Chesapeake Bay TMDL Background and Litigation Jon A. Mueller, Vice President For Litigation Chesapeake 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

1983 Agreement 1987 Agreement 1992 Amendment 2000 Chesapeake Agreement Federal-State Bay Agreements

Legislative Efforts

Clean Water Act 33 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 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, 7 th 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 removing the Bay from Impaired Waters List will not be achieved by 2010 States asked EPA to begin developin g a Bay TMDL TMDL Based upon State Tributary Strategies and Watershed Modeling C The Chesapeake Bay Commission Bay TMDL Development

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

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

/ Executive Order 13508

December 29, 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 Decision September 13, U.S. Dist. LEXIS 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 watersNo precedent establishes how to reduce interstate water pollutionCooperation 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