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American Farm Bureau Federation, et al v. United States Environmental Protection

October 13, 2011

AMERICAN FARM BUREAU FEDERATION, ET AL.,
PLAINTIFFS
v.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, ET AL.,
DEFENDANTS



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Presently before the court are three motions for leave to intervene. The proposed intervenors seek leave to intervene in this action as party defendants as a matter of right under Federal Rule of Civil Procedure 24(a)(2), or, in the alternative, for permissive intervention under Federal Rule of Civil Procedure 24(b)(1). For the reasons set forth below, the motions will be granted.

I. Background

Plaintiffs in this case are seeking declaratory and injunctive relief against Defendant, the United States Environmental Protection Agency ("EPA"). Plaintiffs ask the court to vacate the Total Maximum Daily Load ("TMLD") established by EPA for the Chesapeake Bay and its tributaries. Although not directly relevant to the intervention motions presently pending, some contextual background is helpful to understand the posture and the nature of the issues involved in the underlying case.

The Clean Water Act ("CWA") seeks "to restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve this, Congress granted EPA authority to, among other things, develop effluent discharge standards, 33 U.S.C. § 1311, water quality standards, 33 U.S.C. § 1313, and limit pollution discharges from point sources through a permitting scheme called the National Pollutant Discharge Elimination System ("NPDES"), 33 U.S.C § 1342. This case implicates, primarily, the water quality standard sections of the CWA. 33 U.S.C. § 1313

"Water quality standards" are regulations comprised of: 1) a description of the designated use or uses of a water body; 2) the criteria necessary to protect the use or uses; and 3) a statement by the applicable state that the standard will maintain and protect the existing use and the water quality of the water body. 40 C.F.R. § 131.6. These state standards are then subject to EPA review. 33 U.S.C. § 1313(c). To establish effluent limitations, the EPA may promulgate technology-based effluent limits. 33 U.S.C. § 1312. When these efforts have proven insufficient to remove water quality impairments, a TMDL must be established. 33 U.S.C. § 1313(d); 40 C.F.R. § 130.7. A TMDL is, in essence, a pollution budget, and it represents a calculation of the maximum amount of a pollutant that a water body can receive and still meet water quality standards. A TMDL represents the sum of point source waste allocations, non-point source load allocations, and natural background sources of pollutants. 40 C.F.R. § 130.2(I). Thus, a TMDL assigns allocations to farms, cities, businesses, as well as residential and undeveloped lands. Although a TMDL itself is only informational in nature, each state in the Chesapeake Bay watershed must develop an implementation plan to describe how they will achieve their respective allocations under the TMDL. 33 U.S.C. § 1313.

Efforts to reduce the amount of pollution entering the Bay from the Chesapeake Bay watershed -- which includes Virginia, Maryland, Pennsylvania, New York, Delaware, West Virginia, and the District of Columbia, (collectively, "Bay Jurisdictions") -- have been ongoing for more than thirty years. More recently, in May 2009, President Obama issued executive order 13508, which required seven federal agencies, led by the Administrator of the EPA and in consultation with Bay Jurisdictions, to develop a strategy for addressing Bay pollution and preserving Bay natural resources. On May 10, 2010, an agreement was signed by Jon A. Mueller, Vice President for Litigation for the Chesapeake Bay Foundation, and a representative of the EPA. (CBF Memo in Supp. of Mot. to Intervene, Doc. 52-1, Exh. A.) Some of the proposed intervenors argue that this agreement effectively settled Fowler v. EPA, No. 1:09-CV-00005-CKK (D.D.C. May 11, 2009), although Plaintiffs apparently dispute this fact. Regardless, the agreement states that "By December 31, 2010, pursuant to 33 U.S.C. §§ 1313(d) and 1267, EPA will establish the Bay TMDL." Id. On May 12, 2010, a final strategy was issued requiring EPA to develop a Bay TMDL with full implementation required by 2025. Using model simulations, the 2010 TMDL promulgated allocations of 185.9 million pounds per year (mpy) of nitrogen, 12.5 mpy of phosphorus, and 6.45 billion pounds per year of sediment among the above-mentioned Bay Jurisdictions. Plaintiffs here are challenging the validity of this TMDL.

II. Procedural History

Plaintiffs filed a complaint on January 10, 2011 (Doc. 1) and EPA filed an answer on March 14, 2011 (Doc. 15). On April 4, 2011, Plaintiffs filed an amended complaint (Doc. 16) to which EPA filed an answer on April 21, 2011 (Doc. 23). The amended complaint alleges that EPA violated the CWA and the Administrative Procedures Act ("APA") by issuing the 2010 TMDL for the Chesapeake Bay and its tributaries. Plaintiffs assert that EPA lacked authority under the CWA to issue the TMDL; the TMDL was arbitrary and capricious; EPA failed to provided adequate public notice and comment on the TMDL; and the TMDL is ultra vires. The Plaintiffs request that the court vacate the TMDL.

Three motions for leave to intervene have been filed. On May 25, 2011, a joint motion was filed by the Chesapeake Bay Foundation, Inc., Citizens for Pennsylvania's Future, Defenders of Wildlife, Jefferson County Public Service District, Midshore Riverkeeper Conservancy, and the National Wildlife Federation (collectively, the "CBF Group"). (Doc. 25.) A brief in support was filed on June 3, 2011. (Doc. 52.) A second joint motion and brief was filed on May 25, 2011, by several municipal clean water associations including the National Associations of Clean Water Agencies ("NACWA"), Maryland Association of Municipal Wastewater Agencies, Inc. ("MAMWA"), and the Virginia Association of Municipal Wastewater Agencies, Inc. ("VAMWA") (collectively, the "Municipal Associations Group"). (Docs. 27 & 29.) Plaintiffs filed a consolidated response on June 20, 2011. (Doc. 57.) Reply briefs were filed by the Municipal Associations Group (Doc. 66) and the CBF Group (Doc. 67) on July 5 and July 7, 2011, respectively. A third motion (Doc. 59) and supporting brief (Doc. 61) was filed on June 27, 2011, by the Pennsylvania Municipal Authorities Association ("PMAA"). Plaintiffs filed a brief in opposition on July 14, 2011, (Doc. 68), to which a reply brief was filed on July 28, 2011 (Doc. 70). Defendant EPA has not taken a position with regard to the motions. Accordingly, all three motions are ripe for disposition.

III. The Proposed Intervenors*fn1

A. The Municipal Associations Group

1. NACWA

NACWA is a voluntary, non-profit national trade association representing the interests of the nation's publicly owned wastewater and stormwater utilities. NACWA's members include nearly 300 of the nation's municipal clean water agencies, including nearly twenty within the Chesapeake Bay watershed. These agencies own and operate wastewater treatment plants ("WWTPs") to which allocations have been granted under the TMDL. NACWA has led efforts to implement environmental programs geared toward protecting the health of the public and natural ecosystems.

2. MAMWA

MAMWA is a non-profit, non-stock corporation incorporated under the laws of Maryland that represents the owners and operators of WWTPs throughout Maryland. MAMWA's members discharge treated wastewater into the Bay, or its tributaries, pursuant to NPDES permits issued by the state of Maryland and have received allocations for their discharge under the Bay TMDL. Since 1996, MAMWA has worked to reduce and eliminate water pollution through the application of science and policy.

3. VAMWA

VAMWA is a non-profit, non-stock corporation incorporated under the laws of Virginia that represents fifty-seven local governments, wastewater authorities, and districts that own and operate WWTPs throughout Virginia. Most of VAMWA's members' facilities discharge treated wastewater into the Bay or its tributaries pursuant to state-issued NPDES permits. VAMWA has assisted members in efforts to protect public health and the environment through science and policy.

B. PMAA

PMAA is an association that represents 720 sewer and water authorities in Pennsylvania. PMAA assists water and sewer authorities in providing services that protect and enhance the environment and promote economic growth. The Pennsylvania Department of Environmental Protection ("DEP") adopted the Pennsylvania Chesapeake Bay Tributary Strategy, which identified more than 180 WWTPs in Pennsylvania that would have to implement certain nutrient reduction measures in order to address water quality issues in the Chesapeake Bay. Nearly half of the 180 WWTPs are owned or operated by municipal authorities represented by the government relations efforts of PMAA. Additionally, PMAA was an active member of the DEP Stakeholders Group on the Chesapeake Bay Tributary Strategy and continues to be actively involved in several work groups convened by DEP regarding implementation of the Bay TMDL in Pennsylvania.

C. The CBF Group

1. The Chesapeake Bay Foundation, Inc. ("CBF")

CBF is a non-profit corporation based in Annapolis, Maryland. CBF is dedicated to restoring and protecting the Chesapeake Bay and its tributaries. With over 235,800 members, CBF engages in various programs and activities designed to promote water quality awareness and reduce pollution. To that end, CBF has been involved in numerous meetings with stakeholders and EPA regarding the development of the Bay TMDL. CBF also submitted comments on the draft Bay TMDL. CBF was a party to Fowler v. EPA, No. 1:09-C-00005-CKK (D.D.C.), a matter that CBF claims was settled pursuant to an agreement that required, among other things, the development of a Bay-wide TMDL by December 31, 2010.

2. Citizens for Pennsylvania's Future ("PennFuture")

PennFuture is a statewide public interest membership organization that advocates for public policy to restore and protect the environment and safeguard public health. Advocating for state and federal laws and regulations seeking to restore and protect the Bay has been a significant focus of the group. As a member of the Choose Clean Water Coalition, PennFuture commented on the draft Bay TMDL. PennFuture's members use the Susquehanna River and its tributaries for recreational purposes, including kayaking, fishing, swimming and snorkeling.

3. Defenders of Wildlife ("Defenders")

Defenders is a non-profit public interest conservation organization with more than one million members and supporters nationally, including 46,000 in Pennsylvania, 21,000 in Maryland, and 24,000 in Virginia. Defenders works to protect all wild animals and plants in their natural communities and, as part of those efforts, assists land trusts in the Chesapeake Bay watershed in conservation and biodiversity efforts. Members regularly use the Bay and its tributaries for scientific research geared toward protecting wildlife; recreational activities including boating, canoeing, and kayaking; and to enjoy ...


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