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EPA Prevails in Fight Over Chesapeake Bay

(CN) - Arguments made by opponents of an Environmental Protection Agency plan to limit the maximum daily pollution levels in tributaries of the Chesapeake Bay defy common sense, the 3rd Circuit ruled.

Deemed a national treasure by Congress, the Chesapeake Bay watershed spans 64,000 square miles across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and Washington, D.C., and is one of the most biologically productive ecosystems in the world.

More than 3,600 species of plants and animals are found in the area, which economists have valued at more than $1 trillion. Not surprisingly, it also has a huge impact on how Americans eat, producing more than 500 million pounds of seafood annually.

For the past 300 years, however, agricultural runoff, rising populations, logging, and development have made the bay's nitrogen and phosphorus levels soar, studies have shown.

Two multistate agreements in the 1980s marked the beginnings of efforts to improve the bay's water quality, and by 1997, a reevaluation showed that phosphorus and nitrogen loads had dropped from 1985 to 1996, but dissolved oxygen levels had not clearly improved.

The next year, the EPA added the bay's tributaries to Virginia's impaired-waters list, and on Dec. 29, 2010, required nutrient levels to have fallen by 20 to 25 percent annually by 2025.

In a federal lawsuit filed in early 2011, the Washington, D.C.-based American Farm Bureau Federation and the Pennsylvania Farm Bureau said the EPA violated the Clean Water Act and Administrative Procedures Act by issuing the "arbitrary and capricious" final limits.

While the National Pork Producers Council, National Chicken Council, and several others later joined as plaintiffs, environmental and public interest groups like the National Wildlife Federation, the Chesapeake Bay Foundation Inc., Citizens for Pennsylvania's Future (PennFuture), and many municipal clean water associations intervened as defendants.

U.S. District Judge Sylvia Rambo awarded the defendants summary judgment in Harrisburg, Pa. on Sept. 13, 2013, finding that the EPA's plan is consistent with federal law.

The Farm Bureau appealed, but the 3rd Circuit affirmed the lower court's ruling Monday.

Farm Bureau's claim that the bay will be cleaned up without EPA intervention "defies common sense and experience," U.S. Circuit Judge Thomas Ambro wrote for the three-judge panel.

The plaintiff's reading of the Act would require only point source polluters - i.e. discrete places like wastewater treatment plant drainpipes, versus nonpoint sources like farms or roadways - to meet water quality standards, according to the 60-page ruling.

"Establishing a comprehensive, watershed-wide [total maximum daily load] TMDL-complete with allocations among different kinds of sources, a timetable, and reasonable assurance that it will actually be implemented-is reasonable and reflects a legitimate policy choice by the agency in administering a less-than-clear statute," Ambro wrote.

The problem of polluted Chesapeake waters currently affects at least 17 million people, and "any solution to it will result in winners and losers," the ruling states.

"In this case, the winners are environmental groups, the states that border the Bay, tourists, fishermen, municipal waste water treatment works, and urban centers," Ambro wrote. "The losers are rural counties with farming operations, nonpoint source polluters, the agricultural industry, and those states that would prefer a lighter touch from the EPA. Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution. The Chesapeake Bay [total maximum daily load] TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay-to make it once again a part of our 'land of living,' [quoting] Robert Frost, The Gift Outright line 10."

Collin O'Mara, president and CEO of the National Wildlife Federation, called the decision "a victory for clean water, fishable rivers and safe places for children to swim."

But Pennsylvania Farm Bureau's president, Rick Ebert, said the ruling "seems to give EPA employees the authority to trump local land use decisions in the watershed."

Larry Schweiger, president and CEO of PennFuture, said "this is an important victory not just for the Bay and the ongoing efforts for its restoration, but also for the Pennsylvania streams and rivers that are being cleaned up as part of that restoration work."

Noting that the defendants have 90 days to appeal the decision, Chesapeake Bay Foundation President William Baker said, "Instead, we urge them to put their energy and money into working with us to reduce agricultural pollution-the largest source of pollution degrading the Bay- and to reach what we hope is a common objective-clean water for everyone."

Representatives of the EPA and other parties were not immediately available for comment. In 2013, U.S. District Judge Rudolph Contreras dismissed a similar suit filed against the EPA by Food and Water Watch and Friends of the Earth in Washington, D.C.


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