IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Food & Water Watch, :

Petitioner :

:

v. : No. 565 C.D. 2020

: Department of Environmental : Protection, :

Respondent :

Commonwealth of Pennsylvania, : Department of Environmental : Protection, :

Petitioner :

:

v. : No. 621 C.D. 2020

: Food & Water Watch, :

Respondent :

Keystone Protein Company, :

Petitioner :

:

v. : No. 627 C.D. 2020

: Food & Water Watch, :

Respondent : ARGUED: March 15, 2021

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER FILED: April 12, 2021

In these consolidated appeals, Food and Water Watch (FWW) petitions for

review of the May 21, 2020 Adjudication of the Environmental Hearing Board (Board)

,
which dismissed FWW’s appeal from the Commonwealth of Pennsylvania,2

Department of Environmental Protection’s (DEP) issuance of a n ational p ollutant

d ischarge e limination s ystem permit (Permit) to Keystone Protein Company

(Keystone)

. Both DEP and Keystone have filed Cross Petitions for Review from the

Board’s Adjudication, in which they challenge only the Board’s determination that

FWW ha d standing to appeal DEP’s issuance of the Permit

. For the reasons that follow,

we affirm the Board’s Adjudication.

Background

FWW is a national nonprofit organization that advocates for clea n water and

public control of water resources, including oceans, rivers, and groundwater , on behalf

of its members

. Keystone operate s a poultry processing and rendering plant in Bethel

Township, Lebanon County.

DEP is the state agency with the authority to administer and enforce the

provisions of T he Clean Streams Law, Act of June 22, 1 937, P.L. 1987, as amended

,
35 P.S. §§ 691.1

- 691.1001

. DEP is also responsib le for implementing and

administering the National Pollutant Discharge Elimination System (NPDES) program
in Pennsylvania pursuant to Section 402 (b) of the Clean Water Act, 33 U.S.C. §

1342 (b)

. 1

1 Section 402(b) of the Clean Water Act provides, in pertinent part:

[T] he Governor of each State desiring to administer its own [NPDES] permit program for discharges into navigable waters within its jurisdiction may submit to the
Administrator [of the United States Environmental Protection Agency (EPA)] a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact. In addition, such State shall submit a statement from the attorney general (or the attorney for those State water pollution control agencies which have independent legal counsel), or from the chief legal off icer in the case of an interstate agency, that the laws of such State, or the interstate compact, as the case may be, provide adequate authority to carry out the described [NPDES]

program.3

Portions of Pennsylvania are located within the Chesapeake Bay W atershed,

including the Susquehanna River B asin. Each basin within the Chesapeake Bay

jurisdictions was assigned a specific allocation of nitrogen, phosphorus, and sediment.

In 2010

, DEP adopted a n utrient c redit t rading program to assist Pennsylvania in

meeting the Chesapeake Bay t otal m aximum d aily l oad (TMDL ) for pollutants

. TMDL

is the maximum amount of a pollutant that a specific body of water can receive from

all sources and s till attain its designated water quality criteria. 2 DEP’s regulations

provide, in pertinent part :

(b) Chesapeake Bay water quality

.

(1) Credits and offsets [ 3 ] may be used to meet legal requirements for restoration, protection and maintenance of the water quality of the Chesapeake Bay.

(2) Credits may be generated only from a pollutant reduction activity that has been certified, verified and registered under th is
section.

(3) Credits and offsets may be used by permittees to meet effluent limits for nitrogen, phosphorus and sediment expressed as annual loads in pounds contained in NPDES permits that are based on compliance with water quality standards establishe d under the

33 U.S.C. § 1342 (b).

2 TMDL is a mechanism for reducing pollution in waterways that do not meet water quality
standards. Reproduced Record ( R

. R. ) at 465a. As the Board explained, “when a body of water is impaired for one or more pollutants, a . . . TMDL must be developed.” Id.

3 The regulations define a “credit” as “ [t]he tradable unit of compliance that corresponds with a unit of reduction of a pollutant as recognized by [DEP] which, when certified, verified and registered, may be used to comply with NPDES permit effluent limitations. ” 25 Pa. Code § 96.8(a).
An “off set” is defined as “[t] he pollutant load reduction measured in pounds that is created by an action, activity or technology which [,] when approved by [DEP,] may be used to comply with NPDES permit effluent limitations, conditions and stipulations . . . .” Id.4

[f] ederal Water Pollution Control Act (33 U.S.C. [] §§ 1251

- 1387), specifically for restoration, protection and maintenance of the water quality of the Chesapeake Bay.

(4) Credits and offsets may only be used for comparable pollutants,
unless o therwise authorized by [DEP]

. For example, nitrogen credits or offsets may only be used to meet nitrogen effluent limits.

(5) The use of credits and offsets must comply with legal requirements under applicable laws and regulations, including the requirem ents of this section.

(6) Credits and offsets may not be used to comply with technology

based effluent limits, except as expressly authorized under [f] ederal regulations administered by the EPA.

25 Pa. Code § 96.8(b). Nutrient credit trading may not be used to meet either local

TMDLs for individual waters of the Commonwealth or local water quality standards

in an individual NPDES permit. 25 Pa. Code § 96.8 (h) (2)

, (i).

DEP issued the Permit to Keystone on September 27, 2018

. 4 The Permit

expressly authorize d Keystone

to discharge [treated wastewater] from a facility known as Keystone Protein Fredericksburg, located in Bethel Township, Lebanon County, to Elizabeth Run, unnamed tributary to Beach Run and Little Swatara Creek

. . . in accord ance with effluent limitations, monitoring requirements and other conditions set forth in [the provisions of th e Permit].

R.R. at 94a. Little Swatara Creek is a tributary to Swatara Creek, which flows into the

Susquehanna River and eventually ends in the Chesapeake Bay. The treated

4 DEP issued an initial NPDES permit to Keystone on October 26, 2017

, and an amended NPDES permit on September 27, 2018. FWW appealed both the initia l permit and the amended permit to the Board, which consolidated the appeals for disposition . Consequently, we refer to Keystone’s initial and amended NPDES permits together herein as “Permit.”5

wastewater from Keystone’s poultry processing facility is expected to contain both

n itrogen and phosphorus. 5

T he P ermit contains provisions expressly authorizing Keystone to engage in

nutrient credit trading to meet the “cap loads” for net total nitrogen and net total

phosphorus under DEP’s regulations

. R.R. at 119a. The Permit also contains

independent mass and concentration effluent limits for total nitrogen and total

phosphorus for the discharge point to Little Swatara Creek and outlines the specific

process that Keystone must follow to trade nutrient credits. Id.

On November 7, 2018, FWW appeal ed the Permit to the Board

. Ther e after, both

DEP and Keystone filed Motion s for Summary Judgment

. In its Motion for Summary

Judgment, Keystone challeng ed, among other things, FWW’s standing to appeal DEP’s

issuance of the Permit. The Board denied both Motion s for Summary Judgment on
August 9, 2019 , concluding, based on the exis ting record, that FWW had standing to

appeal the issuance of the Permit

. R.R. at 421a

. The Board concluded:

[FWW’s members] are concerned that excessive nutrient discharges into Little Swatara Creek will give rise to (1) health risks from recreating in polluted water, (2) damages to the Swatara Creek ecosystem, its aquatic life, and wildlife, and

, consequently, (3) dimin i shed enjoyment and
curtailment of their recreational and aesthetic activ i ties. The Board has

5 In its August 9, 20 19 Opinion denying DEP’s and Keystone’s Motions for Summary Judgment, the Board explained:

The wastewater [from Keystone’s facility] may contain, among other parameters, nitrogen and phosphorus. Nitrogen and phosphorus are subject to mass and concentration limits spelled out [in] the [P]ermit. Nitrogen and phosphorus are nutrients. Too much nitrogen and phosphorus in the water can cause algae to grow faster than ecosystems can handle. The [P]ermit limits for nitrogen and phosphorus . . . are designed to require Keystone to employ the proper technology to treat its waste, as well as to protect the uses of Little Swatara Creek.

R.R. at 422a.6

long held that when a ch a llenged activity has the legitimately perceived potential to affect o n e’s health or damage an environmental resource, such that it diminishes enjoyment of that resource, the activity is averse to an individual’s use of an area.

Because [FWW’s] members have arti culated specific reasons for their concerns, their concerns are more than purely speculative under Board precedent.

Id. at 432a

- 33a.

In lieu of a hearing on the merits, o n December 9, 2019, the parties submitted

Stipulated Facts and Joint Exhibits (Joint Stipulation) to the Board

. 6 The Joint

S tipulation stated that it “ constitute [d] the entire record of the case before the Board ”

and that “[n] o additional evidence s hall be used or submitted by the parties in litigating

this matter. ” R.R. at 1a. In the Joint Stipulation, t he parties agreed to the following

facts :

1. In the August 19, 2017 issue of the Pennsylvania Bulletin,

. . . DEP published notice of the Draft NPDES Permit No. PA0266345 for Keystone

. . . .

2. On October 26, 2017, DEP issued the final version of Permit No.
PA0266345.

3 [FWW] filed an appeal of the October 2017 Permit version on December 4, 2017.

4. In the August 4, 2018 issue of the Pennsylvania Bulletin, DEP published notice of a revised draft Amendment No . 1 to the [P] ermit for Keystone

. . . .

6 The Board’s regulations provide: “A hearing need not be held

. . . if [the] parties stipulate [to] the essential facts or agree to submit direct and rebuttal testimony or documentary evidence in affidavit form (sworn or affirmed on personal knowledge) or by deposition.” 25 Pa. Code § 1021.112(a).7

5. On September 27, 2018, DEP issued the final revised Permit No.
PA0266345 and response to comments.

6. FWW timely filed an appeal of DEP’s issuance of the [P] ermit on November 7, 2018.

7. There have been no dis charges under the Permit to dat e and no nutrient trading has been conducted pursuant to the Permit.

8. On June 13, 2018, depositions were taken of Ms. Debra Ryan and
Ms. Ann Pinca, both of whom [FWW] identified as members of its organization. [ 7 ]

9. [FWW] is a national membership organization that advocates for
clean water and the public control of water resources, including oceans, rivers, and ground water.

10. Ms.

. . . Ryan, a member of [FWW] , lives at 7423 Green Hill Road
in Harrisburg, Pennsylva nia.

11. Ms. Ryan’s home is located approximately 19 miles from the point
at which wastewater discharges are authorized under the Permit, or an approximately 22 [

- ] mile drive.

12 Ms. Ryan first learned about this appeal a few weeks before her deposition was taken when she received a call from an employee of [FWW]

.

13. Over the years, Ms. Ryan and her children have spent time kayaking, fishing, and taking their dogs along portions of the Swatara
Creek in Swatara State Park and Lickdale Campgrou nd.

14. Ms. Ryan is concerned that the discharge authorized by the Permit
could affect her use of Swatara Creek by disrupting the water levels and affecting wildlife.

7 Ms. Ryan has been a member of FWW since October 2016. R.R. at 165a. Ms. Pinca has
been a member si nce November 2016. Id. at 156a.8

15. Ms. Ryan has not spoken with any experts or others, aside from employees of [FWW] and counsel, to determine if discharges under the [P] ermit are likely to change the water levels in the Little Swatara Creek or adversely affect wildlife in or around the Little Swatara Creek.

16. As of June 13, 2018, Ms. Ryan had recently hiked alo ng portions
of the Swatara Creek in or around Hershey, P [ennsylvania] , which she
referred to a s “Boathouse” and “Cocoa Kayaking.”

17. According to Ms. Ryan, the “Boathouse” is located northwest of Hersheypark Stadium in or around Union Deposit, near whe re Route 39
crosses the Swatara Creek.

18. Between 2001 and 2013, Ms. Ryan kayaked on several occasions
near the “Boathouse” location and near Harper’s Tavern in East Hanover Township.

19. As of June 13, 2018, Ms. Ryan’s last time kayaking along the
Swat ara Creek was “about five years ago.”

20. Ms.

. . . Pinca, a member of [FWW] , lives at 2154 Cloverfield Drive
in Lebanon, Pennsylvania.

21. Ms. Pinca is concerned that the discharges permitted under the
Permit will adversely affect wildlife, bird watching and kayaking on the
Swatara Creek.

Id. a t 1a

- 3a.

After submitting the Joint Stipulation, the parties filed briefs with the Board,

setting forth proposed findings of fact and conclusions of law based on the agreed

- upon

record. In their briefs, DE P and Keystone again raised the issue of FWW’s standing to

maintain its appeal.

The Board issued its Adju dic ation on May 21, 2020. The Board first found that

FWW d emonstrated that it has standing as the representative of its members to9

challenge DEP’s is suance of the P ermit. Bd. Adjudication , 5/21/20, at 19

. The Board

c o ncluded:

Based on the extensive evidence in the record of Ms. Ryan [’s] and Ms. Pinca’s use and enjoyment of the area around Swatara Creek and
Little Swatara Creek, there is no question that they, and therefore [FWW]

, have a substantial interest in this matter

. In addition, Ms. Ryan and Ms. Pinca have credibly testified that due to the issuance of the [P] ermit, they expect that they will enjoy their Swatara Creek activities less and it may
cause them to curtail their activities altogether. Thus, their interest is direct and immediate

. . . .

. . . .

Ms. Ryan [’s] and Ms. Pinca’s concerns extend to Keystone’s ability to engage in nutrient credit tra ding and how it will affect the discharge
into Little Swatara Creek. Ms. Ryan believes that if [DEP] were to remove the nutrient trading provisions of the [P] ermit, Keystone would be subject to more protective annual limits on nitrogen and phosphor [] us di scharges, which would significantly reduce her concern over the impact of the discharges on her kayaking and recreational activities. Likewise,
Ms. Pinca states that if the [P] ermit had included firm limits for nitrogen and phosphorus, rather than allow ing Keystone to engage in nutrient trading

, she would know more about the overall pollution coming downstream from the facility, which would significantly reduce her concerns about the discharge. There is no question that Ms. Ryan and Ms. Pinca, and therefore [FWW], have more than met their burden of demonstrating that they have standing to challenge the issuance of Keystone’s permit authorizing a discharge in the waters in which they engage in recreational activities

.

Id. at 10

- 12 (emphasis added) (i nternal citations omitted).

The Board also rejected DEP’s and Keystone’s contentions that because FWW

abandoned its claim regarding the inadequac y of local water

- quality

- based effluent

limits

, and instead focus ed solely on the legality of the nutrient cre dit trading provisions

in the Permit, FWW could not establish standing

. The Board determined:10

The challenged activity in this case is [DEP’s] issuance of the permit and amended permit authorizing a discharge to Little Swatara
Creek. Whether [FWW] has standing to challenge that action is not dependent on its objections to that action but on whether its members, Ms. Ryan and Ms. Pinca, have a substantial, direct and immediate interest in the action itself. We have already found that they cle arly do , both on the
record before us and in the [prior] opinion denying Keystone’s previous challenge to standing.

Id. at 16

- 17 (emphasis added)

. In so holding, t he Board emphasized that FWW ’s

“ standing is not determined by the objections it chooses to p ursue in its appeal, but by

the activity that it is appealing, i.e., [DEP’s ] issuance of [the Permit] authorizing a

discharge [of treated wastewater in] to Little Swatara Creek

. ” Id. at 18 (emphasis

added).

With regard to the merits of the appeal , the Board concluded DEP was

authorized under both federal and state law to issue the Permit , including the nutrient

credit trading provisions. The Board explained its reasoning as follows :

[T] he Clean Water Act does not prohibit states from adopting water quality protection programs that incorporate the use of nutrient trading.
Nor has [FWW] persuaded us that Pennsylvania’s NPDES program is any
less stringent than the federal program. In our view, Pennsylvania’s nutrient trading regulations are consistent with federal law. In light of this finding, we apply Pennsylvania law in determining whether to uphold the [P] ermit and, specifically, the nutrient trading provisions of the [P] ermit. Because Pennsylvania has duly promulg ated regulations authorizing nutrient trading, w hich we believe are consistent with the goals of the Clean Water Act, we find that [DEP’s] issuance of the [Permit] allowing Keystone to engage in nutrient trading was an appropriate exercise of its authority

.

Id. at 27 (emphasis added)

. Therefore, the Board dismissed FWW’s appeal on the

merits

.11

One member of the Board, Judge Bernard A. Labuskes, Jr., authored a
concurring opinion

, 8 in which he “ disagree [d] that [FWW] has demonstrated by a
preponderance of the evidence in the stipulated record that it has standing .” Id. at 32.

In particular, Judge Labuskes opined that FWW “ made no showing with record

evidence that [Ms.] Ryan [’s] and [Ms.] Pinca’s use of the area will be affected by

Keysto ne’s discharges under the

. . . [P] ermit. ” Id. at 33. Judge Labuskes explained:

[FWW’s] sole objections to the [P] ermit concern nutrient credit trading and why it believes trading is unlawful under the federal Clean Water
Act. It presents legal arguments but nothing on the real

- world effect of credit trading on water quality, whether at Little Swatara Creek, Swatara Creek, or the Chesapeake Bay. [FWW] has not pointed to any record evidence that any provision of the [P] e rmit, or any aspect o [f] Keystone’s proposed activity, poses any threat whatsoever to [Ms.] Ryan [’s] and [Ms.] Pinca’s recreational use of the Swatara Creek, or that Keystone’s facility will have any impact at all on the water quality that provides the basis for [Ms.] Ryan [’s] and [Ms.] Pinca’s use and enjoyment.

Id. at 33

- 34 (emphasis in original). Consequently, Judge Labuskes concur red in the

result reached by the Board’s majority.

On June 18, 2020 , FWW filed its Petition for Review with this Court

, 9 a sserting

that the Board erred in dismissing its appeal. Specifically, FWW asserts that DEP erred

in issuing the Permit “ because nutrient pollution trading is illegal ” under the Clean

Water Act

. FWW Pet. for Rev. ¶ 5. According to FWW, the Permit impermissibly

8 Four members of the five

- member Board joined the majority opinion. Judge Labuskes concurred in the result only.

9 Our scope of review of the Board’s Adjudication “is limited to determining whether the [ Board ] committed an error of law, [whether it] violated constitutional rights, or whether its material findings of fact are supported by substantial evidence.” Sunoco Partners M ktg. & Terminals, L

. P

. v. Clean Air Council , 219 A.3d 280, 286 n.17 (Pa. Cmwlth. 2019 )

. As to questions of law, our standard
of review is de novo and our scope of review is plenary. Id.12

allows Keystone “to engage in nutr i ent pollution trading as an alternative to meeting

the pollution load li m its [t hat] Pennsylvania has assigned it to achieve Chesapeake Bay

TMDL limits. ” Id. FWW asks this Court to reverse the Board’s Adjudication and

remand this matter to DEP to issue a new permit to Keystone without the nutrient credit

trading provisions. Id. ¶ 6

. On July 1, 2020, DEP filed a Cross Petition for Review with this Court , wherein

i t challenges “only that portion of the Board’s Adjudication that found FWW had

standing to maintain its appeal” before the Board . DEP Pet. for Rev. ¶ 4. DEP a sserts

that the Board erred in concluding that FWW had representational standing to

challenge the issuance of the Permit

. Specifically, DEP asserts that FWW failed to

establish : any potential harm to its members’ use and enjoyment of Little Swatara

Creek or Swatara Creek as a result of the nutrient credit trading provisions ; any
potential harm to Little Sw a tara Creek, Swatara Creek, or the Chesapeake Bay as a

result of the nutrient credit trading provisions ; or that its members had a substantial,

direct, and immediate interest in the outcome of the appeal before the Board. Id. ¶¶ 6

-

9.

On July 2 , 2020, Keystone also filed a Cross Petition for Review

, asserting that

FWW lacked standing to appeal the issuance of the Permit

. Keystone Pet. for Rev. ¶

4

. Like DE P, Keystone avers that FWW failed to establish an “objectively reasonable

threat that any of its members would be harmed ” by the nutrient credit trading

provisions of the Permit. Id. ¶ 6. Keystone further a vers that FWW produced no

evidence of “any actual or potential harm to the waters

. . . that would receive the

discharges authorized by the nutrient credit trading provisions” of the Permit. Id. ¶ 7.

Finally, Keystone avers that FWW failed to establish that its members had a substantial,

direct, and immediate interest in the outcome of the appeal before the Board. Id. ¶ 8.13

According to Keystone, it “does not appeal any other aspects” of the Board’s

Adjudication. Id. ¶ 4 (emphasis in original).

Both DEP an d Keystone ask this Court to reverse the Board’s finding that FWW

had standing to appeal the issuance of the Permit. DEP Pet. for Rev. ¶ 10 ; Keystone

Pet. for Rev. ¶ 10

. Analysis

1

. DEP’s and Keystone’s Cross

- Appeals 10

In their Cross Petitions for Revie w, DEP and Keystone assert that the Board

erred in concluding that FWW had standing to appeal DEP’s issuance of the Permit.

F WW claims representational standing to challenge the Permit based on the interests

of two of its members, Ms. Pinca and Ms. Ryan. According to DEP and Keystone,

h owever, Keystone is required to meet the l ocal effluen t l imits for Little Swatara Creek

at all times, regardless of whether it participates i n nutrient credit trading , and FWW

does not challenge the sufficiency of th o se local water protections. Thus

, DEP and

Keystone contend that FWW failed to establish any connection between the interest of

10 Although not designated as such, DEP’s and Keystone’s cross

- appeals appear to be protective cross

- appeals, because they succeeded in obtaining a dismis sal of FWW’s appeal before the Board and, thus, are not aggrieved

. See ACS Enters., Inc. v. Norristown Borough Zoning Hearing
Bd. , 659 A.2d 651, 653 (Pa. Cmwlth. 1995) (“[A] party [that] has prevailed in the proceeding below is not an aggrieved party and consequently has no standing to appeal to this Court.”); Burchanowski v. Cnty. of Lycoming , 378 A.2d 1025, 1027 (Pa. Cmwlth. 1977) (“When one issue in a case is decided against a party, but the party prevails on the other issues and wins the case in chief, the party cannot claim to have been ‘aggrieved’ by the decision; he therefore lacks standing to appeal the single issue decided against him.”)

.

However, FWW does not ask this Court to quash or dismiss either cross

- appeal for lack of standing, nor does FW W challenge DEP’s or Keystone’s standing to appeal in its principal brief or reply brief filed with this Court

. Because this Court may not raise standing sua sponte , we will not quash or dismiss DEP’s and Keystone’s cross

- appeals for lack of standing

. Ac cord In re Smith , 231 A.3d 59, 60 n.1 (Pa. Cmw l th.) (explaining that standing to appeal cannot be raised by this Court sua sponte , so a party’s failure to raise standing either in a motion to quash or dismiss or in its appellate
brief results in waiver of the issue)

, appeal denied , 242 A.3d 1248 (Pa. 2020)

.14

its members and the legal challenge at issue so as t o confer standing on FWW

. We

dis agree

. The Pennsylvania Supreme Court has outline d the requirements for standing

when a party challeng es an administrative agency action as follows :

[B]y virtue of Section 702 of the Administrative Agency Law, [2 Pa. C.S. § 702,] neither party status nor traditional aggrievement is necessary to challenge actions of an administrative agency. Rather, standing to appeal
administrative decisions extends to “persons,” including non

- parties, who have a “direct interest” in the subject matter , as distinguished from a “direct, immediate, and substantial” interest. A direct interest requires a showing that the matter complained of caused harm to the person ’ s interest. Although not the full equivalent of “direct, immediate, and substantial,” the direct interest requirement retains the function of differentiating material interests that are discrete to some person or limited class of persons from more diffuse ones that are common among the citizenry.

Citizens Agains t Gambling Subsidies, Inc. v. P a. Gaming Control B d. , 916 A.2d 624,

628 ( Pa. 2007) (internal citations omitted) (emphasis added ) ; see also Section 7(a) of

The Clean Streams Law, 35 P.S. § 691.7(a) (“Any person or municipality having an

interest which is or may be adversely affected by any action of [DEP] under this act

shall have the right to appeal such action to the . . . Board.”)

. 11 Moreover

, an association

has standing as the representative of its members

, even in the absence of injury to itself,

if it alleges that at least one of its members is suffering immediate or threatened injury

because of the challenged action. Robinson Twp. v. Com. , 83 A.3d 901, 922 (Pa. 2013).

In Funk v. Wolf

, 144 A.3d 228 (Pa. C mwlth. 2016), aff irmed , 158 A.3d 642 (Pa.

2017) , this Court

, applying United States Supreme Court precedent, explained the

requirements for associational standing in an environmental case as follows :

11 Section 7 of the Clean Streams Law was added by the Act of July 31, 1970, P.L. 653.15

In Friends of the Earth [ , Inc. v. Laidlaw Environment al Services (TOC), Inc. , 528 U.S. 167 (2000)], the United States Supreme Court addressed a citizen suit authorized by Section 505(a) of the federal Clean
Water Act [, 33 U.S.C. § 1365(a)]

. The petitioner alleged that by discharging pollutants into a waterway, the defendant violated the Clean Water Act and the conditions of its discharge permit issued by the state department of health. The petitioner averred that it had standing as an association because some of its members have standing. One of its members alleged that he lived close to the waterway and that it smelled polluted as he drove by. The member also alleged that he liked to fish, camp, swim, and picnic by the river, and that he would not do so now due to the discharges. Other members alle ged that they liked to walk, birdwatch, and hike near the waterway, but would no longer do so. The [Supreme] Court held that the association had standing based on the averments of its individual members. According to the [Supreme] Court [:]

We have held that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.

. . . [T]he affidavits an d testimony presented by [plaintiff] in this case assert that [defendant ’ s] discharges, and the affiant members’ reasonable concerns about the effects of those discharges , directly affected those affiants ’ recreational, aesthetic, and economic interests. These submissions present dispositively more than the mere general averments and conclusory allegations

. . . .

Id. at 244

- 45 (emphasis added) (quoting Friends of the Earth , 528 U.S. at 183

- 84)

(footnote and internal citations omitted). Thus, to establis h standing, FWW must s how

that Ms. Ryan and Ms. Pinca use the area affected by the Pe rmit and have reasonable

concerns that their use and enjoyment of th e area will be adversely affected by the

proposed discharge activity

. See Robi n son Twp.

, 83 A.3d at 921 (finding that an

association had standing based on, among other things, “ the deleterious effects of

industrial activities close to its members ’ homes, including effects on their health and

their ability to enjoy natural beauty, environmental resources, and recreational16

activities in the Delaware River corridor, such as fishing, boating, swimming, and bird

watching ” )

. Here, b oth Ms. Ryan and Ms. Pinca testified in detail regarding their recreational

use and enjoyment of Swatara Creek and Little Swatara Creek , the point of Keystone’s

proposed discharge under the Permit

. The Board, relying on the facts and evidence in

the stipulated record , summarized their testimony as follows.

Ms. Ryan has lived near Swatara Creek most of her life and frequently visits the

creek with her husband and children . Bd. Adjudication, 5/21/20, at 9. When her

children were young , she and her family used to “wade in the water, play with [their]

dogs, and fish along the banks.” Id. Now that her children are grown, she enjoys hiking

with them along the creek paths and picnicking with her grandchildren near the water.

Id. Ms. Ryan has also kayaked many times along various stretches of the creek

. Id.

Ms. Ryan and her children have spent time ka yaking, fishing

, and walking their dogs

along portions of the creek

. Id.

Ms. Pinca lives a few miles from Swatara Creek and has a long history of

advocating for its protection. Id. She testified that her advocacy efforts are motivated

in part by her personal use and enjoyment of Swatara Creek. Id. Ms. Pinca and her

husband purchased kayaks a few years ago to kayak on the creek and other local

waterways. Id. During the summers of 2016 and 2017

, they kayaked three or four

times, and i n July 2018 they re

- purchased permits that allow ed them to kayak on the

creek for two years

. Id. Ms. Pinca and her husband kayak in the area near the

convergence of Swatara Creek and Little Swatara Creek. Id. at 9

- 10. Ms. Pinca

testified that wh ile kay ak ing , she and her husband often have direct contact with the

water. Id. at 10. Ms. Pinca likes to wade in the water and look for animals and aquatic

life while kayaking. Id. Ms. Pinca is also a bird watcher. Id. She has seen herons on17

the creek and eagles perched in trees adjacent to the stream. Id. She once observed a

bald eagle ’s nest along Little Swatara Creek, downstream from the Keystone discharge

point. Id. Ms. Pinca has also seen robins, blue jays

, and squirrels in the area

. Id.

Ms. Ryan and Ms. Pinca also expressed their concerns regarding the discharge

authorized by the Permit

. M s. Pinca is concerned that “increased pollution from

[Keystone’s] facility will degrade the ecosystem, deplete th e water’ s oxygen levels,

and harm fish and other wildlife.” Id. at 11. She testified that the proposed discharge

from Keystone’s facility will diminish her enjoyment of kayaking and birdwatching

near Little Swatara Creek and areas downstream. Id. Similarly , Ms. Ryan is concerned

that the p roposed discharge will harm water quality in the areas where she enjoys

kayaking and spending time with her family. Id. She will not be able to hike near the

creek with her sons’ dogs for fear of them drinking polluted water. Id. Ms. Ryan is

particularly concerned that kayaking in polluted water could have negative health

effects on her husband

, who is immunosuppressed.

Based on the evidence of record demonstrating Ms. Ryan ’s and Ms. Pinca’s use

and enjoyment of Swatara Creek and Little Swatara Creek, we conclude that FWW has

established a direct interest in DEP’s issuance of the Permit so as to confer standing

.
See Frie nds of the Earth , 528 U.S. at 183

- 84 ; see also Wm. Penn Parking Garage, Inc.

v. City of Pittsburgh , 346 A.2d 269, 281 n.20 (Pa. 1975) (“Aesthetic and environmental

well

- being, like economic well

- being, are important ingredients of the quality of life in

our society, and the fact that particular environmental interests are shared by the many

rather than the few does not make them less deserving of legal protection through the

judicial process.”)

. DEP and Keystone also argue that because FWW does not speci f i cally challeng e

the Permit’s impact on local water quality, it lacks standing to pursue its appeal

. DEP18

and Keystone contend that nutrient credit trading applies only to the Chesapeake Bay

,

not to Swatara Creek or Little Swatara Creek

, and because the r ecord contains no

evidence that Ms. Pinca and Ms. Ryan recreat e in or near the Chesapeake Bay, t hey d o

not have a direct or substantial interest in this matter

. W e disagree.

The challenged activity in this case is DEP’s issuance of the Permit, which

expressly authorizes the discharge of treated wastewater into Little Swatara Creek, a

tributary of the Chesapeake Bay. Contrary to DEP’s and Keystone’s assertion, FWW’s

standing does not depend on its particular objections to the Permit, but on whether its

members, Ms. Ryan and Ms. Pinca, have a direct interest in the action authorized by

the Permit

. As the Board co rrectly explained:

[A] lthough the Department and Keystone contend that [FWW] is merely challenging the “concept” or “policy” of nutrient trading, this ignores the real world impact of the trading provision on [FWW’s] members, Ms. Ryan and Ms. Pinca. If nutrient trading is allowed for purposes of meeting the Chesapeake Bay TMDL, this impacts how much of each pollutant Keystone c an emit a t the source of its discharge, Little Swatara Creek. Any provision of the [P] ermit [] that impacts the Chesapeake Bay also has the potential to impact the entire Swatara Creek watershed

. . . .

[FWW’s] appeal is not some abstract challenge to the general concept of nutrient trading. Rather, it is a challenge to a very specific provision of a [DEP]

- issued [P] ermit that authorizes discharges to a very
real stream where [Ms

. ] Ryan and [Ms. ] Pinca spend ti me and engage in
recreational activities. Once [DEP ] makes a decision to issue a permit, then the permit and all its provisions ar e subject to challenge by anyone who has a substantial interest in the matter, including those who liv e and engage in activi ties in the area impacted by the permit . This is the very essence of standing.

Bd. Adjudication, 5/21/20, at 18

- 19 (emphasis added)

. We find no error in the Board’s

decision.19

Therefore, we conclude that FWW, as the representative of its members, Ms.

Rya n and Ms. Pinca, has standing to maintain this action.

2

. FWW’s Appeal

FWW asserts that the Board erred in concluding that the Permit’s provisions

authoriz ing Keystone to engage in nutrient credit trading do not violate federal or state

law

. FWW contends that because the Clean Water Act and its implementing

regulations do not exp licitly authorize the use of nutrient credit trading to satisfy

NPDES effluent limitations

, such trading is prohibited under the Clean Water A c t

. In

response, DEP and Keystone assert that : the plain language of the Clean Water Act

does not prohibit nutrient credit trading ; the EPA has consistently supported and

approved the practice of nutrient credit trading ; and Pennsylvania’s nutrient credit

trading program provides more stringent water quality protections than the Clean Water

Act and, as such, is consistent with the statute’s purpose

. 12

12 The following organizations have filed an Amicus Curiae Brief in support of DEP’s and Keystone’s legal position in this appeal: the National Association of Clean Water Agencies, the Virginia Nutrient Credit Exchange Association, the Virginia Association of Municipal Wastewater Agencies, the Virginia Municipal Stormwater Association, the Maryland Association of Municipal Wastewater Agencies, the Maryland Municipal Stormwater Association, the North Carolina Water Quality Association, the South Carolina Water Quality Association, the West Virginia Municipal

Water Quality Association, and the Association of Missouri Cleanwater Agencies (together, Municipal Associations). The Municipal Associations assert:

Like [Keystone], the Municipal Associations’ members hold [NPDES] permits authorizing the discharge of wastew ater and/or stormwater. Although many elements of those permits vary from [s] tate to [s] tate, the common thread is that they must be consistent with all applicable requirements and limitations of the federal Clean Water Act. The [EPA] and every court to consider the issue to date have found water quality trading to be an effective permit compliance tool that is consistent with the Clean

Water Act. [The] Municipal Associations have a strong interest in defending that precedent, which is directly challenge d in this appeal by [FWW].

Amicus Curiae Br. at 1

- 2 (emphasis added).20 a. The Clean Water Act

The United States Supreme Court has recognized that “the Clean Water Act vests

in the EPA and the [s] tates broad authority to develop long

- range, area

- wide programs

to alleviate and eliminate existing pollution.” Arkansas v. Oklahoma , 503 U.S. 91, 108

(19 92). The Clean Water Act give s the states discretion as to how to accomplish the

goals of the Act, including implementation of TMDLs.

The C lean Water Act prohibits any discharge from a “ point source, ” such as

Keystone, unless that discharge is in complia nce with a n NPDES permit. 33 U.S.C. §

1311(a); 40 C

. F

. R

. § 122.1(b)(1). Any NPDES permit issued must include effluent

limitations in compliance with the Clean Water Act

. 33 U.S.C

. § 1311(b)(1)(A); 40

C

. F

. R

. § 125.3(a). Section 302 (a) of the Clean Water Act requires the imposition of

water

- quality

- based effluent limitations when th e technology

- based effluent

limitations applicable to a point source will be insufficient to achieve and maintain

water quality s tandards. 33 U.S.C. § 1312(a).

While the Clean Water A ct empowers the Administrator of the EPA to

implement the NPDES program, it also allows the EPA to delegate that authority to

states whose permitting program s meet minimum federal standards. 33 U.S.C. §

1342(b); see generally 40 C.F.R. § 123.1

. In 1991, the EPA and the Commonwealth of Pennsylvania entered a
Memorandum of Agreement , wherein the EPA delegated authority over its NPDES

program to DEP’s pred ecessor

. R.R. at 406a

- 20a. The Memorandum stated that

“[DEP] will administer the NPDES program in accordance with Section 402 of the

[f] ederal Clean Water Act ” and applicable f ederal regulations. Id. at 406a.21 b . Pennsylvania’s Nutrient Credit Trading Program

As discussed earlier, i n 2010, DEP adopted a nutrient credit trading program to

assist Pennsylvania in meeting the Chesapeake Bay TMDL for pollutants

. A nutrient

“credit” is “[t]he tradable unit of compliance that corresponds with a unit of reduction

of a pollutant as recognized by [DEP] which, when certified, verified and registered,

may be used to comply with NPDES permit effluent limitations.” 25 Pa. Code §

96.8(a). Permittees may use c redits to meet effluent limits for nut rients and sediment

contained in NPDES permits that are based on the water quality standards established

under the Clean Water Act , “specifically for restoration, protection and maintenance

of the water quality of the Chesapeake Bay.” Id. § 96.8(b)(3).

C redit s generated may not be applied to meet permit effluent limitations until

certified by DEP. Id. § 96.8(e)(1). Credits may only be generated from pollutant

activities that have been certified, verified, and registered, id. § 96.8(b)(2), and may

only b e used for comparable pollutants unless otherwise authorized by DEP, id. §

96.8(b)(4).

The nutrient credit trading program ensures that credits generated adequately

account for uncertainty, water quality, reduction failures, and other considerations

throu gh the application of a “ trading ratio ,” which is “[a] ratio applied to adjust a

pollutant reduction when calculating credits for a pollutant reduction activity. ” Id. §

96.8(a). The trading ratio also includes a delivery ratio, which compensates for the

natural attenuation of a pollutant before it reaches a defined compliance point. Id.

c

. Nutrient Credit Trading Provisions of the Permit

FWW does not dispute that the Permit at issue compl ies with Pennsylvania’s

nutrient credit trading re gulations

. Rather, FWW assert s that the nutrient credit trading

provisions of the Permit fail to c o mp l y with the Clean Water Act. FWW relies on 2522

Pa. Code § 92a.3(a) (emphasis added)

, which states: “ In the e vent of a conflict between

a [f] ederal regulatory provision and a regulation of the Co mmonwealth, the provision

expressly set out in this chapter shall be applied unless the [f] ederal provision is more

stringent

. ” FWW argue s that because neither the Clean Water Act nor its regulations

expressly authorize nutrient credit trading, the federa l regulations are “more stringent”

than Pennsylvania’s and, th erefore

, D EP was prohibited from issuing the Per mit

a llowing Keystone to engage in nutrient credit tradin g

.
FWW contends that allowing Keystone to “ trade ” pollutant credits to meet the

Chesapeake Bay TMDL is inconsistent with the plain language of the Clean Water Act

.
As FWW explains, NPDES permits primarily operate through the imposition of

effluent limitations, which restrict the amount of pollutants that a permit tee may

discharge. FWW Br. at 14. The Clean Water Act defines “ effluent limitation ” as “ any

restriction established by a State or the Administrator [of the EPA] on quantities, rates,

and concentrations of chemical, physical, biological, and other constituents which are

discharged from point sources . . . .” 33 U.S.C. § 1362(11) (emphasis added)

. Thus,

FWW argues that effluent limitations apply to a point source’ s own discharge

, and must

be met by controlling pollution from the point source itself

. According to FWW

,

[g] iven that the text of the [Clean Water Act] and [its] regulations are
focused on controllin g pollutant discharges from point sources like Keyst one, it is improper to infer that the [Clean Water Act] allows a practice like pollution trading, in which a point source can discharge any amount of pollution yet can buy its way into “compliance” with applicable effluent limits via purchasing pollution credits to meet a “ net ” pollution value.

FWW Br. at 17

- 18.

However , t he Permit in this case contains effluent limitations meeting the

requirements of Section 302 of the Clean Water Act , 33 U.S.C. § 1312 , as well as l ocal23

l imits for several pollutants, including total nitrogen and total phos p horus

. R. R. at 13a,

94a, 99a. The P ermit specifically provides :

Where e ffluent limitations for [total nitrogen] and/or [total phosphorus]
are established in Part A of the [P] ermit for reasons other than the C ap Load assigned for protection of th e Chesapeake Bay ( “ local nutrient
limits ” ), the permittee may purchase and apply credits fo r compliance with the Cap Load(s) only when the perm ittee has demonstrated that local
nutrient limits have been achieved

.

R.R. at 119a (emphasis added)

. In other words, the Permit requir e s Keystone to

comply with local limits for total nitrogen and total phosphorus b efore it may engag e
in any nutrient trading to satisfy the Chesapeake Bay TMDL

. S ee 25 Pa. Code §

96.8(h) (2) , (i)

. FWW does not dispute that the local effluent limits outlined in pages 2

and 3 of the Permit

, see R.R. at 98a

- 99a, are sufficient to protect Little Swatara Creek.

The refore, c ontrary to FWW ’ s assertion, the Permit is consistent with the Clean Water

Act’s mandate that a point source must meet its own effluent limitations in order to

comply with the Clean Water Act

. Moreover, while the Clean Water Act does not explicitly address nutrient credit

trading

, the EPA has consistently interpreted the Clean Water Act to permit nutrient

trading as a means to satisfy NPDES effluent limitations

, both in its own policy

documents and in the Ches a peake Bay TMDL itself. As FW W concedes in its brief:

FWW does not dispute that [the] EPA has made statements in support
of water quality trading in non

- binding guidance documents and the Chesapeake Bay TMDL. See, e.g.

, Food & Water Watch [ ] [ v. U.S. E nv ’t Prot. Agency , 5 F. Supp. 3d 62, 70 (D.D.C. 2013) ] (noting that [the] EPA has issued water quality trading guidance in the form of a policy document
and toolkit, and that [the] EPA addresses trading in Section 10 of the [Chesapeake] Bay TMDL) [] . . . .24

FWW Br. at 28; see R.R. at 398 a

- 405a. FWW contends , however, that while the EPA

has issued policy statements supporting the concept of nutrient trading, it has never

promulgated a regulation authorizing or approving nutrient trading under the Clean

Water Act.

While it is true that no such federal regulation exists, the Board found, and we

agree, that nutrient credit trading is clearly “supported by the EPA as a means of

achieving water quality improvements” under the Clean Water Act. Bd. Adjudication,

5/21/20, at 25. In the Chesapeake Bay TMDL , the EPA expressly recogniz ed that states

may u se nutrient trading to comply with the TMDL’s wasteload allocations. T he

Chesapeake Bay TMDL states , in pertinent part :

10.2 WATER QUALITY TRADING

[The] EPA recognizes that a number of [Chesapeake] Bay jurisdictions already are implementing water quality trading programs. [The] EPA supports implementation of the [Chesapeake] Bay TMDL through such programs, as long as they are established and implemented in a manner consistent with the [Clean Water Act], its implementing regulations, and EPA’s 2003 Water Quality Trading Policy . . . and 2007 Water Quality Trading Toolkit for NPDES Permit Writers

. . . . An assumption of this
TMDL is that trades may occur between sources contributing pollutant loadings to the same or different [Chesapeake] Bay segments , provided such trades do not cause or contribute to an exceedance of [water quality standards] in ei ther [the] receiving segment or anywhere else in the [Chesapeake] Bay [W] atershed. . . .

R.R. at 400a (emphasis added) (footnotes omitted)

. As explained in the TMDL, the

EPA issued final policy documents in 2003 and 2007

, encouraging the use of nutrient

c redit trading and providing guidance to states on how to u se nutrient credit trading in

NPDES permitting

. See id. ; see also Food & Water , 5 F. Supp. 3d at 70 (summarizing

the EPA’s 2003 and 2007 water quality trading policies)

.25

It is evident, based on the clear language in the Chesapeake TMDL and the

EPA’s own policy statements, that the EPA supports the practice of n utrient credit

trading as a n appropriate means of achieving the goals of the Clean Water Act

. As the

agency charg ed with administering the Clean Water Act, t he EPA’s apparent

endorsement of nutrient credit trading should not be disturbed unless it is erroneous or
frustrates the statute’s legislative intent

. See S ynthes USA HQ, Inc. v. Com

. , 236 A.3d

1190 , 1201 (Pa. Cmwlth. 2020); see also Chevron

, U

. S

. A

. , Inc. v. N

at. R es. D ef

.
C ouncil, Inc. , 467 U.S. 837, 843 (1984) ( holding that c onsiderable weight should be

given to an administrative department’s construction of the statutory scheme it is

entrusted to adminis ter) ; N w. Youth Servs., Inc. v. Dep ’ t of Pub. Welfare , 66 A.3d 301,

312 ( Pa. 2013) (citation omitted) (“[T] he deference owed to an agency interpretation

‘will depend upon the thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements, and all those factors

which give it power to persuade, if lacking power to control.’ ”)

. We conclude that the

EPA’s consistent interpretation of the Clean Water Act as supporting nutrient cr edit

trading is entitled to deference. See generally Am. Farm Bureau Fed’n v. U.S

. Env ’t

Prot. Agency , 792 F.3d 281 (3d Cir. 2015) (applying Chevron deference to the EPA’s

interpretation of the C lean Water Act in the context of the Chesapeake Bay TMDL).

Federal courts have also recognized nutrient credit trading as an appropriate

means of achieving the requirements of the Chesapeake Bay TMDL. For example, i n

American Farm Bureau Federation v. United States E nvironmental Protection Agency

, 984 F. Supp. 2d 289, 327 (M.D. Pa. 2013), aff irmed

, 792 F.3d 281 (3d Cir. 2015)

, the

p laintiffs argued that the Chesapeake Bay TMDL “creates unlawfully binding, ‘locked

in’ allocations.” The United States District Court for the Middle District of

Pennsylvania disagreed

, noting that the participating s tates retain a degree of flexibility26

to revise the wasteload allocations in the TMDL. Id. The district court also noted that

because the EPA’s regulations require that NPDES permit limits be “consistent with

, ”

but not identical to

, applicable wasteload allocations, “a state may write an NPDES

permit limit that is different from the [wasteload allocation in the TMDL ], provided

that it is consistent with the operative assumptions underlying th [at allocation].” Id. at

328

. Finally, the district court observed :

[T]he TMDL supports the use of water quality trading programs that permit point and non

-

point sources to trade pounds of phosphorus or nitrogen , provided such trading does not result in exceedances of water quality standards and is otherwise consistent with the [Clean Water Act] and applicable regulations. Thus, the individual sources are free to trade pollution amounts without the need to revise or adjust the TMDL
allocations

.

Id. (emphasis added).

Similarly, i n a n action in the United States District Court for the District of

Columbia, FWW asserted that the nutrient credit trading and offset provisions in the

Chesapeake Bay TMDL we re “contrary to the Clean Water Act, and arbitrary and

capricious in violation of t he Administrative Procedure Act [, 5 U.S.C. §§ 500

- 596] .”

Food & Water , 5 F. Supp. 3d at 66. The district court de s cribed the TMDL

implementation process as a “joint federal and state effort aimed at achieving a

common objective: better water quality.” Id. at 78 . W hile the district court ultimately

dismissed FWW’s complaint on procedural grounds, i t specifically recognized that

, while not mandated by the EPA, “ [o]ffsets and trades are but one option in the [s] tates’

arsenal for achieving” the Clean Water Act’s goals of improved water quality. Id.

(emphasis added). 13

13 As the Municipal Associations point out in their Amicus Curiae brief, other federal and state
courts that have addressed the practice of nutrient credit trading, either directly or in dicta , have not27

Furthermore, Section 402(d)(2) of the Clean Water Act states: “No [NPDES]

permit shall issue . . . if the Administrator [of the EPA] . . . objects in writing to the

issuance of such permit as being outside the guidelines and requirements of [the Clean

Water Act].” 33 U.S.C. § 1342(d)(2); see also 25 Pa. Code §§ 92a.91, 92a.93. Here,

the Board found that the EPA Administrator reviewed the provisions of the Permit prior

to its issuance and had no objections. Bd. Adjudication, 5/21/20, at 27 ; see R.R. at

399a, 401a (recogniz ing nutrient credit trading as a component of pollution offset

programs in the Chesapeake Bay TMDL

, which are subject to monitoring and review

by the EPA to ensure that they are “fully consistent with the [Clean Water Act] and its

implementing regulations”) ; id. at 409a

- 11a ( providing that the EPA will review draft

NPDES permits to be issued by DEP)

. Finally, we agree with the Board that Pennsyl vania’s nutrient credit trading

program provides more stringent water quality protection s than the Clean Water Act

. As DEP explains in its brief :

Per mitted facilities that wish to generate credits must go above and beyond their own limits in order to generate a credit for a facility like

questioned its legality under the Clean Water Act. See, e.g.

, Ohio Valley Env ’t Coal

. v. Horinko , 279 F. Supp. 2d 732, 776 (S.D. W. Va. 2003) (concluding that the EPA’s interpretation of tradi ng provisions for pollutant offsets in West Virginia’s antidegradation implementation policies w as reasonable, and the EPA’s approval thereof was not arbitrary or capricious, because the “provisions [of those policies] can reasonably be read to mean that t he trade must result in an improvement in water quality in the water segment where the new or expanded discharge is located”); Md. Dep’t of

the Env ’t v. C

nty. Comm’rs , 214 A.3d 61, 116 (Md. 2019) (“The [Maryland] Department [of the Environment] . . . had a rational basis for conditionally approving water quality trading in the Phase II MS4 general permit . . . .”)

, cert. denied , 140 S. Ct. 1265 (2020) ; In re City of Annandale , 731 N.W.2d 502, 524 (Minn. 2007) (concluding that “allowing offsets from another source in determining whether a new source will cause or contribute to the violation of water quality standards is reasonable
and is consistent with the purposes and principles of the [Clean Water Act]”); Assateague Coastkeeper v. Md. Dep’t of the Env ’t , 2 8 A.3d 178, 207 (Md. Spec. App. 2011) (“[A]llowing the consideration of pollution offsets in determining whether a discharge ‘causes or contributes’ to a violation of water quality standards [] is reasonable.”).28

Keystone to purchase. 25 Pa. Code § 96.8(d)(ii). FWW’s “pay to pollute” assertion is unfounded. The reality is that credit calculation requires at least a ten percent “set aside” for DEP’s reserve ratio. 25 Pa. Cod e § 96.8(e)(3)(v). This means that for every ten credits generated by a facility, one credit must be placed in DEP’s reserve. 25 Pa. Code § 96.8(a)

. . . . Additionally, DEP may require further reductions prior to certification. 25 Pa. Code § 96.8(e)(3 )(vi).

The result is that for a participating permittee to use credits to meet an eligible annual effluent limitation, the permittee must find certified, verified, and registered credits generated by other facilities that directly correspond to an even greater reduction in pounds of pollutant than the number of pounds by which the permittee exceeded their effluent
limitations. Accordingly, Pennsylvania’s [n] utrient [c] redit [t] rading [p] rogram produces greater pollutant reductions and is therefore more protective of water quality than the standard limits contained in NPDES permits.

DEP Br. at 35

- 36 (some citations omitted )

. In concluding that Pennsylvania’s nutrient credit trading program is consistent

with the aims of the Clean Water Act, t he B oard explained :

[T] he Clean Water Act leaves a great deal of discretion to the states as to the manner in which to accomplish the goals of the Act, including implementation of TMDLs. Pennsylvania has developed a comprehensive set of regulations aimed at restoring, protecting and maintaining the water quality of the Chesapeake Bay in accordance with
the [Chesapeake] Bay TMDL. 25 Pa. Code § 96.8(b). Nutrient trading is one of many tools being used to acco mplish those goals.

Moreover, Pennsylvania’s nutrient trading regulations provide
additional protections for water quality.

. . . [The regulations] require [] a ten percent credit “set aside.” 25 Pa. Code § 96.8(e)(3)(v). This means that for every t en credits generated, one must be placed in reserve. Additionally, [DEP] may impose other requirements beyond the ten percent set aside. 25 Pa. Code § 96.8(e)(3)(vi). Thus, at a minimum, for every credit generated there will be a 1/10th reduction in the nutrient load delivered to the Chesapeake Bay. Not only is this consistent with the goals29

of the Clean Water Act, but, in our view, provides even more stringent protection

.
Bd. Adjudication, 5/21/20, at 26 (emphasis added) ; see 40 C.F.R. § 123.1(i)(1)

(p roviding that states participating in the NPDES program are not precluded from

“[a] dopting or enforcing requirements which are more stringent or more extensive than

those required ” under the federal regulations)

. We find no error in th e Board’s

conclusion.

Conclusion

In sum, we conclude that FWW, as the representative of its members, Ms. Ryan

and Ms. Pinca, has standing to pursue this appeal. We further conclude that DEP was

authorized to allow Keystone to engage in nutrient credit tradi ng to satisfy the

requirements of the Chesapeake Bay TMDL because: (1) t he plain language of the

Clean Water Act does not prohibit nutrient credit trading; (2) the EPA has consistently

supported the practice of nutrient credit trading; (3) t he Permit complies w ith DEP’s

regulations and the Chesapeake Bay TMDL ; and (4) Pennsylvania’s nutrient credit

trading program provides more stringent protections than the Clean Water Act and is

consistent with the Act’s purpose and goals. For these reasons , w e conclude that the

nutrient credit trading provisions in the Permit do not violate federal or state law

. Accordingly, we affirm the Board’s Adjudication

.

__________________________________ ELLEN CEISLER , J udge

Judge Fizzano Cannon did not participate in the decision of this case.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Food & Water Watch, :

Petitioner :

:

v. : No. 565 C.D. 2020

: Department of Environmental : Protection, :

Respondent :

Commonwealth of Pennsylvania, : Department of Environmental : Protection, :

Petitioner :

:

v. : No. 621 C.D. 2020

: Food & Water Watch, :

Respondent :

Keystone Protein Company, :

Petitioner :

:

v. : No. 627 C.D. 2020

: Food & Water Watch, :

Respondent :

O R D E R

AND NOW, this 12 th day of April, 20 2 1

, the May 21, 2020 Adjudication of

the Environmental Hearing Board is hereby AFFIRMED

.

__________________________________ ELLEN CEISLER , J udge