Lake Otsego in Fog

Fog hangs over Lake Otsego, the source of the Susquehanna River in Cooperstown, New York. The Susquehanna, which flows on to Pennsylvania and Maryland, is the largest source of water for the Chesapeake Bay.

The Chesapeake Bay Foundation is once again suing to get the Environmental Protection Agency to enhance conservation in the nation’s largest estuary.

Filed in September, the suit says the agency is allowing Pennsylvania and New York to proceed under plans that would fall short of commitments in a federal-state program that deadlines in 2025.

The attorneys general of Virginia, Maryland and the District of Columbia have filed a similar lawsuit, according to The Associated Press.

The legal action is the latest step in a long journey, according to Jon Mueller, the Bay Foundation’s vice president of litigation.

Mueller spoke in November at the University of Maryland’s Agricultural and Environmental Law Conference.

A key early step in restoring the Chesapeake was the 1972 Clean Water Act, which created a legal framework for pollution reduction.

As a result of the law, limits on nitrogen, phosphorus and sediment loads in waterways had to be established. States also had to identify water bodies that were impaired by high levels of pollution, Mueller said.

The bay pollution limits in Virginia were upheld in the 1998 case American Canoe Association v. EPA.

In 2009, the Bay Foundation sued the EPA, arguing the agency had failed to enforce the Clean Water Act and ensure that bay restoration succeeded.

The settlement of that suit produced the current cleanup program, in which states implement plans to meet pollution reduction targets.

The EPA can punish states for falling short in the program, but it has rarely used that power.

By 2019, Mueller said, Maryland and Virginia were within 10% of their goals for nitrogen and phosphorus. Pennsylvania, with some of the most ambitious goals, was further behind.

To make matters worse, when New York and Pennsylvania submitted plans that will carry them through 2025, the states didn’t show themselves getting to 100% of their goals, Mueller said.

New York is 1 million pounds short on nitrogen. Pennsylvania would get only three-quarters of the way to its nitrogen target, and the state needs to increase spending by $360 million a year, he said.

That the EPA accepted these plans without imposing consequences suggests the agency has no plan to enforce the cleanup plan, he said.

Andrew Wheeler, the EPA administrator, told Lancaster Farming in June that the states are not in default until 2025, so there’s currently no cause for the agency to act.

He said the action by the state attorneys general was politically motivated — and seemed particularly rich coming from Maryland, which itself submitted a plan that does not meet its bay goals.

Virginia cattle farmer Robert Whitescarver is suing the EPA along with the Bay Foundation.

Retired from the USDA Natural Resources Conservation Service, Whitescarver uses riparian buffers, which capture nutrient runoff before it enters the stream. He also supports fencing livestock out of streams to prevent the animals from eroding banks and relieving themselves in the water.

“The (conservation) program on any farm is only as good as the worst farm upstream,” Whitescarver said.

States benefit, he said, when they fund financial and technical assistance for on-farm conservation.

Lancaster Farming

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