EPA lawsuit on Chesapeake Bay tentatively settled, with Pennsylvania taking heat

The three-year lawsuit filed against the U.S. Environmental Protection Agency by the Chesapeake Bay Foundation and other state groups over lack of enforcement on stormwater runoff has finally reached a proposed settlement.

In the original lawsuit filed in 2020 by the foundation, it was joined by Anne Arundel County, the Maryland Watermen’s Association, and Bobby and Jeanne Hoffman. Attorneys General for Delaware, Maryland, the District of Columbia, and Virginia later joined the effort with combined lawsuits. The main contention was lack of enforcement outlined in the Clean Water Act in the Chesapeake Bay watershed namely by Pennsylvania in terms of stormwater runoff replete with nitrogen, phosphorous and other damaging soil amendments.

The public will have 30 days to comment on the proposed settlement before it can be finalized.

"(The) EPA will continue to annually evaluate Pennsylvania’s progress toward meeting its portion of the 2025 Goal and make this evaluation publicly available online at www.chesapeakeprogress.com," the settlement said. "(The) EPA may, in its discretion, respond to particular instances of noncompliance with actions including but not limited tonotices of violation, notices of noncompliance, and administrative and judicial enforcement actions."

More on Conowingo Dam pollutionConowingo Dam license vacated by Court of Appeals decision

The agreement also stipulates the federal environmental agency will offer further assistance to federal and state agencies with a role in reducing nutrient loads to the Bay from counties by providing tools and data necessary to identify where to target the funding for the greatest benefit to the Chesapeake Bay. That will begin "promptly after the effective date" of the agreement.

What comes next if lawsuit gets final approval?

Under the settlement, according to a statement from Delaware Attorney General Kathy Jennings, the EPA will undertake the following steps:

• EPA will prioritize its efforts in Pennsylvania on the counties that contribute the most pollution to, or have the largest impact on, local rivers and streams. Those are Lancaster, York, Bedford, Cumberland, Centre, Franklin and Lebanon counties.
• In the agriculture sector, EPA will take a close look at farms not currently required to have federal permits that have proximity to rivers and streams to see if there is significant damage to water quality from manure generation, manure management practices and/or available storage capacity, and compliance history. If EPA determines that a farm is a significant contributor of pollution, EPA will confer with Pennsylvania about designating the farm as a point source subject to permitting.
• In urban and suburban areas, EPA will begin to evaluate whether pollution from sources of stormwater that are not currently subject to federal regulations are adding to the damage to local rivers and streams. If EPA determines that a particular source, or sector of sources, contributes to a violation EPA will, at a minimum, confer with the Pennsylvania Department of Environmental Protection (PA DEP). EPA and PA DEP will examine the possibility of designating the sources as needing to obtain a point source permit that limits pollution by requiring the removal of impervious surfaces, the installation of BMPs or both.

'An extraordinary responsibility to protect the Bay'

Maryland Attorney General Anthony G. Brown lauded the settlement as a step in the right direction, but noted it was just a first overture in ongoing efforts to improve the quality of the Chesapeake Bay. The third largest estuary in the world gets half of its fresh water from the Susquehanna River.

The 444-mile-long body of water along the Mid-Atlantic is particularly susceptible to runoff pollution along its path through numerous states.

"Today's announcement is an acknowledgment that Maryland cannot do it alone as it's the largest estuary in the United States," Brown said. "As (the river) travels from New York to Pennsylvania, it brings with it pollution that impairs the health of the Bay. Marylanders deserve a clean, healthy Bay and they have been doing the demanding work to curb pollution and restore the ecosystem."

Brown called for increased collaboration between all jurisdictions to address growing concerns over Bay watershed pollution. Pennsylvania, a signatory of the Chesapeake Bay Watershed Agreement, is among the parties called upon to be accountable for their share of runoff.

More on 2025 clean Bay goalsAs Chesapeake Bay leaders admit falling short on 2025 restoration goals, what comes next?

Maryland Department of Environment Secretary Serena C. McIlwain added strong support for the Biden administration in its resolve to double down on clean efforts for the Bay citing increased water quality benchmarks.

"The Biden administration isn't just rubber-stamping the previous administration's lower standards. The Bay is a valuable cultural and economic resource for Maryland communities and the region as a whole. This is how we continue to move forward with the restoration of the Bay," McIlwain said.

A valuable ecosystem

In 2022, the Chesapeake Bay Foundation noted fully funding the farm pollution-reduction practices needed to restore the Chesapeake Bay would inject $655 million annually into the region's economy, including $269 million per year in higher earnings for businesses and workers.

Robert G. Brown, president of the Maryland Watermen's Association, explained good stewardship practices facilitate a healthy and profitable Bay.

"This is a major victory for clean water across the entire Bay, including its rivers and tributaries," Brown said. "We're coming up on spawning season and have rockfish, shad fish, white perch and many others. They need top water quality to have good offspring. There's clams and oysters in the upper Bay that need clean water. Even our sea grass is coming back."

PENNSYLANIA AND THE BAY:PA's polluted Susquehanna River is poisoning the bay. What can be done

Although there has been a tenuous relationship with the Environmental Protection Agency during the litigation, Brown urged trust in the EPA moving forward under the new agreement as long as enforcement measures continue.

Attorneys General from across the region echoed those sentiments and said they looked forward to the public comment period that would make the agreement official.

“Every state in the Bay watershed relies on the Chesapeake and its tributaries, economically, environmentally, recreationally and culturally,” said Delaware's Jennings. “We all have a stake in its restoration — and, despite budget constraints and the scope of the challenge, Delaware and most of our region have not backed down from our duty to the Bay and to future generations."

More on cleanup funds$238 million earmarked to restore the Chesapeake Bay. Here's how $40 million will be spent

Other stops along the Bay's tributaries like Washington, D.C. will also see improved water quality if cleanup efforts continue.

“Ensuring DC’s waterways and natural resources are clean, safe and accessible for all DC residents is a top priority for the Office of Attorney General,” said District of Columbia Attorney General Brian Schwalb. “Every state in the Chesapeake Bay watershed shares a responsibility to clean up our local waterways, and the EPA must ensure that states fulfill those obligations.”