Friday, March 30, 2012

Bay States Submit Final Phase II WIPs

On March 30, 2012, five Bay States and the District of Columbia submitted its Final Phase II WIPs to the EPA.  New York was the only jurisdiction that failed to submit its Final WIP.

To read the plans and how they affect agriculture please click from the following options below:

District of Columbia Final Phase II WIP
Delaware Final Phase II WIP
Maryland Final Phase II WIP
Pennsylvania Final Phase II WIP
Virginia Final Phase II WIP
West Virginia Final Phase II WIP

Written By Justin Ritter, Research Fellow
March 30, 2012  

Tuesday, March 27, 2012

EPA submits its Summary Judgment Motion Against AFBF

On March 27, 2012, Defendant EPA filed its motion for Summary Judgment against Plaintiff AFBF.

Essentially, EPA claims its involvement with the Final TMDL does not render the action unlawful.

EPA makes four specific claims or responses against AFBF.

First, EPA claims AFBF failed to prove standing in this case.

Second, EPA claims it acted in accordance with its Clean Water Act authority because the Final TMDL was non-binding on the Bay States, as it was merely a guide for the states.  EPA posits the TMDL was almost entirely based on voluntary agreement and action by the Bay States.  EPA argues its only changes to the states' proposed TMDL was its backstop use in three instances: once to change the number of total allocations in one state and twice to adjust the number of total allocations between categories in two other states.  Notwithstanding the backstop uses, EPA argues even these backstops cannot prevent the Bay States from ignoring the TMDL requirements.  EPA proposes its only recourse for non-compliance with the TMDL is to alter its distribution of NPDES permits for point source discharges.

Third, EPA claims the Draft TMDL public notice and comment and period was lawful because the draft was not a rule, but merely an informal adjudication.  Also, EPA addressed AFBF's contention that EPA failed to provide adequate documentation for the public to provide a meaningful opportunity to comment.  EPA contended while some documents may have been withheld from the public in the draft public notice and comment period, these documents were readily and easily accessible via the internet.

Fourth and last, EPA claims it did not act arbitrary and capricious in making the Final TMDL.  Specifically, EPA claims it should be afforded deference in making its modeling decisions.  Further, EPA responded to AFBF's claims that the agency failed to use or even consider relevant but conflicting data.  EPA argued conflicting data by itself cannot destroy the credibility of the data the EPA used.  Rather, EPA contends the data it used was better than the conflicting data cited by AFBF in its motion for summary judgment.

By April 20, 2012, intervenors in this case must submit their memorandums in support of summary judgment for either Plaintiff or Defendant.

To read EPA's motion for summary judgment, please click here

Written By Justin Ritter, Research Fellow
March 27, 2012  

Wednesday, March 7, 2012

U.S. Representative Goodlatte introduces Chesapeake Bay Program Reauthorization and Improvement Act

On March 7, 2012, U.S. House Representative Robert Goodlatte [R-VA6] introduced legislation entitled the Chesapeake Bay Program Reauthorization and Improvement Act.  Tim Holden [D-PA17], Glenn Thompson [R-PA5], and Bob Gibbs [R-OH18] are co-sponsors.  Some of the proposed actions are listed below.

1.  The Act amends part of the Clean Water Act to reserve power solely to the States to implement a TMDL in the Chesapeake Bay.  The EPA Administrator may review a State WIP and offer non-binding recommendations for consideration by the State, but may not take any action to supersede any State implementation.  

2.  The Act proposes to establish voluntary Chesapeake Bay Watershed Partnerships.  This partnership is created at the request of any Chief Executive (Governor of any Bay State or Mayor of D.C.).  Upon creation, the USDA Secretary shall enter into a memorandum of understanding with the Chief Executive.  Eventually, the Chief Executive must create a water quality assessment of the State's water quality goals.  If the Chief Executive determines by its assessment that the aggregate reductions in agricultural pollution (nitrogen, phosphorous and sediment) meet the State's water quality goals, then no further reductions of pollution are required by the State or Federal Government. 

3.  The Act proposes to establish a voluntary interstate nitrogen, phosphorus and sediment trading program for the Chesapeake Bay. 

4.  The Act proposes to establish an Independent Evaluation and Technical Advisory Committee.  The Committee shall review and report to Congress the progress made by Federal and State Chesapeake Bay restoration activities. 

5.  For each fiscal year 2013-2018, the Act proposes to allocate the EPA Administrator $50,000,000 to carry out Section 117 of the Federal Water Pollution Control Act and $40,000,000 to support the Chesapeake Bay States in carrying out activities related to a total maximum daily nutrient or sediment load in the Chesapeake Bay.  Also, the Act requires the Administrator to reserve certain percentages of the annual $40,000,000 allocation to Chesapeake Bay States.  As determined by the Administrator, the reserve amounts are allocated to the Chesapeake Bay States that made sufficient progress toward meeting quality goals and are properly managing financial resources intended to enable the State to meet such goals.  The States shall use these allocations for carrying out activities related to TMDL.  Maryland, Virginia, Pennsylvania, and D.C. are given allocation priority. 

Click Here to Read Congressman Goodlatte's Proposed Legislation

Written by Justin Ritter, Research Fellow
March 8, 2012

Monday, March 5, 2012

Federal Leadership Committee Releases Bay Action Plan and Progress Report

On March 5, 2012, the Federal Leadership Committee (comprised of the EPA and the United States Departments of Commerce, Defense, Homeland Security, Interior, and Transportation) released its second Bay Action Plan for Fiscal Year 2012 (October 1, 2011 through September 30, 2012) and Progress Report concerning its first Bay Action Plan.  Members of the public can submit comments on the Report and Plan until March 16.  See more details of each submitted document below. 

Progress Report for Fiscal Year (FY) 2011 (October 1, 2010 through September 30, 2012)

1.  Restore Clean Water Goal
     a.  In 2010, the Bay obtained the following percentage toward meeting 2025 goal: nitrogen 8  percent, phosphorus 1 percent, and sediment 11 percent. 
     b.  From May 2010 to September 2011, National Resources Conservation Service treated more than 650,000 acres of working lands in priority watersheds.

2.  Recover Habitat Goal
     a.  From 2008 to 2010, Bay Basin obtained a yearly average of 1,107 restored wetland acres and 8,088 enhanced wetland acres.
     b.  Since 2010, Bay Basin obtained 247 miles of riparian forest buffers. 
     c.  In FY 2011, 148 stream miles were opened for fish passage.  
     d.  To date, all moderate to high-density populations of nutria have been reduced to near zero on 150,000 acres of wetlands.

3.  Sustain Fish and Wildlife Goal
     a.  2010-2011 Blue Crab Advisory Report indicated the abundance of adult blue crabs was 254 million exceeding the current rebuilding target.
     b.  From 2009-2011, the rolling three-year average was estimated to be 47,269 black ducks in the Bay; the 2025 goal is 100,000 birds.

4.  Conserve Land and Increase Public Access Goal
     a. Acre conservation system in progress. As of 2010, 7.8 million acres are protected watershed-wide. 

After reviewing its goals, the Federal Leadership Committee reviewed its strategies: Expand Citizen Stewardship, Develop Environmental Markets, Respond to Climate Change, Strengthen Science, and Implementation and Accountability. 

Bay Action Plan for Fiscal Year 2012: (October 1, 2011 through September 30, 2012)

The Second Bay Action Plan also covers the four goals covered in the FY 2011 Progress Report.  The Plan highlights continued and new projects. 

Click Here to View the Progress Report                  Click Here to Comment on the Report

Click Here to View the Second Bay Action Plan     Click Here to Comment on the Plan

Written by Justin Ritter, Research Fellow
March 9, 2012