In December 2010, EPA used its authority under the federal Clean Water Act to issue a Total Maximum Daily Load for the Chesapeake Bay and its tributaries (Bay TMDL) to limit excess nitrogen, phosphorous, and sediment pollution from the entire Chesapeake Bay watershed.

The Bay TMDL required each jurisdiction (DC, DE, MD, NY, PA, VA, and WV) to issue Watershed Implementation Plans (WIP’s) in three phases—2010, 2012, and 2019. WIP’s include detailed, specific steps each jurisdiction must take to meet the Bay TMDL by 2025. The combination of the TMDL and WIPs serves as the Chesapeake Bay Clean Water Blueprint (“Blueprint”). It was agreed that EPA would oversee TMDL progress and take action(s) necessary to ensure that the Bay States adhered to the terms of the Chesapeake Bay Agreement.

In the past, CBF has been successful in litigation to support Bay restoration and the Blueprint. CBF’s lawsuit against EPA in 2009 resulted in a settlement agreement that set specific deadlines for development and completion of the Bay TMDL. Fowler et al. v. EPA (2010). CBF defended the Blueprint from attacks by the American Farm Bureau and its allies. In that case, a federal court judge in Pennsylvania found that the Blueprint created through a federal/state partnership was legal and an example of “cooperative federalism.” This decision was upheld by the Third Circuit Court of Appeals in American Farm Bureau v. EPA (2015). A request to have that decision reviewed by the United States Supreme Court was denied.

In 2019, Pennsylvania and New York submitted Phase III WIP’s that failed to clearly identify how each state would attain levels of pollution reduction required by the Bay TMDL by 2025. EPA approved these WIP’s without significant change, ensuring that Bay water quality will not be restored by 2025. As a result, in September 2020, CBF and our partners filed suit against EPA in the U.S. District Court for the District of Columbia for failing to comply with its responsibilities under the Clean Water Act, the 2014 Chesapeake Bay Agreement, other laws, and the Blueprint. We sought to have a court direct EPA to require Pennsylvania and New York to revise their respective WIPs so that on their face the WIPs meet each state’s TMDL obligations by 2025. Our partners in the Litigation were Anne Arundel County, Maryland; The Maryland Watermen’s Association; and Robert Whitescarver and Jeanne Hoffman, CBF members and operators of a livestock farm in Virginia.

Our case was consolidated with a separate, but similar lawsuit filed by Attorney General in Maryland, Virginia, Delaware, and the District of Columbia. EPA filed a Motion to Dismiss the cases in November 2020. Plaintiffs’ deadline to respond to the Motion to Dismiss was extended several times to allow EPA to certify the administrative record and to allow the parties to continue settlement negotiations. Also, New York intervened as a defendant in the consolidated cases but was subsequently dismissed when it voluntarily amended its WIP in May 2021.

Over the course of time the case was pending, the parties participated in settlement discussions and on April 20, 2023, CBF and our partners reached an agreement with EPA to implement a plan for EPA to meet its commitment to reduce pollution under the Blueprint. The proposed settlement was published in the Federal Register for public comment. As part of the settlement, EPA will look for ways to reduce the Commonwealth’s biggest polluting sources- agriculture and stormwater runoff from urban and suburban land. EPA will also prioritize its efforts in the counties that contribute the most pollution to local rivers and streams. Those are Lancaster, York, Bedford, Cumberland, Centre, Franklin, and Lebanon counties. EPA also commits to increase compliance and enforcement efforts to ensure permits are up to date and reduce the administratively extended permits. The settlement is a win for clean water in the Chesapeake Bay because EPA will focus on concentrated remedial actions to address some of the severe problems in Pennsylvania while providing reasonable assurance that progress under the Blueprint will be met.

After the 30-day public comment period expired, the settlement was finalized, and the parties filed a Stipulation of Dismissal with the United States District Court on July 12, 2023.

CBF issued a Press Release on April 20, 2023, announcing the Settlement Agreement and a Press Release on July 12, 2023 announcing the case has been dismissed.

CBF and our partners continue to monitor EPA’s actions in accordance with the agreement to ensure EPA’s commitments are met. EPA has published a website where actions will be posted detailing the progress being made. We review all the documents and reports EPA delivers as part of its commitments.

CBF was represented in this matter by the former Vice President of Litigation Jon Mueller and the current Vice President Paul Smail.

More Information About the Chesapeake Clean Water Blueprint