Chesapeake Bay TMDL: Farm Bureau Appeal vs. Restoration Plan and Progress

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The Bay Journal reported November 6, 2015, that the U.S. Farm Bureau has appealed the 3rd U.S. Circuit Court of Appeal’s decision upholding the Chesapeake Bay Total Maximum Daily Load (TMDL) to the Supreme Court.

The Chesapeake Bay TMDL has been called the “blueprint” for the restoration. Based on years of scientific research, water quality monitoring and computer modeling by the Bay Program, the TMDL is an estimate of the levels of nitrogen, phosphorus and sediment that the Bay can accommodate and still meet water quality standards set by the jurisdictions as required by the federal Clean Water Act. The Chesapeake Bay TMDL sets an overall limit on nitrogen, phosphorus and sediment loading to the Bay and its tidal tributaries and divides the responsibility for meeting those limits among the Bay’s 92 tributaries, seven jurisdictions and six ‘source sectors’ – agriculture, urban/suburban stormwater, wastewater, forest, non-tidal atmospheric deposition and onsite septic.

Each of the jurisdictions and the federal agencies with property in the watershed were required to develop detailed Watershed Implementation Plans, called “WIPs,” that describe the pollution control actions that each would take to reduce nutrient and sediment pollution to meet their TMDL allocations for each source sector. The WIPs document the actions that will be taken and the timeframe over which those actions will be taken. Overall, the TMDL limits must be achieved by 2025, but in addition, to ensure that the restoration stays on track to achieve that goal, the WIPs must also meet milestone goals every two years. Progress toward the milestones is evaluated by EPA and publically reported so that interested parties can see the progress that is being made, or not made. These goals also help identify possible corrections to the WIPs to get the restoration back on track.

Most Maryland municipal and county governments, businesses and farmers, recognizing the importance of a clean Bay and rivers to the state’s economy, embraced the program and collectively invested millions of dollars to match state and federal grants to upgrade wastewater treatment, improve stormwater management, develop and implement nutrient management plans and pollution control measures on farms, etc. But not everyone has done their part and some in the watershed are pointing to other sources that they say must be dealt with first (not theirs of course!) and are questioning whether the restoration effort is worth the cost.

Even organizations outside the Chesapeake Bay have argued that the TMDL is too costly and is an over-extension of the Environmental Protection Agency’s (EPA) authority under the federal Clean Water Act. The American Farm Bureau, the National Home Builders Association and others, including Attorneys General from 21 states (including only one that is directly affected by the TMDL) joined in suing EPA to block its implementation. The District Court and subsequently the Third Circuit Court of Appeals both strongly disagreed with the plaintiffs, and in their opinion, filed July 6, 2015, the Court of Appeals very clearly articulated why the TMDL is legally justified.

“Congress made a judgement in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution,” said Robert M. Summers, PhD. “The Chesapeake Bay 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,” Robert Frost, ‘The Gift Outright’ line 10 – a goal our elected representatives have repeatedly endorsed. Farm Bureau’s arguments to the contrary are unpersuasive, and thus we affirm the careful and thorough opinion of the District Court.(1)”

Maryland state and local governments have been leading the Chesapeake Bay restoration effort. For many years, KCI’s Environmental, Natural Resources, Water Resources, and Geospatial practices have been key players, designing and constructing wastewater treatment plant upgrades, restoring streams and wetlands, retrofitting stormwater facilities, assisting with permit compliance, and developing the geographic databases used by state and local government agencies to track progress. And, while the U.S. Farm Bureau has been filing its lawsuits, Maryland farmers have been hard at work controlling pollution to the Bay and its tributaries by following University of Maryland nutrient management guidelines, installing stream buffers and other best management practices to reduce erosion, properly manage animal manure and retain nutrients with winter cover crops.

Unfortunately, not everyone agrees that the Bay restoration is worth the effort. The Bay TMDL creates a framework of responsibility and commitment to protecting the resource by all stakeholders. It facilitates accountability for what is universally agreed upon as one of our nation’s greatest estuaries. The Bay restoration is important, not the least because the steps we take to restore and protect the Bay (or Lake Erie) also protect our groundwater, streams, rivers and reservoirs – our water supplies – the essential foundation of our health and economic well-being.

(1)UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 13-4079,  Opinion filed: July 6, 2015