Ch­e­sa­peake Bay group plan­ning to sue the EPA

The Dundalk Eagle - - FRONT PAGE -

MARY­LAND— The Ch­e­sa­peake Bay Foun­da­tion (CBF) and its part­ners will file a com­plaint su­ing the fed­eral En­vi­ron­men­tal Pro­tec­tion Agency (EPA) for ab­di­cat­ing its re­spon­si­bil­i­ties un­der the Clean Wa­ter Act.

CBF said in a press re­lease that the EPA has failed to re­quire Penn­syl­va­nia and New York to de­velop plans to suf­fi­ciently re­duce pol­lu­tion as was re­quired by the Ch­e­sa­peake Bay Clean Wa­ter Blue­print, es­tab­lished in 2010, and re-con­firmed in the 2014 Ch­e­sa­peake Bay Agree­ment. The suit will be filed in the United States District Court for the District of Columbia.

CBF’s part­ners in the suit are Anne Arun­del County, Mary­land, the Mary­land Water­men’s As­so­ci­a­tion, and Robert Whitescarv­er and Jeanne Hoff­man, who op­er­ate a live­stock farm in Vir­ginia.

Un­der­scor­ing the dam­age this will cause for Bay restora­tion ef­forts, At­tor­neys Gen­eral in Mary­land, Vir­ginia, Delaware, and the District of Columbia will also file a sep­a­rate suit in the District

of Columbia Fed­eral District Court.

“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,” CBF Pres­i­dent Wil­liam C. Baker said.

“It doesn’t have to be this way. Un­der the Blue­print we have seen progress. But un­less pres­sure is brought to bear on Penn­syl­va­nia, we will never get to the fin­ish line.”

In the past dozen years, CBF said it has been suc­cess­ful in lit­i­ga­tion to sup­port Bay restora­tion. First, to have EPA com­mit to the science-based pol­lu­tion lim­its that EPA then agreed to is­sue with the Blue­print in 2010. And sec­ond, to help de­fend the Blue­print from at­tacks by the Amer­i­can Farm Bureau Fed­er­a­tion and its al­lies in fed­eral court.

In the sec­ond case, the Blue­print was up­held by a fed­eral court judge in Penn­syl­va­nia, who found that the fed­eral/state part­ner­ship was le­gal and the science sound, call­ing it an ex­am­ple of the “co­op­er­a­tive fed­er­al­ism” that is called for in the Clean Wa­ter Act.

The de­ci­sion was ap­pealed to the fed­eral Third Cir­cuit Court of Ap­peals. There, CBF con­tin­ued to make the case that the Blue­print was le­gal, point­ing to dam­age to lo­cal com­mu­ni­ties and busi­nesses that de­pend on clean wa­ter.

Once again, the ap­peals court up­held the Blue­print, reaf­firm­ing EPA’s au­thor­ity and re­spon­si­bil­i­ties. The court also ad­dressed the re­quire­ment that state plans pro­vide ‘rea­son­able as­sur­ance’ that the plans will suc­ceed, say­ing that EPA’s ac­cep­tance of plans with­out such as­sur­ance would be ar­bi­trary and capri­cious.

CBF said lit­i­ga­tion is a last re­sort. CBF, its part­ners, and the At­tor­neys Gen­eral have twice for­mally of­fered to meet with EPA and dis­cuss the claims, but EPA did not re­spond.

Ac­cord­ing to the CBF, Penn­syl­va­nia’s plan to meet the 2025 goals in the Blue­print con­tains im­prove­ments over past plans, in­clud­ing pri­or­i­tized county-level plans. How­ever, as ap­proved by EPA, it specif­i­cally iden­ti­fies how the Com­mon­wealth will achieve only roughly 73 per­cent of its 31 mil­lion-pound ni­tro­gen-re­duc­tion com­mit­ment, and the im­ple­men­ta­tion plan is un­der­funded by more than $300 mil­lion dol­lars a year.

In New York’s plan the state’s ni­tro­gen short­fall ex­ceeded 1 mil­lion pounds an­nu­ally and it failed to ad­e­quately iden­tify fund­ing sources for meet­ing agri­cul­tural and stormwa­ter com­mit­ments.

De­spite the de­fi­cien­cies, CBF said the EPA took no steps to hold ei­ther state ac­count­able to their Blue­print obli­ga­tions. EPA should ei­ther have re­quired the states to de­sign plans to fully meet the pol­lu­tion re­duc­tion goals in­clud­ing iden­ti­fy­ing the nec­es­sary fund­ing, or im­posed con­se­quences. EPA’s ac­cep­tance of New York and Penn­syl­va­nia’s plans last year was a vi­o­la­tion of the agency’s re­spon­si­bil­i­ties.

“The Clean Wa­ter Act re­quires EPA to en­sure the states de­sign and im­ple­ment plans to meet their clean wa­ter com­mit­ments. Af­ter years of failed vol­un­tary ef­forts, this over­sight and ac­count­abil­ity is crit­i­cal,” Baker added.

“The Blue­print, how­ever, is not just about clean wa­ter. Tak­ing the ac­tions nec­es­sary to re­duce pol­lu­tion will sup­port lo­cal busi­nesses, cre­ate jobs, and pro­vide ad­di­tional en­vi­ron­men­tal and pub­lic health ben­e­fits—all of par­tic­u­lar im­por­tance in our cur­rent na­tional pub­lic health and eco­nomic cri­sis.”


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