EPA Confirms Support for Chesapeake Bay Cleanup

On Tuesday the U.S. Environmental Protection Agency (EPA) sent a letter to Senator Christopher J. Van Hollen Jr., senator from Maryland and copying all members of congress who represent concerned parties emphasizing the agency’s commitment to protecting and restoring the Chesapeake Bay (Bay). The agency sent the letter in order to respond to Senator’s threat of litigation and clarify and correct and what the agency called a mischaracterization of the EPA Chesapeake Bay Program Director’s recent remarks on the enforceability of the Total Maximum Daily Load (TMDL) and forestall threatened litigation by .

The question of whether the TMDL itself is enforceable was answered by the Obama Administration in court filings defending the Chesapeake Bay TMDL. In 2016, the Obama Administration told the U.S. Supreme Court that a TMDL is an informational tool that “does not impose any binding implementation requirements on the States,” and that “the Bay TMDL does not directly regulate any sources or require any permits.” The EPA maintains that the Chesapeake Bay Program Director’s comments merely agree with these statements from the prior administration.

The Bay is a unique and important national resource, and EPA stated that the agency is fully committed to the restoration of the Bay. The recent questioning of the commitment of the agency to the cleanup is unfortunate and distracts from the good work that is being done by EPA employees. “Nothing more clearly signifies the EPA’s ongoing commitment and accountability to the restoration of the Bay than our most recent Phase III Watershed Implementation Plan (WIP) evaluations,” said Regional Administrator Cosmo Servidio.

In the evaluations, EPA identified that five of the Bay jurisdictions must do more to achieve their goals. EPA and the Bay jurisdictions, together, have legal authority to ensure the implementation of Bay TMDLs. As has been done since the Bay TMDL was issued, EPA will continue to use their existing authorities under the Clean Water Act which they call “backstop measures” to ensure that all six Bay states and the District of Columbia are accountable for implementing their share of the Bay TMDLs’ nitrogen, phosphorus and sediment reductions.

The TMDL still includes targeted backstops for those jurisdictions that did not meet EPA’s expectations for providing reasonable assurance that they will achieve the necessary pollution reductions. EPA may utilize more stringent controls on permitted sources of pollution, such as wastewater treatment plants, large animal feeding operations and municipal stormwater systems. EPA’s authority come from the Clean Water Act.

Maryland has threatened litigation against the EPA and Pennsylvania, abandoning the consensus that the Bay States partnership is the best way to resolve issues. EPA closes with: “Threatened litigation against EPA will undoubtedly distract from efforts to restore the Bay. The partnerships’ resources are better spent on continued enhancement and implementation of plans that will improve water quality. EPA, with the partnership, is committed to having all practices and controls in place by 2025.”

More information on the Chesapeake Bay Program and the TMDL can be found on EPA’s web site at www.epa.gov/chesapeake-bay-tmdl.