Congress at the Titlnitrh ?tatrs ?las?hington, EC 20510 January 10, 2020 Andrew Wheeler Administrator US. Environmental Protection Agency 1200 Avenue, NW Washington, DC 20460 Dear Administrator Wheeler: We were deeply disturbed by reports that, at the January 3, 2020 meeting of the Chesapeake Bay Commission, EPA Chesapeake Bay Program Director Dana Aunkst reportedly said that the Bay Total Maximum Daily Load (TMDL) was ?aspirational? and that the 2025 targets were ?not enforceable.? This is totally contrary to the intent of this decade-long effort and, if it is the position of the EPA, risks critical progress to restore the Chesapeake Bay. On December 29, 2010, the US. Environmental ProtectiOn Agency established the Chesapeake Bay TMDL, a historic and comprehensive agreement that includes accountability features to restore clean water in the seven jurisdictions within the Chesapeake Bay watershed. The agreement is a national and indeed international model for watershed restoration. It sets limits for pollution that equate to a 25 percent reduction in nitrogen, 24 percent reduction in phosphorous, and 20 percent reduction in sedimentm As the Bay TMDL states, ?The TMDL is designed to ensure that all pollution control measures needed to fully restore the Bay and its tidal rivers are in place by The goal of the Clean Water Act is to ?restore and maintain the chemical, physical, and biological integrity of the Nation?s waters.?l3] To that end, states are ?rst required to set water quality standards for all waters within their boundaries regardless of the sources of pollution?? When those water quality standards cannot be met and maintained through ef?uent limitations and technology-based controls on point sources, water quality-based controls are required under Section 303(d) of the Act. States are required to identify waters within its boundaries that cannot achieve water quality standards based on ef?uent limitations, and then ?shall establish for [impaired] waters the total maximum daily load, for those pollutants ?1 Chesapeake Bay TMDL, Executive Summary, p. 1, December 29, 2010, Imps silos production tiles 20H- !2 .prli? Id. [3133 U.S.C. 125l(a). '43 .13 I lit 3' which the Administrator identi?es . as suitable for such A TMDL is a speci?cation of the maximum amount of a particular pollutant that can pass through a waterbody each day without violating water quality standards?? Such ?load shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of Once the 303(d) list and any are approved by the EPA, states must incorporate the list and into its continuing planning processisl The Courts have upheld the legality of the Bay TMDL. As the US. Court of Appeals for the Third Circuit has noted, the ?Clean Water Act does not simply direct the publication of the it is one step in a process with several layers, each placing primary responsibility for pollution controls in state hands with ?backstop authority? vested in the In addition to these requirements, Section 117(g) of the Act requires EPA to take certain actions regarding the implementation of the Chesapeake Bay Agreement and the Chesapeake Bay It states that the EPA Administrator, ?in coordination with other members of the Chesapeake Executive Council, shall ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement to achieve and maintain (A) the nutrient goals afihe Chesapeake Bay Agreements for the quantity of nitrogen entering the Chesapeake Bay and its watershed; (B) the water quality requirements necessary to restore living resources in the Chesapeake Bay ecosystem; (D) habitat restoration, protection, creation, and enhancement goals established by Chesapeake Bay Agreement signatories for living wetlands, riparian forests, and other types of habitat associated with the Chesapeake Bay ecosystem; and (E) the restoration, protection, creation, and enhancement goals established by the Chesapeake Bay Agreement signatories for living resources associated with the Chesapeake Bay ecosystem.? (emphasis added).? '1 The implementation of the Bay TMDL and the Bay jurisdiction's Watershed Implementation Plans are, therefore, part of legal obligation to achieve and maintain the nutrient goals of the Chesapeake Bay under the Clean Water Act. Since the inception of the Chesapeake Bay TMDL and through its Reasonable Assurance and Accountability Frameworkm' EPA has communicated its expectations for the Bay watershed states and the District of Columbia to develop Watershed Implementation Plans and two-year [5133 U.S.C. 1313(d)(1)(C). ?51 id. at 1313(d)(1)(C). [71 id. [31 id. at 1313(e). 19' Am. Farm Bureau Fed?n v. United States EPA, 792 F.3d 281, 289 Cir. 2015). In 2014, the Bay states signed the most recent iteration of the Chesapeake Bay Watershed Agreement, and included the goals and outcomes established for water quality in the Bay TMDL. One of the key goals of the Agreement is to ?reduce pollutants to achieve the water quality necessary to support the aquatic living resources of the Bay and its tributaries and protect human health. Chesapeake Bay Watershed A greemeni, p. 7, 2014, D?ps; Emphasis added 33 U.S.C. 126T(g). ?21 Chesapeake Bay TMDL, Section 7, December 29, 2010. 2 milestones and ?demonstrate satisfactory progress toward achieving nutrient and sediment allocations established by EPA in the Chesapeake Bay In addition, the Agency laid out potential consequences the Bay jurisdictions would face if they failed to demonstrate progress on their obligations under the Bay noting that the ?identi?cation of possible federal actions is intended to strengthen our individual and collective resolve to make the dif?cult choices and decisions along the road to a restored Chesapeake Bay and watershed and ?ll in the gaps to aid States and the District to meet their commitments in order to ensure that the allocations in the TMDL are achieved.??51 Time and again, EPA has demonstrated through its approach in establishing and implementing the Bay including its Reasonable Assurance and Accountability Framework, its view that the Bay jurisdictions are responsible for meeting the allocations in the Bay TMDL. Indeed, as recently as April of 2017, in laying out its expectations for Phase Watershed Implementation Plan, EPA noted several examples of potential actions it could take speci?c to if it determined that the state did not meet these expectations. Those consequences included: (I) Targeting federal enforcement and compliance assurance in the watershed; (2) Directing Chesapeake Bay funding to identi?ed priorities; (3) Establishing ?ner scale wasteload and load allocations through a state-speci?c proposed amendment to the Chesapeake Bay Requiring additional reductions of loading from point sources through a state-speci?c proposed amendment to the Chesapeake Bay and (5) Initiating a process to propose promulgating nitrogen and phosphorous numeric water quality standards for applicable to streams and rivers in the Chesapeake Bay Watershedlm defense of the Bay TMDL and its historic approach to the Bayjurisdiction?s development of the Watershed Implementation Plans clearly indicates that it took its responsibilities under Sections 303d and 117(g) seriously and that it viewed achieving the allocations in the Bay TMDL as necessary to meet the requirements of the Clean Water Act. In your continuation hearing before the Senate Environment and Public Works Committee, you stated that, am very much committed to the Chesapeake Bay and to the Chesapeake Bay Program.? ['31 Letter ??om Shawn M. Garvin, Regional Administrator, Region US. EPA, to the Honorable L. Preston Bryant, Secretary of Natural Resources, December 29, 2009, hu 5; .upugm- sites production 'Iilcs 301:?? ll? documents Chesapeake Bay TMDL, Section 7, pp. 11 -12, December 29, 2010. [?lm at p. 2. EPA successfully defended the Chesapeake Bay TMDL when it was challenged by the American Farm Bureau Federation, National Association of Homebuilders. The Third Circuit held that the approach in establishing the TMDL and its accountability framework were all within the agency?s authority. See Am. Farm Bureau ed ?n v. United States EPA. 792 F.3d 281, 303-304 (3"j Cir. 2015). EPA Etpecfatidnsfor Pennsyivam?a ?5 Phase Watershed Implementation Plan, April 27, 201?, hugs: ?3.x .cpagot sites produgion lilcs'ltl documents iinn l_per_1_l_is\ lvauia Because-the legislative, judicial record on the Bay TMDL clearlyr conveys reaponsibility, we 'areiextremely concerned by signals. that EPA appears tobe backing assay front its statutory obligations and the. Reasonable Frameworkthatit establi'shed to ensure. the tiniely restoration 'ofth'e. Chesapeake Bay. In addition to Mr. Aunkst-"s-alarrning comments last Week, EPA has undertaken numerous? regulatory- ro'llbacks that will negatively impact the Bay; The Administration?s proposed budgets have-zeroed ontjor signi?cantly reduced funding for the Chesapeake Bay Program? Which congress has had-to restore. Moreover, recent response to Phase Watershed. Implementation-Plan did. 'n'othold'that state. accountable despitethe fact that prior evaantion-n'oted that Penneylvania is on track to meet only ?F?'percent ofitsnitrogen reductiontargets-and the. Commonwealth itself identi?ed aC$324 million annual Shortfall'in- their plan. evaluation-fell. short of providing meaning?ll requirements and steps. for to - get beckon. track, to meet their 2025 did not state whether backstop actions will he. required and.enfort:ed._ These actions leave nsfvery concerned that EPA'iS?no't ?tlly committedto' the restoration of the Bay. EPA is the. key-federal partner in this '.effort, and the. Chesapeake Bay Program is the glue- that keeps the partnership together, It?s important that you take immediate steps to demonstrate EPATS and aCcountability to. the restoration of the Chesapeake Bay. We .requ'est-re'snons'es'to the following questions within the next fourteen days: 1. Do Mr. Aunksti?s continents that the TMDL and ?notenforceableii remasent the Aseacr?e position? 2.- Do you agree that EPA- has the authority to enforce the 2025"nutrientreductions assiurnecl- inthe Bali?- :3 a Does EPA plan to ?il?ll it's under- the. Clean Water Act and use :all tools- a-vailable to hold jurisdiction's accountable to meet the allocatiOns agreed upon in'the Bay- TMDL by 20235? 4. remainan active. member. of the partnership with the six states. and Washington, DC by ensuring implementation of the Watershed Implementation Plans to achiette-the nutrient reduction goalsof the Chesapeake Bay Agreeinent? What is your plan and timelinei?or enforcement,3particularly for taking the backstop actions: deseribe'd'in Section 7.2.4 of the Bay TMDL and other documents sent- by the {Chesapeake Bay states? The Bay TMDL has made strong progress towards cleanup of this national monitors and -.econon1ic engine in our region. weare at When all partners must stop 'up their commitment to reach the EMS-goals; The EPA has a statutoryr obligation- to bean enforcement backstop .in? this Vitalfproj eat, and We '?illy' expect it to ?il?llthatrnle. we'look fomard to receiving your response by anuary Sincerely, I i ?9 Van Hollen Ben in L. Cardin United States Senator United States Senator Tim Kaine MarkR United States Senator United enertor/ Thomas R. Carper Christopher A. Coons United States Senator United States Senator jut/L JolyP. Sarbanes Member of Congress Robert C. ?Bobby? Scott Donald S. Beyer, Jr. Member of Congress Member of ongress Gerald E. Connolly Member of Congress CA. Dutch Ruppers rge Member of Congress Mm Anthony G. Brown Elaine . Luria Member of Congress Member of Congress @da?a ebnj??xton David Trone Member Of Congress Member of Congress QML A. Donald MeEaehin amie Raskin Member of Congress Member of Congress wa?r Eleanor Holmes Norton Lisa Blunt Rochester Member of Congress Member of Congress