Judge Upholds EPA’s|Chesapeake Bay Plan

     (CN) – A federal judge rejected a challenge by farm industry groups and upheld the Environmental Protection Agency’s plan to reduce pollution in the Chesapeake Bay, a trillion-dollar national treasure.
     U.S. District Judge Sylvia Rambo in Harrisburg, Pa., said the EPA plays a “critical” role in coordinating the interstate cleanup effort, and its plan is consistent with federal law.
     Spanning 64,000 square miles across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and Washington, D.C., the Chesapeake Bay watershed is one of the most biologically productive ecosystems in the world. It’s home to more than 3,600 species of plants and animals and is a key resting ground for migratory birds along the Atlantic Flyway.
     The bay, which produces more than 500 million pounds of seafood per year, has been valued by economists at more than $1 trillion and deemed a “national treasure” by Congress.
     For the past 300 years, increasing nitrogen and phosphorus levels from agricultural runoff, rising populations, logging and development have strained the bay’s ecological health, studies have shown.
     Efforts to improve the bay’s water quality have been ongoing for more than 30 years, beginning with two multistate agreements in the 1980s.
     Although a 1997 reevaluation indicated that phosphorus and nitrogen loads respectively dropped by 6 million and 29 million pounds annually from 1985 to 1996, there was no clear improvement in dissolved oxygen levels.
     That led the EPA to add the bay’s tributaries to Virginia’s impaired-waters list the next year and cap the daily load of nutrient levels for the watershed.
     Hundreds of meetings ultimately led the EPA to finalize its limits on Dec. 29, 2010, requiring nutrient levels to have fallen by about 20 to 25 percent annually by 2025.
     The Washington, D.C.-based American Farm Bureau Federation and the Pennsylvania Farm Bureau filed a federal lawsuit in early 2011, claiming the EPA lacked authority under the Clean Water Act (CWA) to issue the “arbitrary and capricious” final limits and failed to provide adequate public notice and comment in violation of the Administrative Procedures Act.
     Several other organizations – including the Fertilizer Institute, the National Pork Producers Council, and the National Chicken Council – eventually joined as plaintiffs.
     Various environmental and public interest groups intervened as defendants, including the Chesapeake Bay Foundation Inc., Citizens for Pennsylvania’s Future, the National Wildlife Federation, and many municipal clean water associations.
     All parties moved for summary judgment, and Rambo ruled for the defendants Friday.
     Though the judge agreed that the states are responsible for implementing cleanup efforts, she tossed aside claims that the EPA’s drafting process was “threatening” and “coercive,” and that its allocations and deadlines are unlawfully “locked-in.”
     “This court must give EPA’s interpretation of the CWA and its use of scientific models and data due deference in light of EPA’s scientific and technical expertise,” Rambo wrote.
     The EPA’s 45-day public comment period was sufficient, according to the 99-page ruling: It stretched beyond the statutory minimum requirement of a 30-day period, involved 18 public meetings in all bay states, 15 webinars, and responses to more than 14,000 comments.
     Rambo said the agency’s watershed-wide approach is consistent with the states’ consent decrees and an executive order issued by President Barack Obama in May 2009.
     “In short, the court endorses the holistic, watershed approach used here,” Rambo wrote. “This approach receives ample support in the CWA, its legislative history, and Supreme Court precedent. Although plaintiffs propose alternative methods of regulating upstream sources, the existence of these alternatives does not render EPA’s present approach unreasonable or unlawful.”
     American Farm Bureau Federation President Bob Stallman said the group “is deeply disappointed” with the ruling. “We believe the EPA’s approach wrongly puts federal agency staff in charge of intensely local land use decisions,” he said in a statement issued Monday.
     Pennsylvania Farm Bureau President Carl T. Shaffer also disagreed with Rambo’s findings.
     “The judge erred in finding that EPA can do whatever it wants, because Congress specifically reserved land use decisions for state and local authorities,” he said in a statement.
     National Wildlife Federation President and CEO Larry Schweiger said he was “thrilled that the court ruled in favor of clean water, fishable rivers and safe places for children to swim,” while PennFuture’s interim president and CEO, Jim Abernathy, called the ruling “a major win for the continued improvement of waterways used by millions.”

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