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 national pollutant 

discharge elimination system 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 had 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 clean water and 

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

of its members. Keystone operates 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 The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 

35 P.S. §§ 691.1-691.1001. DEP is also responsible 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 officer 

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 Watershed, 

including the Susquehanna River Basin. Each basin within the Chesapeake Bay 

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

In 2010, DEP adopted a nutrient credit trading program to assist Pennsylvania in 

meeting the Chesapeake Bay total maximum daily load (TMDL) for pollutants. TMDL 

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

all sources and still 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 this 

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 established 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 “offset” 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 otherwise 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 

requirements of this section.

(6) Credits and offsets may not be used to comply with technologybased 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 authorized 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 accordance with effluent limitations, monitoring requirements and 

other conditions set forth in [the provisions of the 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 initial 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

nitrogen and phosphorus.5

The Permit 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 appealed the Permit to the Board. Thereafter, both 

DEP and Keystone filed Motions for Summary Judgment. In its Motion for Summary 

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

issuance of the Permit. The Board denied both Motions for Summary Judgment on 

August 9, 2019, concluding, based on the existing 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) diminished enjoyment and 

curtailment of their recreational and aesthetic activities. The Board has 

5

In its August 9, 2019 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 challenged activity has the legitimately perceived 

potential to affect one’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 articulated 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, on December 9, 2019, the parties submitted 

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

6

 The Joint 

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

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

this matter.” R.R. at 1a. In the Joint Stipulation, the 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 discharges under the Permit to date 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, Pennsylvania.

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 Campground.

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 since 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 along portions 

of the Swatara Creek in or around Hershey, P[ennsylvania], which she 

referred to as “Boathouse” and “Cocoa Kayaking.”

17. According to Ms. Ryan, the “Boathouse” is located northwest of 

Hersheypark Stadium in or around Union Deposit, near where 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 

Swatara 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. at 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, DEP and Keystone again raised the issue of FWW’s standing to 

maintain its appeal.

The Board issued its Adjudication on May 21, 2020. The Board first found that 

FWW demonstrated that it has standing as the representative of its members to 
9

challenge DEP’s issuance of the Permit. Bd. Adjudication, 5/21/20, at 19. The Board 

concluded:

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 trading 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 

discharges, 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 allowing 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) (internal citations omitted).

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

abandoned its claim regarding the inadequacy of local water-quality-based effluent 

limits, and instead focused solely on the legality of the nutrient credit 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 clearly 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, the Board emphasized that FWW’s

“standing is not determined by the objections it chooses to pursue 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 promulgated regulations authorizing 

nutrient trading, which 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 

Keystone’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]ermit, 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 concurred in the 

result reached by the Board’s majority.

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

9 asserting

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 Mktg. & 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 nutrient pollution trading as an alternative to meeting 

the pollution load limits [that] 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 

it 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 asserts

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 Swatara 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 DEP, 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 avers 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 and 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-Appeals10

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

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

FWW 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, 

however, Keystone is required to meet the local effluent limits for Little Swatara Creek 

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

does not challenge the sufficiency of those 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 dismissal 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 FWW 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. Accord In re Smith, 231 

A.3d 59, 60 n.1 (Pa. Cmwlth.) (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 to confer standing on FWW. We 

disagree.

The Pennsylvania Supreme Court has outlined the requirements for standing 

when a party challenges 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 Against Gambling Subsidies, Inc. v. Pa. Gaming Control Bd., 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. Cmwlth. 2016), affirmed, 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 Environmental 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 alleged 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 and 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 establish standing, FWW must show

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

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

proposed discharge activity. See Robinson 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 recreational 
16

activities in the Delaware River corridor, such as fishing, boating, swimming, and birdwatching”).

Here, both 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 kayaking, 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 in July 2018 they re-purchased permits that allowed 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 while kayaking, 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 on 
17

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. Ms. Pinca is concerned that “increased pollution from 

[Keystone’s] facility will degrade the ecosystem, deplete the 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 proposed 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 Friends 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 specifically challenge

the Permit’s impact on local water quality, it lacks standing to pursue its appeal. DEP
18

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

not to Swatara Creek or Little Swatara Creek, and because the record contains no 

evidence that Ms. Pinca and Ms. Ryan recreate in or near the Chesapeake Bay, they do 

not have a direct or substantial interest in this matter. We 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 correctly 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 can emit at 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 time and engage in 

recreational activities. Once [DEP] makes a decision to issue a permit, 

then the permit and all its provisions are subject to challenge by anyone 

who has a substantial interest in the matter, including those who live and 

engage in activities 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. 

Ryan 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 

authorizing 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 explicitly authorize the use of nutrient credit trading to satisfy 

NPDES effluent limitations, such trading is prohibited under the Clean Water Act. 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 wastewater 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 challenged 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 

(1992). The Clean Water Act gives the states discretion as to how to accomplish the 

goals of the Act, including implementation of TMDLs.

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

Keystone, unless that discharge is in compliance with an 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 the technology-based effluent 

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

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

While the Clean Water Act empowers the Administrator of the EPA to 

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

states whose permitting programs 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 predecessor. 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 federal regulations. Id. at 406a.
21

b. Pennsylvania’s Nutrient Credit Trading Program

As discussed earlier, in 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 credits to meet effluent limits for nutrients 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).

Credits 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 be 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 

through 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 complies with Pennsylvania’s 

nutrient credit trading regulations. Rather, FWW asserts that the nutrient credit trading 

provisions of the Permit fail to comply with the Clean Water Act. FWW relies on 25 
22

Pa. Code § 92a.3(a) (emphasis added), which states: “In the event of a conflict between 

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

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

stringent.” FWW argues that because neither the Clean Water Act nor its regulations 

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

than Pennsylvania’s and, therefore, DEP was prohibited from issuing the Permit 

allowing Keystone to engage in nutrient credit trading.

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 permittee 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 controlling pollutant discharges from point sources like 

Keystone, 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, the 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 local 
23

limits for several pollutants, including total nitrogen and total phosphorus. R.R. at 13a, 

94a, 99a. The Permit specifically provides:

Where effluent limitations for [total nitrogen] and/or [total phosphorus] 

are established in Part A of the [P]ermit for reasons other than the Cap 

Load assigned for protection of the Chesapeake Bay (“local nutrient 

limits”), the permittee may purchase and apply credits for compliance 

with the Cap Load(s) only when the permittee has demonstrated that local 

nutrient limits have been achieved.

R.R. at 119a (emphasis added). In other words, the Permit requires Keystone to

comply with local limits for total nitrogen and total phosphorus before it may engage

in any nutrient trading to satisfy the Chesapeake Bay TMDL. See 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. 

Therefore, contrary 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 Chesapeake Bay TMDL itself. As FWW 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. Env’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 398a-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 recognized that states 

may use nutrient trading to comply with the TMDL’s wasteload allocations. The 

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 either [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 

credit trading and providing guidance to states on how to use 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 nutrient credit 

trading as an appropriate means of achieving the goals of the Clean Water Act. As the 

agency charged with administering the Clean Water Act, the EPA’s apparent 

endorsement of nutrient credit trading should not be disturbed unless it is erroneous or 

frustrates the statute’s legislative intent. See Synthes USA HQ, Inc. v. Com., 236 A.3d 

1190, 1201 (Pa. Cmwlth. 2020); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837, 843 (1984) (holding that considerable weight should be 

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

entrusted to administer); Nw. 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 credit 

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 Clean 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, in 

American Farm Bureau Federation v. United States Environmental Protection Agency, 

984 F. Supp. 2d 289, 327 (M.D. Pa. 2013), affirmed, 792 F.3d 281 (3d Cir. 2015), the 

plaintiffs argued that the Chesapeake Bay TMDL “creates unlawfully binding, ‘lockedin’ allocations.” The United States District Court for the Middle District of 

Pennsylvania disagreed, noting that the participating states retain a degree of flexibility 
26

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, in an 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 were “contrary to the Clean Water Act, and arbitrary and 

capricious in violation of the Administrative Procedure Act[, 5 U.S.C. §§ 500-596].” 

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

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

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

dismissed FWW’s complaint on procedural grounds, it 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 not 
27

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 (recognizing 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 Pennsylvania’s nutrient credit trading 

program provides more stringent water quality protections than the Clean Water Act.

As DEP explains in its brief:

Permitted 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 trading 

provisions for pollutant offsets in West Virginia’s antidegradation implementation policies was

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 the 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. Cnty. 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, 28 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. Code § 

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, the Board 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 accomplish 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 ten 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 goals 
29

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) 

(providing 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 the 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 trading to satisfy the 

requirements of the Chesapeake Bay TMDL because: (1) the 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) the Permit complies with 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, we 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, Judge

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 12th day of April, 2021, the May 21, 2020 Adjudication of 

the Environmental Hearing Board is hereby AFFIRMED.

__________________________________

ELLEN CEISLER, Judge