters issued by the attorneys general of Virginia, Maryland and the District of Columbia and the Chesapeake Bay Foundation give the EPA 60 days to address a failure “to ensure that the bay jurisdictions will meet their pollution reduction commitments” or face a lawsuit.

The letters ask the agency to enforce the so-called Chesapeake Clean Water Blueprint, a plan that aims to limit the total maximum daily loads, or TMDLs, of pollution being dumped into the bay.

“The failure of the administrator to comply with federal law and the interstate agreement designed to achieve and maintain essential water quality goals for the bay will lead to the failure of the bay jurisdictions and EPA to meet their water quality commitments by 2025 and leave the bay impaired,” the Chesapeake Bay Foundation’s letter states. “With less than five years until the deadline, it is time for the administrator to honor his commitment to the citizens of the United States.”

Both states and the federal government have used TMDL limits to aid in watershed cleanups since the early 1990s, but their increased use in Chesapeake Bay stems from a dispute that started in 2006 when the EPA allegedly failed to enforce milestones set by an earlier plan created in 2000.

After former President Barack Obama took office, he declared the bay a national treasure and issued an executive order for firmer goals to be set in the new 15-year plan. These goals included a range of efforts — from nutrient management and animal waste control to soil conservation and forest buffers — all with the aim of reducing pollution in the bay.

But the plan was met with pushback. Shortly after it was authorized in 2010, farm groups, led by the American Farm Bureau Federation, filed a federal lawsuit questioning the EPA’s authority to enforce the rules. The case worked its way up to the Third Circuit, which ruled in 2015 that the agency’s plan is consistent with federal law.

The farm groups’ appeal to the U.S. Supreme Court was rejected, keeping the EPA’s restoration plan intact.

Since then, and particularly under the Trump administration, enforcement of the plan has waned, according to the attorneys general and Chesapeake Bay Foundation.

The foundation’s letter points to watershed implementation plans, or WIPs — two-year milestones that surrounding states are supposed to meet — and claims they are not being upheld in Pennsylvania and New York, whose rivers run through rural parts and bring agricultural, industrial and human pollution downstream into the Chesapeake Bay watershed. 

“EPA did not utilize any of its enforcement tools in the Phase III WIP evaluation to ensure that either Pennsylvania or New York would meet their respective 2025 pollution reduction commitments,” the letter states. “By failing to undertake any significant backstop actions or ‘consequences’ relative to Pennsylvania’s and New York’s facial deficient Phase III WIPs, EPA has violated the Clean Water Act and acted arbitrarily and capriciously with respect to its obligations under the Bay TMDL accountability framework.”

The environmental group also notes that the Third Circuit’s opinion said the agency cannot “blindly accept” a state’s plan to limit pollution. Instead, the court held the EPA must use “reasoned judgment” in “determining whether the WIP would actually implement the applicable water quality standards for the receiving water.”

Maryland Gov. Larry Hogan speaks at an April 20 news conference in Annapolis with his wife, Yumi Hogan. (AP Photo/Brian Witte)

Despite earlier threats from Maryland Governor Larry Hogan to sue Pennsylvania for its alleged failures, the three attorneys general who filed a notice to sue letter Monday said in a digital press conference that the effort was directed at the Trump administration’s EPA and not the states individually. 

“This is an effort to hold our neighbors accountable. Doing it in a coalition like this is probably the most effective,” Maryland Attorney General Brian Frosh said. “EPA is failing to enforce the laws, and our neighbors in Pennsylvania and New York need to adjust and improve their conduct…We chose this route because we have an extremely strong coalition and it’s the most effective way to address the concerns.” 

District of Columbia Attorney General Karl Racine stressed the three would-be plaintiff states have good relationships with the two offending states. 

“Frankly we shouldn’t have to be doing this, EPA should be doing it,” Racine said. “It’s about accountability to Trump’s EPA to get the states to do what the rest of us are doing.”

But Jeff Landis, a spokesperson for EPA’s Region 3, said in an email that the failure-to-enforce claims were without merit. He said the agency has met all legal requirements of the 2010 plan since its implementation and recent phase evaluations are no different.

“Far from ‘walking away from its responsibility’ under the Chesapeake Bay TMDL and the Clean Water Act, or considering the Bay TMDL’s goals ‘merely aspirational,’ EPA has consistently provided the Bay States and the District with the resources and technical assistance they need to do the job and has maintained a steadfast commitment to meeting the TMDL’s goals and targets,” Landis said.

Jeff Wernick, a spokesperson for New York’s Department of Environmental Conservation, echoed Landis’ disagreement with the issues mentioned in the letters. He instead said evidence showed if the waters of the bay had contaminate levels as low as his state’s portion of the watershed, there would be no need to clean it up.  

“New York is fulfilling its clean water responsibilities under the Chesapeake Bay TMDL and is a committed partner to implementing its pollution-reducing ‘watershed implementation plan’ under the Chesapeake Bay program,” Wernick said in an email.

Deborah Klenotic, a spokeswoman for Pennsylvania’s Department of Environmental Protection, took a less assertive response when asked about the possible suit, saying any kind of legal action could undermine the “cooperative spirit” of the multistate partnership that she says has already achieved so much.

She even said the Chesapeake Bay Foundation had been a key partner in several sections of the watershed improvement plan the group is now threatening suit over.

“A lawsuit of this nature would further distract and divert federal and state agency resources from our effort and fail to advance our common goal to improve water quality here in Pennsylvania and in the Chesapeake Bay,” Klenotic said in an email.

Monday’s intent to sue letters are the first step in hoping to see the Chesapeake Bay restoration plan enforced under the letter of the law, ideally without a long legal battle.  

“Protecting and restoring the Chesapeake Bay requires a comprehensive effort by each of the watershed states as well as the EPA,” Virginia Attorney General Mark Herring said in a statement announcing the attorneys general’s letter. “The EPA must treat each of the partners equally and make sure every state is pulling its weight and upholding its portion of the agreement, but instead, the Trump EPA simply rubberstamped plans that are plainly inadequate.”

“I hope we are able to come to an understanding that is beneficial for all parties, while keeping the health of the Bay at the forefront,” he added. 

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