Maryland, Virginia and DC Sue the EPA

After months of threatening the Attorneys General in Maryland, Virginia, Delaware, and the District of Columbia filed suit in the District of Columbia Federal District Court against the U.S. Environmental Protection Agency (EPA). The suit charges EPA with failing to meet its responsibilities under the Clean Water Act. This was preceded by a complaint filed last week by the Chesapeake Bay Foundation (CBF) and its partners who filed a complaint against the U.S. Environmental Protection Agency (EPA) in the District Court for the District of Columbia charging EPA with failing to meet its responsibilities under the Clean Water Act by letting Pennsylvania and New York fall short in their nutrient and sediment pollution reduction goals in their latest plan for the cleanup of the Chesapeake Bay.

In their press release CBF President William C. Baker said “This is the moment in time for the Chesapeake Bay. If EPA fails to hold Pennsylvania, and to a lesser extent New York, accountable the Chesapeake Clean Water Blueprint will be yet another in a series of failures for Bay restoration... But unless pressure is brought to bear on Pennsylvania, we will never get to the finish line.”

The Chesapeake Bay Clean Water Blueprint was created by issuing a Total Daily Maximum Load (TMDL) limit for each contaminant; nitrogen, phosphorus and sediment in each segment of the Chesapeake Bay Watershed. The Watershed encompasses portions of six states and Washington DC. EPA used their existing authorities under the Clean Water Act to threaten “backstop measures” (reductions in the allowed nutrient releases from the permitted operations of wastewater treatment plants and MS4 outfalls) to ensure that all six states and the District of Columbia are accountable for implementing their share of the Bay TMDLs’ nitrogen, phosphorus and sediment reductions. Though the Chesapeake Bay TMDL itself “does not impose any binding implementation requirements on the States,” the EPA using the jurisdiction granted under the Clean Water Act and the agreements among the Bay jurisdictions, together, have legal authority to ensure the implementation of Chesapeake Bay Clean Water Blueprint. 

from EPA

In 2010 the EPA set a limit for release of nutrients into the Chesapeake Bay watershed that were then partitioned to the various states and river basins based on the Chesapeake Bay computer modeling tools and monitoring data. Each year, EPA evaluated the progress of the Bay jurisdictions based on reports of implemented practices and mitigation. The model then estimates the amount of nitrogen, phosphorus and sediment that would make it to the Bay under average conditions.

In 2017 when we reached the mid-point in the Chesapeake Bay Clean Water Blueprint, the EPA assessed the progress toward meeting the mandated nutrient and sediment pollutant load reductions. Using the Chesapeake Bay model, this midpoint assessment measured the state’s progress towards meeting the 2017 goal of having practices in place to achieve 60% of the pollution reductions from the 2009 levels.The intent of the midpoint assessment was to the jurisdiction to make changes in their programs and plans and develop the Phase III Watershed Implementation Plans (WIPs) that will allow us to meet the 2025 Chesapeake Bay Clean Water Blueprint restoration goals.

All six Bay watershed states and the District were required to submit plans last year spelling out the measures each would take by 2025 to make the needed pollution reductions. Only the District of Columbia and West Virginia had met their 2025 goals ahead of schedule. None of the others were on track to reduce nitrogen by the needed amount, so the Watershed Implementation Plans were revised to meet the goals.

Most of the plans indicate that states will have to increase pollution-reduction efforts to meet their cleanup goals. But Pennsylvania’s and New York’s plans don’t even pretend to achieve their goals on paper. Pennsylvania’s falls short on curbing nitrogen, the most problematic nutrient, by about 25%, while New York’s was around 33% short. Pennsylvania’s plan also identifies an annual funding gap for cleanup activities of approximately $250 million a year through 2025.

Those filing the lawsuits say that’s not enough. Unless the federal government holds all the states accountable for doing their part to reduce nutrient and sediment pollution, the decades long effort to restore the Chesapeake Bay’s water quality will fail. “The courts must ensure that EPA does its job,’’ Will Baker, the Bay Foundation president, said in an online press conference held with attorneys general from Maryland, Virginia and the District. Neither Pennsylvania nor New York are are defendants in the lawsuits, though the alleged shortcomings of their WIP III's is the issue of both complaints.