Chesapeake-Bay-Ducks

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The Chesapeake Bay Foundation plans to sue the Environmental Protection Agency for going too easy on Pennsylvania and New York.

The suit would allege that the EPA abused its discretion by approving the states’ cleanup plans even though their expected pollution cuts would fall short of the mandates to be achieved by 2025.

The EPA should either have required the states to design plans to meet the goals, or imposed consequences, the foundation said.

Under the plan approved by the EPA, Pennsylvania would achieve only three-quarters of its nitrogen commitment and underfund its bay program by over $300 million a year, according to the foundation.

Pennsylvania contributes the greatest share of pollution to the bay, much of it from farms, and New York is the farthest from the bay of any state in the watershed.

The Bay Foundation intends to sue only if the EPA does not act within 60 days.

The nonprofit used litigation in 2009 to force the EPA to create the current cleanup program. Since then, the EPA has only briefly imposed consequences on Pennsylvania, and the agency backed off when state announced a bay “reboot” in 2016.

The coronavirus pandemic has placed an unforeseen strain on state finances, but that should not deter Pennsylvania and New York from providing safe rivers and streams for their residents, said Will Baker, the foundation’s president.

“If you want to throw money at it, you can do that. If you want to do incentives or disincentives, you can do it that way,” Baker said. “We’re looking at a metric of clean water, not a metric of money.”

Joining the Bay Foundation’s planned suit are the Maryland Watermen’s Association, a Virginia farmer and Maryland’s Anne Arundel County.

The attorneys general of Maryland, Virginia and the District of Columbia have also filed notice of intent to sue the EPA over its approval of New York and Pennsylvania’s plans.

EPA Administrator Andrew Wheeler said the agency believes their claim “has no merit.”

Wheeler, who announced $6 million for bay states to improve water quality by reducing nitrogen from agricultural operations, told reporters in a conference call that all states in the bay’s watershed have work to do to reach the 2025 goals.

Pennsylvania is set to receive about $3.7 million of the money, Virginia $1.1 million and Maryland about $700,000, the EPA announced.

Delaware is slated to receive about $365,000, New York $80,000 and West Virginia $55,000.

“We are trying to work with everyone in trying to solve the problems for the bay while other people are out there trying to create headlines and discontent with their state partners,” Wheeler said.

The Pennsylvania Department of Environmental Protection said Monday that a lawsuit “would further distract and divert federal and state agency resources from our effort and fail to advance our common goal to improve water quality here in Pennsylvania and in the Chesapeake Bay.”

New York’s Department of Environmental Conservation said that New York “is fulfilling its clean water responsibilities” and is a committed partner to implementing its pollution-reducing plan under the Chesapeake Bay program.

This story incorporates reporting from The Associated Press.

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