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Chesapeake Bay TMDL Background and Litigation
Jon A. Mueller, [email protected] Vice President For LitigationChesapeake Bay Foundation
William and Mary, March 28, 2015
• Largest estuary in the country
• 64,000-square-mile watershed
• 11,684 miles of shoreline
• 17 million people and growing
The Chesapeake Bay Watershed
Too Much Nitrogen, Phosphorous and Sediment from:
Agricultural Runoff
Sewage Treatment Plants and Factories
Urban and Suburban Stormwater Runoff
Air Pollution
Pollution Sources
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
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
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