Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 1 of 26
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`______________________________________________________________________________
`STATE OF MARYLAND,
`
`1800 Washington Boulevard
`Baltimore, MD 21230
`
`Case No.:
`Judge:
`
`COMPLAINT
`
`
`DISTRICT OF COLUMBIA,
`400 6th Street NW
`Washington, D.C. 20001
`
`
`COMMONWEALTH OF VIRGINIA,
`202 North Ninth Street
`Richmond, VA 23219
`
`
`STATE OF DELAWARE,
`820 N. French St.
`Wilmington, DE 19801
`Plaintiffs,
`
`v.
`
`
`
`ANDREW WHEELER, in his official
`capacity as Administrator, United
`States Environmental Protection
`Agency; UNITED STATES
`ENVIRONMENTAL PROTECTION
`AGENCY,
`1200 Pennsylvania Avenue NW
`Washington, D.C. 20460
`
`
`and
`
`COSMO SERVIDIO, in his official
`capacity as Regional Administrator for
`the Mid-Atlantic Region (Region 3),
`United States Environmental
`Protection Agency,
`1650 Arc Street
`Philadelphia, PA 19103
`
`
`
`
`
`
`
` Defendants.
`
`1
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`______________________________________________________________________________
`STATE OF MARYLAND,
`
`1800 Washington Boulevard
`Baltimore, MD 21230
`
`Case No.:
`Judge:
`
`COMPLAINT
`
`
`DISTRICT OF COLUMBIA,
`400 6th Street NW
`Washington, D.C. 20001
`
`
`COMMONWEALTH OF VIRGINIA,
`202 North Ninth Street
`Richmond, VA 23219
`
`
`STATE OF DELAWARE,
`820 N. French St.
`Wilmington, DE 19801
`Plaintiffs,
`
`v.
`
`
`
`ANDREW WHEELER, in his official
`capacity as Administrator, United
`States Environmental Protection
`Agency; UNITED STATES
`ENVIRONMENTAL PROTECTION
`AGENCY,
`1200 Pennsylvania Avenue NW
`Washington, D.C. 20460
`
`
`and
`
`COSMO SERVIDIO, in his official
`capacity as Regional Administrator for
`the Mid-Atlantic Region (Region 3),
`United States Environmental
`Protection Agency,
`1650 Arc Street
`Philadelphia, PA 19103
`
`
`
`
`
`
`
` Defendants.
`
`1
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 2 of 26
`
`The District of Columbia and the States of Maryland, Virginia, and Delaware
`
`(“Plaintiffs”) bring this action to compel Andrew Wheeler, in his official capacity as
`
`Administrator of the United States Environmental Protection Agency, Cosmo
`
`Servidio, in his official capacity as Regional Administrator for EPA Region 3, and the
`
`United States Environmental Protection Agency (collectively, “EPA”) to comply with
`
`EPA’s nondiscretionary duty under Section 117 of the Clean Water Act, 33 U.S.C. §
`
`1267(g)(1)(A), to ensure that each of the states that are signatories to the Chesapeake
`
`Bay Agreement (“Bay Agreement”) develops and implements management plans that
`
`will “achieve and maintain” the nutrient reduction goals set forth in the Bay
`
`Agreement. Alternatively, Plaintiffs bring this action pursuant to the Administrative
`
`Procedure Act, 5 U.S.C. § 706, to hold unlawful and set aside EPA’s arbitrary and
`
`capricious approval of the management plans submitted by New York and
`
`Pennsylvania.
`
`JURISDICTION AND VENUE
`
`This Court has jurisdiction over this action under the Clean Water Act
`
`1.
`
`(“CWA” or “the Act”), 33 U.S.C. § 1365(a)(2), which authorizes any person, after duly
`
`giving notice, to commence an action in district court to compel the Administrator to
`
`perform a nondiscretionary duty that the Administrator has failed to perform.
`
`2.
`
`Jurisdiction also lies in this Court pursuant to 28 U.S.C. § 1331 (actions
`
`arising under the laws of the United States) because this suit is alternatively brought
`
`under the Administrative Procedure Act, 5 U.S.C. § 706. An actual controversy exists
`
`between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court may
`
`
`
`2
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 3 of 26
`
`grant declaratory, injunctive, and other relief pursuant to 28 U.S.C. §§ 2201 and
`
`2202, 5 U.S.C. § 706, and the Court’s inherent and equitable authority.
`
`3.
`
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and (e),
`
`because EPA headquarters is in Washington, D.C., a substantial part of the events
`
`or omissions giving rise to the claims occurred in this judicial district, and because
`
`one of the Plaintiffs, the District of Columbia, resides in this judicial district.
`
`PARTIES
`4. The State of Maryland is a sovereign state of the United States of America.
`
`Attorney General Brian E. Frosh, who has general charge of the legal business of the
`
`State of Maryland, Md. Code Ann., State Gov’t § 6-106, brings this action on behalf
`
`of the State of Maryland, including the Maryland Department of the Environment.
`
`5. Plaintiff District of Columbia is a municipal corporation and is the local
`
`government for the territory constituting the permanent seat of the government of
`
`the United States. The District is represented by and through its chief legal officer
`
`the Attorney General for the District of Columbia. The Attorney General has general
`
`charge and conduct of all legal business of the District and all suits initiated by and
`
`against the District and is responsible for upholding the public interest. D.C. Code
`
`§ 1-301.81(a)(1). The District of Columbia is defined as a state under the CWA. 33
`
`U.S.C. § 1362(3).
`
`6. The State of Delaware is a sovereign state of the United States of America.
`
`Delaware brings this action by and through Attorney General Kathleen Jennings.
`
`The Attorney General is the chief officer of the State, and is empowered and charged
`
`
`
`3
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 4 of 26
`
`with the duty to represent as counsel in all proceedings or actions which may be
`
`brought on behalf or against the State and all officers, agencies, departments, boards,
`
`commissions and instrumentalities of state government. See Del. Code Ann. Tit. 29,
`
`§ 2504.
`
`7. The Commonwealth of Virginia brings this action by and through Attorney
`
`General Mark Herring. The Attorney General is the chief legal officer of the
`
`Commonwealth of Virginia. The Attorney General “shall represent the interests of
`
`the Commonwealth . . . in matters before or controversies with the officers and several
`
`departments of the government of the United States,” Va. Code Ann. § 2.2-513, and
`
`“all legal service in civil matters for the Commonwealth . . . including the conduct of
`
`all civil litigation in which any of them are interested, shall be rendered and
`
`performed by the Attorney General.” Va. Code Ann. § 2.2-507.
`
`8. Defendant Andrew Wheeler is the Administrator of the EPA. The
`
`Administrator is charged with implementing and enforcing the Clean Water Act,
`
`including the nondiscretionary requirement in Section 117 of the Act.
`
`9. Defendant Cosmo Servidio is the Regional Administrator for the Mid-
`
`Atlantic Region (Region 3) of the EPA and the signatory on EPA’s approval of
`
`Pennsylvania’s and New York’s Phase III Watershed Implementation Plans.
`
`Plaintiffs sue Defendant Servidio in his official capacity.
`
`10. Defendant EPA is an executive agency of the United States government
`
`charged with implementing and enforcing the Clean Water Act.
`
`
`
`
`
`4
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 5 of 26
`
`NOTICE
`
`11. On May 18 and 20, 2020, pursuant to 33 U.S.C. § 1365(b), Plaintiffs sent
`
`EPA notices of intent to sue for EPA’s failure to comply with its nondiscretionary duty
`
`under Section 117 of the Clean Water Act to ensure that the signatories to the Bay
`
`Agreement develop and implement management plans that will achieve and
`
`maintain the nutrient reduction goals in the Bay Agreement—more specifically, the
`
`nutrient reduction goals in the Chesapeake Bay Total Maximum Daily Load
`
`(“TMDL”).
`
`12. More than 60 days have elapsed since the Plaintiffs sent the notice
`
`letters, and EPA has not fulfilled its nondiscretionary duty set forth in paragraph
`
`11.1
`
`CWA STATUTORY FRAMEWORK
`
` The overall objective of the CWA “is to restore and maintain the
`
`13.
`
`chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.
`
`§ 1251(a).
`
`14. To meet that objective, the CWA requires states to establish water
`
`quality standards for waterbodies within their jurisdiction. Id. § 1313(a)-(c).
`
`15. For each waterbody within a state, the state must designate specific
`
`uses (e.g., recreation or fishing) and set water quality standards based on those
`
`designated uses. Id. § 1313(c)(1), (2).
`
`
`1 Count 2 of this Complaint, alleging arbitrary and capricious or otherwise unlawful final agency action
`in violation of the Administrative Procedure Act, is not subject to the notice requirement of 33 U.S.C.
`§ 1365(b).
`
`
`
`5
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 6 of 26
`
`16. To achieve those standards, the CWA regulates pollution from “point”
`
`sources (generally, discrete places from which pollutants are discharged, like a
`
`drainpipe) and “nonpoint” sources” (generally, diffuse sources of pollution, like farms
`
`or roadways from which runoff drains into a watershed). Id. §§ 1311, 1329.
`
`17. Under the CWA, point sources are regulated through the issuance of
`
`discharge permits, known as National Pollution Discharge Elimination System
`
`(NPDES) permits. Id. § 1311.
`
`18. Nonpoint sources are regulated by a combination of state regulatory
`
`controls and management techniques
`
`imposed on agricultural operations,
`
`municipalities, and other sources of uncontrolled runoff.
`
`19. When a waterbody fails to meet water quality standards, the waterbody
`
`is considered impaired and the state must then set a TMDL for that water body. Id.
`
`§ 1313(d). TMDLs limit the amount of a particular pollutant that can be discharged
`
`to a waterbody. Id.
`
`20. When a state is required to establish a TMDL for a waterbody, the state
`
`must submit the proposed TMDL to EPA for its evaluation to determine whether the
`
`TMDL is legally sufficient. Id. § 1313(d)(2).
`
`21.
`
`If a state fails to submit a TMDL or EPA disapproves the state’s TMDL,
`
`EPA must establish a TMDL for that waterbody. Id.
`
`THE UNIQUE STATUS OF THE CHESAPEAKE BAY
`
`22. The Chesapeake Bay is the largest estuary in the United States. The
`
`Bay’s watershed—the area of land that drains into the Bay—spans 64,000 square
`
`
`
`6
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 7 of 26
`
`miles over Virginia, Maryland, West Virginia, Delaware, Pennsylvania, New York,
`
`and the District of Columbia (collectively the “Bay States”). The Bay is home to
`
`thousands of plant and animal species and is an invaluable cultural and economic
`
`resource for the Bay States.
`
`23. For decades, pollution in the form of excess nutrients and sediment
`
`entering the Bay from tributaries severely degraded the Bay and the surrounding
`
`ecosystem. Excess nutrients and sediment create murky water and algae blooms,
`
`blocking sunlight from reaching and sustaining underwater Bay grasses. Murky
`
`water and algae blooms also create dangerously low oxygen levels for aquatic life,
`
`including fish, crabs and oysters. At points during the summer months, oxygen
`
`becomes so low that it creates a “dead zone,” where plant and animal life are unable
`
`to survive.
`
`THE CHESAPEAKE BAY STATUTORY AND ADMINISTRATIVE FRAMEWORK
`
`Chesapeake Bay Agreement
`
`24. Because of the unique ecological and economic importance of the Bay, in
`
`1983, the United States, Maryland, Pennsylvania, Virginia, and the District of
`
`Columbia, entered into the Chesapeake Bay Agreement, which created the
`
`Chesapeake Bay Program, a collaborative effort to restore and protect the Bay. The
`
`Chesapeake Bay Program is the oldest geographic restoration program under the
`
`CWA in the nation.
`
`25. Congress mandated EPA’s participation in the Chesapeake Bay
`
`Program with the passage of the Water Quality Act of 1987, which amended the CWA
`
`
`
`7
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 8 of 26
`
`and added Section 117. The law authorized: (1) $3 million annually to support the
`
`activities of EPA’s Bay Program Office, which coordinates federal and state efforts to
`
`restore and protect the Bay; and (2) $10 million annually for matching grants to
`
`facilitate the Bay States’ pollution-reduction measures. Pub. L. No. 100-4, § 103, 101
`
`Stat. 7, 11.
`
`26. Recognizing the Bay as “a national treasure and a resource of worldwide
`
`importance,” in 2000, Congress enacted the Chesapeake Bay Restoration Act. The
`
`Restoration Act amended Section 117 of the CWA by expanding EPA’s duty to oversee
`
`Bay restoration. Amended Section 117 requires EPA to “ensure that management
`
`plans are developed and implementation is begun by signatories to the Chesapeake
`
`Bay Agreement to achieve and maintain . . . the nutrient goals of the Chesapeake Bay
`
`Agreement for the quantity of nitrogen and phosphorous entering the Chesapeake
`
`Bay and its watershed.” 33 U.S.C. § 1267(g)(1)(A).
`
`27. During this same time, EPA and the initial signatories to the Bay
`
`Agreement renewed their commitment to restore the Bay by signing the 2000
`
`Chesapeake Bay Agreement, which included a restoration strategy and specific goals
`
`to reduce pollution in the Bay. In 2002, the remaining Bay States (New York,
`
`Delaware, and West Virginia) became parties to the 2000 Bay Agreement.
`
`28.
`
`Since its inception, the Chesapeake Bay Agreement has been amended
`
`four times. The latest iteration is the 2014 Bay Agreement. Under the CWA, the
`
`goal of the Bay Agreement is to restore and protect “the Chesapeake Bay ecosystem
`
`and the living resources of the Chesapeake Bay ecosystem.” Id. § 1267(a)(2).
`
`
`
`8
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 9 of 26
`
`The Chesapeake Bay TMDL
`
`29.
`
`In October 2007, EPA and the Bay States agreed that EPA would
`
`develop and publish the TMDL for the Bay.
`
`30. On December 29, 2010, EPA finalized the Bay TMDL after a notice-and-
`
`comment process that included 18 public meetings (attended by 2,500 individuals)
`
`and the submission of more than 14,000 public comments.
`
`31. The Bay TMDL is a detailed pollution reduction plan that includes
`
`point-source and nonpoint-source limitations on nitrogen, phosphorus, and sediment,
`
`and that further allocates those limits to specific point- and nonpoint-source sectors.
`
`The TMDL sets target dates, anticipating that 60% of its proposed actions will be
`
`complete by 2017, with all pollution control measures in place by 2025.
`
`32. The Bay States and EPA subsequently entered into the 2014
`
`Chesapeake Watershed Agreement. That Agreement, which is part of the
`
`“Chesapeake Bay Agreement” as defined by Section 117, declared that “[b]y 2025,
`
`[the signatories] will have all practices and controls installed to achieve the . . .
`
`standards as articulated in the Chesapeake Bay TMDL document.”
`
`Implementation of the Bay TMDL
`
`33. As required by Section 117(g), EPA directed the Bay States to develop
`
`and submit Watershed Implementation Plans (WIPs). The WIPs were to provide a
`
`detailed blueprint for the Bay States to implement the TMDL and meet its pollution
`
`limits.
`
`
`
`9
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 10 of 26
`
`34. The WIPs are the management plans required by Section 117(g) of the
`
`CWA. They dictate, among other things, how the Bay States will achieve and
`
`maintain nutrient goals for the Bay (including the Bay TMDL) and ensure all actions
`
`necessary for full restoration are implemented on schedule.
`
`35. EPA directed the Bay States to submit their respective WIPs in three
`
`phases. In each successive WIP, EPA tasked each Bay State to provide increasing
`
`detail on actions, controls, and financial commitments to demonstrate that it was on
`
`track to achieve the TMDL pollutant limitations by 2025. For instance, Phase II
`
`WIPs were to allocate pollutant-contribution limits and responsibilities for reducing
`
`pollutant loads to meet those limits in each sector. Phase III WIPs were to include
`
`more refined actions and controls to be implemented between 2018 to 2025 to achieve
`
`water quality standards.
`
`36. Each WIP was developed in five steps: (1) EPA provided detailed
`
`guidance and expectations for the WIP submission; (2) the Bay States submitted draft
`
`WIPs to EPA; (3) EPA reviewed WIPs and worked with each Bay State to revise and
`
`strengthen its WIP; (4) the Bay States submitted their final WIPs to EPA for final
`
`review and approval.; and (5) EPA either approved or rejected each WIP.
`
`37. EPA approved final WIPs when it accepted the plans without requiring
`
`adjustment, resubmission, or imposing federal consequences or backstop measures to
`
`ensure that all necessary pollution controls and practices to achieve the goals of the
`
`Bay Agreement would be in place by 2025.
`
`
`
`10
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 11 of 26
`
`38.
`
`In the past, EPA has consistently taken proactive steps to ensure that
`
`the WIPs are adequate to achieve and maintain the Bay Agreement’s goals. For
`
`example, in Phase I, EPA found that most of the Bay States’ draft WIPs neither
`
`sufficiently identified pollution reduction programs nor provided assurance the
`
`programs could be implemented. EPA accordingly required the Bay States to make
`
`improvements to their Phase I WIPs until it concluded that the WIPs provided
`
`“reasonable assurance” of plan implementation. In Phase II, EPA followed a similar
`
`process, found deficiencies, and required revisions to the WIPs.
`
`EPA’s FAILURE TO DISCHARGE ITS NONDISCRETIONARY DUTY UNDER
`CWA SECTION 117
`
`EPA Initially Acted on Its Duty to Ensure that the Bay States
`“Achieve and Maintain” Their Pollution Reduction Goals.
`
`39. Consistent with Section 117’s command, EPA advised the Bay States
`
`early in the TMDL process that EPA would take appropriate action if any of the Bay
`
`States failed to develop and implement appropriate WIPs consistent with EPA’s
`
`expectations, to ensure that the necessary water quality restoration and protection
`
`activities are carried out.
`
`40.
`
`In 2010, the final Chesapeake Bay TMDL included a “Reasonable
`
`Assurance and Accountability Framework.” In that Framework, EPA stated it would
`
`take federal actions to ensure implementation of the Bay TMDL should Bay States
`
`themselves fail to demonstrate reasonable assurance they would meet the 2025
`
`deadline.
`
`
`
`11
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 12 of 26
`
`41. That same year, EPA issued the Chesapeake Bay Compliance and
`
`Enforcement Strategy, stating that if Bay States fail to act or impede action, then
`
`EPA will exercise its enforcement authority and use compliance programs.
`
`42. Consistent with that statement, EPA did not hesitate to require
`
`improvements of a deficient WIP by imposing “backstop” measures and additional
`
`pollution control activities. During its review of the Phase I Plans, for instance, EPA
`
`imposed a “backstop adjustment” for two sources of pollution: Pennsylvania urban
`
`stormwater and West Virginia animal feeding operations and agricultural runoff.
`
`EPA required greater reductions from point sources in those states if they exceeded
`
`their projected pollutant load allocations.
`
`43. EPA also imposed a “backstop allocation” for New York because its
`
`Phase I WIP failed to demonstrate adequate loading reductions of nitrogen and
`
`phosphorus. More specifically, for wastewater treatment plants, EPA announced
`
`that it was establishing an aggregate wasteload allocation and secured a commitment
`
`from New York to provide supporting information for individual wasteload allocations
`
`in future permit modifications or renewals.
`
`44.
`
`Similarly, when Virginia failed to include enforceable provisions in a
`
`stormwater permit as part of its Phase II WIP, EPA asserted that it will maintain
`
`enhanced oversight of Virginia’s urban stormwater sector and identified potential
`
`federal actions that EPA will consider if key issues are not addressed.
`
`45.
`
`In these and other ways, EPA’s use of its CWA authority has been a
`
`necessary and effective tool in ensuring that the WIPs are developed and
`
`
`
`12
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 13 of 26
`
`implemented to “achieve and maintain” the pollution reduction goals established by
`
`the Bay Agreement and Bay TMDL.
`
`EPA Abandons its Nondiscretionary Duty Under Section 117 by Failing to
`Require Adequate Phase III WIPs from Pennsylvania and New York.
`
`46. As it had done for the previous WIP Phases, EPA began the Phase III
`
`WIP process by conveying its expectations that each Bay State would have all
`
`pollution management practices in place by 2025 that will achieve the Bay’s water
`
`quality standards.
`
`47. Based on shortfalls in Pennsylvania’s earlier WIP submissions, EPA
`
`provided specific expectations for Pennsylvania’s Phase III WIP. Of particular
`
`relevance here, EPA directed Pennsylvania to reduce its pollution loadings by 35
`
`million pounds between 2018 and 2025, commit to programmatic, policy, legislative,
`
`and regulatory changes necessary to achieve those reductions, and commit to the level
`
`of staff, partnerships, and financial resources needed to implement the Phase III WIP
`
`and meet the TMDL requirements. The Phase III guidance also indicated that EPA
`
`would “enhance oversight” over Pennsylvania’s WIP efforts, including a requirement
`
`that Pennsylvania report on progress every six months and directing that any federal
`
`funds be implemented in priority watersheds.
`
`48. After Pennsylvania submitted its draft Phase III WIP, EPA determined
`
`that the draft WIP proposed to achieve only 64% of the nitrogen reduction targets
`
`prescribed for Pennsylvania by the Bay TMDL, and 76% of the phosphorus reduction
`
`targets prescribed for Pennsylvania by the Bay TMDL. Similarly, after New York
`
`submitted its draft Phase III WIP, EPA determined that New York’s draft WIP
`
`
`
`13
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 14 of 26
`
`proposed to achieve only 61% of the nitrogen reduction targets prescribed for New
`
`York by the Bay TMDL. Despite these clear deficiencies, EPA merely suggested
`
`“potential enhancements” for Pennsylvania and New York to include in their final
`
`Phase III WIPs.
`
`49. All Bay States submitted their final Phase III WIPs in August 2019.
`
`Even though EPA recognized that those submitted by Pennsylvania and New York
`
`remained significantly deficient, EPA did not require revision or resubmission.
`
`50. On the face of their respective final Phase III WIPs, Pennsylvania and
`
`New York will not meet the 2025 nutrient reduction targets required by the Bay
`
`Agreement and Bay TMDL. Indeed, by its own admission, Pennsylvania’s WIP was
`
`underfunded by $324 million per year or approximately 63% of the necessary
`
`projected funding.
`
`51. EPA has admitted that neither Pennsylvania nor New York will meet
`
`their nutrient reduction targets. The agency found that Pennsylvania would achieve
`
`only 75% of its TMDL-required reductions for nitrogen pollution.2 Similarly, EPA
`
`concluded that New York would meet only 66% of its TMDL-required reductions for
`
`nitrogen pollution.3
`
`52.
`
`Instead of directing Pennsylvania and New York to revise their final
`
`Phase III WIPs to comply with the Bay Agreement and the Bay TMDL, EPA merely
`
`
`2 Evaluation of Pennsylvania’s Phase III Watershed Implementation Plan (WIP), EPA ES-1 (Dec. 19,
`2019), https://www.epa.gov/sites/production/files/2019-12/documents/pa.pdf
`
` 3
`
` Evaluation of New York’s Phase III Watershed Implementation Plan (WIP), EPA 2 (Dec. 19, 2019),
`https://www.epa.gov/sites/production/files/2019-12/documents/ny.pdf.
`14
`
`
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 15 of 26
`
`noted the WIPs’ weaknesses without taking further action. EPA imposed none of the
`
`regulatory measures and financial incentives it had brought to bear when confronted
`
`with similarly deficient WIPs in the past. Nor did EPA otherwise take, or threaten
`
`to take, any actions against Pennsylvania or New York for their facially deficient
`
`WIPs.
`
`53. Despite claiming the contrary, EPA’s acceptance of the facially deficient
`
`WIPs submitted by Pennsylvania and New York without requiring revisions or
`
`financial backstop measures constituted approval. EPA subsequently announced
`
`that it would not revisit the Phase III WIPs.
`
`54. EPA has failed to ensure that Pennsylvania and New York develop and
`
`implement WIPs that achieve and maintain their TMDL-required nutrient
`
`reductions. That failure comes at a particularly crucial point. With the conclusion of
`
`the WIP process, there is no further statutory or regulatory mechanism to ensure
`
`that the Bay States will achieve and maintain those reductions.
`
`55. Further, EPA’s actions with respect to Pennsylvania’s and New York’s
`
`final Phase III WIPs represent an about-face from its prior guidance and action taken
`
`to improve deficient WIPs. EPA provided no advance notice of its abrupt
`
`abandonment of the decade-old guidance, which the agency had consistently invoked
`
`during the first two phases of the WIP process. EPA’s actions threaten the TMDL
`
`process, the future restoration and health of the Bay, and the livelihoods of the
`
`millions who use the Bay as a multi-purpose resource.
`
`
`
`
`
`15
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 16 of 26
`
`
`
`EPA’s Failure Will Severely Harm the Plaintiffs
` and Will Jeopardize the Health of the Bay.
`
`56. EPA’s failure to ensure that nutrient reduction goals will be met will
`
`reverberate across the Chesapeake Bay watershed and the jurisdictions that share
`
`the role of caretaker of this important resource.
`
`57. Plaintiffs have made difficult
`
`fiscal decisions to
`
`fulfill their
`
`commitments under the Bay Agreement. They have devoted significant economic and
`
`other resources not only based on their collective commitment reflected in the Bay
`
`Agreement, but also in reliance on EPA’s statutory duty—and EPA’s statements in
`
`recognition of that duty—to ensure that all Bay States meet those commitments.
`
`From 2016 to 2018, Maryland, Virginia, and Delaware spent approximately $2.3
`
`billion, $629 million, and $2.6 million, respectively, on developing and implementing
`
`their WIPs. The District spent approximately $113 million between 2017 and 2019.
`
`58.
`
`In contrast, while Pennsylvania estimated that the investment required
`
`to meet its pollution-reduction target would be $521 million per year, it committed to
`
`spend only $197 million per year—an annual shortfall of $324 million. Similarly, New
`
`York estimated that the necessary annual investment to meet its pollution-reduction
`
`target for the agricultural sector would be $92 million, but anticipated public
`
`investment amounted to only $51 million—a shortfall of $41 million per year.
`
`59. As a result of EPA’s regulatory retreat, Pennsylvania and New York will
`
`fall significantly short of their nutrient reduction goals and the long and difficult
`
`journey to restore the Bay may end short of success. Pennsylvania and New York
`
`
`
`16
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 17 of 26
`
`will continue to discharge excessive pollution into the Bay and its tributaries. This
`
`excess pollution will lead to exceedances of federal and state water quality standards
`
`beyond 2025, harm fish and other aquatic resources, and eliminate or curtail
`
`recreational opportunities for the millions who visit the Bay each year. Plaintiffs and
`
`their residents will not fully realize the economic benefit of a restored Bay, estimated
`
`to be approximately $22.5 billion (compared to pre-TMDL benefits).
`
`60.
`
`Plaintiffs will also suffer particularized harm:
`
`Harm to Maryland’s Interests
`
`61.
`
`Pennsylvania and New York contribute nutrient and sediment pollution
`
`through the Susquehanna River into the Chesapeake Bay. Pennsylvania also
`
`contributes nutrient and sediment pollution through the Potomac River into the
`
`Chesapeake Bay.
`
`62.
`
` Sediment and nutrient pollution entering Maryland from the
`
`Susquehanna and Potomac River watersheds has degraded the health of the
`
`Chesapeake Bay and tributaries. Excess nutrients fuel algal growth in the
`
`Chesapeake Bay and thereby deplete oxygen levels. One result is “dead zones” that
`
`can suffocate aquatic life, kill fish, and in some instances contribute to toxic algal
`
`blooms.
`
`63.
`
`The growth of algae, as a result of nutrient and sediment pollution from
`
`the Susquehanna River and Potomac River, reduces water clarity and thereby inhibits
`
`the growth of underwater grasses. These grasses provide critical nursery and feeding
`
`habitats for finfish and shellfish. Affected species include Maryland’s state fish, the
`
`
`
`17
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 18 of 26
`
`striped bass, as well Maryland’s state crustacean, the blue crab—both of which are
`
`important to Maryland’s economy. Cloudy and turbid waters also impact recreational
`
`users of the Chesapeake Bay.
`
`64.
`
`Excess sediment can also smother oysters and other benthic organisms
`
`and degrade recreational amenities (such as marinas) and commercial shipping
`
`channels and ports. Counteracting these impacts requires costly dredging.
`
`65.
`
`The health of the Chesapeake Bay and its tributaries is closely tied to
`
`Maryland’s economy, particularly in areas near the Bay. Marylanders depend on and
`
`enjoy the Chesapeake Bay’s seafood, commercial and recreational fisheries, and
`
`recreational activities.
`
`66.
`
`EPA’s failure to require New York’s and Pennsylvania’s compliance with
`
`the Bay Agreement’s 2025 pollution-reduction goals will perpetuate the harms caused
`
`by excessive nutrient and sediment pollution to the Chesapeake Bay.
`
`Harm to the District of Columbia’s Interests
`
`67. The Potomac watershed is in many states, including Pennsylvania, and
`
`the District of Columbia.
`
`68. As Pennsylvania is upstream of the District of Columbia, excess nutrient
`
`pollution discharged from Pennsylvania enters the District of Columbia by way of the
`
`Potomac River.
`
`69. Nutrient pollution in the Potomac River contributes to: (1) excess algal
`
`growth, as measured by high levels of chlorophyll a, (2) low oxygen levels, and (3)
`
`poor water clarity.
`
`
`
`18
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 19 of 26
`
`70. EPA’s failure to require New York’s and Pennsylvania’s compliance with
`
`the Bay Agreement’s 2025 pollution-reduction goals will result in excessive nutrient
`
`pollution entering the Chesapeake Bay and the District of Columbia’s portion of the
`
`Potomac River, negatively impacting water quality, fish, aquatic life and its habitat,
`
`and District of Columbia residents’ use of these resources.
`
`71. District of Columbia residents enjoy recreating on and consuming fish
`
`and shellfish from the mainstem of the Chesapeake Bay.
`
`72. District of Columbia residents actively use and enjoy District waters,
`
`including the Potomac River.
`
`Harm to Virginia’s Interests
`
`73. Pennsylvania and New York contribute nutrient and sediment pollution
`
`through the Susquehanna River into the Chesapeake Bay. Pennsylvania also
`
`contributes nutrient and sediment pollution through the Potomac River, which flows
`
`into the Chesapeake Bay.
`
`74. As Pennsylvania is upstream of Virginia, excess nutrient pollution
`
`discharged from Pennsylvania enters Virginia by way of the Chesapeake Bay itself
`
`and through the Potomac River.
`
`75.
`
` Sediment and nutrient pollution entering Virginia
`
`from the
`
`Susquehanna and Potomac River watersheds has degraded the health of the
`
`Chesapeake Bay and tributaries. Excess nutrients fuel algal growth in the
`
`Chesapeake Bay and thereby deplete oxygen levels. One result is “dead zones” that
`
`
`
`19
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 20 of 26
`
`can suffocate aquatic life, kill fish, and in some instances contribute to toxic algal
`
`blooms.
`
`76. The growth of algae, as a result of nutrient and sediment pollution from
`
`the Susquehanna River and Potomac River, reduces water clarity and thereby
`
`inhibits the growth of underwater grasses. These grasses provide critical nursery
`
`and feeding habitats for finfish and shellfish. Affected species include crab, rockfish,
`
`bluefish, drum, and trout, which are important to Virginia’s economy. Cloudy and
`
`turbid waters are also unsightly and impact recreational users of the Chesapeake
`
`Bay.
`
`77. Excess sediment also can smother oysters and other benthic organisms
`
`and degrade recreational amenities (such as marinas) and commercial shipping
`
`channels and ports. Counteracting these impacts requires costly dredging.
`
`78. The health of the Chesapeake Bay and its tributaries is closely tied to
`
`Virginia’s economy, particularly in areas near the Bay. Virginians depend on and
`
`enjoy the Chesapeake Bay’s seafood, commercial and recreational fisheries, and
`
`recreational activities.
`
`79. EPA’s failure to require New York’s and Pennsylvania’s compliance with
`
`the Bay Agreement’s 2025 pollution-reduction goals will result in excessive nutrient
`
`pollution entering the Chesapeake Bay and the Commonwealth of Virginia’s portion
`
`of the Potomac River, negatively impacting water quality, fish, aquatic life and its
`
`habitat, and Virginians’ use of these resources.
`
`
`
`
`
`20
`
`
`
`Case 1:20-cv-02530-CJN Document 1 Filed 09/10/20 Page 21 of 26
`
`Harm to Dela
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
