The health of the Chesapeake Bay took center stage at a Senate Environment and Public Works Committee hearing Wednesday, as a Maryland senator threatened legal action to ensure Pennsylvania meets its goals under the federal-state plan to clean up the estuary.

Democratic Senator Chris Van Hollen’s comments came after an assertion last week by the director of the Environmental Protection Agency’s Chesapeake Bay Program that the 2025 goals for the Chesapeake Bay TMDL were merely ”aspirational,” not enforceable.

Van Hollen said that notion is “dead wrong when you look at the agreement,” which allows EPA to take certain actions, such as redirecting funding or requiring reductions from point sources, if a state is making insufficient progress toward meetings its TMDL goals.

The senator also cited a 2013 decision from the 3rd Circuit Court of Appeals that found TMDLs “serve as the cornerstones for pollution reduction plans that do create enforceable rights and obligations.” Farm groups led by the American Farm Bureau Federation had led the lawsuit, which alleged EPA exceeded its authority under the Clean Water Act when it adopted the TMDL.

TMDL stands for “Total Maximum Daily Load,” a program in the Clean Water Act. In the case of the bay, the TMDL requires the six Bay states — Virginia, Maryland, Delaware, Pennsylvania, West Virginia and New York — and the District of Columbia to develop Watershed Implementation Plans (WIPs) to meet goals of reducing phosphorus, nitrogen and sediment that run into the Bay.

Reviews of state plans conducted by EPA and released last month showed Pennsylvania is falling short of meeting its pollution reduction goals. In particular, the state’s latest WIP, while meeting its planning target for phosphorus reductions, only meets 75% of the goal for nitrogen. 

Pennsylvania’s current planned efforts do not achieve the nitrogen Phase III WIP planning target, nor does the plan explain how or when additional reductions from the remaining County Action Plans will be incorporated into the broader plan to achieve the nitrogen planning target,” EPA said.

“If we don’t get assurances from the EPA in short order that they’re going to enforce these targets and come up with a realistic plan for hitting those targets, then we are going to have to sue EPA to do its job and enforce the agreement,” Van Hollen said.

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Maryland Secretary of the Environment Ben Grumbles agreed with Van Hollen about the importance of EPA enforcement and said his boss, Republican Gov. Larry Hogan, “has always felt that litigation is a potential strategy. He’s been looking really closely at this.” Grumbles said the TMDL includes “accountability measures,” allowing EPA to redirect funding and “impose greater requirements on point sources.”

“Pennsylvania needs a lot of help, both carrots but also sticks,” Grumbles said.

The hearing focused on ways to improve the Clean Water Act Section 319 Nonpoint Source Management program, which provides grants to states to reduce pollution from nonpoint sources, including agricultural land.

Both Grumbles and Jennifer Zygmunt, nonpoint source program coordinator at the Wyoming Department of Environmental Quality, said the program is working well overall but that streamlining the grant application and distribution process would be helpful, in order to get money to states more quickly.

Zygmunt, however, said if EPA takes another look at the formula for allocating funds to states, it should give more weight to recreation and tourism, and rangeland and pastureland.

Grumbles said the program is a “tremendously impactful and wise investment” that should receive more federal funding. Section 319 grants consistently topped $230 million annually in the early 2000s but have slipped well below $200 million.

The fiscal 2020 appropriations bill provides $172 million in grants, after the Trump administration proposed no funding for the program.

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