EPA fails to protect Chesapeake Bay from pollution, lawsuits say

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The success of the publicly funded Chesapeake Bay watershed protection program is in doubt due to the Environmental Protection Agency's failure to require two states to comply with pollution-reduction goals, two federal lawsuits contend.

Both complaints say the EPA approved watershed implementation plans submitted by Pennsylvania and New York that don't comply with agreed-upon measures to reduce polluting nutrient discharges by 2025.

Homes and agricultural activities are sources of pollution in the Potomac River, a main tributary of the Chesapeake Bay. Two lawsuits want the court to order the EPA to enforce bay pollution reduction goals.

Billions, some raised through public borrowing, have been spent on efforts to clean up the nationally significant bay and its watershed, which runs through portions of Delaware, Maryland, New York, Pennsylvania, Virginia, Washington, D.C., and West Virginia.

Under the Clean Water Act, plaintiffs in the suits say, the EPA is charged with ensuring that bay management plans are developed and implemented by signatories of the Chesapeake Bay agreement to achieve and maintain goals for lowering nutrients and phosphorus entering the bay and its watershed. The EPA failed to do its job, they argue.

“Years ago, the EPA, the states in the Chesapeake Bay watershed, and the District of Columbia agreed to a common strategy to restore America’s most beautiful estuary. But not all states are living up to that commitment, and the EPA is just standing by," said Virginia Gov. Ralph Northam, chairman of the Chesapeake Executive Council, which establishes policies for bay restoration and protection.

Northam said he's committed to achieving bay restoration goals by 2025 through a partnership that includes "the EPA holding each partner accountable to the commitments they made."

Attorneys general for Virginia, Maryland, Delaware and the District of Columbia filed a 26-page suit against EPA Administrator Andrew Wheeler and Cosmo Servidio, mid-Atlantic EPA regional administrator, in the U.S. District Court for the District of Columbia Sept. 10.

The suing states and D.C. are four of the eight members of the Chesapeake Bay Program, an oversight entity created in 1983. West Virginia is also a member but not a plaintiff in the suit. Pennsylvania, New York and the EPA are also members.

The nonprofit Chesapeake Bay Foundation Inc., Maryland Watermen's Association, Anne Arundel County in Maryland, and Virginia farm owners Robert Whitescarver and Jeanne Hoffman filed a similar complaint against the EPA, Wheeler and Servidio on Sept. 10.

The Chesapeake Bay and its 64,000-square-mile watershed has suffered from poor health due to air pollution as well as nitrogen and phosphorus from sewage, farming and runoff from impervious sources landside.

Those problems led to the creation of the foundation in 1967 and government-sponsored organizations in the 1980s, all aimed at reducing pollutants flowing into the bay.

Since 2015, the states and D.C. have spent approximately $7.24 billion on remediation projects to improve the health of the bay, using cash, grants, bond financing and a public-private partnership, while the EPA and other federal agencies have spent an estimated $2.84 billion, according to EPA figures on the Chesapeake Bay Program's website.

Portions of the Chesapeake Bay watershed run through through Delaware, Maryland, New York, Pennsylvania, Virginia, Washington, D.C., and West Virginia.

If the EPA fails to hold Pennsylvania and New York accountable for following the blueprint aimed at cleaning the Chesapeake, "it will be yet another in a series of failures for bay restoration," said Chesapeake Bay Foundation President William Baker.

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

The EPA’s acceptance of Pennsylvania and New York's plans last year was a violation of the agency’s responsibilities, Baker said.

The EPA said in a statement said the agency is "disappointed" that the lawsuits were filed.

It "will make it more difficult for EPA to work with all of its state partners to achieve that shared goal," the agency said. "This litigation only serves to set back our efforts, divert partnership resources and divide a partnership that is making exceptional advancement in restoring the Chesapeake Bay and local waters.”

As the largest estuary in the U.S., where a freshwater river or stream meets the ocean, the Chesapeake's watershed includes the bay, rivers, streams, and creeks and is covered with forests, farms, wildlife habitat, cities, suburbs, wastewater treatment plants, and heavy industry, according to the Foundation.

Some states have publicly financed pollution-reducing projects, while at least one local government has employed a unique public-private partnership.

Prince George's County, Maryland became the first municipality to use a design-build-operate-maintain, community-based P3 model developed by the EPA's Region 3 office, which covers Delaware, Maryland, Pennsylvania, Virginia, West Virginia and D.C.

The county and Corvias inked the 30-year deal in November 2014 called the Cleanwater Partnership to fund infrastructure projects using low-impact development, best management practices, and green infrastructure to reduce stormwater runoff into Chesapeake Bay.

Corvias is responsible for building and maintaining the projects, which include retrofitting impervious surfaces such as roads, ponds, pipes, bioretention systems, and other high-efficiency infrastructure. The county funds the work with a local Clean Water Act Fee on parcels.

As of May, $162.7 million had been spent on 150 sites over 2,622 acres, according to the partnership's July newsletter.

In Virginia, bonds have been issued over the years to finance pollution-reducing projects by local governments, said Adrienne Kotula, the state's director on the Chesapeake Bay Commission.

"While we actively work to support clean water funding in the Commonwealth of Virginia, the Office of Clean Water Financing at the Virginia Department of Environmental Quality does the project management once the funding has been secured," Kotula told The Bond Buyer. "They do so not only for cash deposits, but also for the water quality-related bond funding that comes through the Virginia Public Building Authority and the Virginia Resources Authority."

In 2009, the Virginia Resources Authority issued $174 million of clean-water state revolving fund subordinate revenue bonds to finance 13 projects with 11 borrowers, including sanitation districts funding sewage projects to help clean up the Chesapeake Bay.

VRA Executive Director Stephanie Hamlett said since various state agencies issue debt, local government projects aimed at reducing pollution in the bay are commingled with those of other borrowers making it difficult to say precisely how much funding has been done specifically for the clean-up effort.

While funding progress is being made, plaintiffs in the federal lawsuits filed Sept. 10 contend that the EPA is failing to perform its duties under Section 117 of the Federal Water Pollution Control Act, also known as the Clean Water Act.

The act says "the Chesapeake Bay is a national treasure and a resource of worldwide significance" and that over many years the productivity and water quality of the bay and its watershed have been diminished by pollution, excessive sedimentation, shoreline erosion, the impacts of population growth and development.

By law, the EPA must ensure that bay management plans are developed and implemented by members of the Chesapeake Bay Agreement that achieve and maintain nutrient and phosphorus goals for the bay and its watershed, which the lawsuits claim the EPA has failed to do in approving plans submitted by Pennsylvania and New York.

Chesapeake Bay Foundation spokesman John Surrick told The Bond Buyer there are also other concerns that may affect future progress on cleansing the bay.

President Trump's administration has been focused on rolling back a variety of regulations in both the Clean Water Act and the Clean Air Act, Surrick said.

The foundation is also involved in litigation challenging the administration's attempt to roll back states’ authority to regulate greenhouse gas emissions from vehicle tailpipes, as well as a rollback of a portion of the Clean Water Rule that defines federally protected wetlands and streams based on the connectivity of waters and the impacts streams and wetlands have on downstream water quality.

"Thirty percent of the pollution in the bay comes from the air, so there's significant concern about both acts," Surrick said. "Waterways around the country suffer from the same kind of pollution that the Chesapeake Bay is suffering from. That's what we're trying to reduce in the Chesapeake Bay region."

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