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EPA proposes settlement in Chesapeake Bay cleanup lawsuit

A wide river with development on the shore
Katherine Hafner
The Lynnhaven River runs through Virginia Beach near the Chesapeake Bay.

Read the original story on WHRO's website.

The Environmental Protection Agency has proposed a settlement with Virginia and several other states in the Chesapeake Bay watershed in a case alleging the agency failed to enforce bay cleanup efforts.

Virginia, Maryland, Delaware and Washington, D.C., filed suit in 2020, along with the nonprofit Chesapeake Bay Foundation.

They accused the EPA of violating the Clean Water Act by letting Pennsylvania in particular fall too short of pollution standards.

Under the 2014 Chesapeake Bay Watershed Agreement, D.C. and six states around the bay agreed to reduce harmful nutrients that flow into the bay, like nitrogen and phosphorus, by certain amounts by 2025.

The EPA is responsible for enforcing the terms of that agreement, which has been called the “last and best chance” to restore the nation’s largest estuary.

Nutrient runoff into the bay affects water quality and wildlife by spurring the growth of toxic algae and reducing the amount of dissolved oxygen in the water.

More than a decade ago, the EPA created what’s called a Total Maximum Daily Load to limit how much of those nutrients get into the water.

To achieve the limits, officials use established conservation practices in wastewater management and agriculture, including planting cover crops and limiting how much a farm’s soil is churned up by mechanical digging.

Pennsylvania has consistently lagged behind the other states, though officials acknowledge no state is fully on track to meet the standards in two years.

Plaintiffs in the recent lawsuit argued the EPA’s review of Pennsylvania’s latest pollution plan in 2019 was arbitrary and capricious.

The EPA found at the time that Pennsylvania’s proposal would achieve just 75% of the required 2025 nitrogen pollution reduction.

“The EPA must hold every partner equally accountable and make sure they uphold their portion of the agreement,” said then–Virginia Attorney General Mark Herring in 2020. “I will not stand by and allow the EPA to ignore its enforcement obligations and erase decades of progress we have made to reduce pollution and restore the Chesapeake Bay.”

Under the new settlement, the agency would step up its oversight of Pennsylvania’s efforts, including ensuring funding goes toward the most efficient actions and pursuing judicial enforcement when warranted.

Federal officials would also agree to evaluate how each bay state fared in meeting the 2025 goals by the end of the following year.

“This settlement is a win for local waterways, healthy communities, and the Chesapeake Bay,” said Bay Foundation President Hilary Harp Falk in a statement. “EPA focusing on concerted remedial action to address some of the most severe problems in Pennsylvania provides accountability and reasonable assurance that Bay restoration will succeed.”

Falk added that it’s a “welcome change,” after what she called a failure by the administration of former President Donald Trump to use its power under the Clean Water Act.

Terms of the settlement could change after public comments, which can be submitted until May 22.

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