CBF Calls on EPA to Honor Its Commitments and Enforce the Clean Water Act

(ANNAPOLIS, MD)—In a letter, released today, Cosmo Servidio, the Environmental Protection Agency Administrator for Region III, stated:

“As has been done since the Bay TMDL was issued, EPA will continue to use our existing authorities under the Clean Water Act to ensure that all six Bay states and the District of Columbia are accountable for implementing their share of the Bay TMDLs’ nitrogen, phosphorus and sediment reductions.”

This follows an announcement the Chesapeake Bay Foundation (CBF) made on Monday that we are preparing to challenge EPA’s abdication of its responsibility under the Clean Water Act to enforce the Chesapeake Clean Water Blueprint. The reason for the litigation is that EPA failed to take action concerning Pennsylvania’s lack of progress in reducing nitrogen pollution.

For more than 20 years Congress has said plans must be developed and implementation begun to achieve and maintain Bay Restoration goals. After decades of failed plans, CBF sued EPA over its failure to enforce the Clean Water Act.

As part of the settlement of the suit, EPA agreed to set pollution limits (called a Total Maximum Daily Load or TMDL), work with the Bay jurisdictions to apportion the reductions needed, require plans to achieve the goals (Watershed Implementation Plans or WIPs), and require two-year incremental steps, called milestones, so that progress can be measured. EPA committed to evaluating the plans, as well as progress made toward the two-year milestones. EPA also laid out the consequences it could impose if any jurisdiction delivers inadequate plans or falls short on its milestone commitments. All of the programs and plans necessary to restore water quality were to be in place by 2025. This unique process is called the Chesapeake Clean Water Blueprint.

In December, EPA finished its review of Pennsylvania’s latest WIP. Before receiving the plan, EPA told all the Bay jurisdictions what should be in their respective plans. By 2025, the jurisdictions must identify and implement all programs and practices necessary to meet the pollution-reduction commitments the jurisdiction made. Pennsylvania’s plan has a funding shortfall of more than $300 million annually. And even if the money were allocated, the plan falls 25 percent short of its nitrogen commitment.

In response Jon Mueller, CBF Vice President for Litigation, issued this statement.

“By taking no action to hold Pennsylvania accountable, EPA has failed to adhere to the commitment to use its existing statutory authorities, abdicating its responsibilities under the Clean Water Act. While EPA can contend that the TMDL is not enforceable by re-citing the brief they filed during the AFBF v EPA case, that is no more than their opinion. The law concerning implementation of the Blueprint is backed by the Clean Water Act and any question of EPA’s role was settled by the Federal Third Circuit Court of Appeals. That court upheld the clean-up plans and held EPA responsible to ensure that the state plans had a reasonable assurance of success. EPA’s failure to hold Pennsylvania responsible to meet its clean water commitments by 2025 undermines the integrity of the historic federal/state clean-up plan and threatens the future of this national treasure.”

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