Maryland threatens EPA with lawsuit

Pending litigation over agency’s failure to enforce Chesapeake Bay cleanup

Maryland and the Chesapeake Bay Foundation put the Environmental Protection Agency on notice Monday that they will sue over what they call the agency’s failure to force Pennsylvania and New York to live up to their 2025 goals in restoring the Chesapeake Bay.

Maryland Attorney General Brian E. Frosh sent a letter of intent to the EPA, saying it must act to enforce the requirement for pollution management plans or face a federal lawsuit. Frosh said Maryland is being joined in the letter by Virginia and the District of Columbia.

The Annapolis-based bay foundation sent a separate letter of intent to sue to the federal agency on behalf of Anne Arundel County, the Maryland Watermen’s Association and Virginia farmer Bobby Whitescarver.

“EPA has failed to uphold its Clean Water Act responsibilities. It has failed to implement the Chesapeake Clean Water Blueprint. This has been ongoing for years, well before the COVID-19 pandemic, and the damage done will last far beyond the pandemic,” CBF President William C. Baker said in a statement released Monday morning.

“Ensuring the implementation of the Blueprint has been CBF’s top priority for over 10 years. It is essential the courts hold EPA accountable,” Baker continued. “There is no doubt that if Pennsylvania and New York fail to do their fair share, the Bay will never be saved.”

The letters give the EPA 60 days to address the complaints. After that, the governments, the foundation and Anne Arundel County will go to federal courts and ask a judge to force the federal government to act.

Monday afternoon EPA Administrator Andrew Wheeler and Regional Administrator Cosmo Servidio dismissed the complaints from Maryland and the others.

They said the EPA has acknowledged that some states can’t reach their target reductions by 2025. All states have shortcomings in the Watershed Implementation Plans that outline how pollution will be reduced, they said.

Maryland’s problem is stormwater. The state has yet to finalize five stormwater discharge permits, the EPA officials said, and must do so to comply with the state’s 2025 goals.

They commented on the coordinated legal effort launched earlier Monday during a news briefing to announce $6 million the agency is allocating for reducing nitrogen pollution from agriculture in the bay states.

Baker said he had never seen such a concerted effort to enforce the bay cleanup. The lawsuit is similar, however, to the 2008 lawsuit against the EPA claiming the federal government under President George W. Bush had failed to meet its commitments under The Chesapeake 2000 Agreement, designed to get the bay off the federal “dirty waters” list by 2010.

That lawsuit, filed with watermen, sports fishermen, former Maryland Gov. Harry Hughes, a former Virginia legislator and former D.C. Mayor Anthony Williams, was settled under President Barack Obama. It led to the current Chesapeake Bay Blueprint agreement.

In its 14-page letter to Wheeler, the foundation claims that under the Clean Water Act, the EPA is required to “ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement to achieve and maintain” the Bay Total Maximum Daily Load.

States in the bay’s watershed are supposed to have measures in place by 2025 that will get them to pollution reduction goals — the total daily maximum load, or TMDL — under targets set by the Environmental Protection Agency in 2010. The TMDL set slimits for nitrogen and phosphorus pollution, in addition to reductions in sediment.

“The EPA has flat out walked away from that requirement,” Frosh said in a news conference to discuss the letter.

EPA’s recent evaluation of each bay state’s Watershed Improvement Plan concluded that Maryland, Virginia and the District of Columbia all will attain their respective necessary load reductions by 2025. EPA also concluded that the plans submitted by Pennsylvania and New York were deficient, falling short of nutrient reduction goals and lacking sufficient funding.

EPA has not, however, required Pennsylvania or New York to develop or implement plans that fully meet the pollution reduction goals, according to the letters.

Virginia Attorney General Mark Herring said the EPA is “rubber stamping” plans and that all states need to adhere to the watershed agreement.

“We have to do everything we can to restore the Chesapeake Bay’s healthy trajectory,” he said. “That means also as administrator of that agreement the EPA has to enforce its terms and the EPA has to treat all the watershed states and partners equally and make sure each is pulling its own weight.”

Frosh and others said the EPA’s inaction reflects a wider change of policy toward bay cleanup under President Donald Trump’s administration. In January, the head of the EPA’s Chesapeake Bay Program stepped back from strict enforcement of 2025 pollution goals for the Chesapeake Bay, calling the technical targets “an aspiration” and not an enforceable deadline.

The comments by program Director Dana Aunkst near the end of a two-day conference in Annapolis sparked criticism from state officials and outrage from several environmental groups who said they represent the Trump administration’s retreat from the Chesapeake Bay cleanup effort.

But in discussing what happens after 2025, when the TMDL was supposed to be in force, Aunkst told those attending the Chesapeake Bay Commission meeting that 2025 is not a deadline. He said the 2010 targets only inform regulatory decisions.

“The TMDL itself is not enforceable,” he said.

Anne Arundel County Executive Steuart Pittman announced Monday the county also will file a lawsuit against the EPA.

In a statement, Pittman cited the county’s 500 miles of shoreline, travel and tourism spending and half a billion dollars spent over the last decade in upgrades to its wastewater treatment plants and stormwater infrastructure.

“Anne Arundel County residents have invested far too much in the Chesapeake Bay restoration effort to watch from the sidelines as the EPA abandons its obligations,” Pittman said. “Since the federal government refuses to lead, placing our local economy, our residents, and our very way of life at risk, I must ask the courts to intervene and make them lead.”

Rachael Pacella and Brandi Bottalico contributed to this story.