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EPA Announces Federal Strategy for Chesapeake Bay and Related Settlement Agreement in Fowler v. EPA

Beveridge & Diamond, P.C., May 14, 2010

On May 11, 2010 the Environmental Protection Agency (EPA) entered into a settlement agreement in Fowler v. U.S. Environmental Protection Agency, in which plaintiffs sought to compel EPA to implement programs to reduce nutrients and sediment pollution in the Chesapeake Bay.  The following day, EPA issued its final Strategy for Protecting and Restoring the Chesapeake Bay Watershed (“Strategy”), which outlines a federal plan of action for restoring the Chesapeake Bay.  The settlement agreement largely tracks EPA’s obligations under the Strategy.  

Both the settlement agreement and Strategy represent a new approach to pollution control in the Chesapeake Bay.  Significantly, they will result in the establishment and implementation of a Chesapeake Bay total maximum daily load (TMDL) – a comprehensive program for controlling point- and non-point source pollution throughout the watershed.  Further, the settlement agreement and Strategy create a framework of accountability that has not previously existed.  Among other actions, they call upon EPA to set biannual milestones, require and review state watershed implementation plans, and enforce federal consequences for noncompliance to improve achievement of watershed restoration goals. 

Background

This week’s developments come after a long history of federal efforts to address water quality in the Chesapeake Bay.  Over the years, entities with a stake in the Bay, including the federal Chesapeake Bay Program and Chesapeake Bay watershed states, have entered into a number of agreements that set water quality goals but have met with little success.  The most recent agreement, Chesapeake 2000, set goals of a forty-percent nutrient reduction and removal of the Chesapeake Bay from the Clean Water Act’s list of impaired waters by 2010.  The Fowler plaintiffs sued EPA when it became clear that the Agency would not meet those goals. 

While that suit was pending, President Obama issued an executive order that called upon the federal government to renew its efforts to restore and protect the Chesapeake Bay.  See Exec. Order 13,508, 74 Fed. Reg. 23,099 (May 15, 2009).  The Order sought to initiate broad federal action to protect and restore the Chesapeake Bay and recommended action by a number of federal agencies, including EPA and the Departments of Agriculture, Commerce, Defense, and Interior.  It also established a Federal Leadership Committee (“FLC”) that consists of senior officials from each of these agencies plus the Departments of Homeland Security and Transportation.  Spurred by President Obama’s order, the FLC put forward the Strategy as a first step toward lasting change in the Bay, a step preceded by the Fowler settlement.

Settlement Agreement - Fowler v. EPA, Civ. Action No. 1:09-cv-00005-CKK (D.D.C. 2009)

The plaintiffs in Fowler v. EPA – former Maryland State Senator Bernard Fowler, the Chesapeake Bay Foundation, Maryland and Virginia watermen’s associations, and others – filed suit against the Bush-Administration EPA in January 2009 alleging the Agency failed to fulfill non-discretionary duties under § 117(g) of the Clean Water Act (CWA) and the Chesapeake 2000 Agreement.1 The plaintiffs sought to compel EPA to implement Baywide programs to reduce nitrogen, phosphorus, and sediments entering the Bay.

The settlement agreement announced this week resolves that lawsuit and obligates EPA to take a number of actions, many of which are also contemplated by the Strategy.  For example, EPA must: 

  • Establish and implement a Chesapeake Bay TMDL for nutrients and sediments.  This implementation will include reviewing watershed implementation plans (WIPs) submitted to EPA by the Chesapeake Bay watershed states and the District of Columbia.  EPA must also ensure those jurisdictions appropriately develop and implement WIPs to achieve the nutrient and sediment allocations identified in the TMDL.
  • Review state-issued permits, including proposed construction general permits and NPDES permits for “significant point source discharges of nitrogen, phosphorus, and sediment” in the Chesapeake Bay watershed.
  • Develop new storm water regulations by 2012 (proposed by 2011) and concentrated animal feeding operation (CAFO) regulations by 2014 (proposed by 2012).
  • Issue guidance on permitting for municipal separate storm sewer systems (MS4).  

The settlement agreement offers the Fowler plaintiffs a tool to hold EPA legally and publicly accountable for some of its obligations under the Strategy.  Under the terms of the agreement, the plaintiffs may seek judicial or administrative review of certain actions taken by EPA without resort to filing a new suit, thus expediting the process by which agency action can be held accountable. 

Strategy for Protecting and Restoring the Chesapeake Bay Watershed

The Strategy, a direct response to President Obama’s Executive Order 13508, outlines in detail actions that will be taken by each federal agency to control pollution, restore habitat and wildlife, conserve land, and increase public awareness and accountability in the watershed.   While there is overlap between the settlement agreement and Strategy, they are not coextensive.  For example, the settlement agreement binds only EPA, whereas the Strategy applies to EPA’s actions and a host of other agencies’ actions.

The Strategy sets four overarching goals for Bay restoration and identifies “key environmental outcomes” and “supporting strategies” that will help accomplish the goals and otherwise complement efforts to restore and protect the Bay.  Those goals are to:

  • restore clean water;
  • recover habitat;
  • sustain fish and wildlife; and
  • conserve land and increase public access.

Among the federal actions identified in the Strategy, EPA must establish and implement the Chesapeake Bay TMDL and an associated “accountability framework.”  The framework includes WIPs and two-year milestones, pollution reduction from septic systems and atmospheric deposition, and increased enforcement and compliance.  Like the settlement agreement, the Strategy also states that EPA will promulgate new rules for storm water by 2012 and CAFOs by 2014 and publish guidance for MS4 permitting.  

The Strategy also identifies measures related to agricultural conservation, toxic contaminants, monitoring, and grant programs as well as federal actions to address certain remaining goals.  Those goals include improvement of fish passage and restoration of tidal and non-tidal wetlands, forest buffers and certain animal populations, including native oysters, blue crab, brook trout, and black duck.  Finally, the Strategy includes deadlines for many of the federal actions detailed in its framework.  

For further information, please contact Richard Davis at (202) 789-6025, rdavis@bdlaw.com, Karen Hansen at (202) 789-6056, khansen@bdlaw.com, or Pamela Marks at (410) 230-1315, pmarks@bdlaw.com.


1 Section 117 of the Clean Water Act requires EPA to ensure that management plans are developed and implementation is begun to achieve and maintain the nutrient, water quality, habitat, and ecosystem restoration and protection goals of the Chesapeake Bay Agreement.  CWA § 117(g), 33 U.S.C. § 1267(g).  

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