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Maryland Gov. Hogan seeks lawsuit against Pennsylvania, EPA over lagging Chesapeake Bay cleanup efforts

Amid signs that the Environmental Protection Agency might not step in and force Pennsylvania to reduce the pollution it sends downstream to the Chesapeake Bay, Maryland Gov. Larry Hogan demanded Wednesday that the state attorney general file lawsuits against the agency and the commonwealth.

The call to action comes after more than a year of discussion and veiled threats over potential legal action, spurred by surges of pollution and debris that washed down the Susquehanna River in 2018. A push for accountability deepened last month when the EPA largely signed off on a Pennsylvania plan to improve water quality over the next five years — even though environmentalists and officials in Maryland and Virginia officials said it was not enough to restore the Chesapeake by a 2025 deadline.

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But fears of a backsliding on the bay’s recovery have heightened in recent days after an EPA official suggested that pollution-reduction targets agreed upon by six states, the District of Columbia and the EPA in 2010 are merely “aspirational” goals and not “enforceable” standards.

Hogan, a Republican, said the comments served to “make matters worse,” and directed Attorney General Brian Frosh to sue because “we simply cannot afford to fall short of these shared obligations.”

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EPA spokeswoman Terri White said the agency “remains steadfast in its commitment to helping our partners meet" the targets.

“We will continue to provide substantial support, track progress, and take appropriate actions within our authorities to ensure the Bay and local waters are protected and restored," she said.

A spokesman for Pennsylvania Gov. Tom Wolf said the Democrat is pushing for more investment in clean water, including through a tax on natural gas extraction.

“Instead of protracted litigation that will take resources away from our efforts to improve water quality in the watershed and undermine the partnership that has helped make progress, Governor Hogan’s time would be better spent convincing his Republican counterparts in Pennsylvania to support Governor Wolf’s plan,” said Wolf spokesman J.J. Abbott.

The EPA, meanwhile, defended the comments made Friday by Dana Aunkst, director of the agency’s Annapolis-based Chesapeake Bay Program office. The agency said it is EPA’s “longstanding position” that blueprints like the one established to restore the Chesapeake “are not enforceable by EPA or by states,” but are “planning tools that are used to develop implementation plans and enforceable permit limits that reflect the targets” laid out in those plans.

The agency has not made Aunkst or any other officials available for an interview amid the concern and confusion among politicians and advocates for the bay.

Chesapeake advocates often describe the EPA bay program as a “backstop” in efforts to reverse decades of degradation to waterways. While all the states agreed to find policies and programs to reduce nitrogen, phosphorus and sediment that disrupt aquatic ecology, the EPA has taken a role of oversight, reviewing those strategies and guiding state and local governments toward those scientists find most effective.

Maryland officials and environmental groups have said EPA is in the wrong if officials maintain they cannot enforce the 2010 agreement of the bay watershed jurisdictions. Each agreed to reduce pollution flowing into the bay, and EPA agreed to step in if the jurisdictions don’t meet those targets. A federal appeals court ruled in 2015 that the EPA was acting within the bounds of the federal Clean Water Act by imposing what is known as the TMDL — a reference to the “total maximum daily load” of pollutants the estuary can withstand.

EPA officials did say Wednesday that the court ruling did not suggest the cleanup plan was “enforceable," however. They pointed to a section that read: “TMDLs are not self-executing, but they serve as the cornerstones for pollution-reduction plans that do create enforceable rights and obligations."

A spokeswoman for Frosh, a Democrat, said he had not yet received Hogan’s directive, but that it “certainly aligns with our intent to force the EPA to do its job.” Frosh has repeatedly taken the EPA to court, often in concert with other state attorneys general, to protest rollbacks to regulations regarding power plant emissions, pesticide use and wildlife protection.

The Hogan administration had hinted at the legal action ahead earlier Wednesday, when state Environment Secretary Ben Grumbles appeared on Capitol Hill. Grumbles and Sen. Chris Van Hollen both raised the possibility of a lawsuit if the EPA did not clarify soon whether it is stepping back from its role enforcing the Chesapeake Bay cleanup plan.

Speaking at a Capitol Hill hearing on water quality, Van Hollen suggested that would be the state’s only option if the EPA refuses to intervene if Pennsylvania or any other state fails to meet commitments under the bay restoration plan. Van Hollen then suggested to Grumbles that a lawsuit could be necessary, and Grumbles said Gov. Larry Hogan agrees.

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“EPA has an important role,” Grumbles said. “We need intervention and leadership.”

After EPA issued its statement Monday, Grumbles said state officials remained alarmed because, while the statement did not call the plan “aspirational,” it referred to it as “informational.” They say the EPA must step in to force Pennsylvania to more aggressively reduce pollution that washes into the Susquehanna River, which flows down to the bay providing nearly half of its fresh water.

“We’re still very concerned about that,” Grumbles said. “It’s not just aspirational; it’s enforceable. And it’s not just informational; it’s integral to our success.”

Van Hollen, a Democrat, suggested that EPA officials are “dead wrong” if they interpret the cleanup plan as an optional goal for the bay watershed.

“This is a moment we need absolute clarity,” he said.

A spokesman for Hogan and representatives for Frosh said earlier this week that they were exploring legal action over Pennsylvania’s lagging efforts. Those discussions date to 2018, when a record-setting surge of rainfall sent a surge of pollution and debris down the Susquehanna, and were not specific to Aunkst’s comments last week.

Grumbles appeared on a panel with a Wyoming environmental official at a hearing of the Senate Committee on Environment and Public Works. The hearing was dedicated to a program under the federal Clean Water Act that is focused on what are known as nonpoint pollution sources — those without designated pipes or smokestacks from which pollution flows, including farm fields, parking lots and fertilized lawns.

Because the EPA cannot directly regulate those sources, Grumbles suggested initiatives like the bay cleanup agreement are that much more important.

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