Court Decision Supports Maryland’s Removal of Pollution Protections

Several Local Impaired Waterways Reclassified Without Any Scientific Support

In 2016, Waterkeepers Chesapeake and several Riverkeepers filed a lawsuit against the Environmental Protection Agency (EPA) because it approved the Maryland Department of the Environment’s (MDE) plan to strip away pollution protections from several streams and rivers without any scientific reasoning and in violation of the Clean Water Act.

On Monday, December 3, 2019, we finally received a decision on our case – and unfortunately the U.S. District Court for D.C. sided with the EPA and MDE saying it was OK that MDE reclassified some impaired Bay tributaries based on pollution standards for the entire Chesapeake Bay – again without any scientific basis to support this reclassification.

“The judicial deference to EPA was pushed way past the breaking point here. The court accepted EPA’s conclusory determinations about how the Chesapeake Bay TMDL would improve water quality in these delisted waterways without taking a hard look at the science that supports the need for local cleanup plans to restore local waterways” said Phillip Musegaas, V.P. of Litigation and Programs for Potomac Riverkeeper Network.

Our lawsuit did not challenge the sufficiency of the Chesapeake Bay TMDL, but rather we challenged the applicability of it to tidal tributaries to the Bay without adequate justification. We are concerned that this ruling will set a bad precedent. A plaintiff’s ability to challenge EPA’s approval of state action on an impaired waters list (303d list) could be severely restricted if this ruling stands.

“The ironic part about this opinion is that the Court is ‘extremely deferential to the EPA’s evaluation of scientific data within its technical expertise’ – but where’s the scientific data? Where’s the technical expertise?,” asks Katlyn Schmitt, Staff Attorney for Waterkeepers Chesapeake. “There is no hard data to back up the determination. Or even any sort of rational explanation.”

Background

Under the Clean Water Act, each state identifies the waters within its borders that are too polluted to be considered fishable, swimmable and/or drinkable. These streams, rivers, lakes, bays, etc. are then federally listed as a 303(d) water body and considered “impaired” and states are then required to both monitor and reduce the pollution in these impaired waters. Total Maximum Daily Loads (TMDLs) are the established acceptable pollution levels set for each impaired body of water.

The Chesapeake Bay has long been considered an impaired body of water. What you might not know is that several freshwater tributaries that feed into the Chesapeake Bay have likewise been listed under the federal Environmental Protection Agency’s 303(d) program.

In 2012, the Maryland Department of the Environment (MDE) removed some tributaries of the Chesapeake Bay from its 303(d) list. As a result, the state is no longer monitoring these water bodies under the Clean Water Act, nor required to meet federal standards to reduce pollution in them. This withdrawal of protections puts local communities at significant risk.