Chesapeake Bay TMDL Background and Litigation

Jon A. Mueller, jmueller@cbf.org Vice President For LitigationChesapeake Bay Foundation

William and Mary, March 28, 2015

Outline

- BACKGROUND

- VOLUNTARY EFFORTS

- THE BAY TMDL

- LITIGATION

• Largest estuary in the country

• 64,000-square-mile watershed

• 11,684 miles of shoreline

• 17 million people and growing

The Chesapeake Bay Watershed

Blue Crabs

Underwater Grasses

Fishery

Oysters

Wetlands

Recreation

Too Much Nitrogen, Phosphorous and Sediment from:

Agricultural Runoff

Sewage Treatment Plants and Factories

Urban and Suburban Stormwater Runoff

Air Pollution

Pollution Sources

Agricultural Discharges

Wastewater

Sediment

Construction Stormwater

Urban Stormwater

- Power Plants

- Automobiles

- Cement Kilns

- Incinerators

Air Pollution - NOx

What does all this pollution add up to?

Algae Blooms

Dead Zone

Fish Kills

Human Health Threats

Voluntary Efforts

1983Agreement

1987 Agreement

1992 Amendment

2000 Chesapeake Agreement

Federal-State Bay Agreements

Legislative Efforts

Clean Water Act33 USC § 1267(g)

Section 117(g)

EPA, …, shall ensure that management plans are developed and implementation is begun to achieve and maintain:

- The nutrient reduction goals of the Bay Agreement

- Water quality necessary to restore living resources in the Bay

Section 303(d)

States must designate impaired waters and develop Total Maximum Daily Loads (TMDLs) by 1979.

33 USC § 1313(d)

TMDL = Waste Load Allocations (point sources) + Load Allocations (non-point sources) + Natural Background + Margin of Safety

Constructive Submission

• Environmental organizations sued EPA

– Scott v. Hammond, 7th Cir. 1984;

– American Canoe v. EPA in Virginia (1998);

– Kingman Park Civic Ass’n v. EPA in DC;

– American Littoral Society v. EPA in DE, PA, and WVA.

• American Canoe - May 2010 deadline for Virginia’s portion of the Bay.

• EPA required to develop TMDLs if the states did not.

Litigation

October 1, 2007 Goal of removin

g the Bay from Impaired Waters List will not be

achieved by 2010

States asked EPA to

begin developing a Bay

TMDL

TMDL Based upon State

Tributary Strategie

s and Watersh

ed Modelin

g

C

The Chesapeake Bay Commission

Bay TMDL Development

Fowler v. EPA, No. 09-005 (D.D.C. filed Jan. 5, 2009)Fowler v. EPA Jan. 5. 2009

EPA will establish a Bay TMDL by December 31, 2010

EPA will require “reasonable assurances”

EPA may exact consequences if States fail

Fowler v. EPA

Settlement Agreement, May 11, 2010

EPA will require Watershed Implementation Plans

http://executiveorder.chesapeakebay.net/

Executive Order 13508

December 29, 201076 Federal Register 549 (Jan. 5, 2011)

Chesapeake Bay TMDL

AFBF v. EPA

American Farm Bureau Federation v. EPA MD PA – January 10, 2011

• The complaint raised three claims:

- EPA had no authority to issue a TMDL

- The Model used to develop the LA and WLA is flawed

- EPA failed to provide sufficient public notice and comment

• Environmental groups including CBF intervened as defendants

• National and State Municipal Water Treatment groups intervened

What is the proper division of duties between the states and the federal government?

The CWA "anticipates a partnership between the States and the Federal Government”… Arkansas v. Oklahoma, 503 US 91 at 101 (1992).

Aspects of the CWA demand cooperative federalism and require significant levels of communication between EPA and the States.

Cooperative federalism can be messy and cumbersome

AFBF v. EPA DecisionSeptember 13, 2013 2013 U.S. Dist. LEXIS 131075

The Clean Water Act and Cooperative Federalism

EPA told States it might use backstop measures.

Was this unlawful coercion, or cooperative federalism?

• States determined the allocations WLA and LA

• EPA inserted backstop allocations.

• States amended WIPs

This framework is indicative of collaboration

AFBF v. EPA Decision Cont’d

Was the Bay TMDL the Result of Coercion?

Section 303(d) does not expressly address multi-state waters

No precedent establishes how to reduce interstate water pollution

Cooperation and coordination are crucial to achieving WQS

Partnership resolved these issues without upsetting CWA balance of federal-state control

AFBF v. EPA – Decision Cont’d

A Multi-State TMDL

EPA CANNOT SET A DEADLINE FOR COMPLIANCE

A TMDL is Just One Number

Third Circuit

Reasonable Assurance is Illegal

QUESTIONS ON APPEAL

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