Case 1:20-cv-02529-CJN Document 1 Filed 09/10/20 Page 1 of 37
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`CHESAPEAKE BAY FOUNDATION, INC.,
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`a non-stock corporation, 6 Herndon Avenue,
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`Annapolis, MD 21403,
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`MARYLAND WATERMEN’S ASSOC., INC.,
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`a non-stock corporation, P.O. Box 436,
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`Chester, MD 21619,
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`ANNE ARUNDEL COUNTY, MARYLAND,
`a Body Corporate and Politic, 2660 Riva Road, 4th Floor,
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`Annapolis, MD 21401 ,
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`ROBERT WHITESCARVER,
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`120 Trimbles Mill Road,
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`Swoope, VA 24479,
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`and
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`JEANNE HOFFMAN,
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`120 Trimbles Mill Road,
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`Swoope, VA 24479,
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`Plaintiffs,
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`v.
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`UNITED STATES ENVIRONMENTAL
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`PROTECTION AGENCY,
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`1200 Pennsylvania Avenue, N.W., Washington, DC 20460 )
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`ANDREW R. WHEELER,
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`Administrator, United States Environmental
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`Protection Agency,
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`1200 Pennsylvania Avenue, N.W., Washington, DC 20460 )
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`COSMO SERVIDIO, Regional Administrator,
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`United States Environmental Protection Agency
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`Region 3, 1650 Arch Street, Philadelphia, PA 19103-2029 )
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`On behalf of
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`THE UNITED STATES OF AMERICA,
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`Defendants.
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`1
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`Case 1:20-cv-02529-CJN Document 1 Filed 09/10/20 Page 2 of 37
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`COMPLAINT
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`INTRODUCTION
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`1.
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`The Chesapeake Bay Foundation, Inc., the Maryland Watermen’s Association,
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`Inc., Anne Arundel County, Maryland, Robert Whitescarver, and Jeanne Hoffman
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`(hereinafter “Plaintiffs”) bring this action pursuant to the Clean Water Act (CWA), 33 U.S.C.
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`§1365(a)(2), the Administrative Procedure Act (APA), 5 U.S.C. §§ 551, et seq., and the
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`Chesapeake Bay Agreements, against Defendants the United States Environmental Protection
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`Agency (EPA) and Andrew R. Wheeler, Administrator, on behalf of the United States of
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`America, and Cosmo Servidio, in his official capacity as Regional Administrator for EPA
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`Region 3, for their failure to perform obligatory duties and failure to abide by the terms and
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`conditions of the CWA, the APA, and the Chesapeake Bay Agreements. Plaintiffs seek
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`declaratory and injunctive relief and costs of litigation, including attorney and expert witness
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`fees.
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`2.
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`The Chesapeake Bay (the Bay) is North America’s largest and most biologically
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`diverse estuary, home to more than 3,600 species of plants, fish and animals. For more than
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`300 years, the Bay and its tributaries have sustained the region’s economy and defined its
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`traditions and culture. EPA and the nation have recognized the Chesapeake Bay as a
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`resource of extraordinary productivity, worthy of the highest levels of protection and
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`restoration.
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`3.
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`In 2010, EPA issued a Total Maximum Daily Load for the Chesapeake Bay and
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`its tributaries (Bay TMDL). The Chesapeake Bay jurisdictions (District of Columbia,
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`Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia) adopted load
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`2
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`Case 1:20-cv-02529-CJN Document 1 Filed 09/10/20 Page 3 of 37
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`caps for discharges of nitrogen, phosphorous, and sediment. Each jurisdiction was directed
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`to issue Watershed Implementation Plans (WIPs) in three phases - 2010, 2012, and 2019 –
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`that were to be designed to attain Bay water quality goals by 2025.
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`4.
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`EPA and the Bay jurisdictions agreed that EPA would oversee and evaluate
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`TMDL progress by each jurisdiction and that EPA would take action(s) necessary to ensure
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`that the Bay jurisdictions adhered to the terms of the Chesapeake Bay Agreement consistent
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`with 33 U.S.C.§1267(g).
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`5.
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`In 2014, EPA and the Bay jurisdictions signed the fourth Chesapeake Bay
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`Agreement. The Agreement requires, among other things, that by 2025 the parties would
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`“have all practices and controls installed to achieve the Bay’s dissolved oxygen, water
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`clarity/submerged aquatic vegetation and chlorophyll-a standards as articulated in the
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`Chesapeake Bay TMDL document.” 2014 Chesapeake Bay Agreement, Water Quality Goal.
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`6.
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`In 2019, Pennsylvania and New York submitted Phase III WIPs that, on their
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`face, failed to attain levels of pollution reduction required by the Bay TMDL by 2025. EPA
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`approved these WIPs without significant change or changes to the Bay TMDL, ensuring that
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`Bay water quality will not be restored by 2025.
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`7.
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`The failure of the United States to comply with the Chesapeake Bay Agreements
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`and the Clean Water Act will lead to the continued degradation of water quality in the
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`Chesapeake Bay. EPA’s failure to act has harmed the Bay’s natural resources and the
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`citizens of the Chesapeake Bay region who enjoy and use the Chesapeake Bay and its rivers
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`and streams and make a living from its natural resources.
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`8.
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`The degradation of water quality in the Chesapeake Bay and its rivers and streams
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`has harmed and will continue to harm the cultural, economic, and quality of life interests of
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`all Chesapeake Bay watermen and their families.
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`9.
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`The degradation of water quality in the Chesapeake Bay and its rivers and streams
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`has harmed and will continue to harm the aesthetic, educational, recreational, and restoration
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`interests of the plaintiffs, their members, and their constituents.
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`JURISDICTION AND VENUE
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`10.
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`This Court has subject matter jurisdiction of this action pursuant to 33 U.S.C. §
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`1365(a)(2) and 28 U.S.C. § 1346(a)(2).
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`11.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because EPA
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`headquarters are located in Washington, D.C., a substantial part of the events or omissions
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`giving rise to the claims occurred in Washington, D.C., and CBF maintains an office in this
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`district at 1615 M Street, NW, Washington, DC.
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`12.
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`On May 18, 2020, Plaintiffs provided written notice as required by the CWA, 33
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`U.S.C. § 1365(b), to the United States of its violations of the CWA, the APA, and the
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`Chesapeake Bay Agreements and Plaintiffs’ intention to file suit. The Notice Letter was
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`provided to the Attorney General, the Administrator of EPA, and the Regional Administrator
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`of EPA Region III. The United States, including but not limited to the EPA, has not
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`responded to Plaintiffs’ letter nor has it commenced or diligently prosecuted a court action to
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`redress the violations alleged in this complaint. More than the requisite 60 days have passed
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`since the Notice Letter was issued and this action may now go forward.
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`PARTIES
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`13.
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`Defendant Andrew R. Wheeler is the Administrator of EPA. Defendant EPA is
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`the federal agency responsible for enforcing the environmental laws of the United States. The
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`EPA is also the agency that issued the Bay TMDL and is a signatory to the Chesapeake Bay
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`Agreements on behalf of the United States. Thus, the United States is also a Defendant to
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`this action.
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`14.
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`Defendant Cosmo Servidio is the Regional Administrator for the Mid-Atlantic
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`Region (Region 3) of the EPA and the signatory on EPA’s review and approval of
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`Pennsylvania’s and New York’s Phase III Watershed Implementation Plans. He is sued in
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`his official capacity.
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`15.
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`Plaintiff Chesapeake Bay Foundation, Inc. (CBF) sues on its own behalf and on
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`behalf of its members. The CBF is a 501(c)(3), non-stock, Maryland corporation with offices
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`in the District of Columbia; Annapolis and Easton, Maryland; Harrisburg, Pennsylvania;
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`Richmond and Virginia Beach, Virginia. CBF is the largest conservation organization
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`dedicated solely to protecting the Chesapeake Bay watershed and its tributaries. Since CBF's
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`founding over 50 years ago, its goal has been to improve water quality in the Bay and its
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`tributaries by reducing pollution.
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`16.
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`CBF is the only independent organization dedicated solely to restoring and
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`protecting the Bay and its tributary rivers. Its goal is to improve water quality by reducing
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`pollution including nitrogen and phosphorous. CBF's vision for the future is a restored Bay
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`with healthy rivers and clean water; sustainable populations of crabs, fish, and oysters;
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`thriving water-based and agricultural economies; and a legacy of successful protection and
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`restoration of the Chesapeake Bay ecosystem for our children and grandchildren.
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`17.
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`CBF has approximately 300,000 members and during calendar year 2019, CBF
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`had 4,810 active adult and student volunteers. Approximately 6,000 members reside in the
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`District of Columbia, 109,100 in Maryland, 47,000 in Pennsylvania, and over 91,400 in
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`Virginia. The majority of CBF's remaining members reside in the states of Delaware, New
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`York, and West Virginia.
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`18.
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`CBF, several signatories of the prior Bay Agreements, and local stakeholders sued
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`EPA to require the agency to develop the Chesapeake Bay TMDL. Fowler v. EPA, No. 1:09-
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`C-00005-CKK, 2009 U.S. Dist. LEXIS 132084 (D.D.C. 2009). This matter resulted in a
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`settlement agreement with the United States requiring EPA to, among other things, issue the
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`Chesapeake Bay Total Maximum Daily Load by December 31, 2010.
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`19.
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`CBF participated extensively in the development of the Chesapeake Bay TMDL
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`and the Bay jurisdictions’ Watershed Implementation Plans—collectively the Chesapeake
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`Bay Clean Water Blueprint. The TMDL required the Bay jurisdictions to develop watershed
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`implementation plans that explained how the jurisdictions would meet the waste load and
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`load allocations established in the TMDL. See, supra ¶ 3. Bi-annual milestones were set so
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`EPA could track the progress of each jurisdiction in attaining its pollution limits. CBF
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`continues to participate in efforts to implement and refine the Blueprint throughout the Bay
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`watershed. The Blueprint presents the best example of cooperative federalism working
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`towards the goal of restoring the Bay. However, the Blueprint goals will only be met if EPA
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`adheres to the requirements of the Clean Water Act and the Bay Agreements.
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`20.
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`The CBF operates sixteen (16) educational programs throughout the watershed
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`that conduct student leadership projects, in-the-field educational experiences, and other
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`activities to immerse students and teachers in the Bay and learn about the threats facing its
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`recovery. CBF operates several marine vessels in the Chesapeake Bay and its tributaries.
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`CBF spends over $4 million a year on education programming throughout the Bay
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`watershed, spending approximately $4.3 million this past fiscal year. CBF educators lead
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`students and teachers on trips in wetlands areas, headwater streams, and other seasonal
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`waters and wetlands to investigate macroinvertebrates and conduct water quality sampling.
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`Polluted waters significantly affect the efficacy of these education trips. When waters are
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`polluted educators and students limit contact with the water, thereby hampering the ability of
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`students to investigate a given waterbody. The Defendants’ failure to comply with the CWA,
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`APA, and the Chesapeake Bay Agreements harms water quality and natural resources within
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`the Bay and its tributaries harming CBF’s ability to conduct these educational programs.
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`21.
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`CBF operates the Susquehanna Watershed Environmental Program throughout
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`Pennsylvania. Students travel by canoes on local creeks, rivers, or lakes to investigate the
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`ecology, history, and geography of the Susquehanna River watershed and the Chesapeake
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`Bay. This program introduces students to the complex relationship between land use and
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`aquatic habitats, local water quality, and the health of the Bay. The EPA’s failure to comply
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`with the Clean Water Act harms water quality and natural resources within the Bay and its
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`tributaries, which harms CBF’s ability to conduct these educational programs.
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`22.
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`CBF also conducts numerous advocacy and restoration programs within the
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`Chesapeake Bay watershed designed to improve water quality in the Bay and its tributaries
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`such as working with farmers to reduce runoff from agriculture, planting buffers along rivers
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`and streams, and growing and planting oysters and underwater grasses. Over the previous
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`fiscal year, CBF spent approximately $3.1 million on these programs in the Bay region. The
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`Defendants’ failure to comply with the CWA, APA, and the Chesapeake Bay Agreements
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`harms water quality and natural resources within the Bay and its tributaries, harming CBF’s
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`ability to conduct these restoration programs.
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`23.
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`CBF invests millions of dollars in restoration projects across the watershed,
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`including in Pennsylvania. Notably, CBF initiated the Keystone 10 Million Trees
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`Partnership, a collaborative effort of national, regional, state and local agencies, conservation
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`organizations, outdoors enthusiasts, businesses, and citizens committed to improving
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`Pennsylvania's communities, economy, and ecology by planting 10 million trees throughout
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`the Commonwealth by 2025. See CBF, Keystone Ten Million Trees Partnership,
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`https://www.cbf.org/how-we-save-the-bay/programs-initiatives/keystone-ten-million-trees-
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`partnership.html (last visited July 28, 2020). In fiscal year 2020, CBF spent over $600,000
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`planting trees as part of the Keystone 10 Million Trees Partnership. As of April of 2018, CBF
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`has planted over 203,000 trees across the Commonwealth.
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`24.
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`CBF operates an extensive oyster restoration program in Maryland and Virginia.
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`CBF’s restoration department engages in numerous oyster restoration projects designed to
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`revive the Chesapeake Bay’s native oyster population after decades of decline due to
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`pollution, overharvesting, and disease. Current estimates place the Bay’s native oyster
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`population at a fraction of historic levels. By restoring the Bay’s oyster population, CBF aims
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`to harness oysters’ filtering ability to improve both water quality and clarity in the Bay.
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`These restoration efforts are frustrated by EPA’s approval of Pennsylvania and New York’s
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`facially deficient WIPs that will not meet downstream water quality, which includes the
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`mainstem of the Chesapeake Bay in Maryland and Virginia.
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`25.
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`CBF’s oyster restoration projects include oyster plantings, population and habitat
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`monitoring, project maintenance, and public education (including the oyster gardening
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`program). The primary restoration activity is planting juvenile oysters (or “spat”) to build and
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`enhance oyster reefs throughout the Bay. In 2019, CBF planted 6 million oysters in the Little
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`Choptank River, 2 million at Fort Carroll on the Patapsco River, and 250 spat-covered reef
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`balls in the South River. Additionally, CBF launched its Making History Campaign in 2018.
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`As a part of the Campaign, CBF set a goal to achieve 10 billion more oysters planted in the
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`Chesapeake Bay by 2025; and to restore and protect oyster populations in ten Chesapeake
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`Bay watershed tributaries in accordance with the goals of the Chesapeake Bay Watershed
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`Agreement. See U.S. EPA Chesapeake Bay Program, Chesapeake Bay Watershed
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`Agreement, https://www.chesapeakebay.net/what/what_guides_us/watershed_agreement.
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`26.
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`CBF members are also harmed by EPA’s failure to comply with section 117(g) of
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`the Clean Water Act. CBF members enjoy swimming, kayaking, boating, sailing, fishing,
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`crabbing, bird watching, and other aesthetic and recreational pursuits in the waters of the
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`Bays and its rivers and streams. These members are fearful that EPA’s actions will degrade
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`downstream water quality, and therefore impair their interest in recreating in the Bay and its
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`tributaries and streams, especially in the Commonwealth of Pennsylvania. CBF members are
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`adversely affected by poor water quality in the Chesapeake Bay and its tidal tributaries. Thus,
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`they are harmed by the failure of the Administrator to comply with the Clean Water Act, the
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`Administrative Procedure Act, and the Chesapeake Bay Agreements.
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`27.
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`The Maryland Watermen’s Association, Inc. (MWA) is comprised of the various
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`waterman groups on both Maryland’s eastern and western shores. MWA is a Maryland
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`corporation whose members make a living crabbing, fishing, and harvesting oysters in the
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`Chesapeake Bay and its tributaries. Since 1973, MWA has served the interests of watermen
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`and the seafood industry throughout the state of Maryland. MWA works with state and
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`federal regulators, environmental groups and business associations to ensure the economic
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`future of independent watermen and seafood businesses throughout the state. Members of
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`MWA include working Maryland watermen who derive their living directly from the
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`Chesapeake Bay and its tributaries. Polluted water flowing down the Susquehanna River
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`adversely affects their jobs and economic viability. MWA and its members count on EPA
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`and states to comply with their respective obligations under state and federal law as well as
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`the Chesapeake Bay Agreement and the Bay TMDL.
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`28.
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`The Defendants’ failure to comply with the CWA, APA, and the Chesapeake Bay
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`Agreements harms water quality and natural resources within the Bay and its tributaries and
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`thus harms the ability of MWA’s members to crab, fish, oyster, and make a living. The
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`MWA sues on behalf of its members.
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`29.
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`Anne Arundel County, Maryland, is a charter county in central Maryland that sits
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`on the shores of the Chesapeake Bay. Anne Arundel County’s 415 square miles of land
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`includes over 500 miles of shoreline on the Chesapeake Bay and its tributaries. Its 580,000
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`residents and countless tourists are drawn to Anne Arundel County to enjoy the Bay, fresh
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`seafood, and numerous water-based recreational opportunities. Travel and tourism spending
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`in the County is estimated at over $3.5 billion annually, providing support for over 30,000
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`workers.
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`30.
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`Anne Arundel County has invested more than $0.5 billion over the last decade to
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`protect this vital natural, economic and cultural resource. The County’s Watershed Protection
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`and Restoration Program, established in 2016 and funded largely through a stormwater
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`restoration fee charged to property owners, has invested $284 million to restore 13 stream
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`channels, retrofit 85 stormwater ponds and repair 16 damaged stormwater outfalls. Since
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`2010, the County’s Department of Public Works has invested $258 million to upgrade
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`wastewater treatment plants to achieve enhanced nutrient removal, significantly lowering the
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`amount of nitrogen and phosphorus entering the Chesapeake Bay. Each of these actions and
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`related expenses were taken and incurred as a result of Maryland’s Watershed
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`Implementation Plans which are designed to meet the pollution reductions required by the
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`Chesapeake Bay TMDL. EPA’s failure to comply with the Bay TMDL and the Bay
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`Agreements harms the County’s efforts to achieve its pollution reduction goals and to see a
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`restored Bay that covers over 500 miles of county shoreline.
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`31.
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`Robert Whitescarver and Jeanne Hoffman operate a farm in Swoope, Virginia.
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`Over the last 15 years, they sold livestock raised on that farm to food processors. Mr.
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`Whitescarver is a former Natural Resource Conservation Service representative who spent
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`his career educating farmers on the benefits of protecting farmland and improving water
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`quality in local streams and rivers. He also teaches a class on sustainable agriculture at James
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`Madison University. Ms. Hoffman is a member of the CBF board of trustees and, like her
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`husband, is an advocate for sustainably operated farms and restored water quality in the
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`Chesapeake Bay.
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`32. Ms. Hoffman and Mr. Whitescarver are strong supporters of the Chesapeake Bay
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`Total Maximum Daily Load and recognize that local water quality is inextricably tied to
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`water quality in the Chesapeake Bay. They have spent considerable time and effort fencing
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`their livestock out of tributaries to the Middle River and the river itself which flows through
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`their farm. They have also installed and continue to maintain streamside buffers by planting
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`trees and vegetation on the farm. They also utilize sustainable grazing practices including
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`rotational grazing and nutrient management. Their advocacy and sustainable farming efforts
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`are harmed by EPA’s failure to require all of the Bay jurisdictions to meet their respective
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`commitments under the Bay TMDL and the Chesapeake Bay Agreement.
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`33.
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`The individual Plaintiffs, the organizational Plaintiffs’ and their members, and the
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`County’s residents use and enjoy the Chesapeake Bay and its tributary rivers into which
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`pollutants have and continue to be discharged causing harm to the Plaintiffs. The individual
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`Plaintiffs, the organizational Plaintiffs and their members and residents of the County reside
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`near and enjoy waters within the Bay Watershed for recreation, fishing, swimming, kayaking,
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`boating, wildlife viewing, and scientific study. The Administrator and the United States were
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`charged by Congress and by the Chesapeake Bay Agreements to improve water quality and
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`living resources within the Bay and its tributaries. The failure of the Administrator and the
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`United States to comply with the CWA, the APA, and the Chesapeake Bay Agreements has
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`and continues to adversely affect and irreparably harm the aesthetic, conservation, economic,
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`educational, recreational, and scientific interests of these individuals, organizations, and
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`members, for which harm they have no adequate remedy at law. The Plaintiffs and their
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`respective members and residents will continue to be harmed until the Defendants fully
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`comply with the CWA, the APA, and the Chesapeake Bay Agreements. The relief sought
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`herein will redress the harm to Plaintiffs.
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`The Chesapeake Bay is a National Treasure
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`FACTS
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`34.
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`35.
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`The Chesapeake Bay is the largest estuary in the United States.
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`The Chesapeake Bay begins at the mouth of the Susquehanna River in
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`Pennsylvania and Maryland and enters the Atlantic Ocean approximately 200 miles south
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`between Cape Henry and Virginia Beach, Virginia.
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`36.
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`The Chesapeake Bay watershed – the land area that contributes water to the Bay -
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`covers 64,000 square miles from Cooperstown, New York to Virginia Beach, Virginia.
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`Portions of the watershed are found in Delaware, Maryland, New York, Pennsylvania,
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`Virginia, Washington, D.C., and West Virginia.
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`37.
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`Historically, numerous Native American tribes lived along the shores of the Bay
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`and its tributaries surviving off the fertile land and the abundant natural resources of the Bay.
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`38.
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`Captain John Smith and members of the Virginia Land Company explored the
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`reaches of the Bay during 1607-09. Smith reported finding fish so plentiful that they could
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`be caught in frying pans and speared with swords. Oysters existed in such large numbers that
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`they created hazards to navigation.
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`39.
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`Since the founding of Jamestown, Virginia, the Chesapeake Bay has been a
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`tremendously important economic engine for the region. Historically, tons of crabs, fish, and
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`oysters were harvested from the Bay annually. Numerous other species of Bay wildlife have
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`been caught and sold to feed the citizens of the Mid-Atlantic region.
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`40.
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`The quality of the water in the Bay and its tributaries degraded as the population
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`in the region grew. The primary culprits for the degradation in water quality are nitrogen,
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`phosphorous, and sediment pollution. In general, nitrogen and phosphorus are nutrients
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`essential for the growth of plant life, both aquatic and terrestrial. In overabundance,
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`however, these pollutants lead to the excessive growth of algae that die and decay – a process
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`that blocks sunlight and sucks life sustaining oxygen from the water.
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`41.
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`As water quality in the Bay and its tributaries degraded, the amount of underwater
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`grasses essential to the sustainability of crab and fish populations declined. In addition, poor
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`water quality contributed to a dramatic loss of oysters and other aquatic life critical to a
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`healthy Bay.
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`42.
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`Poor water quality and the consequential loss of crabs, fish, underwater grasses
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`and oysters directly harmed and continues to harm commercial and recreational fishing.
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`43.
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`Congress has recognized that the Chesapeake Bay is a “national treasure and
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`resource of worldwide significance.” Chesapeake Bay Restoration Act of 2000, Nov. 7,
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`2000, P.L. 106-457, Title II, § 202, 114 Stat. 1967. The restoration and preservation of the
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`Chesapeake Bay is essential for a healthy and vibrant economy. The ports of Baltimore and
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`Hampton Roads provide thousands of jobs and annually generate billions of dollars in
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`revenue. The town of Reedville, Virginia, on the Bay’s western shore consistently records
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`the second to third largest catch of fish in the nation. The annual economic value of the Bay
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`has been estimated at well over a trillion dollars.
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`44.
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`The Chesapeake Bay region is home to approximately 18 million people, many of
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`whom rely on the Bay and its tributaries as not only a source of income but also as a place to
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`recreate and commune with nature – a priceless commodity. Moreover, some of our nation’s
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`most treasured historical places are located within close proximity of the Chesapeake Bay
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`and its tributaries – Annapolis (Severn River), Antietam (Potomac River), Cooperstown
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`(Susquehanna River), Jamestown and Williamsburg (James River), Yorktown (York River),
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`and Washington, D.C. (Potomac and Anacostia Rivers).
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`45.
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`The United States has recognized that the value of the Chesapeake Bay is
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`immeasurable.
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`The Chesapeake Bay Agreements
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`
`46.
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`During the 1970s, Bay grasses, and oyster, crab, and fish populations declined
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`dramatically. The federal government realized that something had to be done to improve
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`water quality in the Bay or this natural treasure would be lost. In 1976, Congress directed
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`U.S. EPA to undertake a comprehensive study of the Bay including water quality and its
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`resources to determine how best to manage this national resource. 94 P.L.116.
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`47.
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`In 1980, Congress passed the Chesapeake Bay Research and Coordination Act (16
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`U.S.C. § 3001-3007). In so doing, Congress found that the Chesapeake Bay “is one of the
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`greatest natural resources of the United States of America.” The Act mandated that the
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`Secretary of Commerce create an Office for Chesapeake Bay Research Coordination and
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`create a research board comprised of members selected from the federal government,
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`Maryland, and Virginia. The board was to develop a research plan and coordinate federal
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`research within the Bay area. Congress appropriated $500,000 a year for four years to carry
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`out these mandates.
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`48.
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`In 1980, Maryland and Virginia each adopted their own legislation recognizing
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`and implementing an agreement to create the Chesapeake Bay Commission (the
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`“Commission”) to coordinate interstate planning and programs. Pennsylvania signed similar
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`legislation and joined the Commission in 1985. This “tri-state agreement” marked the
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`beginning of ongoing interstate legislative efforts to protect the estuarine habitat of the
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`Chesapeake Bay.
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`49.
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`The Commission includes fifteen legislators (five from each state), three natural
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`resource cabinet secretaries and three citizen representatives, one each from Maryland,
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`Pennsylvania, and Virginia.
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`50.
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`The Commission is a signatory to all the Bay Agreements and amendments
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`beginning in 1987 and is a member of the Executive Council of the Chesapeake Bay
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`Program. The Commission acts as the legislative arm of the Bay Program and each state’s
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`representatives advise their respective legislatures.
`
`51.
`
` The EPA (on behalf of the United States), Maryland, Virginia, Pennsylvania, and
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`the District of Columbia signed the first Chesapeake Bay Agreement in 1983 (the “1983 Bay
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`Agreement”).
`
`52.
`
`The 1983 Bay Agreement created an Executive Council to assess and oversee
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`implementation of coordinated plans, to improve water quality and the living resources of the
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`Bay, and to establish an implementation committee to coordinate and evaluate management
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`plans. The Executive Council: establishes the policy direction for the restoration and
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`protection of the Bay and its living resources; exerts leadership to marshal public support for
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`the Bay effort; signs directives, agreements and amendments that set goals and guide policy
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`for Bay restoration and; is accountable to the public for progress made under the Bay
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`agreements.
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`53.
`
`The 1983 Bay Agreement also created the Chesapeake Bay Program to act as a
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`liaison between the parties to the Agreement and EPA’s Bay restoration arm. 1983
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`Chesapeake Bay Agreement. The United States Congress passes annual appropriations bills
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`to fund the EPA Chesapeake Bay Program and other programs designed to ensure
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`compliance with the Chesapeake Bay Agreements.
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`54.
`
`In 1987, a subsequent interstate agreement was signed by the Administrator of
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`EPA, on behalf of the United States, Maryland, Pennsylvania, Virginia, the District of
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`Columbia, and the Chesapeake Bay Commission. (hereinafter referred to as the “1987 Bay
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`Case 1:20-cv-02529-CJN Document 1 Filed 09/10/20 Page 17 of 37
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`Agreement”). This agreement amended the 1983 Bay Agreement to include more specific
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`quantitative goals and commitments. The most “critical element” of the 1987 Bay
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`Agreement was the decision to mandate the reduction of point and non-point nitrogen and
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`phosphorous pollution loadings to the Bay by 40 percent by 2000. To reach this goal, the
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`parties agreed to develop, adopt, and begin implementation of a basin-wide strategy by July
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`1988.
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`55.
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`Congress supported this agreement by enacting the federal Water Quality Act of
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`1987 and authorizing $52 million in federal assistance for the Bay Program. Feb. 4, 1987,
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`Pub.L. 100-4, Title I, § 103, 101 Stat. 10.
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`56.
`
`The 1987 Agreement was amended in 1992 to, among other things; reaffirm the
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`pollution reduction goal made in the 1987 Agreement. The Administrator of EPA signed the
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`amendment on behalf of the United States.
`
`57.
`
`Another amendment to the 1987 Agreement was signed in 1992. The amendment
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`reflected the critical importance of the tributaries in the ultimate restoration of the
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`Chesapeake Bay. The signatories specifically stated that they would "[r]educe and control
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`point and nonpoint sources of pollution to attain the water quality condition necessary to
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`support the living resources of the Chesapeake Bay and its tributaries." (emphasis in the
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`original).
`
`58.
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`The parties also committed to develop and begin implementation of tributary-
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`specific strategies by August 1993 to achieve the water quality requirements necessary to
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`restore living resources in both the Bay mainstem and its tributaries.
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`59.
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`By the late 1990s, it was clear that the Bay jurisdictions would not attain the 40%
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`pollution reduction goal of the 1987 Bay Agreement and the 1992 amendment and the Bay
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`jurisdictions began development of a new Bay Agreement.
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`60.
`
`On June 28, 2000, the Administrator of EPA, on behalf of the