SUMMER Court of Appeals Confirms that Bay Clean-up Plan is Legal

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1 Chesapeake Legal Alliance uses the law to protect and restore the Chesapeake Bay and its watershed. SUMMER 2015 Court of Appeals Confirms that Bay Clean-up Plan is Legal In a monumental win for the Chesapeake Bay and its watershed, on July 6 the U.S. Court of Appeals for the Third Circuit ruled that the comprehensive clean-up plan for the Bay termed a Total Maximum Daily Load (TMDL) is legal and a valid exercise of EPA s discretionary authority to implement the Clean Water Act. A federal district court had reached the same conclusion in upholding the TMDL in The TMDL limits the total amounts of nitrogen, phosphorous and sediment that can be allowed to enter the Bay, and it provides the foundation for the extensive efforts currently being undertaken to reduce water pollution throughout the Bay watershed. The TMDL is also the most ambitious plan for cleaning up a watershed ever created under the Clean Water Act. A group of business interests, including the American Farm Bureau Federation, argued that the TMDL exceeds EPA s legal authority and impermissibly intrudes on states rights to regulate land-use decisions. The Farm Bureau contended that EPA can only issue a TMDL that includes a single number defining the amount of a pollutant that can enter a water body, and nothing more. The Court of Appeals found the Farm Bureau s arguments unpersuasive. First, the court determined that the Clean Water Act is ambiguous as to the specific elements that can be included in a TMDL. When a statute is ambiguous, a legal doctrine known as Chevron deference dictates that the agency s interpretation must be upheld so long as it is reasonable. Goals for a healthy Chesapeake Bay Second, after closely examining the TMDL and EPA s rationale for issuing it, the Court ruled that EPA s decisions with respect to establishing the TMDL were all reasonable and valid exercises of the Agency s authority under the Clean Water Act. These IN THIS ISSUE Court of Appeals Confirms that Bay Clean-up Plan is Legal Another Victory for the Gunpowder Riverkeepeer in Pipeline Construction Case...2 Baltimore Sewer Overflows: Public Health and Prompt Public Notice New CLA Matters New Legal Developments...6-7

2 decisions include: allocations of pollutant loads for different types of sources, including the agricultural sector, specific timeframes in which the Bay states must comply with the TMDL s requirements, and a requirement that states provide EPA with reasonable assurance that they will actually implement measures necessary to achieve the TMDL. The court stated that: Congress made a judgment in the Clean Water Act that the states and EPA could, working together, best allocate the benefits and burdens of lowering pollution. 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. While the Farm Bureau may appeal this decision to the Supreme Court, the Third Circuit s unanimous and carefully reasoned opinion confirming the legality of the TMDL on all issues suggests that this case is at last settled. Now, Bay advocates can re-focus their energies on ensuring that the TMDL s goals of a healthy, thriving Chesapeake Bay are achieved. CLA volunteer attorneys Russ Stevenson, Ridgway Hall and Robert Sussman filed amicus briefs on behalf of the City of Annapolis supporting the Bay TMDL in both the district and appellate courts. Another Victory For the Gunpowder Riverkeeper In Pipeline Construction Case On July 10, a Baltimore County Circuit Court judge denied an emergency stay motion that would have allowed Columbia Gas Transmission, LLC to continue building a natural gas pipeline even though the court previously ruled that one of the project s key permits violates state and federal law. This is yet another important victory for the Gunpowder Riverkeeper as it fights to protect vital public resources from being harmed by the proposed pipeline. Because the Rainbow Trout of the Gundpowder River pipeline would impact wetlands and cross 81 streams which collectively provide drinking water to 1.8 million residents and support sensitive trout species the project requires a permit from the Maryland Department of the Environment ( MDE ). On April 30, 2015, the court found that the permit was illegal because it lacked required safeguards for protecting water quality. In the wake of that defeat, Columbia requested that the court stay its decision and allow the construction project to continue while the company appeals the case to the Special Court of Appeals. Columbia argued that this emergency relief was warranted because any delays in the project could result in significant financial losses for the company. The court, however, agreed with the Gunpowder Riverkeeper that any financial losses that the company may incur would be outweighed by the harm to wetlands, streams and other natural resources that could result if the construction project were allowed to continue before a new permit that complies with the law may be issued. The Gunpowder Riverkeeper is being represented in this case by CLA volunteer attorney William Anderson. CLA volunteer attorneys Ross Phillips and Jon DeCarlo, and CLA interns Richard Goldring, William Davies, and Sarah Purpura also provided invaluable support in helping the Riverkeeper achieve this victory.

3 Baltimore s Sewer Overflows: Public Health and Prompt Public Notice by: Billy Davies, CLA Intern Last June, the non-profit groups Waterfront Partnership, Inc. and Blue Water Baltimore released their 2014 Healthy Harbor Report Card for Baltimore City s streams and Harbor. For the second year in a row, Baltimore s watershed received an F. The grade was the result of data from water quality samples measuring nitrogen, phosphorus, and fecal bacteria levels, and other indicators of water quality. While some subareas showed improvement, much of the City s water quality continues to decline due to persistent sewage overflows releasing raw sewage into the water. Overflows occur regularly during wet weather events and pipe malfunctions are a frequent occurrence due to an outdated (by decades in some areas) sanitary sewer system. These leaks into Baltimore waterways pose a major health risk to the public and make Baltimore s water bodies unsafe for human contact. The Baltimore City Department of Public Works (DPW) and community groups like Blue Water Baltimore (BWB) have been working hard to mitigate these health risks and to ensure that long overdue improvements to the City s sewer system are implemented. Under the terms of a 2002 Consent Decree entered into with the U.S. Environmental Protection Agency (EPA) and Maryland Department of the Environment (MDE), the City is obligated to take all necessary measures to be in compliance with the Clean Photo courtesy of BlueWater Baltimore For the second year in a row, Baltimore s watershed received an F. Water Act and Maryland pollution control laws by In addition to developing and following a comprehensive sewer evaluation and rehabilitation program, the City must protect the public health by having procedures to notify citizens of sewage overflows affecting the City s water bodies so they know to avoid any contact with the polluted water. One challenge (and source of serious debate) in this area is determining what situations require immediate public notice and what measures the City must take in to provide sufficient notice. Public notification of overflows is governed by COMAR This regulation states that a Maryland jurisdiction must notify the public about any overflow that enters waters used for public recreation where people may boat, fish, or swim. ( (A) & (B)). Additionally, the public must be immediately notified if the overflow s total volume at the time of completed repair as measured or estimated using best professional judgment is 10,000 gallons or more. ( (C)). Jurisdictions are required to notify the public within 24 hours after discovering an overflow and must do so by a public service announcement or paid advertisement in a newspaper, radio station, or television program serving areas that are affected or are likely to be affected. Overflows that do not meet these criteria are not made available to the public immediately but are published WE NEED YOU to help us keep legal services flowing to restore and protect the Chesapeake Bay! You may have already received our letter describing your role in helping provide the legal muscle for the Bay. Please take a moment to review the story of our success at Sparrows Point and in other legal matters and make a tax-deductible contribution today!

4 in DPW s Quarterly Report to MDE. ( (E)). DPW press releases and quarterly reports can be viewed by any member of the public online at While the text of the regulation may seem straight forward, there have been differences of opinion when it comes to its application. Because none of the water bodies in the City s watershed are deemed fit for human contact, DPW does not issue a press release unless an overflow is determined to exceed 10,000 gallons. This application is problematic because although Baltimore s rivers and streams have been declared unsafe for any sort of recreation, they all flow through parks, trails, and neighborhoods where citizens recreate despite signs posted cautioning against contact with City waterways. River polluted by sewage in Blue Water Baltimore has been working with DPW to ensure that sewage Baltimore County overflows are promptly discovered so that the public is notified quickly and effectively before anyone comes into contact with unsafe water. CLA is assisting BWB with these efforts and to ensure that applicable laws and regulations are enforced properly, including the City s obligations to upgrade the sewer system per the terms of the consent decree with MDE. CLA Welcomes 2015 Summer Interns CLA has been fortunate to have aboard our fifth class of summer interns, pictured here touring Poplar Island with CLA staff. They have been working with clients, providing research on new legal theories, and attending events on behalf of CLA. Richard Goldring is a student at New York University School of Law. William Davies is a student at George Washington University Law School. Sarah Purpura is a student at Georgetown University Law Center. We wish them the best of luck with their second year of law school! CLA Vice President weighs in on TMDL Ruling CLA Vice President, Ridgway Hall, provides an excellent summary of the importance and implications of the Third Circuit's decision finding the Chesapeake Bay Clean Up Blueprint legal under the Clean Water Act. His blog post on the web site of the American College of Environmental Lawyers can be found here: org/post/2015/07/24/third-circuit- Upholds-Chesapeake-Watershed- TMDL.aspx

5 New CLA Matters Kevin Lee of The Law Office of Kevin P. Lee (Washington D.C.) is assisting Engage Mountain Maryland with analyzing the extent to which local jurisdictions in Maryland have the authority to ban or limit fracking operations. William Anderson (Sherwood, MD), Ross Phillips of the Phillips Law Firm (Easton, MD), Jon DeCarlo (Washington, D.C.) and CLA interns assisted the Gunpowder Riverkeeper in responding to an emergency stay motion filed by Columbia Gas Transmission, LLC in on-going state court litigation over a proposed natural gas pipeline. Tarah Heinzen of the Environmental Integrity Project (Washington, D.C.) is assisting a Denton resident with submitting public comments under the National Environmental Policy Act on a proposed large chicken operation in Caroline County, MD. Mike Pretl of the Law Offices of Michael A. Pretl (Riverton, MD) is assisting the Assateague Coastal Trust and Food and Water Watch in their efforts to persuade Somerset County to enact a zoning ordinance that would help protect the public from the health and environmental impacts of large chicken operations. Russ Stevenson (Severna Park, MD) is assisting the Assateague Coastal Trust and Food and Water Watch in challenging the legal adequacy of Maryland s General Permit for Animal Feeding Operations. Ridgway Hall (Washington, D.C.) is assisting the Choose Clean Water Coalition and the Chesapeake Bay Funders Network with identifying critical issues that should be addressed prior to the 2017 Mid-Point Assessment for the Bay TMDL. William Anderson (Sherwood, MD) is assisting the Midshore Riverkeeper Conservancy in addressing Clean Water Permit violations at a facility located in Queenstown, MD. Baiwei Yu (Washington, D.C.) assisted Annapolis Green with compiling a comprehensive list of the Chickens in Caroline County local and state legal requirements that apply in the City of Annapolis relating to beautification and community greening. CLA intern Richard Goldring is assisting a Queen Anne s County citizen with researching legal arguments to protect a 150-acre, undeveloped property on the Wye River from a proposed development. CLA intern Sarah Purpura is assisting Friends of McMillan Park in evaluating whether a proposed development project is subject to the requirements of the D.C. Environmental Policy Act. CLA intern Richard Goldring is assisting the Gunpowder Riverkeeper with drafting a complaint for use in potential federal court litigation concerning natural gas pipeline extensions. John Yowell (Washington, D.C.) is assisting CLA with analyzing the legal framework for nutrient credit trading in the Bay Watershed. CLA intern William Davies is assisting Blue Water Baltimore with analyzing the extent to which the city of Baltimore is complying with the state law that requires citizens to receive public notice when sewage from the city s sewage system overflows into the Baltimore Harbor and other waters. CLA intern Sarah Purpura is assisting Blue Water Baltimore with developing a strategy for addressing the on-going problem of sewage overflows into private homes in the city of Baltimore. CLA intern Richard Goldring is assisting the Maryland Clean Agriculture Coalition with researching laws in other states relating to the public s ability to obtain farmers nutrient management plans. CLA intern William Davies is assisting Waterkeepers Chesapeake in researching the regulatory framework governing chicken exports from Maryland. CLA intern Richard Goldring is assisting the Assateague Coastal Trust with research aimed at evaluating whether mosquito spraying in Worcester County has complied

6 with Clean Water Act requirements. CLA staff and interns assisted Community and Environmental Defense Services with gathering data for its 2015 Baltimore Greater Baltimore Survey by documenting the extent to which construction sites in Baltimore County are implementing legally required erosion and sediment controls. Jeffrey Robin (Washington, D.C.) is assisting CLA with analyzing the requirements of Maryland s Phosphorous Management tool. CLA intern Richard Goldring is assisting Urban Ecosystem Restorations, Inc. with researching whether under Maryland, Virginia and Washington, D.C. law a nuisance claim is viable when one property owner fails to adequately manage stormwater flows and causes damage to another property. John Yowell (Washington, D.C.) is assisting CLA with analyzing the legal issues associated with the use of drones to facilitate environmental monitoring and compliance. CLA intern William Davies is assisting CLA with analyzing the legal argument that drainage tiles used to drain agricultural fields in the Bay Watershed should be considered point sources subject to permitting requirements under the Clean Water Act. CLA intern Richard Goldring is assisting CLA with analyzing the scope of the permit shield defense under the Clean Water Act Drone monitoring a farm CLA intern Sarah Purpura is assisting CLA with developing a citizen guide to standing requirements in Maryland. New Legal Developments Bats Can Halt Construction Projects in Maryland and DC Effective as of May 4, the U.S Fish and Wildlife Service has listed the northern long-eared bat as a threatened species under the Endangered Species Act. The bats habitat potentially includes forested areas in all Bay Watershed states; therefore, this listing could provide another legal tool for protecting natural resources Northern long-eared bat throughout the watershed. The U.S. Army Corps of Engineers issued a Special Public Notice that adds additional conditions to any permits or other authorizations that the agency has issued for projects in Maryland and Washington, D.C that were not completed as of June 25. In particular, if a Corps authorized project involves the clearing of at least one acre of contiguous forest, then before any additional work can be performed, the project operator must commit in writing to either 1) only clear trees between September 1 and April 15 or 2) conduct summer habitat surveys to determine whether any bats are present in the project area. You can read more about the listing of the bat here: nleb/index.html You can read the Corps Special Public Notice here: PublicNotices/PublicNoticeView/tabid/16587/ Article/601774/spn15-39-federal-listing-of-the-northernlong-eared-bat-under-the-endangered-act.aspx United States Settles Claims Against BP for Gulf Oil Spill On July 2nd, the U.S., along with state and local governments, reached agreements with BP to settle all remaining civil claims that the governments have against the company arising out of the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. Under the terms of the settlement, BP agreed to pay a $5.5 billion Clean Water Act penalty, $8.1 billion in natural resource damages, plus an additional $700 million for any damages not known at the time of the settlement; $5.9

7 billion to settle claims for economic damages brought by state and local governments; and $600 million for other claims, such as reimbursement costs. The final settlement which represents the largest environmental settlement in the history of the United States and the largest civil penalty ever paid by a single entity under the Clean Water Act will be embodied in a consent decree that will be subject to public comment and court approval. Prior to the settlement, a federal district court had found that the oil spill resulted from BP s gross negligence and willful misconduct. The spill was the largest in U.S. history, with 3.19 million barrels of oil released into the Gulf of Mexico. EPA Issues Final Rule Clarifying Waters Covered by the Clean Water Act On May 27, EPA and the U.S. Army Corps of Engineers issued a final rule that is intended to clarify the waters that are protected by the Clean Water Act ( CWA ). The agencies and the Supreme Court - have consistently interpreted the Act as protecting waters that are navigable in fact, such as large rivers and the Bay, as well as smaller waterways and wetlands. However, a series of Supreme Court decisions have created uncertainty over precisely how far the Act s protections extend. The CWA s purpose is to restore and maintain the chemical, physical, and biological integrity of the Nation s waters, and the final rule relies on an extensive scientific record to establish categories of waters that are automatically covered by the Act. Certain other waters could be covered by the Act if they are proven to have a similarly significant impact on a case-by-case basis. The rule also expressly identifies a long list of features, such as isolated ditches, not covered by the Act, and it does not affect any pre-existing exemptions from the Act, such as those for agricultural stormwater discharges and return flows from irrigated agriculture. The rule is scheduled to go into effect on August 28, though it has already been challenged in court by 22 states including West Virginia in the Bay watershed and numerous business interests such as the American Farm Bureau Association and the U.S. Chamber of Commerce. You can read the final rule here: org/documents/final_cwa_jurisdictional_rule_for_epa_ Issues_Final_Rule_Clarifying_Waters_Covered_by_the_ Clean_Water_Act.pdf Fantastic Tour of the West/Rhode Rivers! Many thanks to the West/Rhode Riverkeeper, Jeff Holland, for sharing his beautiful rivers with CLA interns and staff. Highlights included living shoreline and erosion control projects, up close views of nesting osprey families, and the sighting of a bald eagle. Thank you, Jeff, for helping us get to know your rivers! Supreme Court Strikes Down EPA Rule Limiting Mercury Pollution from Coal Plants On June 29, the Supreme Court ruled that EPA s attempt to limit harmful mercury emissions from coal-fired power plants violated the Clean Air Act because EPA failed to take costs into account when determining whether the regulation was appropriate and necessary. As a practical matter, this decision is likely to only delay Coal ash poses threat to Bay waters the implementation of the regulation since EPA may reissue the rule after developing a clear record of the necessity for the rule despite the costs of the regulation. Significantly, the Court did not rule that any substantive aspect of the regulation violated the Clean Air Act or that the agency lacks the authority to issue the regulation. Rather, the court held that the Act compels EPA to specifically conclude that regulating mercury from coal plants is justified despite its costs before the agency determines whether to regulate. While EPA believed that it was not necessary to consider costs in determining whether to regulate, the agency did find that the regulation would cost $9.6 billion but would generate between $37 billion and $90 billion in benefits, including the prevention of up to 11,000 premature deaths and 130,000 asthma cases annually. You can read the decision here: org/documents/scotus_mats_decision_for_supreme_ Court_Strikes_Down_EPA_Rule_Limiting_Mercury_ Pollution_from_Coal_Plants.pdf

8 CLA Joins Reach Inc. s Cornhole Classic CLA had the privilege of co-sponsoring and participating in Reach Incorporated s 4th Annual Cornhole Classic, a fundraiser held on July 25 in Washington, D.C. As you enjoy the Bay this summer, keep in mind that many organizations and individuals like you - devoted to Bay health and restoration - rely upon CLA for legal assistance. Annapolis sailing school on Spa Creek Please support CLA s efforts with a taxdeductible contribution today at: Reach is a D.C.-based non-profit dedicated to improving reading performance in public schools by training and empowering high school students to serve as tutors for elementary school students. The event included a cornhole tournament (a game similar to horseshoes) and an array of quality food, beverages and musical entertainment. You can learn more about Reach Inc. here: reachincorporated.org/ Get Involved! Chesapeake Legal Alliance cannot realize our mission of a clean and healthy Chesapeake Bay without our network of volunteer attorneys and other professionals. To join our team of volunteers, contact us: info@chesapeakelegal.org. 67 Franklin Street Annapolis, MD (410) office (410) fax Executive Director: Jacqueline Sincore Guild jguild@chesapeakelegal.org Staff Attorney: Matthew B. Henjum mhenjum@chesapeakelegal.org Outreach Coordinator: Heather Ballew hballew@chesapeakelegal.org Administrative Assistant: Renee Rutledge rrutledge@chesapeakelegal.org Follow Us! Chesapeake Legal Alliance is on Facebook, Twitter and Linkedin