# Federal Oversight and State Cooperation in the Chesapeake Bay

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR43090

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 29, 2013
- **Citation:** R43090

## Text

Federal Oversight and State Cooperation
in the Chesapeake Bay
Cynthia Brougher
Legislative Attorney
May 29, 2013

Congressional Research Service
7-....
www.crs.gov
R43090

CRS Report for Congress
Prepared for Members and Committees of Congress

Federal Oversight and State Cooperation in the Chesapeake Bay

Summary
As an increasing number of communities in the United States face significant flooding, droughts,
and degradation of water quality, interest in the management of interstate water basins has
heightened. Interstate water management requires a number of interests to be balanced, including
different priorities among states affected by the particular water basin, federal interests in federal
water projects, and private interest groups who may be affected by regulation of the basin.
Because of these competing interests, interstate water management often becomes controversial
and may lead to lengthy legal disputes among the parties, as has been the case in the Chesapeake
Bay watershed.
The federal government has broad authority over water resources within the United States under
the Commerce Clause of the U.S. Constitution. Under the Commerce Clause, the U.S. Supreme
Court has ruled that Congress has “superior power” to ensure the navigability of the nation’s
waterways. Although states generally have a legal right to the waters within their borders and
Congress traditionally has deferred to states on a number of water resources issues, the states’
rights to control waters within the state is subject to Congress’s authority under the Commerce
Clause. Because many water resources issues often affect water basins that span several
jurisdictions, states may seek to cooperate in the resolution of such issues through interstate water
compacts. The U.S. Constitution generally requires congressional consent for such an agreement,
which, when it is approved by the states and Congress, becomes binding law and provides for a
uniform system of regulation of the water basin among the states.
The Chesapeake Bay illustrates the complex issues involved in interstate water basins. To address
concerns regarding the impacts of pollution, the federal government, states, and private
organizations have sought to apply water quality protections provided under the federal Clean
Water Act (CWA). Additionally, a number of interested parties have entered voluntary agreements
committing them to particular goals and actions related to restoring the resources of the
Chesapeake Bay, though none of the agreements has been an interstate compact. The lack of
progress toward the goals set by the parties has resulted in a number of lawsuits and increased
federal attention and action with respect to setting pollution reduction requirements in the Bay.
This report explains the legal authority of the federal and state governments to manage water
resources. It also examines the role of interstate water compacts to address management issues in
interstate water basins. The report analyzes efforts made to resolve disputes in the Chesapeake
Bay to illustrate the concurrent roles that states and the federal government may play in managing
interstate water resources.

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Contents
Introduction...................................................................................................................................... 1
Legal Framework of Federal and State Authority over Regulation and Management
of Water Resources ....................................................................................................................... 1
Constitutional Authority of Federal Government to Regulate Waterways ................................ 1
States’ Role in Water Regulation ............................................................................................... 2
Interstate Agreements and Authority for Water Compacts ........................................................ 3
Intersection of Federal and State Water Management Efforts in the Chesapeake Bay .................... 4
Federal and State Roles Under the Clean Water Act ................................................................. 4
Chesapeake Bay Interstate Agreements ..................................................................................... 7
Federal Administrative Actions and Related Legal Challenges................................................. 8
Litigation Concerning the Sufficiency of State and Federal Action
in the Chesapeake............................................................................................................. 8
Executive Order 13508 and the Chesapeake Bay TMDL ................................................. 10
Recent Legal Challenge to Federal Establishment of the Chesapeake Bay TMDL .......... 11

Contacts
Author Contact Information........................................................................................................... 12

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Introduction
As an increasing number of communities in the United States face significant flooding, droughts,
and degradation of water quality, interest in the management of interstate water basins has
heightened. Interstate water management requires a number of interests to be balanced, including
different priorities among states affected by the particular water basin, federal interests in federal
water projects, and private interest groups who may be affected by regulation of the basin.
Because of these competing interests, interstate water management often becomes controversial
and may lead to lengthy legal disputes among the parties.
The Chesapeake Bay provides one example of an interstate water basin with a long history of
joint efforts to find long-term solutions to water resources problems affecting federal, state, and
private interests. This report explains the legal authority of the federal and state governments to
manage water resources. It also examines the role of interstate water compacts to address
management issues in interstate water basins. The report analyzes efforts made to resolve disputes
in the Chesapeake Bay to illustrate the concurrent roles that states and the federal government
may play in managing interstate water resources.

Legal Framework of Federal and State Authority
over Regulation and Management
of Water Resources
Historically, the federal government has claimed control over the nation’s waterways to facilitate
navigation. The states have claimed authority to control the water resources within their own
boundaries. Many waterbodies cross state boundaries, though, and one state’s management of part
of a water basin may affect the portion of the basin located in another state. To address these
competing interests, states may enter into interstate water compacts with the consent of Congress
that provide uniform rules for management of the basin.

Constitutional Authority of Federal Government
to Regulate Waterways
The Commerce Clause of the U.S. Constitution grants the federal government broad authority
over water resources within the United States, empowering Congress “to regulate Commerce ...
among the several States.”1 The U.S. Supreme Court has interpreted the Commerce Clause
broadly. Under the Commerce Clause, Congress may regulate (1) channels of interstate
commerce, for example, highways and rivers; (2) instrumentalities of interstate commerce; and
(3) activities that substantially affect interstate commerce.2

1
2

U.S. Const. art. I, §8.
See Gonzales v. Raich, 545 U.S. 1, 16-17 (2005).

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The U.S. Supreme Court historically has held that the federal authority over water derives from
the Commerce Clause and the significant federal interest in promoting navigation throughout the
nation’s waterways.3
Commerce includes navigation. The power to regulate commerce comprehends the control
for that purpose, and to the extent necessary, of all the navigable waters of the United States
which are accessible from a State other than those in which they lie. For this purpose they are
the public property of the nation, and subject to all requisite legislation by Congress. This
necessarily includes the power to keep them open and free from any obstruction to their
navigation, interposed by the States or otherwise; to remove such obstructions when they
exist; and to provide, by such sanctions as they may deem proper, against the occurrence of
the evil and for the punishment of offenders.4

The breadth of this authority has been recognized repeatedly. In 1899, the Court explained that
the states’ authority over water was subject to “the superior power of the General Government to
secure the uninterrupted navigability of all the navigable streams within the limits of the United
States.”5 According to the Court, states’ interests in controlling waters within their boundaries
could not restrict federal actions related to water.6 Even if the federal action would interfere “with
the state’s own program for water development and conservation ... [that program] must bow
before the ‘superior power’ of Congress.”7
The Supreme Court has held that the constitutional authority of the federal government “is as
broad as the needs of commerce.”8 It has explained that maintaining the navigability of
waterways is only one of the various purposes for which the government may claim authority
over water.9 In other words, congressional authority to regulate water resources may serve a
number of purposes other than navigation, such as flood control, hydropower, and watershed
development.10 Thus, although the federal government often defers to states’ authority regarding
allocation and water management, a state’s authority over its waters is “subject to the power of
Congress to control the waters for the purpose of commerce.”11

States’ Role in Water Regulation
The U.S. Supreme Court has long held that a state owns the navigable waters within its borders.12
In 1842, the Court explained that when the United States was formed, “the people of each state
became themselves sovereign; and in that character hold the absolute right to all their navigable
waters and the soils under them for their own common use, subject only to the rights since
3

See Gibbons v. Ogden, 22 U.S. 1, 197 (1824).
Gilman v. Philadelphia, 70 U.S. 713, 724-25 (1865).
5
United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690, 703 (1899).
6
Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508 (1941) (“Since the construction of this dam and reservoir is a valid
exercise by Congress of its commerce power, there is no interference with the sovereignty of the state.”).
7
Id. at 534-35.
8
United States v. Appalachian Electric Power Co., 311 U.S. 377, 426 (1940).
9
Id.
10
Id.
11
Id. at 423.
12
Martin v. Lessee of Waddell, 41 U.S. 367 (1842); Pollard v. Hagan, 44 U.S. 212 (1845). See also PPL Montana v.
Montana, 132 S.Ct. 1215 (2012).
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surrendered by the Constitution to the general government.”13 Under the constitutional equal
footing doctrine, states that later joined the union acquired the same rights granted to the original
states, and therefore also acquired ownership of their state’s navigable waters upon achieving
statehood.14
It is notable that, although the Court recognized state ownership of water within state boundaries,
it also indicated that the state’s interest in its waters could be limited by superseding rights
assigned under the Constitution to the federal government.15 In other words, the state may not
claim absolute authority to navigable waters if the federal government has constitutional authority
to act with respect to those waters.

Interstate Agreements and Authority for Water Compacts
The competing interests of the federal and state governments may result in disputes over the
management of water resources in interstate basins.16 These disputes may be addressed through
interstate water compacts, which allow states to cooperate in solving problems that cross state
lines. Several dozen interstate water compacts have been established over the past century, and
most states have engaged in the compacting process at some point.17 The U.S. Constitution
generally requires congressional consent for such an agreement between states, but does not
specify a particular procedure for states to enter compacts.18 Congressional consent is necessary
for a compact if it “may tend to increase and build up the political influence of the contracting
States, so as to encroach upon or impair the supremacy of the United States.... ”19 Usually,
consent by Congress takes the form of a joint resolution or act of Congress, which specifies its
approval of the text of the compact, adds any conditions or provisions it deems necessary, and
often embodies the compact document.20
Generally, to form an interstate compact, states need to negotiate and agree upon the terms of the
compact. Each state legislature and Congress then must enact the precise language of the
agreement. As an alternative to approving the exact language of the negotiated compact, Congress
may give its consent in the form of prior authorization in order to encourage agreements in a
specific area.21 So long as the states enter into a compact that fits into the preapproved purposes
13

Martin, 41 U.S. at 410.
Pollard, 44 U.S. at 228-29. See also U.S. Const. art. IV, §3, cl. 1.
15
Martin, 41 U.S. at 410.
16
Interstate water compacts generally offer states an opportunity to address competing interests, but may also raise
controversies between states regarding the extent to which a compact may supersede states’ rights over water within
their borders. See, e.g., Tarrant Regional Water District v. Herrmann, 656 F.3d 1222 (10th Cir. 2011), cert. granted, No.
11-889 (January 4, 2013). Tarrant raises a number of questions related to the interpretation of the Red River Compact
under a constitutional principle known as the Dormant Commerce Clause. Specifically, the Court has been asked to
consider whether states that are parties to the Red River Compact may discriminate against water users in other states
that also are parties to the compact. The Court has not issued its decision in the case.
17
See Jerome C. Muys et al., Utton Transboundary Resources Center Model Interstate Water Compact, 47 NAT.
RESOURCES J. 17 (2007).
18
U.S. CONST. art. I, §10, cl. 3.
19
Virginia v. Tennessee, 148 U.S. 503, 518 (1893).
20
See, e.g., Delaware River Basin Compact, P.L. 87-328, 75 Stat. 688 (1961).
21
Cuyler v. Adams, 449 U.S. 433, 441 (1981) (“Congress may consent to an interstate compact by authorizing joint
state action in advance or by giving express or implied approval to an agreement the States have already joined.”). See,
e.g., Crime Control Consent Act of 1934, 4 U.S.C. §112(a) (granting prospective approval of interstate agreements
(continued...)
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enacted by Congress, the compact would be valid. If any provisions were different from, or added
to, the preapproved ones, congressional approval may be required for the compact to take effect.
One Congress cannot bind a future Congress, and thus, the possibility exists that Congress might
amend any compact notwithstanding any prospective congressional approval.22 Furthermore, the
Supreme Court has held that Congress retains the power to override provisions of an interstate
compact through subsequent legislation.23

Intersection of Federal and State Water Management
Efforts in the Chesapeake Bay
The Chesapeake Bay watershed covers 64,000 square miles and includes parts of six states
(Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia), as well as the
District of Columbia (hereinafter referred to as the states or the watershed jurisdictions).24 It
provides an example of joint federal-state efforts to address water management across
jurisdictional lines. Under its constitutional authority discussed above, Congress enacted the
Federal Water Pollution Control Act, which is commonly referred to as the Clean Water Act
(CWA), to control pollution of the nation’s waterways.25 Efforts to address pollution in the
Chesapeake Bay illustrate the various roles that states and the federal government may play in
managing water resources.
In addition to Congress’s enacting the CWA to create a coordinated approach to pollution control
through federal statute, federal and state authorities have used other measures to manage the
Bay’s resources. The U.S. Environmental Protection Agency (EPA), the Chesapeake Bay states,
and private regional interests have entered a number of interstate agreements in efforts to address
the issues facing the watershed, as discussed below. Most recently, the Obama Administration
announced new restrictions on pollution that would apply across the Chesapeake Bay states.26
Each of these approaches—joint authority under federal statute, interstate agreements, and federal
administrative action—is addressed below.

Federal and State Roles Under the Clean Water Act
The CWA governs pollution of the nation’s waterways.27 In the CWA, Congress identified a
number of goals “to restore and maintain the chemical, physical, and biological integrity of the
(...continued)
among states “for cooperative effort and mutual assistance in the prevention of crime and in the enforcement of their
respective criminal laws and policies ...”).
22
Fletcher v. Peck, 10 U.S. 87, 135 (1810) (Chief Justice Marshall).
23
Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 433 (1855).
24
The Chesapeake Bay Watershed, Chesapeake Bay Program, available at http://www.chesapeakebay.net/discover/
baywatershed.
25
33 U.S.C. §§1251 et seq.
26
See Notice for the Establishment of the Total Maximum Daily Load (TMDL) for the Chesapeake Bay, U.S.
Environmental Protection Agency, 76 Fed. Reg. 549 (January 5, 2011).
27
See P.L. 92-500, 86 Stat. 816, codified at 33 U.S.C. §§1251 et seq. A comprehensive analysis of the CWA is beyond
the scope of this report. For more information, see CRS Report RL30030, Clean Water Act: A Summary of the Law.

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Nation’s waters,” including restricting the discharge of toxic pollutants and controlling various
sources of pollution.28 Congress also acknowledged the role of states in pollution control, stating
that “[it] is the policy of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the
development and use ... of land and water resources, and to consult with the Administrator in the
exercise of his authority” under the CWA.29 The result often is referred to as “cooperative
federalism,” an arrangement in which the federal government establishes goals and national
policy, and states are responsible for day-to-day implementation of the law.
To achieve the statute’s objectives, the CWA regulates pollution by prohibiting point-source
discharges into the waters of the United States except if made in compliance with the CWA.30
Two of the primary enforcement mechanisms that regulate discharges into waters of the United
States, including the territorial seas, are the use of permits under the National Pollutant Discharge
Elimination System (NPDES) and requiring permits for dredged or fill materials discharged.31
Each of these approaches includes explicit recognition of the roles of both the federal government
and the states in managing waterways subject to the statute.32
The CWA requires states to set water quality standards for waterways within its borders, which
are then subject to federal approval.33 Water quality standards consist of the designated use of a
waterbody (e.g., recreation or water supply), water quality criteria necessary to protect the
designated use, and a nondegradation statement to conserve and protect existing uses.34 The
statute also requires EPA to establish effluent limitations for point sources that identify industryspecific national standards that limit the discharge of pollutants.35 In order to discharge pollutants
in compliance with the CWA, point sources must obtain a permit under the NPDES program,
which requires that the discharge will comport with relevant effluent limitations and other CWA
requirements.36 Permits are issued either by EPA or by qualified states, which may administer
their own program for discharge permits in place of the national program.37 If a state establishes
its own program, it must demonstrate to EPA that it has adequate legal authority to do so.38
Following federal approval of analogous state-administered programs, the federal permitting
process is suspended for that state, though EPA retains authority to require modifications of the
state program or withdraw its approval and authority to review permits that a state proposes to
issue.39 Forty-six states have been delegated this authority.40
28

33 U.S.C. §1251(a).
33 U.S.C. §1251(b). The CWA also explicitly notes that “the authority of each State to allocate quantities of water
within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this Act.... ” See id. at §1251(g).
30
See 33 U.S.C. §1311(a).
31
See 33 U.S.C. §§1342, 1344.
32
See id.
33
33 U.S.C. §1313(a)(1).
34
See id. at §1313(c); 40 C.F.R. §131.6.
35
See id. at §1311(b). See also Industry Effluent Guidelines, Environmental Protection Agency, available at
http://water.epa.gov/scitech/wastetech/guide/questions_index.cfm.
36
33 U.S.C. §1342(a).
37
See id. at §1342(b).
38
Id.
39
Id. at §1342(c).
40
See State Program Status, National Pollutant Discharge Elimination System, U.S. Environmental Protection Agency,
available at http://cfpub.epa.gov/npdes/statestats.cfm.
29

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In some cases, permit limitations may not be sufficient to meet the applicable water quality
standards. Under the CWA, states are required to identify waters for which water quality
standards are not being attained and rank those waters based on the severity of the pollution and
the uses of the waters.41 The state then must “establish ... in accordance with the priority ranking,
the total maximum daily load, for those pollutants [identified by EPA] as suitable for such
calculation.”42 The total maximum daily load (TMDL) identifies the maximum amount of
pollutant discharges that may be released into the waters while achieving the state-established
water quality standards.43 States are required periodically to submit their assessment of waters
that do not meet the water quality standards, that is, are impaired, and the corresponding TMDLs
for federal review.44 Nationwide, more than 20,000 waterways are known to be violating water
quality standards and to require a TMDL.45 If EPA disapproves of a state’s assessment of its
waters or establishment of its TMDLs, those responsibilities transfer to the federal government,
and EPA must identify the waters that do not meet water quality standards and establish
corresponding TMDLs.46 The state then must implement the TMDLs.47
As noted above, the CWA also regulates discharges of dredged or fill materials into navigable
waters, requiring a federal permit for most discharges.48 Although a wide range of dredge-or-fill
discharges are restricted under the CWA, some discharges do not require a permit, for example,
materials discharged because of “normal farming, silviculture, and ranching activities.”49 Like the
NPDES permit process, qualified states may administer their own permit programs for discharges
in some cases.50 To do so, the state must submit a description of its proposed program and the
legal authority under which it would be administered, that is, state law or interstate compact.51 If
EPA determines that the state has the necessary authority to administer a permit program
sufficiently, the federal permit program will be suspended with respect to activities governed by
the state’s program.52 However, EPA is authorized to withdraw its approval for any state program
that is not administered consistently with the CWA.53 Two states have been delegated this
authority.54
Among the other administrative roles available to states under the CWA is authority for states to
certify whether discharges comply with the act. Under the CWA, applicants for permits for
activities “which may result in any discharge into the navigable waters, shall provide ... a
41

Id. at §1313(d)(1)(A).
Id. at §1313(d)(1)(C).
43
See CRS Report R42752, Clean Water Act and Pollutant Total Maximum Daily Loads (TMDLs).
44
33 U.S.C. §1313(d)(2).
45
See Overview of Current Total Maximum Daily Load—TMDL—Program and Regulations, U.S. Environmental
Protection Agency, available at http://www.epa.gov/region1/eco/tmdl/pdfs/NationalTMDLFactSheet.pdf.
46
33 U.S.C. §1313(d)(2).
47
Id.
48
See generally 33 U.S.C. §1344. This permit program is administered by the U.S. Army Corps of Engineers, in
consultation with EPA.
49
Id. at §1344(f).
50
See id. at §1344(g).
51
Id.
52
Id. at §1344(h)(2)(A).
53
Id. at §1344(i).
54
See State or Tribal Assumption of the Section 404 Permit Program, U.S. Environmental Protection Agency,
available at http://water.epa.gov/type/wetlands/outreach/fact23.cfm.
42

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certification from the State in which the discharge originates or will originate ... that any such
discharge will comply with the applicable provisions [of the CWA].”55 Under this provision,
states may play a significant role in the federal permitting or licensing process for discharges in
navigable waters.56

Chesapeake Bay Interstate Agreements
Although the Chesapeake Bay states and federal government have cooperated in joint efforts to
address water resources problems over the past several decades, a formal interstate compact has
never been adopted for the Bay.57 Instead, the federal and state parties have entered a number of
voluntary agreements in which they have identified issues of concern, set goals for watershed
restoration, and established deadlines for achieving progress toward those goals.
Interstate cooperation in the Chesapeake Bay began with the creation of the Chesapeake Bay
Commission, a tri-state legislative body that includes representatives from Maryland,
Pennsylvania, and Virginia, in the early 1980s. The Commission coordinates policy issues
affecting the Bay states “to develop shared solutions.”58 In 1983, a number of jurisdictions with
interests in the Bay signed the first Chesapeake Bay Agreement, which recognized the “historical
decline” of the Bay and the need for “a cooperative approach” going forward.59 Under that
general agreement, EPA, the District of Columbia, Maryland, Pennsylvania, Virginia, and the
Chesapeake Bay Commission agreed to establish an interstate council with federal and state
representatives. The council would “meet at least twice yearly to assess and oversee the
implementation of coordinated plans to improve and protect ... the Chesapeake Bay estuarine
systems.”60
The same parties agreed to a second Chesapeake Bay Agreement in 1987, which addressed
concerns affecting the Bay in more detail.61 The 1987 Agreement identified a number of broad
goals and set specific objectives related to each goal. It also set a timeline for achieving results
toward the goals and objectives. For instance, the 1987 Agreement committed the parties “to
develop, adopt and begin implementation of a basin-wide strategy to equitably achieve by the
year 2000 at least a 40 percent reduction of nitrogen and phosphorus entering the main stem of

55
Id. at §1341(a)(1). For more information on this requirement, see CRS Report 97-488, Clean Water Act Section 401:
Background and Issues.
56
See also S.D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U.S. 370 (2006).
57
Because of continued concern that the Bay’s water resources problems were not improving sufficiently, some have
called for the use of an interstate compact. See, e.g., Matthew L. Paeffgen, A Ringmaster for the Circus: Using
Interstate Compacts to Create a Comprehensive Program to Restore the Chesapeake Bay, Environmental Law
Institute, 37 ELR 10888 (December 2007); “Chesapeake Bay Foundation Seeks Binding Compact from Governors,”
Greenwire (September 5, 2003). Some of the Chesapeake Bay jurisdictions have entered other interstate water
resources compacts, but none that address the Bay directly. See, e.g., Susquehanna River Basin Compact, P.L. 91-575
(signed by Maryland, New York, and Pennsylvania).
58
Chesapeake Bay Commission, available at http://www.chesbay.us/.
59
The Chesapeake Bay Agreement of 1983 (December 9, 1983), available at http://www.chesapeakebay.net/content/
publications/cbp_12512.pdf.
60
Id.
61
The 1987 Chesapeake Bay Agreement (December 15, 1987), available at http://www.chesapeakebay.net/content/
publications/cbp_12510.pdf.

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the Chesapeake Bay” within six months of its adoption.62 The 1987 Agreement also reaffirmed
the role of the interstate council to coordinate management efforts and oversee accountability.63
In 2000, the parties signed an agreement known as Chesapeake 2000, which recognized the
cooperative efforts undertaken over the previous two decades and reaffirmed the partnership and
joint responsibility for addressing the Bay’s resources.64 Delaware, New York, and West
Virginia—the “headwater states” of the Bay—also joined the parties in committing to the goals.65
Like the previous agreements, Chesapeake 2000 identified a variety of goals for the various
resources in the Bay and a number of specific actions and deadlines to meet those goals through
2010. Chesapeake 2000 acknowledged that despite efforts to reduce pollution, portions of the Bay
had been listed as impaired under the CWA because applicable water quality standards have not
been attained. The parties agreed to implement a process that would integrate the Bay programs
and improve water quality before further regulatory actions, that is, a TMDL, would be required
by the CWA.66

Federal Administrative Actions and Related Legal Challenges
Despite several decades of activity by federal and state governments, the private sector, and the
general public, efforts to improve the Chesapeake Bay watershed have been insufficient to meet
agreed-upon restoration goals. Litigation over the past decade has demonstrated the continued
difficulties in achieving progress toward those goals and eventually led to a legal agreement
under which the federal government assumed a more active role in addressing issues in the
Chesapeake Bay. However, as discussed below, the federal role in the Chesapeake TMDL has
raised new legal challenges.

Litigation Concerning the Sufficiency of State and Federal Action
in the Chesapeake
Although the federal government shares legal authority over water management with the states
under constitutional and statutory law, the role that the federal government has taken in the
Chesapeake Bay has been challenged in a number of cases. Among the issues that have been the
subject of litigation are the extent of federal authority related to state actions under the CWA and
the sufficiency of federal review of state actions.
In one case challenging the federal government’s oversight of state actions under the CWA, a
federal district court ruled that federal authority under the CWA did not extend to evaluating the

62
Id. at 3. The parties revisited and reaffirmed these goals in the 1992 Amendments to the Chesapeake Bay Agreement
as well. See 1992 Amendments to the Chesapeake Bay Agreement (August 12, 1992), available at
http://www.chesapeakebay.net/content/publications/cbp_12507.pdf.
63
Id. at 6.
64
Chesapeake 2000 (June 28, 2000), available at http://www.chesapeakebay.net/documents/cbp_12081.pdf.
65
Memorandum of Understanding Among the State of Delaware, the District of Columbia, the State of Maryland, the
State of New York, the Commonwealth of Pennsylvania, the Commonwealth of Virginia, the State of West Virginia,
and the United States Environmental Protection Agency Regarding Cooperative Efforts for the Protection of the
Chesapeake Bay and Its Rivers, available at http://www.chesapeakebay.net/content/publications/cbp_12085.pdf.
66
Chesapeake 2000 at 5.

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state’s timing in developing TMDLs.67 A number of environmental organizations alleged that
Maryland’s Department of the Environment failed to develop TMDLs for the state’s impaired
waterways under the CWA. The organizations sought a court order requiring EPA to assume
responsibility for developing the state’s TMDLs because Maryland was “developing TMDLs at a
pace and in an order that are unacceptable and inadequate.”68 The court rejected their request,
noting that the CWA did not set specific requirements related to the complaint.
Nothing in [the statute] specifically references any type of pacing, scheduling, or timing
related to TMDL completion by the state. Therefore, these factors are not outlined as ones
that must be considered by EPA prior to approving a § 303(d) list, a specific TMDL, a water
quality analysis, or a de-listing. While [the statute] requires waters to be ranked according to
priority for treatment—a requirement that the parties do not dispute was fulfilled—the
provision does not outline any specific time requirements for completing prioritized items.69

According to the court, instead of setting mandated deadlines, the CWA’s requirement that states
list waters for TMDL development within two years “is a form of goal setting” and does not
require EPA to determine whether the TMDL actually will be completed within that time.70
In another case challenging the sufficiency of federal actions in the Chesapeake Bay, nonprofit
organizations sued EPA, alleging that federal approval of a TMDL for the Anacostia River
submitted by Maryland and the District of Columbia did not comport with statutory
requirements.71 Under the CWA and its implementing regulations, state-developed water quality
standards for interstate waterways within the state must consider the designated use of those
waterways.72 In this case, the District of Columbia and Maryland designated the Anacostia River
for recreation, aesthetic enjoyment, and protection of aquatic life, and established water quality
criteria for each use.73 However, the court held that by focusing only on plant and animal life and
not addressing other designated uses, the Anacostia River TMDL did not comply with the CWA
requirement that the TMDL reflect the applicable water quality standard.74 Although the court
recognized the lengthy history of delays in implementing the TMDL, it held that the government
must address each of the statutory requirements, including considering each of the designated
uses, in order to comport with its obligations under the CWA.75
After years of dissatisfaction with the Chesapeake Bay’s progress under the federal-interstate
agreements, a number of state officials, regional associations, and the Chesapeake Bay
Foundation filed a lawsuit in 2009 to compel EPA to comply with its CWA obligations and the
Chesapeake 2000 agreement and establish and implement programs to address water quality in
the Chesapeake Bay.76 In response to that lawsuit, the parties reached a settlement agreement that
67

Potomac Riverkeeper v. EPA, 2006 U.S. Dist. LEXIS 14837 (D.Md. 2006).
Id. at 4.
69
Id. at 31-32 (emphasis in original). The court also noted that EPA regulations similarly include no requirement for
specific timeframes for completion. Id. at 32.
70
Id. at 33.
71
Anacostia Riverkeeper v. Jackson, 798 F.Supp.2d 210 (D.D.C. 2011).
72
See 33 U.S.C. §1313; 40 C.F.R. §131.11(a).
73
See Anacostia Riverkeeper, 798 F.Supp.2d at 224.
74
Id. at 222-25.
75
Id. at 253.
76
See Complaint, Fowler v. EPA, No. 1:09-cv-00005-CKK (D.D.C. filed January 5, 2009).
68

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committed EPA to establish the Bay TMDL by December 31, 2010, using information provided
by the Chesapeake Bay watershed jurisdictions.77 Under the agreement, the states were expected
to provide implementation plans for EPA’s review on a biennial basis.78

Executive Order 13508 and the Chesapeake Bay TMDL
In 2009, after state officials and regional associations sued the federal government to compel
federal action, President Obama issued Executive Order 13508 (E.O. 13508), Chesapeake Bay
Protection and Restoration, which directed certain federal agencies to lead a collaborative effort
to restore the Chesapeake Bay.79 E.O. 13508 directed federal agencies to
consult extensively with the States of Virginia, Maryland, Pennsylvania, West Virginia, New
York, and Delaware and the District of Columbia ... to ensure that Federal actions to protect
and restore the Chesapeake Bay are closely coordinated with actions by State and local
agencies in the watershed and that the resources, authorities, and expertise of Federal, State,
and local agencies are used as efficiently as possible for the benefit of the Chesapeake Bay’s
water quality and ecosystem and habitat health and viability.80

E.O. 13508 also directs EPA, in consultation with its state counterparts, to identify its existing
authorities for restoration of the Chesapeake Bay, including the CWA, that would facilitate
achieving Chesapeake restoration goals.81
A central component of actions to implement E.O. 13508 is adoption of a Chesapeake Bay
TMDL. As discussed earlier, under the CWA, states are charged with establishing TMDLs when
necessary, but the states’ TMDL actions are subject to federal review. However, in the case of the
Chesapeake Bay, EPA established a multi-state TMDL pursuant to a 2007 agreement among
representatives from federal agencies, each of the watershed jurisdictions, and regional
organizations.82 When releasing the TMDL, EPA explained, however, that each of the
jurisdictions in the Chesapeake Bay watershed had been engaged in joint planning efforts for the
TMDL.83
EPA established the Chesapeake Bay TMDL in 2010, which “identifies the necessary pollution
reductions from major sources of nitrogen, phosphorus and sediment across Delaware, Maryland,
New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia and sets pollution
limits necessary to meet applicable water quality standards in the Bay and its tidal rivers.... ”84
77

Settlement Agreement, Fowler v. EPA, No. 1:09-cv-00005-CKK (D.D.C. signed May 10, 2010), available at
http://www.cbf.org/Document.Doc?id=512.
78
Id. at 14-15.
79
Exec. Order No. 13508, Chesapeake Bay Protection and Restoration (May 12, 2009), available at
http://www.gpo.gov/fdsys/pkg/DCPD-200900352/pdf/DCPD-200900352.pdf. Under E.O. 13508, EPA is the lead
agency among a number of other federal agencies, including the Department of Agriculture, Department of Commerce,
Department of Defense, Department of Homeland Security, Department of the Interior, and Department of
Transportation. Id. at §201.
80
Id. at §204.
81
Id. at §301.
82
Chesapeake Bay TMDL at ES-3, U.S. Environmental Protection Agency, available at http://www.epa.gov/reg3wapd/
tmdl/ChesapeakeBay/tmdlexec.html.
83
Id.
84
Chesapeake Bay TMDL at ES-1.

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The TMDL goal is to have implementation plans in place by 2025, with more than half of the
planned actions in place by 2017.85 The Chesapeake Bay TMDL is a compilation of smaller
TMDLs for 92 individual segments of the Chesapeake Bay and its tributaries.86 Under the TMDL,
EPA requires a 25% reduction in nitrogen, a 24% reduction in phosphorus, and a 20% reduction
in sediment in the Chesapeake Bay Watershed.87 The reductions are divided among the
jurisdictions and major river basins within the watershed.88 EPA has stated that “beginning in
2012, jurisdictions (including the federal government) are expected to follow two-year milestones
to track progress toward reaching TMDL goals.”89 EPA will review such progress, and, if it
determines a jurisdiction’s actions have been insufficient, EPA has indicated it will use its
authority to “take appropriate contingency actions to ensure pollution reductions.”90 Such actions
could include increased federal oversight of state programs, requiring additional reductions,
increasing federal enforcement measures, redirecting federal grants, or revising water quality
standards.91

Recent Legal Challenge to Federal Establishment
of the Chesapeake Bay TMDL
Further legal challenges have followed EPA’s issuance of the TMDL in December 2010. Instead
of challenging the insufficiency of the federal government’s actions under its CWA obligations,
one lawsuit has asserted that the federal government exceeded its authority under the CWA. In
American Farm Bureau Federation v. EPA, agricultural organizations have claimed that the
requirements established in the Chesapeake Bay TMDL infringe on state authority under the
CWA.92 In late 2012, a federal district court considered arguments from agricultural organizations
that challenged the specific requirements set by EPA in the Chesapeake Bay TMDL, but the court
has not issued a decision in the case yet.93 Agricultural organizations have alleged that “EPA used
an unprecedented process to micromanage waterways from Virginia to New York through the
assignment of highly specific pollutant loads” and “unlawfully circumvented the Clean Water Act
procedures that give primary authority to the states to protect water quality.”94 The organizations
argued that the TMDL is meant to be “informational” only—to identify maximum pollutant
amounts permissible to meet water quality standards—but is not meant to assign specific
limitations to particular parties.95

85

Id.
Id.
87
Id.
88
Id. For a breakdown of the allocations, see Chesapeake Bay TMDL, Table ES-1, Chesapeake Bay TMDL watershed
nitrogen, phosphorus and sediment final allocations by jurisdiction and by major river basin, at ES-7.
89
Chesapeake Bay TMDL at ES-8.
90
Id.
91
Id.
92
See Complaint, American Farm Bureau Federation v. EPA, No. 1:11-cv-00067-SHR (M.D. Pa. filed January 10,
2011).
93
Id.
94
Id. at 2.
95
Id.
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In other words, the case challenges whether the federal government has any authority over the
implementation of TMDLs, or if that authority solely belongs to the states.96 Although the case is
still pending, it may be of interest that other courts have noted that “TMDLs are not selfimplementing instruments, but instead serve as informational tools utilized by EPA and the States
to coordinate necessary responses to excessive pollution in order to meet applicable water quality
standards.”97 The court’s decision in the American Farm Bureau Federation case may have a
significant impact on future efforts to regulate discharges in the Chesapeake Bay, particularly if
the court finds that EPA exceeded its authority. If the court reaches such a conclusion, efforts to
address pollution in the Chesapeake Bay appear to be confined to the same processes used over
the past several decades, which have not yielded significant progress. However, even if the court
finds the federal government exceeded its current authority, a prominent federal role may not be
impossible, as Congress may consider whether to amend EPA’s existing authority under the CWA
or enact new legislation to address the Chesapeake Bay specifically.

Author Contact Information
Cynthia Brougher
Legislative Attorney
[redacted]@crs.loc.gov, 7-....

96

Id. at 12-13.
Anacostia Riverkeeper v. Jackson, 798 F.Supp.2d 210, 216 (D.D.C. 2011) (citing Pronsolino v. Nastri, 291 F.3d
1123, 1129 (9th Cir. 2002).
97

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR43090. Public record. Not legal advice.