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 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 they were expected to 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.

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