The Agricultural Law Resource and Reference Center
Chesapeake Bay Resource Area

Center Resources	Legislative Activity
Statutes	Government Agencies
Administrative Documents	Publications
Executive Orders	Links
Case Law

Center Resources

Multimedia Presentations:

• Chesapeake Bay TMDL Litigation: AFBF v. EPA (AFBF files for summary judgment), Justin Ritter (March 30, 2012)
• Chesapeake Bay TMDL Litigation: AFBF v. EPA (EPA files cross-summary judgment motion), Justin Ritter (March 30, 2012)
• U.S. Congressman Goodlatte Introduces New Chesapeake Bay TMDL Bill, Justin Ritter (March 30, 2012)
• Pennsylvania’s Watershed Implementation Plan Phase II: Agricultural Compliance, Justin Ritter (March 30, 2012)
• American Farm Bureau Federation v. Environmental Protection Agency Issues and Causes of Action, Tanya J. Cramoy (Oct. 3, 2011)
• The Clean Water Act and What it Means for Pennsylvania’s Producers, Professor Ross Pifer (presented Aug. 17, 2011)
  • Webinar
  • Accompanying PowerPoint Presentation
• Chesapeake Bay TMDL — Legal Considerations, Professor Ross Pifer (presented February 17, 2012)
  • Accompanying PowerPoint Presentation

Stand Alone Documents:

• AFBF v. EPA: Intervenors’ Briefs In Opposition of AFBF’s Summary Judgment Motion (April 27, 2012)
• State Legislative Session 2012: Chesapeake Bay Pollution Reduction Bills (April 19, 2012)
• AFBF v. EPA: EPA Submits Cross-Summary Judgment Motion (April 1, 2012)
• AFBF v. EPA: Synopsis of AFBF’s Summary Judgment Motion (Feb. 17, 2012)
• Procedural History: American Farm Bureau Federation v. Environmental Protection Agency (Feb. 16, 2012)
• Chesapeake Bay TMDL: Key Provisions of Draft Phase II Watershed Implementation Plans (Feb. 16, 2012)
   

Blogs:

• Penn State Law Chesapeake Bay Blog

Agricultural Law Briefs Articles:

• Environmental Groups File Motion to Intervene in Chesapeake Bay Litigation
  (June 2011) (see page 2)
• Chesapeake Bay Restoration Legislation Introduced by Congressman Holden (July 2010)
• Environmental Protection Agency Settles Chesapeake Bay Litigation and Issues New Restoration Strategy (June 2010)
• Chesapeake Bay Protection and Restoration Draft Strategy Open for Public Comment (Dec. 2009) (see page 2)
• Chesapeake Bay Foundation Notifies EPA of Intent to Sue Over Chesapeake 2000 Agreement (Oct. 2008) (see page 2)
• House Agriculture Committee Holds Hearing on Farm Conservation Funding (Aug. 2008)

Related Resource Areas:

• Pennsylvania Nutrient Management Act Resource Area

Statutes

Federal:

• Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) (see Section 2605: established the Chesapeake Bay Watershed Initiative, codified 16 U.S.C. § 3839bb-4)
• Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. §§ 1251 - 1387 (1972) (see Section 117: established the Chesapeake Bay Program and Chesapeake Bay watershed policy, funding authorized from 2001-2005)
• Federal Air Pollution and Control Act (Clean Air Act), 42 U.S.C. §§ 7401-7671

State:

• For more information on separate state statutes, please reference the Chesapeake Bay Commission.

Administrative Documents

Environmental Protection Agency: 

• Issued Pursuant to Presidential Executive Order 13,508
  • Restore Clean Water Actions: Strategy for Protecting and Restoring the Chesapeake Bay Watershed (Jan. 6, 2012) (listing the Federal Water Quality Programmatic Milestones)
  • Fiscal Year 2011 Action Plan (Sept. 30, 2010)
  • Guidance for Federal Land Management in the Chesapeake Bay Watershed (presents effective methods to address nonpoint source pollution entering the Bay) (May 2010)
  • Notice of Availability: Guidance for Federal Land Management in the Chesapeake Bay Watershed, 75 Fed. Reg. 94 (May 17, 2010) (notice of an available final Guidance for Federal Land Management in the Chesapeake Bay Watershed that describes effective tools to reduce pollution).
  • Chesapeake Bay Federal Strategy (May 12, 2010)
  • Final Coordinated Implementation Strategy, 75 Fed. Reg. 90 (May 11, 2010) (notice of a final strategy pursuant to the Executive Order 13508 to restore the health of the Bay).
  • Notice of Draft: Guidance for Federal Land Management in the Chesapeake Bay Watershed, 75 Fed. Reg. 56 (Mar. 24, 2010) (notice of an available draft for Guidance for Federal Land Management in the Chesapeake Bay Watershed that describes practices to reduce water pollution).
  • Availability of Federal Agency Reports, 74 Fed. Reg. 232 (Dec. 4, 2009) (notice of seven available final reports by federal agencies for the restoration of the Bay).
• Issued Pursuant to the Clean Water Act
  • Clean Water Act Section 303(d): Notice for the Establishment of the Total Maximum Daily Load (TMDL) for the Chesapeake Bay, 76 Fed Reg. 3 (Jan. 5, 2011) (announcing EPA's establishment of the Chesapeake Bay TMDL on December 29, 2010 for nitrogen, phosphorus and sediment for the Chesapeake Bay and its tidal tributaries).
  • Preliminary Notice of Total Maximum Daily Load (TMDL) Development for the Chesapeake Bay, 60 Fed. Reg. 179 (Sept. 17, 2009) (notice of EPA’s intent to establish Chesapeake Bay-wide Total Maximum Daily Load).  
• Letters from Regional Administrator (EPA Region III)
  • Dec. 29, 2009
  • Nov. 4, 2009 
• Guidance for State Water Implementation Plans (WIPs)
  • Phase II WIP Guide (Mar. 2011)
  • Phase I WIP Guide (Apr. 2010)
• Response to State WIPs
  • Final WIP Phase I Evaluations (Dec. 29, 2010)
    • Pennsylvania
    • Maryland
    • New York
    • Delaware
    • Virginia
    • West Virginia
    • District of Columbia
  • Draft WIP Phase II and 2012-2013 Two-Year Milestones Evaluations (Feb. 15, 2012)
    • Pennsylvania
    • Maryland
    • New York (pending)
    • Delaware
    • Virginia
    • West Virginia
    • District of Columbia

U.S. Department of Agriculture:

• Natural Resources and Conservation Service
  • Conserving Natural Resources in the Chesapeake Bay: NRCS 2009 Activities
  • Chesapeake Bay 2010 Activities Report (2011)
  • Assessment of the Effects of Conservation Practices on Cultivated Cropland in the Chesapeake Bay Region (2011)
• Issued Pursuant to the Chesapeake Bay Watershed Initiative
  • Chesapeake Bay Watershed Initiative, 75 Fed. Reg. 48 (Mar. 12, 2010) (notice of available program funds for the Chesapeake Watershed Initiative, pursuant to the Food, Conservation, and Energy Act of 2008).
  • Chesapeake Bay Watershed Initiative, 74 Fed. Reg. 13 (Jan. 22, 2009) (notice of available program funds for the Chesapeake Watershed Initiative, pursuant to the Food, Conservation, and Energy Act of 2008).

Chesapeake Bay Program:

• Agreements
  • Chesapeake Bay 2000 Agreement (June 2000)
  • Federal Agencies’ Chesapeake Ecosystem Unified Plan (Nov. 1998)
  • Agreement of Federal Agencies on Ecosystem Management in the Chesapeake Bay (July 1994)
  • Chesapeake Bay Agreement: 1992 Amendments (Aug. 1992)
  • Chesapeake Bay 1987 Agreement (Dec. 1987)
  • Chesapeake Bay 1983 Agreement (Dec. 1983)
  • For more information on agreements, please reference the Chesapeake Bay Program.
• Directives
  • For more information on directives issued by the Chesapeake Bay Program, please reference the Chesapeake Bay Program.
• Policy Documents
  • Bay Barometer: A Health and Restoration Assessment of the Chesapeake Bay and Watershed in 2010
  • Chesapeake Bay Watershed 2009-2011 Milestones, Interim Progress Assessment/Fact Sheet – June 2011 (assesses all seven Bay jurisdictions’ commitment to their 2009-2011 milestones) (2011)
  • Fact Sheet Chesapeake Bay Total Maximum Daily Load (TMDL), Driving Actions to Clean Local Waters and the Chesapeake Bay (2010)
  • For more information on policy memorandum, please reference the Chesapeake Bay Program.
• Other Publications
  • Conserving Natural Resources in the Chesapeake Bay: NRCS 2008 Activities (National Resources Conservation Service, 2008)
  • Chesapeake Bay and Agricultural Conservation Resource Brief (National Resources Conservation Service, Oct. 2006)

State Documents:

• Final Phase I Watershed Implementation Plans
  • Pennsylvania (Jan. 11, 2011)
  • Maryland (Dec. 3, 2010)
  • New York (Dec. 2010)
  • Delaware (Nov. 29, 2010)
  • Virginia (Nov. 29, 2010)
  • West Virginia (Nov. 29, 2010)
  • District of Columbia (Nov. 29, 2010) 
• Draft Phase II Watershed Implementation Plans
  • Pennsylvania (Dec. 13, 2011)
  • Maryland (Jan. 25, 2012)
  • New York (pending submission)
  • Delaware (Dec. 15, 2011)
  • Virginia (Dec. 15, 2011)
  • West Virginia (Jan. 18, 2012)
  • District of Columbia (Dec. 15, 2011) 
• Final Phase II Watershed Implementation Plans (Mar. 30, 2012)
  • Pennsylvania
  • Maryland
  • New York (Pending)
  • Delaware
  • Virginia
  • West Virginia
  • District of Columbia
• State Milestones 2012-2013
  • Pennsylvania
  • Maryland
  • New York (draft)
  • Delaware
  • Virginia
  • West Virginia
  • District of Columbia

Executive Orders

Presidential:

• Executive Order No. 13,508: Chesapeake Bay Protection and Restoration (establishing the Federal Leadership Committee; increasing government accountability and spending to help restore the Chesapeake Bay) (May 12, 2009)

Case Law

Some of these cases may be available at a law library or accessible online for those with LexisNexis, Westlaw, or other electronic database accounts.

U.S. District Courts:

• Defendant EPA Memorandum in Support of Cross Motion for Summary Judgment (Mar. 27, 2012)
• Intervenor Chesapeake Bay Foundation Brief in Opposition of AFBF’s Motion for Summary Judgment (Apr. 12, 2012)
• Intervenor National Association of Clean Water Agencies Brief in Opposition of AFBF’s Motion for Summary Judgment (Apr. 20, 2012)
• Intervenor Pennsylvania Municipal Authorities Association Brief in Opposition of AFBF’s Motion for Summary Judgment (Apr. 20, 2012)
• Am. Farm Bureau Fed’n v. EPA, No. 1:11-cv-00067-SHR (M.D. Pa. filed Jan. 10, 2011) (American Farm Bureau Federation and the Pennsylvania Farm Bureau filed a complaint against the EPA challenging the lawfulness of EPA’s finalized TMDL).
  • First Amended Complaint (Apr. 4, 2011)
  • Answer to Amended Complaint (Mar. 13, 2011)
  • Order Granting Intervention (Oct. 13, 2011)
  • Order Setting Dates and Deadlines (Jan. 11, 2012)
  • Memorandum in Support of Plaintiffs’ Joint Motion for Summary Judgment (Jan. 27, 2012) 
• Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210 (D.D.C. July 25, 2011)(summary judgment granted based on court’s conclusion that the EPA acted arbitrarily and capriciously, in violation of the APA and CWA, by approving a sediment/total suspended solids TMDL that failed to manifest an aesthetic and recreational water quality standard) 
• Assateague Coastkeeper v. Hudson Farm, No. 1:10-cv-00487-WMN (D. Md. July 20, 2010) (granting defendants’ motion to dismiss plaintiffs Assateague Costal Trust, Assateague Coastkeeper, and Kathy Phillips; denying defendants’ motion to dismiss on the grounds of the sufficiency of the notice as to the facts and laws violated; denying defendant Perdue’s motion to dismiss them as a defendant;  denying defendants’ motion to dismiss on the grounds that there was no continuing violation and whether the plaintiffs had sufficiently alleged a discharge from the Hudson Farm CAFO).
• Fowler v. EPA, No. 1:09-cv-00005-CKK (D.D.C. filed Jan. 5, 2009) (settlement agreement signed on May 10, 2010, requiring the EPA to perform specific actions by certain dates pursuant to Chesapeake Bay restoration).
  • Settlement Agreement (May 10, 2010) 
• Potomac Riverkeeper, Inc. v. EPA, 2006 U.S. Dist. LEXIS 14837 (D. Md. Mar. 31, 2006) (granting EPA’s motion to dismiss, or in the alternative, for summary judgment against a claim that EPA had the responsibility to establish a state’s TMDLs when that state was not developing the TMDLs adequately. EPA was under no statutory duty to consider the state’s pace of resolution).
   
• Sierra Club v. EPA, 162 F. Supp. 2d 406 (D. Md. 2001) (granting in part and denying in part both plaintiffs’ and defendant’s motion for summary judgment; finding that the EPA did not abuse its discretion when it allowed the State of Maryland to establish and implement its TMDLs).
• American Canoe Ass'n v. EPA, 54 F. Supp. 2d 621 (E.D. Va. 1999) (granting the motion to enter a consent decree between the plaintiff preservations organizations and defendant EPA concerning the schedules for the submission of TMDLs).
• Chesapeake Bay Found. v. Bethlehem Steel Corp., 608 F. Supp. 440 (D. Md. 1985) (granting plaintiffs partial summary judgment with respect to incidents where defendant did not comply with its NPDES permit within a five year period).

Pennsylvania Commonwealth Court:

• Borough of Bedford v. Commonwealth, 972 A.2d 53 (Pa. Commw. Ct. 2009). (denying Pennsylvania Department of Environmental Protection’s (DEP) request for summary relief because it was too early in the litigation to decipher whether DEP’s “Chesapeake Bay Tributary Strategy Implementation Plan for National Pollution Discharge Elimination System (NPDES) Permitting” was policy or regulation; granting petitioners’ motion to add new petitioners).

Legislative Activity

For an explanation to facilitate reading of legislative bills click here.

Proposed Federal Legislation (2011-2012 Session):

• House Bill 1: Full-Year Continuing Appropriations Act, 2011 (prohibiting the EPA from using the Act’s appropriating funds to enforce TMDL or WIP(s))
  • House Amendment No. 467 (amendment passed in the House prohibiting EPA from using funds appropriated by H.R. 1 from being used to develop, promulgate, evaluate, implement, provide oversight to, or backstop total maximum daily loads or watershed implementation plans for the Chesapeake Bay Watershed)
  • House Bill 1 Defeated in the U.S. Senate
• House Bill 1651: Save the Chesapeake Bay Homeowner Act of 2011 (establishing the Save the Chesapeake Home Program that designates certain property owners within its standards; providing TMDL credits to states for the property owners that receive designation under the program).
• House Bill 258, Senate Bill 760: The Chesapeake Bay Accountability and Recovery Act of 2011 (requiring the Office of Management and Budget to prepare and submit a crosscut budget and financial report for the Chesapeake Bay watershed restoration activities; requiring the EPA to develop an adaptive management plan for Bay restoration activities).
• For more information on proposed federal legislation, please reference Thomas (Library of Congress).

Unenacted Federal Legislative Proposals (2009-2010 Session):

• House Bill 5509: Chesapeake Bay Program Reauthorization and Improvement Act (focusing on providing incentives to farmers to implement pollution management practices). 
• House Bill 3852, Senate Bill 1816: Chesapeake Clean Water and Ecosystem Restoration Act of 2009 (amending the Federal Water Pollution Control (Clean Water Act) to create legally enforceable pollution limitations from point and non-point sources and would increase grants and funding to assist in regulation).
• House Bill 965, Senate Bill 479: Chesapeake Bay Gateways and Watertrails Network Continuing Authorization Act (addressing authorizations under the Chesapeake Bay Initiative Act of 1998). 
• House Bill 1053: Chesapeake Bay Accountability and Recovery Act of 2009 (requiring submission of financial reports and management plans to Congress detailing issues surrounding Chesapeake Bay restoration activities).   

Federal Legislative Hearings:

• U.S. House of Representatives
  • House Hearing on Phase II WIPs (Subcommittee on Conservation, Energy, and Forestry Hearing, Nov. 3, 2011)
  • Review of the Chesapeake Bay TMDL, Agricultural Conservation Practices, and Their Implications on National Watersheds (Subcommittee on Conservation, Energy and Forestry Hearing, Mar. 16, 2011)
  • Regulatory and Legislative Strategies in the Chesapeake Bay Watershed (Subcommittee on Conservation, Credit, Energy and Research Hearing, Dec. 9, 2009)
  • Reauthorization of the Chesapeake Bay Program (Subcommittee on Water Resources and Environment, Sept. 22, 2009)
• U.S. Senate
  • A Renewed Commitment to Protecting the Chesapeake Bay: Reauthorizing the Chesapeake Bay Program (Subcommittee on Water and Wildlife, Aug. 3, 2009)
  • Chesapeake Bay Restoration: Status Report and Recommendations (Subcommittee on Water and Wildlife Field Hearing, Apr. 20, 2009)

State Legislative Hearings:

• Pennsylvania
  • Development & Implementation of the Chesapeake Bay Watershed Total Maximum Daily Load (TMDL) (Joint Public Hearing with the Environmental Resources and Energy Committee, Mar. 17, 2010)

Government Agencies

Federal Resources:

• Environmental Protection Agency
  • Chesapeake Bay Compliance and Enforcement Strategy 
  • Final Chesapeake Bay TMDL
  • How Does it Work? Ensuring Results (Watershed Implementation Plan Resource Area)
• U.S. Department of Agriculture
  • Chesapeake Bay Conservation (Natural Resources Conservation Services)
• Chesapeake Bay Commission
• Chesapeake Bay Program: A Watershed Partnership

State Resources:

• Pennsylvania
  • Chesapeake Bay Program (Department of Environmental Protection)
• Delaware
  • Watershed Assessment Section (Department of Natural Resources and Environmental Control, Division of Water Resources)
• Maryland
  • Chesapeake Bay: Restoration and Protection (Department of Natural Resources)
  • Chesapeake Bay Restoration (Department of the Environment)
• New York
  • Chesapeake Bay Program (Department of Environmental Conservation)
• Virginia
  • Chesapeake Bay Program (Department of Environmental Quality)
• West Virginia
  • Chesapeake Bay Program (Department of Environmental Protection)
  • Chesapeake Bay Program (Partnership: see site for partners)
• District of Columbia
  • Chesapeake Bay Program (District Department of the Environment)

Publications 

Some of these articles may be available at a law library or accessible online for those with LexisNexis, Westlaw, or other electronic database accounts. Some hyperlinks may only be available for those users with access to HeinOnline.

Law Review Articles:

• Environmental Law, Caleb A Jaffe and Sean M. Carney, 5 U. Rich. L. Rev. 287 (2010). (see page 301-306)
• Preserving the Chesapeake: Law, Ecology and the Bay, Honorable Gerald L. Baliles, 41 U. Rich. L. Rev. 615 (2007).
• Symposium: Of Salmon, the Sound, and the Shifting Sands of Environmental Law – A National Perspective: Essay: Chumming on the Chesapeake Bay and Complexity Theory, Hope M. Babcock, 82 Wash. L. Rev. 505 (2007).
• Cleaning Maryland’s Waters One Day at a Time: The Clean Water Act’s Clear Mandate For Daily Pollutant Limitations Under the “Total Maximum Daily Load” Provision, Jayni A. Shah, 66 Md. L. Rev. 1352 (2007).
• Cleaning up the Chesapeake Bay: How to Make an Incentive Approach Work for Agriculture, Timothy D. Searchinger, 16 Southeastern Envtl. L.J. 171 (2007).
• Market by the Bay: A Market-Based Approach to Nutrient Pollution in the Chesapeake Bay, John T. Braun, 15 Penn St. Envtl. L. Rev. 131 (2006).
• An Evaluation of Nonpoint Source Pollution Regulation in the Chesapeake Bay, Sarah Brull, 13 U. Balt. J. Envtl. L. 221 (2006).
• The Chesapeake Bay Restoration Act of 2000: New Requirements for Federal Agencies, Michael T. Palmer, 28 Wm. & Mary Envtl. L. & Pol’y Rev. 375 (2004).
• The Chesapeake Bay Preservation Act: The Problem with State Land Regulation of Interstate Resources, Paul D. Barker, Jr., Note, 31 Wm & Mary L. Rev. 735 (1990).
• Reducing Bay Nutrients: An Economic Perspective, Alan J. Krupnick, 47 Md. L. Rev. 452 (1988).

Other Publications:

• An Updated Comparison of Load Estimates Cultivated Cropland in the Chesapeake Bay Watershed (LimnoTech, prepared for the Agricultural Nutrient Policy Council, 2011)(a report challenging the methods used by the EPA to create its TMDL limits on the affected states
• Corrections to ‘Comparison of Load Estimates for Cultivated Cropland in the Chesapeake Bay Watershed’ (LimnoTech, prepared for the Agricultural Nutrient Policy Council, 2011)(a report clarifying/amending LimnoTech’s previously published report)
• Review of LimnoTech Report, ‘Comparison of Load Estimates for Cultivated Cropland in the Chesapeake Bay Watershed:’ A Report of the Independent Review Conducted by the Chesapeake Bay Program’s Scientific and Technical Advisory Committee” (Chesapeake Bay Foundation, 2011)
• Q and A: STAC review of the ANPC/LimnoTech report (Chesapeake Bay Foundation, 2011)
• Summary Comments on the Agricultural Nutrient Policy Council (ANPC)/LimnoTech comparison of Chesapeake Bay Watershed Model (CBWM)/Scenario Builder and the USDA Conservation Effects Assessment Project (CEAP) load estimates for the Chesapeake Bay Foundation (Chesapeake Bay Foundation, Lawrence Band, 2011)  
• State of the Bay 2010 (Chesapeake Bay Foundation, 2010)
• Overview of the AFBF/PFB Lawsuit (Pennsylvania Farm Bureau, 2011)
   

Links

Pennsylvania Resources: 

• Agriculture and Environment Center (AEC) (Pennsylvania State University)
• Chesapeake Bay Education Office (Pennsylvania Association of Conservation Districts )
• Chesapeake Bay Watershed (Pennsylvania Farm Bureau)

Other Resources:

• Chesapeake Eco-Check (NOAA Chesapeake Bay Program and University of Maryland Center for Environmental Science)
• Clean Water Act Reading Room (National Agricultural Law Center)
• Bay Barometer (Chesapeake Bay Program: A Watershed Partnership)
• ChesapeakeSTAT (Chesapeake Executive Council)
• Chesapeake Bay Foundation 

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This resource area was made possible through support provided by the U.S. Department of Commerce, NOAA through The National Sea Grant Law Center at The University of Mississippi under the terms of Grant No. NA09OAR4170200. The opinions expressed herein are those of the author(s) and do not necessarily reflect the views of the U.S Department of Commerce, NOAA or The University of Mississippi.