By: Karl Blankenship, BayJournal.com (republished)
U.S. Environmental Protection Agency officials on Friday asserted their intent to achieve Chesapeake Bay cleanup goals by 2025, but they stopped short of promising any new regulatory actions aimed at prodding greater actions from Pennsylvania, where pollution control efforts are far behind schedule.
“I just want to assure everyone, we are fully committed to working with this partnership to meet the goals of 2025. Nothing has changed,” said Cosmo Servidio, administrator of EPA Region III, which includes most of the Bay watershed.
Servidio’s comments to leaders of state environmental agencies came as Maryland and Virginia are contemplating legal action against both the EPA and Pennsylvania. The Chesapeake Bay Foundation on Monday also said it is preparing to sue the EPA for not enforcing the Clean Water Act with regard to the Bay cleanup. “Failing to hold Pennsylvania accountable undermines the success we have seen in recent years,” CBF President William Baker said.
Tension within the Bay restoration effort spiked after Pennsylvania submitted an updated cleanup plan last summer that fell 25% short of its pollution reduction goal for nitrogen, and $324 million a year short in funding.
An EPA review released in December acknowledged the shortfalls, but the agency declined to take any of the regulatory actions it had repeatedly threatened, such as ratcheting down on the discharges allowed by industries and wastewater plants.
Shortly thereafter, EPA Bay Program Director Dana Aunkst described the region’s 2025 cleanup deadline as “aspirational” at a meeting of the Chesapeake Bay Commission and said that the Chesapeake Bay Total Maximum Daily Load, which set pollution reduction goals, is “not an enforceable document.” The environmental community widely saw those comments as stepping away from the EPA’s support for the cleanup. The agency quickly issued a statement that it “remains steadfast in its commitment” to the Bay.
After those developments, 20 members of Congress in January fired off a letter to EPA Administrator Andrew Wheeler demanding “immediate steps to demonstrate EPA’s commitment and accountability to the restoration of the Chesapeake Bay.”
Despite Servidio’s comments Friday to the Bay Program Principals’ Staff Committee, which includes senior state and federal agency representatives, Maryland Department of the Environment Secretary Ben Grumbles told the group that legal action by his state was “very likely,” and Virginia Natural Resources Secretary Matt Strickler expressed disappointment that the EPA provided no specifics about possible further action.
Servidio said he hoped lawsuits could be avoided. “I have always found litigation to be something that can only stymie things,” he said. “That is my opinion.”
He noted that the EPA has taken actions against Pennsylvania, including the recent rerouting of $4 million of unspent money away from the state Department of Environmental Protection to other agencies and organizations that were better able to get projects implemented.
Servidio said the EPA is committed to providing more money and technical assistance to help control runoff from the state. But, he said, the EPA would not discuss any other potential actions in public.
Grumbles acknowledged the agency would want “some degree of confidentiality” when considering an enforcement action. But, he said, other states — which have invested huge sums to meet cleanup goals and committed more in the future — need assurance that the EPA will take tougher regulatory actions against Pennsylvania.
“The gist of it is really trying to get specificity and enforceability for an intervention,” Grumbles said.
Pennsylvania contributes, by far, the greatest amount of water-fouling nutrient pollution to the Chesapeake. The state has long been criticized for having inadequate programs and not dedicating enough funding for the cleanup — its legislature has been cutting environmental programs over the years. Those challenges are further complicated because the vast majority of nutrients in Pennsylvania originate from farmland, a source of pollution that all states in the Bay watershed have struggled to control.
Some have hoped that the threat of litigation would spur Pennsylvania’s legislature to provide more money, but Pat McDonnell, secretary of the state Department of Environmental Protection, said legal action could have the opposite impact.
“We have a number of legislators who have been very actively trying to work to get funding,” he said. “This conversation has not been helpful.”
While McDonnell acknowledged the state had a significant funding shortfall, he said he “bristled” at comments that its plan had an actual shortfall in nutrient reduction.
To meet its 2025 cleanup goals, Pennsylvania needs to reduce the annual amount of nitrogen reaching the Bay by 34 million pounds from estimated 2018 levels. Its latest plan missed that mark by more than 9 million pounds — more than the entire reduction needed by most other states from now to the deadline.
But McDonnell insisted that the 9 million pound shortfall was the result of a problem with the computer model estimates used to track pollution reduction efforts. He said the model did not capture the full extent of Pennsylvania’s activities.
“We have a model gap,” McDonnell said. “We do not believe we will have an actual gap. We believe there are practices currently undercounted or not counted in terms of the credits received for Pennsylvania.”
That drew skepticism from Strickler. While models might have some uncertainty, he said, it was unlikely to be that large — and if it was, other states could make the same claim.
“By that logic, [Virginia] could have closed our entire gap,” he said, and have no need to plan new efforts.
He said Pennsylvania and the EPA need to demonstrate how the state is going to accelerate actual progress. “I think punting for two years and just saying we are going to make some accounting tweaks is unacceptable,” Strickler said.