Two states and the District of Columbia say they plan to sue the Environmental Protection Agency for failing to enforce a court-ordered agreement to dramatically lower pollution in the Chesapeake Bay, the nation’s largest estuary.
Before the agreement was reached in 2009, each jurisdiction committed to individual plans to limit nutrient pollution runoff from wastewater treatment facilities and farms into the watershed. Nutrient pollution from human and animal waste contributes to massive algal blooms that lower the level of oxygen in the bay and block sunlight from underwater grasses that serve as a sanctuary for marine life.
The EPA pledged to review each state plan and require the states to meet their goals, depriving them of permits that allow pollution to run from construction sites, livestock farms and other operations if necessary.
Maryland Attorney General Brian E. Frosh (D) said his state has invested hundreds of millions in upgrading wastewater facilities and monitoring farms since the cleanup started in December 2010, only to have states upstream repeatedly submit inadequate pollution reduction goals and violate them.
“The state of Maryland made major sacrifices,” Frosh said. “This is a fight we cannot win without our neighbors and the commitment of the EPA. The EPA has flat out walked away from its responsibility."
The Chesapeake Bay Foundation, the Maryland Watermen’s Association, Anne Arundel County and others also issued letters of intent to sue the federal government under the same claim.
“From what we can tell, the claim has no merit,” Wheeler said of the intent to sue. He was on a call with reporters Monday to announce that the EPA will commit $6 million to reduce agricultural runoff in the six bay states.
Wheeler questioned the timing of the announcement, saying the Chesapeake Bay Foundation was notified Friday that the EPA intended to announce the additional funding on Monday.
“I don’t think that was a coincidence,” Wheeler said. “I think it shows they would much rather litigate and make news sound bites than they would work on and solve the problems with the bay.”
The agency has 60 days to respond before the attorneys general and their partners can file claims in federal court.
“The water quality in the Chesapeake Bay watershed has recently reached the highest standards in more than 30 years,” Wheeler said in a statement before he addressed reporters. The statement said the focus of the funding is the “continued reduction of nitrogen from agricultural sources, one of the most difficult hurdles to overcome as we strive to make the Bay ever cleaner.”
The EPA said the funding is part of an increase in the Chesapeake Bay Program budget approved by Congress and signed by President Trump. But the EPA’s critics say that the bay’s cleaner health was achieved without much help from the Trump administration.
Each year since taking office, Trump has sought to cut the bay program budget to nearly zero, only to be denied by Congress. Trump’s budgets would have removed the program’s staff of 100 and eliminated science projects and water quality monitoring that helped the cleanup. Under Trump, the bay’s water quality has declined by 4 percent.
The funds to lower agricultural pollution will not bring New York and Pennsylvania into compliance, those planning to sue assert. According to their claim, Pennsylvania should have reduced its nitrogen pollution to the bay by 28 million pounds, but only achieved half that. New York’s plan would only meet 61 percent of its commitment by the end of the cleanup. Both state plans had funding shortfalls amounting to hundreds of millions of dollars but neither was penalized by the EPA.
Officials in New York said the state is on track to meet its commitment to implement a pollution reduction program for the Chesapeake through 2025. Without addressing the coalition’s specific claims about Pennsylvania’s performance, state officials there said a lawsuit “would undermine the cooperative spirit” of the partnership and harm the goal of improving water quality.
“The Trump EPA is rubber stamping plans that are plainly inadequate and allowing some watershed states to do less than what they’re supposed to,” said Virginia Attorney General Mark R. Herring (D). “And because they have failed, we must take action to stop the Trump EPA from shirking its responsibility to protect the Chesapeake Bay.”
“While I hope the EPA will do its job, I believe it’s unlikely,” said Will Baker, president of the bay foundation.
Baker’s organization joined several environmental groups in a 1999 Clean Water Act lawsuit that led to a consent decree and eventually a bay cleanup plan 12 years later. Fish, crabs, oysters and other wildlife were dying in the Chesapeake’s unhealthy waters despite an agreement among states to restore it.
A previous cleanup plan among the states that began in 1983 had failed because there was no entity that could enforce the terms.
The 1999 lawsuit compelled the EPA to become more involved as a steward of the Clean Water Act. The Obama administration established the most ambitious plan yet to clean the bay by 2025, with requirements to upgrade sewage plants, stop overflows of human waste from municipalities, limit animal waste from large feed operations and put in place new EPA enforcement tools.
Fish were so abundant in the bay when John Smith arrived in 1607 that his crew tried to scoop them into a frying pan and the men could walk on enormous oyster reefs that breached the surface.
Now, wild oyster populations are about 1 percent of their historic numbers, crab populations have reached historic lows and a recent study found that juvenile striped bass that remain in the bay a year before venturing to the Atlantic die off at a rate of 70 percent a year.
Under the 2011 cleanup plan, the bay, a major source of recreation, tourism and commerce for Maryland and Virginia, was returning to life. “Populations of species that were in rapid decline are now coming back at incredible rates: blue crabs, clams, oysters and many others are starting to flourish,” Herring said. “The waters are healthier today than they have been in decades. But we still have a lot of work to do before we can declare victory.”
States can’t afford to backslide, Herring said.
“That means as administrator of the agreement, the EPA has to enforce its terms. EPA has to treat all states in the watershed equally and make sure each is pulling its own weight,” he said.