Virginia, Md. D.C. to sue EPA for failing to make sure Pa. meets Chesapeake Bay clean-up targets

Bird and marsh grass along the Chesapeake Bay. (Image via the Virginia Office of Natural Resources).

By Sarah Vogelsong

Four and a half months after the U.S. Environmental Protection Agency’s top Chesapeake Bay official called the goals of the decades-old Chesapeake Bay Program merely “aspirational,” Virginia is joining Maryland and the District of Columbia in legal action that aims to force the EPA to enforce state pollution-reduction plans.

On Monday, Attorneys General Mark Herring of Virginia, Brian Frosh of Maryland and Karl Racine of Washington, D.C. notified the EPA that they intend to sue Administrator Andrew Wheeler for violating the federal Clean Water Act by failing to ensure that Pennsylvania and New York meet water pollution standards set by the Chesapeake Bay Watershed Agreement in 2014.

A separate notice of intent to sue was also sent simultaneously by the Chesapeake Bay Foundation, the Maryland Watermen’s Association, Anne Arundel County in Maryland and Swoope, Va. cattle farmer and conservationist Robert Whitescarver.

“As administrator of the agreement, the EPA has to enforce its terms,” Herring said in a press call Monday morning. “Instead the Trump EPA is rubber-stamping plans that are plainly inadequate and allowing some watershed states to do less than they’re supposed to.

The EPA has 60 days to resolve the concerns outlined in the notices before lawsuits can be formally filed, although Chesapeake Bay Foundation President Will Baker said “it’s unlikely” the federal government will take action.

The lawsuits will center on deficiencies in Pennsylvania and New York’s Phase III Watershed Implementation Plans, which were submitted to the EPA for review in August 2019.

These documents act as detailed roadmaps for each jurisdiction to meet specific reduction targets for nitrogen, phosphorus and sediment, the primary causes of pollution in the Chesapeake Bay.

The Phase III WIPs represent the final five years of the decades-long cleanup effort, with a deadline of 2025 for all states to meet the targets.

The Chesapeake Bay watershed. (U.S. Department of Agriculture)

The plans submitted by Pennsylvania and New York to the EPA last summer fell short of the necessary commitments, with Pennsylvania set to exceed its target by 9 million pounds of nitrogen per year and New York by almost a million pounds.

Nevertheless, the EPA has not ordered either state to revise its Phase III WIP to bring it in line with the previously agreed-upon thresholds. And on Jan. 3, EPA Chesapeake Bay Program Director Dana Aunkst sent shock waves through the watershed states when he described the 2025 deadline as “aspirational” and not legally enforceable.

The agency’s failures to hold Pennsylvania and New York to their commitments, wrote Herring, Frosh and Racine in their letter “threaten the success of efforts to restore the Bay.”

“This is a struggle we cannot win without the commitment of our neighbors, and more importantly, without the commitment of the U.S. Environmental Protection Agency,” said Frosh Monday. “The EPA has flat out walked away from that responsibility.”

The Pennsylvania Department of Environmental Protection, which has oversight of bay-related issues, could not immediately be reached for comment for this story.

Maryland, Virginia and Washington, D.C.’s action represents a pivot from an earlier move by Maryland this January to sue not only the EPA, but also Pennsylvania, a step Virginia Gov. Ralph Northam’s administration also considered.

The decision to narrow the focus of the suits to the EPA, Frosh said, “is, I think, probably the most effective means” of holding Pennsylvania and New York “accountable.”

As Herring noted, “It’s really up to the EPA to review those plans and make sure they meet our goals.”