EPA Plan for Chesapeake Bay Upheld by Judge

WASHINGTON (CN) - A federal judge dismissed claims that the U.S. government's authorization of pollution trading and offsets violate the Clean Water Act.

Food and Water Watch and Friends of the Earth sued the U.S. Environmental Protection Agency in 2012, claiming that it had arbitrarily and capriciously adopted the 2010 Chesapeake Bay "Total Maximum Daily Loads" pollution-management plan, in violation of the Administrative Procedures Act and the Clean Water Act.

U.S. District Judge Rudolph Contreras dismissed the claim last week for lack of standing and failure to state a claim.

The Chesapeake Bay is the largest estuary in the United States, and faces serious threats from pollution despite decades of efforts from federal and state lawmakers to clean up its brackish waters.

According to the ruling, the EPA established the bay's total maximum daily load of pollutants in 2010 after determining that state regulations were not meeting water quality standards mandated by federal law.

Section 10 of the plan sets expectations on how states can control pollution levels in the face of population growth. Part of that plan involves offsets, which "for purposes of the Chesapeake Bay TMDL, means ... compensating for the loading of a pollutant of concern from a point or nonpoint source with a reduction in the loading from a difference source or sources, in a manner consistent with meeting [water quality standards]," Contreras explained.

Pollution trading, according the ruling, allows one polluting source to meet its regulatory obligations by using pollutant reductions created by another source that has lower control costs.

Friends of the Earth and Food and Water Watch said that the Administrative Procedure Act required the EPA to give notice and accept public comment before adopting its offsetting and trading strategies. They claimed this never happened and that additional sources of pollution created by the plan will harm their enjoyment of the bay.

"The plaintiffs' standing problem, however, is not a lack of a particularized injury - it is the lack of an actual or imminent one," Contreras wrote.

He added that "the creation of 'hotspots' by the issuance of such permits is neither actual nor imminent."

In addition to the groups' lack of standing, the EPA's authorization of offsetting and trading does not constitute a final agency action, leaving them unable to state a claim upon which relief can be granted, according to the ruling.

"Even if the court were to find that the plaintiffs had standing, this case must nevertheless be dismissed for failure to state a claim under the APA," Contreras wrote.

According to the ruling, the main pollutants in the bay are nitrogen, phosphorus and sediment, generally coming from point sources such as municipal wastewater facilities and industrial discharge facilities and nonpoint sources like farms.

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