CBF to Sue EPA over Failure to Hold Pennsylvania and New York Accountable for Not Meeting Clean Water Act Obligations

(ANNAPOLIS, MD)—Today, 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. The agency 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,” said CBF President William C. Baker. “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 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.

For CBF, 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.

With the 2025 deadline fast approaching, EPA refusing to enforce its Clean Water Act authorities, and the fate of restoring a national treasure in jeopardy, we must turn to litigation once again.

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. There is no ‘reasonable assurance’ there.

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, 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.”

Also signing on to CBF’s lawsuit:

Anne Arundel County, Maryland—Anne Arundel County’s 588 square miles of land includes more than 500 miles of shoreline on the Chesapeake Bay and its tributaries. Its 580,000 residents and countless tourists are drawn to the county to enjoy the Bay, fresh seafood, and numerous water-based recreational opportunities. Travel and tourism spending in the county are estimated at over $3.5 billion annually, providing support for over 30,000 workers. The county has invested more than $500 million over the last decade to protect this vital natural, economic and cultural resource. “Anne Arundel County residents have invested far too much in the Chesapeake Bay restoration effort to watch from the sidelines as upstream states and the EPA abandon their obligations,” said Anne Arundel County Executive Steuart Pittman. “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.”

The Maryland Watermen’s Association—Robert T Brown, Sr. is the President of the Maryland Watermen’s Association. He observed that Maryland watermen and the Chesapeake Bay and its tributaries have suffered for many years due to EPA’s failure to enforce the Clean Water Act. The pollution of waste and debris flowing from upstream states, through the Susquehanna River feeding into the Chesapeake Bay creates, red tides, low oxygen levels and dead zones. This affects the survival of oyster larvae, crabs, clams and fish.

“Remember water runs downhill with these pollutants and for these reasons the Maryland Watermen’s Association hopes through this law suit it will force the EPA to protect and enforce the health of the Chesapeake Bay and its tributaries,” he said.

Robert Whitescarver and Jeanne Hoffman operate a farm in Virginia, raising livestock. He is a former Natural Resource Conservation Service representative, who spent his career educating farmers on the benefits of protecting farmland and improving water quality in local streams and rivers.

“All jurisdictions need to do their fair share. The efforts that Virginia and Maryland farmers have put into sustainable farming are harmed by EPA’s failure to require all jurisdictions to meet the commitments they agreed to,” Whitescarver said.

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