Municipalities Challenge PADEP's Chesapeake Bay Nutrient Strategy

May 16, 2008
by MARC GOLD
Client Alert Newsletter May 2008

More than 60 municipalities and municipal authorities have challenged the nutrient strategy developed by the Pennsylvania Department of Environmental Protection ("PADEP") to comply with the Commonwealth's obligations to meet surface water quality standards in the Chesapeake Bay Watershed. The essence of the plaintiffs' complaint is the alleged inequity of the nutrient load allocations developed by PADEP as it sought to assign legally binding nutrient reduction requirements to point sources (those dischargers subject to National Pollutant Discharge Elimination System ["NPDES"] permits) and non-point sources (farms and other properties that contribute nutrient loadings). Claiming that it has no mechanism to avoid imposing nutrient reduction requirements, in part because of the water quality standards developed in Maryland, PADEP made its allocation decisions after a detailed evaluation of the costs of compliance, taking into account the availability of emerging grant and tax abatement programs and the potential for effluent trading. (PADEP's effluent trading program is intended to provide additional cost-effective flexibility to enable point-source dischargers to meet nutrient load reduction obligations.)

In addition to seeking relief directly related to the specific load allocations themselves, which the court is unlikely to grant, the thrust of the lawsuit is plaintiffs' claim that PADEP should have instituted the program through rule-making rather than through an administrative policy not subject to the full panoply of procedural safeguards required by the regulatory process. Whether or not plaintiffs prevail, there is little hope that more restrictive nutrient standards will be avoided altogether. Nevertheless, this is a potentially significant lawsuit because of the administrative law implications.