A lawsuit brought by multiple governmental entities, interest groups and individuals against the EPA in 2020 alleged that the EPA was not enforcing Pennsylvania’s obligations to help reduce pollution flowing to the Chesapeake Bay. A settlement was reached, which requires EPA to, among other things, look for ways to reduce pollution from agriculture– Pennsylvania’s biggest source of pollution–and stormwater runoff from urban and suburban land. As part of the settlement, EPA has also committed to increasing compliance and enforcement efforts. EPA has agreed to prioritize efforts in Pennsylvania in the counties that contribute the most pollution to local rivers and streams. Those counties are Lancaster, York, Bedford, Cumberland, Centre, Franklin, and Lebanon.
With respect to agriculture, EPA will take a close look at farms that are 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.
Regarding stormwater runoff from urban and suburban areas, EPA will begin to evaluate whether sources of stormwater that are not currently subject to federal regulations are adding pollution 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. EPA and PA DEP will then 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 best management practices (BMPs), or both.
EPA has agreed to increase compliance-assurance activities in the priority counties to assess whether federally-permitted sources are complying with existing permit requirements. EPA will also determine whether there are any PA DEP-issued general permits or individual permits within the Pennsylvania portion of the Bay watershed that have been administratively extended, and will work with PADEP to develop a permit reissuance strategy designed to bring permits up to date and significantly reduce the number of administratively extended permits.
While this is good news for the Bay and Bay advocates, the costs to the impacted entities could be significant. Farms, municipal entities, builders and developers, all will likely feel the pinch from these continued efforts. Permitting decisions and enforcement actions can be appealed, so anyone that receives a permitting determination or an enforcement action from either EPA or DEP will have legal rights to challenge these decisions