Friday, December 16, 2011

PA DEP Releases New Draft of Chesapeake Watershed Implementation Plan

On December 16, 2011, the Pennsylvania Department of Environmental Protection issued its Draft Phase 2 Chesapeake Watershed Implementation Plan. According to the DEP press release, the Plan was developed to “meet EPA’s August 1, 2011 revised nutrient and sediment allocations for the TMDL (total maximum daily load).” DEP will now be accepting comments on the Plan through January 30, 2012.

Written by Andy Schwabenbauer, Research Fellow
December 19, 2011

Wednesday, November 23, 2011

Chesapeake Bay Foundation Joins Lawsuit

The Chesapeake Bay Foundation (CBF) released a statement on November 15, 2011, announcing that the Foundation will be joining in a lawsuit against the Frederick County Board of Commissioners. In the statement CBF Vice President for Litigation, Jon Mueller said, "The board is attempting an illegal shortcut to allow potentially substantial new sprawl development. Maryland law demands a careful and deliberate process for rezoning any land so no landowner is put at an advantage or disadvantage. The board is not following that process." The Frederick County Board has commenced a procedure that the CBF fears could allow for the construction of nearly 17,000 homes within the county.  The CBF and other plaintiffs are seeking an injunction to prevent further action by the Board of Commissioners and to have the actions deemed unlawful.

Click here to read the CBF press release

Click here to read the complaint

Written by Andy Schwabenbauer, Research Fellow
November 23, 2011

Saturday, October 29, 2011

EPA and Defendant Intervenors File Briefs in Opposition of Motion to Complete Administrative Record in AFBF v. EPA (11-cv-00067)

On October 28, 2011, both the U.S. Environmental Protection Agency (EPA) and the Defendant Intervenors (Chesapeake Bay Foundation, Citizens for Pennsylvania's Future, Defenders of Wildlife, Jefferson County Public Service District, Midshore Riverkeeper Conservancy, and National Wildlife Federation) filed Briefs in Opposition to the American Farm Bureau Federation's Oct. 11, 2011 Motion to Complete the Administrative Record (filed jointly with the National Association of Home Builder). The administrative record was filed by EPA on Sept. 1, 2011.

EPA's Memorandum in Opposition to Plaintiff's Motion to Complete the Administrative Record

The EPA argues the Plaintiffs have not met their burden of proof that expansion of the administrative record is necessary because (1) Plaintiffs have not shown the administrative record fails to demonstrate factors considered by EPA in establishing the Bay TMDL; and (2) Plaintiffs have not established that EPA acted in bad faith when compiling the administrative record. Additionally, EPA argues the Plaintiffs have failed to show agency bias and therefore have not overcome the presumption against discovery in Administrative Procedure Act (APA) cases. Lastly, EPA argues that the Plaintiffs' claim that the standard for discovery is expanded in record cases is a misinterpretation of the precedent.

Defendant Intervenors' Opposition to Plaintiffs' Motion to Expand the Record and for Discovery

The Defendant Intervenors argue that the Plaintiffs have not satisfied the legal standard for expanding the administrative record because compilation of that record is in the hands of the agency and afforded a presumption of regularity; therefore, expansion of the administrative record is an exceptional request.  Defendant Intervenors argue that only one provision of the APA allows a reviewing court to look beyond the administrative record, however, they argue that the Supreme Court has held the provision to control in only two situations: (1) "when the action is adjudicatory in nature and the agency fact finding procedures are inadequate," and (2) "when issues that were not before the agency are raised in a proceeding to enforce non-adjudicatory agency action." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). They argue that neither of these situations exist; therefore, the record should not be expanded.

Additionally, Defendant Intervenors argue that the "five emails between EPA staff and Virginia agency employees concerning development of Virginia’s Watershed Implementation Plans (WIP)" should not properly be part of the administrative record because the development of state WIPs are not relevant to the matter before the court. Furthermore, the ANPC/LimnoTech Report is not scientifically valid and should not properly be part of the record because it was not created until after the close of the comment period. Lastly, Defendant Intervenors argue that discovery of EPA officials should not be allowed. They argue that Plaintiffs' claim that EPA must have generated more documents in response to the ANPC/LimnoTech Report is based on faulty logic, and because the ANPC/LimnoTech Report was "deeply flawed" it is not surprising there were few pertinent documents in the record.

Scroll previous posts following this litigation, AFBF v. EPA (11-cv-00067), here.



Written/Posted by Tanya J. Cramoy, Research Assistant

Tuesday, October 18, 2011

Case Law Update: CBF Granted Intervention Order in AFBF v. EPA

On October 13, 2011, the Chesapeake Bay Foundation, Inc. (CBF), along with several other environmental groups and agencies, were granted a motion to intervene as defendants in American Farm Bureau Federation v. Environmental Protection Agency (M.D. Pa.). The court agreed that CBF has a legal interest in preserving the EPA's Total Maximum Daily Load (TMDL), and that CBF would be impaired by a ruling vacating TMDL for the Chesapeake Bay. TMDL is a term in the Clean Water Act and represents the maximum amount of pollution a body of water can endure while still meeting water quality standards. The original case, filed in January of 2011 by the American Farm Bureau Federation, asked the court to vacate the EPA's TMDL for the Chesapeake Bay. Also joining as intervenors are Citizens for Pennsylvania’s Future (PennFuture), Defenders of Wildlife, Jefferson County Public Service District, Midshore Riverkeeper Conservancy, National Wildlife Federation, National Association of Clean Water Agencies, the Maryland Association of Municipal Wastewater Agencies, Inc., the Virginia Association of Municipal Wastewater Agencies, Inc., and Pennsylvania Municipal Authorities Association.

Docket Number: 1:11-CV-0067

Written by Andy Schwabenbauer, Research Fellow
October 18, 2011

Tuesday, October 4, 2011

Ag Law Center Video Case Summary of AFBF v. EPA Available Online

A summary of the case Am. Farm Bureau Fed'n v. EPA (M.D. Pa. filed Jan. 10, 2011), identifying the parties, the plaintiffs' claims and prayers for relief, and the current stage of the litigation, is now available online.

View the AFBF v. EPA Case Summary Video here (link to YouTube).

Further videos, produced by the Agricultural Law Resource and Reference Center, addressing legal developments related to Chesapeake Bay restoration are forthcoming and will be posted on this blog when available.

Written by Tanya J. Cramoy, Research Assistant

Friday, September 30, 2011

2012 Environmental Education Grants Available for Chesapeake Bay and Watershed Education Programs

In tomorrow's PA Bulletin, Oct. 1, 2011, the Department of Environmental Protection announces the availability of applications for the 2012 Environmental Education Grant Program, beginning October 3, 2011. The 2012 Grant Program will include a grant for Chesapeake Bay and Watershed Education programs promoting the reduction of non-point source pollution, like sediment and nutrient loads. Additionally, Chesapeake Bay programs may address abandoned mine drainage, and water conservation.

The Environmental Education Grant Program was established by the Pennsylvania Environmental Education Act of 1993, which mandates that 5% of pollution fines and penalties collected by the Department, be set aside for environmental education within the State of Pennsylvania. Grant awards are limited to $7,500 and applications must be postmarked by December 16, 2011.

Access the Grants Manual and Application Forms here.

Posted by Tanya J. Cramoy, Research Assistant

Friday, September 23, 2011

Live Public Webinar Demonstrating New Web-Based Bay Clean-Up Tool

The Chesapeake Bay Program will be hosting a live, public, two-hour webinar demonstrating the new Chesapeake Assessment and Scenario Tool (CAST).  CAST is a web-based program intended to assist municipalities, states, federal agencies, and others in their assessment of pollution reduction strategies in the Chesapeake Bay watershed.  The program is aimed at helping users meet Total Maximum Daily Load (TMDL) allocations.  Rapid estimates are generated to indicate the combination of Best Management Practices (BMPs) that will provide the greatest reductions in nitrogen, phosphorous, and sediment.  The estimates are designed to help users select the BMPs for their Phase II Watershed Implementation Plan (WIP).  The webinar will run from 10:00am to 12:00pm on Tuesday, September 27, 2011.

Register for the webinar here.

Read the CAST Fact Sheet here.

Posted by Tanya J. Cramoy, Research Assistant

Thursday, September 15, 2011

GAO Recommends Common Federal and State Goals, and Common Assessment Approach in Chesapeake Bay Restoration

On September 15, 2011, the Government Accountability Office (GAO), under direction of the Consolidated Appropriations Act, 2008, has conducted its first performance assessment of the progress made on Chesapeake Bay restoration. An EPA-led Federal Leadership Committee was directed, in May of 2009, to issue a strategy to protect and restore Chesapeake Bay ("Strategy") by May of 2010.  The GAO's first assessment of progress examined:

"(1) the extent to which the Strategy includes measurable goals for restoring the bay that are shared by stakeholders and actions to attain these goals; (2) the key factors, if any, federal and state officials identified that may reduce the likelihood of achieving Strategy goals and actions; and (3) agency plans for assessing progress made in implementing the Strategy and restoring bay health."

In light of its findings, the GAO has made several Recommendations for Executive Action aimed at improving the likelihood that Chesapeake Bay restoration is achieved. They recommend that the Administrator of the EPA "work collaboratively with federal and state bay restoration stakeholders" to: (1) develop common goals to help ensure stakeholders, federal and state, are working toward the same goals; (2) establish benchmarks to measure progress toward goals for the entire restoration project; (3) develop an "adaptive management process" that will allow stakeholders to adjust actions based on evaluated progress; and (4) identify indicators for assessing progress in the improvement of bay health and clarify how those assessors will coordinate their efforts.

Read the Full Report here (59 pages).
Read the Highlights Page here.
Read the Summary and Recommendations here.

Posted by Tanya J. Cramoy, Research Assistant

Saturday, September 10, 2011

DEP Announces Phase 2 Watershed Implementation Plan Meeting

The Pennsylvania Department of Environmental Protection published notice, 41 Pa. Bull. 4911 (Sept. 10, 2011), of a September 29, 2011 meeting of the Chesapeake Bay Watershed Implementation Plan (WIP) Management Team. The meeting will address Pennsylvania's Phase 2 WIP, a draft of which is due to the EPA on Dec. 15, 2011; the Final Phase 2 WIP is due March 30, 2012. Phase 2 WIPs use revised nutrient and sediment allocations for the Chesapeake Bay Total Maximum Daily Load (TMDL), which were set by the United States Environmental Protection Agency on August 1, 2011 as a result of the EPA's development of a revised Watershed Model. The states are expected to subdivide loads by local area, with local implementation efforts focusing on existing rule and regulation compliance as well as on finding "opportunities for additional management actions."

Read the published Notice here.
Access past posting: Pennsylvania Department of Environmental Protection Holds Phase 2 Chesapeake Bay Watershed Implementation Plan Summit (Aug. 3, 2011).
Access past posting: Recordings and Documents From PA Phase 2 WIP Summit Now Available Online (Aug. 16, 2011).

Written/Posted by Tanya J. Cramoy, Research Assistant

Monday, August 22, 2011

National Fish & Wildlife Foundation Awarded Conservation Innovation Grant to Benefit the Chesapeake Bay

Courtesy of NFWF
On Aug. 22, 2011, the USDA's Natural Resource Conservation Service announced awarding a Conservation Innovation Grant (CIG), in the amount of $848,424, to the National Fish and Wildlife Foundation (NFWF). The grant is to be dispersed to five Bay-area states set to participate in the NFWF manure-to-energy program (DE, PA, MD, VA, WV). The program is aimed at generating income to support improvements in Chesapeake Bay water quality, while at the same time providing opportunity for farmers to convert waste to energy and income. In addition to the NFWF award, newly announced CIG grants support innovative proposals addressing natural resources, livestock operation odor, expansion of solar energy use on farms, reclaiming of mining lands, and development of ecosystem markets.

Read the NRCS Press Release here.

Written/Posted by Tanya J. Cramoy, Research Assistant

Wednesday, August 17, 2011

Director of Agricultural Law Center Presents on Clean Water Act at Ag Progress Days

At Penn State's Ag Progress Days, Aug. 17, 2011, Ross H. Pifer, Director of the Agricultural Law Resource and Reference Center, presented The Clean Water Act and What it Means for Pennsylvania's Producers. The presentation gave attendees background on the Chesapeake Bay and its restoration; the general legal framework effecting the Bay; and current legal developments including the Clean Water Act, the Chesapeake Bay Program, and Chesapeake Bay Total Maximum Daily Loads.

The webinar recording and accompanying powerpoint presentation are now available online through the Penn State Cooperative Extension.

For further resource information regarding the Chesapeake Bay, please visit the Agricultural Law Center's Chesapeake Bay Resource Area.

Tuesday, August 16, 2011

Recording and Documents From PA Phase II WIP Summit Now Available Online

A webinar recording  of the August 3, 2011 Summit is now available online here, courtesy of the Penn State Cooperative Extension.

The Department of Environmental Protection's Chesapeake Bay Program has additionally made the handouts from the Summit available through their Web site (pdf):
Posted by Tanya J. Cramoy, Research Assistant

Wednesday, August 3, 2011

Pennsylvania Department of Environmental Protection Holds Phase II Chesapeake Bay Watershed Implementation Plan Summit

On August 3, 2011, the Pennsylvania Department of Environmental Protection (“DEP”) held a Phase II Chesapeake Bay Watershed Implementation Plan (“Phase II WIP”) Summit to discuss the ongoing development of Pennsylvania’s Phase II WIP.  As with other Bay watershed jurisdictions, Pennsylvania is required to submit to EPA WIPs that detail how the jurisdiction plans to meet the pollution allocations set by the Chesapeake Bay Total Maximum Daily Loads.  Previously, Pennsylvania had submitted to EPA their Phase I WIP and is now currently drafting their Phase II WIP.   The summit allowed the public and local officials to comment on the development of the Phase II WIP and how Pennsylvania should meet pollution reductions at the local level.  For more information on the summit please view DEP’s News Release.

Written by Jay Angle, Research Assistant

Monday, July 18, 2011

Pennsylvania Senator Introduces Bill Addressing Non-Farm Fertilizer Run-Off

Photo Courtesy of Dreamstime
Pennsylvania State Senator Mike Brubaker introduced Senate Bill 1191 (“Bill”) to address run-off pollution created by non-farm fertilizer.  The Bill plans to protect water quality by setting fertilizer application limits on turf areas such as lawns, golf courses, and athletic fields.  Additionally, the Bill requires professional fertilizer applicators to receive certification in proper fertilizer application techniques and in best fertilizer management practices.  The Bill hopes to help reduce extra nutrients that are entering Bay and are created in part by fertilizer. For the complete Bill Information, please visit the Pennsylvania General Assembly Web site.

Written by Jay Angle, Research Assistant

Monday, July 11, 2011

Chesapeake Bay Executive Council Hold Annual Meeting

The Chesapeake Bay Executive Council (“Council”) held their annual meeting on July 11, 2011, to discuss efforts to protect the Chesapeake Bay.  Representatives in attendance included leaders from Pennsylvania, Maryland, Virginia, New York, Delaware, West Virginia, District of Columbia, the Environmental Protection Agency, the U.S. Department of Agriculture, and the Chesapeake Bay Commission.  The Council announced interim progress reports regarding Bay milestones for implementing pollution controls.  Specifically, the interim reports illustrate the milestone percentages achieved for the entire Bay and for the individual Bay watershed jurisdictions.  For more information please visit the Chesapeake Bay Program’s 2011 Executive Council Meeting Web site.

Written by Jay Angle, Research Assistant

Wednesday, May 25, 2011

Environmental Groups File Motion to Intervene in Chesapeake Bay Litigation

Photo Courtesy of Dreamstime
On May 25, 2011, the Chesapeake Bay Foundation (“CBF”) and other environmental groups filed a motion to intervene to become a party in Am. Farm Bureau Fed’n v. EPA.  The American Farm Bureau Federation (AFBF) and the Pennsylvania Farm Bureau (PFB) initially filed a complaint against the Environmental Protection Agency (“EPA”) to challenge EPA’s finalized Chesapeake Bay Total Maximum Daily Loads (Bay TMDLs).  CBF and its environmental group allies support the Bay TMDLs and oppose the complaint against EPA. CBF contends that EPA properly promulgated the Bay TMDLs and that EPA provided a lengthy and transparent TMDL process for the public.  For the complete article please view the June 2011 Penn State Agricultural Law Brief (see page 2).

Written by Jay Angle, Research Assistant

Friday, April 29, 2011

Environmental Protection Agency Provides Guide for Federal Agencies Participating in Phase II WIPs

The Environmental Protection Agency (“EPA”) released a guide on April 29, 2011, for federal agencies with land and facilities in the Bay watershed jurisdictions.  The guide describes EPA’s expectations of the federal agencies in helping the watershed jurisdictions achieve the Bay TMDLs.  In particular, EPA expects the federal agencies to “work with the Bay jurisdictions to ensure that they have the information necessary to prepare Phase II WIPs.”  For the full guide please view Guide for Federal Lands and Facilities’ Role in Chesapeake Bay Jurisdictions’ Phase II Watershed Implementation Plans (Environmental Protection Agency).

Written by Jay Angle, Research Assistant

Monday, April 4, 2011

American Farm Bureau Federation and Pennsylvania Farm Bureau Amend Complaint against Environmental Protection Agency

On April 4, 2011, in the litigation Am. Farm Bureau Fed'n v. EPA, an amended complaint was filed by the American Farm Bureau Federation, the Pennsylvania Farm Bureau, and new plaintiffs: The Fertilizer Institute; National Pork Producers Council; National Chicken Council; U.S. Poultry & Egg Association; and the National Turkey Federation. To view the complete amended complaint, please see Apr. 4, 2011 First Amended Complaint.

Written by Jay Angle, Research Assistant

Wednesday, March 30, 2011

Environmental Protection Agency Provides Bay Jurisdictions with Guide for Phase II WIPs

On March 30, 2011, the Environmental Protection Agency (“EPA”) provided the seven Bay watershed jurisdictions with a guide for what to include in the Phase II Watershed Implementation Plans (“WIPs”) drafts that the jurisdictions will submit to EPA.  EPA expects the Phase II WIPs to include “more specific information that facilitates actions by local partners to control nitrogen, phosphorus and sediment to achieve the allocations” set by the Bay TMDLs.  Drafts of the Phase II WIPs are to be submitted to the EPA by December 1, 2011 and Final Phase II WIPs are to be submitted by March 30, 2012.  For the complete guide please view Guide for Chesapeake Bay Jurisdictions for the Development of Phase II Watershed Implementation Plans (Environmental Protection Agency).

Written by Jay Angle, Research Assistant

Tuesday, March 15, 2011

National Resources Conservation Service Announces Release of “Assessment of the Effects of Conservation Practices on Cultivated Cropland in the Chesapeake Bay Region”


Photo Courtesy of Dreamstime
On March 15, 2011, the Natural Resources Conservation Service (“NRCS”) announced the release of its second report in a series that concerns effects of conservation practices in the Bay region.  The report quantifies the environmental benefits of farming conservation practices and examines further benefits received from continuing conservation practices.  For the complete report please view Assessment of the Effects of Conservation Practices on Cultivated Cropland in the Chesapeake Bay Region (Natural Resources Conservation Service, USDA).

Written by Jay Angle, Research Assistant

Tuesday, January 11, 2011

Pennsylvania Submits Final Phase I Watershed Implementation Plan


Photo Courtesy of Dreamstime
The Pennsylvania Department of Environmental Protection provided the Environmental Protection Agency (“EPA”) with its revised final Phase I WIP.  As required by the Chesapeake Bay Total Maximum Daily Loads (“Bay TMDLs”), the seven jurisdictions must submit Watershed Implementation Plans (“WIPs”) for EPA’s approval and after January 11, 2011, all seven jurisdictions had submitted their final Phase I WIPs.  The WIPs detail how the jurisdictions plan to meet the Bay TMDLs pollution allocations.  In the Phase I WIPs, EPA expected the jurisdictions to “subdivide the Bay TMDL allocations among pollutant sources; evaluate their current legal, regulatory, programmatic and financial tools available to implement the allocations; identify and rectify potential shortfalls in attaining the allocations; describe mechanisms to track and report implementation activities; provide alternative approaches; and outline a schedule for implementation.”  EPA will monitor the jurisdictions’ WIP progress and may take appropriate action to ensure the jurisdictions will meet their milestones.  For more information on the Phase I WIPs, please visit EPA’s Watershed Implementation Plan Resource Area: How Does it Work? Ensuring Results (see “Final Phase 1 Watershed Implementation Plans (WIPs)”).

Written by Jay Angle, Research Assistant

Monday, January 10, 2011

American Farm Bureau Federation and Pennsylvania Farm Bureau File Complaint Against the Environmental Protection Agency

In response to the Environmental Protection Agency (“EPA”) issuing the final Chesapeake Bay Total Maximum Daily Loads (“Bay TMDLs”), the American Farm Bureau Federation and Pennsylvania Farm Bureau (“Plaintiffs”) filed a complaint against EPA on January 10, 2011, in the U.S. District Court for the Middle District of Pennsylvania, to challenge EPA’s Bay TMDLs.  Plaintiffs argue that the Bay TMDLs improperly intrude upon a state’s authority to make water quality decisions and that the Bay TMDLs were based on improperly calibrated models that used erroneous assumptions.  Additionally, the Plaintiffs claim that the public did not sufficiently participate in the TMDL process and that EPA failed to provide the public a meaningful opportunity to comment on the TMDLs.  The Plaintiffs seek declaratory and injunctive relief against EPA’s enforcement of the Bay TMDLs and ask the court to vacate the Bay TMDLs.  For the complete complaint please view Jan. 10, 2011 AFBF Complaint.

Written by Jay Angle, Research Assistant

Tuesday, January 4, 2011

President Obama Signs Bill S3481 to Amend the Clean Water Act

Photo Courtesy of Dreamstime
On Janurary 4, 2011, President Obama signed Bill S3481 into law.  Bill S3481 amends the Clean Water Act to require federal agencies to pay stormwater management fees.  Previously, some federal agencies claimed that the fees were essentially a tax and that the federal government cannot be taxed.  With the signing of Bill S3481, federal agencies are now obligated to pay those stormwater management fees, regardless of whether the fee is denominated as a tax.  Stormwater is one of the major contributors to pollution in the Bay through runoff that carries excess nutrients, pollutants, and sediment.  For more information on Bill S3481 please visit Thomas (Library of Congress).

Written by Jay Angle, Research Assistant