The Chesapeake Bay Foundation is preparing to sue the Environmental Protection Agency in the next several weeks for not enforcing Clean Water Act requirements to reduce pollution flowing into the bay.

As it had when it filed a notice of intent to sue EPA in May, the organization called out Pennsylvania in particular for a lack of commitment to meet pollution reduction targets by 2025.

The state said in its most recent Watershed Implementation Plan that to meet its goals through 2025, it will be short by $324 million annually.

The main challenge is in achieving progress on ag lands, according to the foundation. “Maryland and Virginia already provide significant state funds for farmers,” CBF Executive Director Will Baker said Thursday. “Why not Pennsylvania?”

He said Pennsylvania "might find a number of ways to reduce pollution" without having to spend an additional $324 million each year.

Maryland, Virginia and the District of Columbia have said previously they also plan to go to court to enforce targets for nutrients entering the bay outlined in the Chesapeake Bay Total Maximum Daily Load (TMDL), often called the “pollution diet” for the bay.

EPA has said, however, that the TMDL is not enforceable, citing an Obama administration court filing in 2016 that said a TMDL “does not impose any binding implementation requirements on the states.” That filing came in response to an American Farm Bureau Federation petition that sought to overturn a federal appeals court decision upholding the TMDL. The Supreme Court let the 3rd Circuit Court of Appeals decision stand.

CBF, the states and Washington, D.C., disagree, saying EPA has a legal duty to ensure the states meet their goals. CBF’s notice of intent says EPA also “abused its discretion” in approving New York’s WIP, which the group also called deficient.

Pennsylvania Department of Environmental Protection spokesperson Elizabeth Rementer said in May that DEP and its partners were “fully committed to meeting Pennsylvania’s goals for water quality in the Chesapeake Bay and locally in our part of the watershed.”

The legislature, however, is currently hamstrung by the COVID-19 pandemic. It passed a five-month budget at the end of May holding spending steady and is scheduled to return this fall to take further action.

CBF’s announcement about litigation coincided with its release of a report Thursday saying that while Maryland and Virginia are on track to meet their targets, Pennsylvania is woefully behind.

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“Pennsylvania is not on track to achieve its 2025 goals,” CBF said. “Despite success in reducing pollution from wastewater treatment plants, it is not enough to make up for the massive need to reduce pollution from agriculture, which accounts for roughly 93 percent of the total remaining nitrogen reduction necessary” to meet the state's goals.

Maryland Democratic Sen. Chris Van Hollen, who also has criticized EPA for not taking action to enforce pollution targets, did so again today.

“I have repeatedly pressed the Trump Administration on their lack of enforcement” of the Chesapeake Bay Blueprint, which CBF describes as “the limits, plans, milestones, and consequences” contained in the TMDL and implementing agreements, Van Hollen said.

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