In a victory for Chesapeake cleanup advocates, a federal judge in September flatly rejected claims made by farm groups and developers that the EPA had overstepped its authority when it established the Chesapeake “pollution diet.”
U.S. District Court Judge Sylvia Rambo’s 98-page decision concluded that the EPA not only acted within its Clean Water Act authority, but that its role was “critical” in developing the complex, multi-state pollution reduction strategy.
Rambo’s Sept. 13 decision came more than 11 months after both sides made oral arguments in the U.S. District Court in Harrisburg. It depicted the cleanup strategy as a logical extension of Bay restoration efforts that date back nearly three decades, yet had repeatedly failed to clear the Chesapeake’s often-murky waters or bring an end to chronic, oxygen-starved “dead zones” each summer.
“The ecological and economic importance of the Chesapeake Bay is well-documented,” she wrote. “As the largest estuary in the United States, the Chesapeake Bay is essential for the well-being of many living things.”
“The record demonstrates extensive efforts on behalf of the Bay Partnership to protect this important resource. And yet, nutrient pollution and sedimentation remain a critical concern.”
Proponents of the cleanup strategy said the decision provided certainty to states and local governments about what they needed to do to meet cleanup goals.
“We think the decision speaks for itself, and is a victory for the 17 million people in the Chesapeake Bay watershed,” the EPA said in a statement. “We can all now as partners re-focus our work on achieving clean water goals, building on the progress already happening and reaping the benefits of restoring local waters and the Bay. We remain committed and open to all input in revitalizing this national treasure.”
The American Farm Bureau Federation, which along with Pennsylvania Farm Bureau filed the original challenge, said it would almost certainly appeal the decision.
“We haven’t made that decision yet, but I think it is safe to say that an appeal is likely,” said Ellen Steen, general counsel for the AFBF. “We think that the decision is incorrect, obviously, and we think there are very strong grounds to appeal.”
The appeal has to be filed within 60 days with the U.S. Third Circuit Court of Appeals in Philadelphia.
William C. Baker, president of the Chesapeake Bay Foundation, one of several environmental groups that had intervened in the case on the side of the EPA, called the ruling “a great decision for clean water and the future of the Chesapeake Bay and its rivers. My concerns are that the Farm Bureau and its corporate partners are going to continue to try to use litigation, which is very expensive and time-consuming, perhaps through an appeal.”
The case revolved around whether the EPA exceeded its authority when it issued the Chesapeake Bay Total Maximum Daily Load in December 2010. TMDLs are required for any waterbody that is “impaired” by pollution, and establish the maximum amount of pollution that a waterbody can receive and still achieve its water quality standards.
Much of the Chesapeake is listed as impaired because fish and other animals can’t breathe and underwater plants can’t get enough sunlight to live. The water quality standards require water to have enough oxygen to support aquatic life and be clear enough to support underwater grass beds, which provide critical habitats for juvenile fish, crabs and waterfowl.
The primary causes of the impairments are excess nutrients — nitrogen and phosphorus — and sediment. Sediment and algae blooms caused by the nutrients reduce water clarity, while the algae remove oxygen from the water when they die and decompose.
The EPA and states across the nation have written about 47,000 TMDLs over the past several decades, but the Chesapeake Bay TMDL is by far the largest and most complex, affecting the Bay’s entire 64,000-square-mile watershed, including portions of six states and all of the District of Columbia.
The Bay TMDL establishes the maximum amount of nitrogen, phosphorus and sediment that can be discharged from individual “point sources” — such as wastewater treatment plants, industries, large stormwater systems and large animal feeding operations — all of which are required to have discharge permits. For sources without discharge permits, it set limits for the amount of pollution that could reach the Bay, apportioned among each state and major river basin, and divided among pollution sources such as agriculture, small stormwater systems and septic systems.
The TMDL also took the unusual step of establishing deadlines, calling for the implementation of all actions needed to achieve clean water goals by 2025, with actions to achieve 60 percent of those reductions to be in place by 2017. The EPA required states to write detailed plans showing how they would implement actions that would achieve those goals.
The American Farm Bureau Federation and the Pennsylvania Farm Bureau filed suit within two weeks of the TMDL’s establishment. They were joined by the National Association of Home Builders and many agricultural trade organizations such as the National Chicken Council, the National Corn Growers Association, the Fertilizer Institute and others who were concerned the TMDL would result in expensive new regulations, and that it could set a precedent for other parts of the nation.
They argued that the Clean Water Act’s TMDL provisions limited the EPA to establishing the maximum amount of nitrogen, phosphorus and sediment that could enter the Bay. They argued that other actions, especially setting precise allocations for individual dischargers and other pollution sources, constituted implementation of the TMDL — something they said was up to the states.
Rambo agreed that implementation is largely, though not exclusively, the responsibility of the states, but she said the detailed allocations made in the TMDL did not cross the line of being actual implementation. In fact, she said the EPA’s role was necessary.
“To merely set a number, and then let the states, permit writers, and other groups within each state ‘duke it out’ would not only be impractical, but would also be inconsistent with the CWA’s foundational principle, which is that the burdens of eliminating pollution in the Nation’s water is one to be shared among federal, state, and local authorities,” Rambo stated.
Further, she said it was “misleading” to suggest the allocations were set independently by the EPA. Rather, she said, they were largely developed by the states with considerable “back and forth” with the EPA.
The plaintiffs had argued that the back-and-forth process was hardly cooperative, with the EPA coercing states to follow its lead. Rambo said that some disagreements between states and the EPA were to be expected, but added that “it is noteworthy that no state has filed suit challenging the TMDL, let alone alleged that their participation in the TMDL drafting process was the result of coercion.”
Rambo called the TMDL development process an example of “cooperative federalism” between the states and EPA, which can at times be “messy and cumbersome” with parties sometimes disagreeing.
Rambo also rejected other arguments in the suit, including that the EPA used flawed computer models in developing the TMDL, saying the agency’s use of models appeared rational and deferred to its expertise. She also rejected the argument that the EPA’s 45-day public comment period was insufficient, saying only 30 days was required by law and that some of the plaintiff organizations had participated in years of meetings leading up to the TMDL.
“Simply put, the Plaintiffs either participated, or had the opportunity to participate, in the drafting process in a meaningful way,” she said.
A large portion of Rambo’s decision discussed the long history of state and federal collaboration on Chesapeake Bay issues, noting that key decisions related to the development of the TMDL, including setting the 2017 and 2025 cleanup deadlines, were made in public meetings involving state and federal officials and stakeholder groups over a period of years. Rambo counted 730 Chesapeake Bay Program committee, team and stakeholder meetings between 2005 and 2010 alone that related to TMDL development.
Steen, of the Farm Bureau, disputed that the effort was as cooperative as Rambo depicted, or that the fact states did not join Farm Bureau’s challenge meant they supported the EPA’s position.
“The states are really in a difficult position,” she said. “The EPA has a lot of power. I wouldn’t want to be sitting in the governor’s office and have to decide whether I am going to stick my neck out and take a position against the EPA, and then have to deal with the consequences.”
A major concern of critics is that the Bay TMDL could set a precedent for TMDLs in other parts of the country, such as the 31-state Mississippi River Basin, which drains most of the agricultural Midwest but whose nutrients contribute to a chronic summertime dead zone in the Gulf of Mexico.
“The Mississippi River watershed is one of the things that we’ve had foremost in our mind when we look at this framework, and whether we could sit back and let this go unchallenged,” Steen said. “That is definitely a concern of ours.”
Other attorneys involved in the case said that Rambo’s opinion dwelled so much on the unique three-decade-old state and federal Bay Program partnership that led to the development of such a complex and detailed
TMDL, it was unclear whether the decision could easily be applied to other areas.
“If there is broader applicability for it, it is in the kind of guideposts that states in other areas and the EPA and other regions would have to follow in making certain that their TMDL met the same standard,” said Jon Mueller, an attorney with the Chesapeake Bay Foundation, who also presented arguments on behalf of environmental groups at the hearing.
Rick Parrish, an attorney with the Southern Environmental Law Center who has been involved with TMDL issues for decades and who assisted Mueller on the case, said it is unclear what the decision will mean for other TMDLs.
“This is truly a unique set of circumstances,” he said. “EPA and the states have been working for an awfully long time to try to get a restoration plan in place. I would like to see the [TMDL] program move in this direction. I would be surprised if it did without some healthy debate.”
Reaction to Judge Sylvia Rambo’s decision
National Corn Growers Association president
“We continue to believe the Chesapeake Bay TMDL goes beyond the scope of Clean Water Act authority and has a negative impact on agricultural production and innovation.
“America’s farmers are the original environmentalists. They care deeply about the land and water quality from which they make their livelihood and raise their families. However, the policies and science behind the Chesapeake Bay TMDL are wrong.”
American Farm Bureau Federation president
“The American Farm Bureau Federation is deeply disappointed with the district court’s ruling upholding the Environmental Protection Agency’s total maximum daily load for the Chesapeake Bay. We believe the ruling is incorrect and has huge implications for farmers and many others in the Bay area and nationwide.
“Win or lose in this lawsuit, farmers care deeply about our natural environment and want to do our part to improve water quality. But Congress did not authorize EPA to dictate how farmers, builders, homeowners, and towns would share the responsibility of achieving clean water. That is the states’ job. We believe EPA’s approach wrongly puts federal agency staff in charge of intensely local land use decisions.”
National Wildlife Federation president, CEO
“As one of the 17 million people who live near a river or stream flowing to the Chesapeake Bay, I am thrilled that the court ruled in favor of clean water, fishable rivers and safe places for children to swim. The court made it clear the agency is authorized to continue doing what is necessary to reduce pollution entering the Chesapeake Bay and protect the water that sustains people, wildlife and livelihoods. The science-based standards create accountability and are leading to real results.”
Midshore Riverkeeper executive director
“Everyone — farmers and homeowners, rural and urban — all realize clean water is vital to their community and to their economy. Midshore Riverkeeper Conservancy joined this lawsuit to represent the voice of rural areas and small towns. We don’t know what purpose this suit was meant to serve but it was not in most people’s interests. We are thrilled that EPA has prevailed. It is a critical time and the clean water blueprint offers a new approach and requires that everyone does their fair share to clean up our local waters.”