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Maryland Might Sue Pa. Over Chesapeake Bay Cleanup


January 16, 2020

Map courtesy Pa. DEP

Half of the land area of Pennsylvania drains to the Chesapeake Bay from four major river basins, and Pennsylvania comprises 35 percent of the entire Chesapeake Bay Watershed. Both Blair and Bedford counties are in the watershed and thus are affected by state and federal actions regarding the bay.

Maryland Gov. Larry Hogan on Jan. 7 called for his state to initiate legal actions against Pennsylvania, citing the "obvious inadequacy" of its Chesapeake Bay cleanup plan, and against the U.S. Environmental Protection Agency which he said has "no intention" of forcing his northern neighbor to do more.

In a letter to Maryland state Attorney General Brian Frosh directing the action, the Republican governor said that Maryland wastewater treatment plants, farmers and municipalities had helped meet the region's Bay cleanup goals and invested huge sums of money. But, he said, "Pennsylvania and the EPA must hold up their end of [the] bargain."

Pennsylvania last year failed to submit a plan that showed how it would fully achieve, or fund, its Bay cleanup obligations. After its evaluation of the plan, the EPA last month did not announce any new steps to prod the state to take greater action.

"[We] have a generational responsibility to protect the Bay, and we simply cannot afford to fall short of these shared obligations," Hogan wrote.

'Pollution diet' set

After the region missed previous cleanup goals, the EPA in 2010 established a new cleanup plan called the Chesapeake Bay total maximum daily load (TMDL), or "pollution diet," which set limits on the amount of nitrogen and phosphorus that each state sends to the Bay. The nutrients spur algae blooms that cloud its water and fuel oxygen-starved "dead zones."

Since then, the levels of the water-fouling nutrients have declined – and phosphorus goals likely will be met – but the region remains far off track for nitrogen. While several other states are also behind schedule, none is lagging so badly as the Keystone state, which is also by far the largest source of nutrients reaching the Chesapeake.

Under the framework established in the Bay TMDL, the EPA committed to monitoring the progress of individual states and to impose "backstop" actions if they were not on track to meet the 2025 Bay cleanup goal.

Those include such things as withholding or redirecting federal grants, revoking the state's power to issue water discharge permits, and forcing greater and more costly pollution reductions from regulated entities, such as wastewater treatment plants, if largely unregulated sources, such as farm runoff, are falling behind.


Hogan originally directed Frosh to begin exploring legal action last August, but he cited "recent developments" for triggering action now.

First, Pennsylvania last summer completed an updated cleanup plan that achieved only 75 percent of its nitrogen goal, and it identified an annual funding gap of more than $300 million a year without showing how it would close the shortfall. While the EPA acknowledged those problems in its review of the plan, it declined to take any new backstop actions.

Then, at a meeting of the Chesapeake Bay Commission last Friday, Dana Aunkst, the director of the EPA's Bay Program Office, described the region's 2025 cleanup deadline as "aspirational" and said that the Chesapeake Bay Total Maximum Daily Load is "not an enforceable document."

While a TMDL is not strictly enforceable itself, regulatory actions – such as all discharge permits – are required to be consistent with a TMDL.

Frustration mounting

The environmental community widely saw Aunkst's comments as stepping away from the EPA's commitment to backstop Bay goals, even as their frustration over Pennsylvania was mounting.

The Choose Clean Water Coalition, a network of more than 200 organizations, said it was "stunned" by the remarks, and the Maryland League of Conservation Voters called it a "profoundly sad and disappointing moment in Bay history."

EPA Region III issued a follow up statement insisting that it "remains steadfast in its commitment to helping our partners implement the Chesapeake Bay TMDL to ensure the Bay and local waters are protected and restored."

Hogan's move toward legal action was praised by Will Baker, president of the Chesapeake Bay Foundation, who said the Bay cleanup plan "requires all states in the watershed to do their part and EPA to hold them accountable."

"So far," Baker said. "Pennsylvania's elected officials have not made the investments needed to meet their clean water commitments. And EPA's failure to impose consequences puts the entire cleanup at risk." The environmental group is considering its own legal options to address Pennsylvania's shortfall.

Earlier on Wednesday, Sen. Chris Van Hollen, D-MD, said at a hearing of the Senate Environment and Public Works Committee in Washington that the situation was reaching a "boiling point" and that he was crafting a letter to EPA Administrator Andrew Wheeler about the Bay issue.

In Pennsylvania, meanwhile, state Department of Environment Secretary Patrick McDonnell insisted after a Wednesday legislative briefing on the Bay that the state remains committed to the 2025 goal.

"We're still members of the partnership and we are still moving ahead to achieve the 2025 goal," he said, though he added "it will depend on some of the funding." The state's Republican-controlled General Assembly has been cutting environment funding, including money for the Bay, for more than a decade.

"We think we have a really credible plan," McDonnell said, "but we will need some additional resources."

Editor's Note: Karl Blankenship is editor of the Bay Journal and executive director of Bay Journal Media. He has served as editor of the Bay Journal since its inception in 1991. Bay Journal staff writer Ad Crable contributed to this report.


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