Full opinion text
MEMORANDUM SYLVIA H. RAMBO, District Judge. Presently before the court are several motions for summary judgment related to an administrative review of the issuance of the Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus, and Sediment (“TMDL”, “Bay TMDL”, or “Final TMDL”). Plaintiffs filed a joint motion for summary judgment (Doc. 95) and Defendant United States Environmental Protection Agency (“EPA”) filed a cross-motion for summary judgment (Doc. 99). Some Defendant-Intervenors filed briefs in support of EPA’s cross-motion (Docs. 102 & 108), and other Defendant-Intervenors filed a separate cross-motion for summary judgment and brief in support (Docs. 103 & 104) that largely supplemented EPA’s motion. For the reasons that follow, Plaintiffs’ motion will be denied, and EPA’s and Defendant-Intervenors’ cross-motions will be granted. I. Background Plaintiffs are seeking a declaratory judgment and injunctive relief against EPA, asking the court to vacate the Final TMDL for the Chesapeake Bay. Plaintiffs allege that EPA lacked authority under the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., to issue the TMDL; the TMDL is ultra vires; the TMDL is arbitrary and capricious; and EPA failed to provide adequate public notice and comment, in violation of the Administrative Procedures Act (“APA”), 5 U.S.C. § 500 et seq. (See Doc. 16, Am. Compl.) Understanding the legal, procedural, historical, and scientific complexities of this case requires a detailed recitation of the extensive relevant background information, including information regarding the parties to this suit, the complex legal framework established under the CWA, the historical efforts to improve water quality in the Chesapeake Bay, and the scientific modeling and calculations utilized by EPA in promulgating the final TMDL. The court will address each topic ad seriatum before turning to Plaintiffs’ substantive arguments. A. The Parties EPA is the federal agency charged with the administration and enforcement of the CWA, in accordance with the delegations of authority from Congress contained in that statute. (Doc. 16 ¶ 18.) On December 29, 2010, EPA promulgated the Final TMDL for the Chesapeake Bay, which is the subject of this suit. (Id. ¶ 70.) The original complaint (Doc. 1) was filed by Plaintiffs American Farm Bureau Federation and the Pennsylvania Farm Bureau. The American Farm Bureau Federation is a voluntary general farm organization formed in 1919 to protect, promote, and represent the business, economic, social, and educational interests of American farms. (Doc. 16 ¶ 7.) The American Farm Bureau Federation represents more than 6.2 million member families through member organizations, some of which are located in the 64,000-square mile Chesapeake Bay watershed. (Id. ¶¶7, 8.) The Pennsylvania Farm Bureau is a general farm organization that has provided legislative support, information, and services to Pennsylvania’s farmers and rural families since 1950. (Id. ¶ 11.) Some of the Pennsylvania Farm Bureau members have farms located within the Chesapeake Bay watershed. (Id.) On April 4, 2011, an amended complaint was filed, which also named as Plaintiffs The Fertilizer Institute, a group that represents the nation’s fertilizer industry, as well as several non-profit trade associations, to wit: the National Pork Producers Council, the National Corn Growers Association, the National Chicken Council, the U.S. Poultry and Egg Association, and the National Turkey Federation. (Id. ¶¶ 12-17.) On October 13, 2011, the court granted three motions to intervene. (Doc. 87.) In those motions, two different groups of intervenors and a separate municipal association, sought leave to intervene as Defendants in this action. The first group includes various environmental and public interest groups, to wit: the Chesapeake Bay Foundation, Inc.; Citizens for Pennsylvania’s Future; Defenders of Wildlife; Jefferson County Public Service District; Midshore Riverkeeper Conservancy; and the National Wildlife Federation (collectively, the “CBF Group”). The second group includes several municipal clean water associations, to wit: the National Associations of Clean Water Agencies (“NACWA”); the Maryland Association of Municipal Wastewater Agencies, Inc. (“MAMWA”); and the Virginia Association of Municipal Wastewater Agencies, Inc. (“VAMWA”) (collectively, the “Municipal Associations Group”). The final movant was the Pennsylvania Municipal Authorities Association (“PMAA”). The court granted the motions, finding that the intervenors have a legally cognizable interest in this litigation that could be adversely affected by the outcome of this litigation. (Id.; Am. Farm Bureau Fed’n v. EPA 278 F.R.D. 98 (M.D.Pa.2011).) B. Statutory Framework In addition to the alleged procedural shortcomings of the TMDL under the APA, this dispute, at its core, raises questions regarding the proper division of duties between the states and the federal government under the applicable CWA statutory framework. Thus, to properly understand the parties’ respective arguments, it is necessary to provide the framework upon which these claims rest. This framework will provide context for later analysis of the legal issues surrounding the Bay TMDL. The CWA is a comprehensive water quality statute designed “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994). “A core element of the CWA is a two-step approach to improving water quality, which delegates certain responsibilities to EPA and others to the states in furtherance of the Act’s stated purpose of promoting cooperation between federal and state governments.” Anacostia Riverkeeper, Inc. v. Jackson, 798 F.Supp.2d 210, 214 (D.D.C.2011) (citing 33 U.S.C. § 1251(b)). Thus, water quality restoration and maintenance efforts, as envisioned by the CWA, demand cooperative federalism and require significant levels of communication and coordination between EPA and the state environmental agencies in the six states and the District of Columbia (collectively, “Bay Jurisdictions”). Generally, efforts to improve water quality first focus on the establishment of technology-based limitations on individual discharges into navigable waters from point sources. 33 U.S.C. § 1311. Point sources are “any discernable, confined and discreet conveyance ... from which pollutants are or may be discharged,” such as any pipe, ditch, channel, or tunnel. 33 U.S.C. § 1362(14). These sources represent a logical starting point for monitoring and regulating water contamination because they are easily identifiable sources of contamination. See Anacostia Riverkeeper, 798 F.Supp.2d at 214. Pursuant to Section 301 of the CWA, EPA is to develop effluent limitations based upon “the best available technology economically achievable” that cap the maximum allowable discharge at each individual point source. 33 U.S.C. § 1311(b)(1). The primary method used to implement these limitations is the National Pollution Discharge Elimination System (“NPDES”). Id. The NPDES is a permit program through which individual entities that discharge point source pollutants receive permits setting the maximum discharge levels of a particular contaminant. See id.; see also Sierra Club v. Meiburg, 296 F.3d 1021, 1024 (11th Cir.2002) (“The statute gives EPA the authority to issue permits for point sources, and those permits are to establish technology-based effluent limitations that incorporate increasingly stringent levels of pollution control technology over time.”); Anacostia Riverkeeper, 798 F.Supp.2d at 214. In addition to regulating point sources, non-point sources are also regulated under the CWA. The distinction between point and non-point sources of pollution is critical to understanding the primary issue in this case, as is evident from the analysis below. As stated, point sources of pollution emanate from a discrete conveyance. Non-point sources, meanwhile, are non-discrete sources such as sediment run-off from agriculture fields or from timber harvesting. See Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir.2002). Unlike point source pollution, EPA lacks the authority to control non-point source discharges through a permitting process. Anacostia Riverkeeper, 798 F.Supp.2d at 214-15 (citing Defenders of Wildlife v. EPA 415 F.3d 1121, 1124 (10th Cir.2005)). Thus, in order to address water quality concerns from all sources of pollution, the CWA requires each state to develop water quality standards for interstate waters within its border. See 33 U.S.C. § 1313(c). These standards supplement the NPDES permitting process. As stated in PUD No. 1, “these state water quality standards provide ‘a supplementary basis ... so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels.’ ” 511 U.S. at 704, 114 S.Ct. 1900 (quoting EPA v. Cal. ex rel. State Water Res. Control Bd., 426 U.S. 200, 205 n. 2, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976)). Today, “nonpoint source pollution has become the dominant water quality problem in the United States, dwarfing all other sources of volume....” Pronsolino v. Marcus (“Pronsolino I”), 91 F.Supp.2d 1337, 1338 (N.D.Cal.2000), aff'd sub nom. Pronsolino v. Nastri (“Pronsolino II”), 291 F.3d 1123 (9th Cir.2002). Water quality standards are regulations comprised of: 1) a description of the designated use or uses of a water body; 2) the criteria necessary to protect the use or uses; and 3) a statement by the applicable state that the standard will maintain and protect the existing use and the water quality of the water body. 40 C.F.R. § 131.6. “Designated use” refers to “the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation.” 40 C.F.R. § 131.10(a). In other words, water quality standards define the water quality goals of a particular body of water by setting forth “the use or uses to be made of the water and by setting criteria necessary to protect its uses.” 40 C.F.R. § 130.3. Unlike the NPDES, which focuses on mandatory effluent limitations, water quality standards focus on maintenance of the quality of the receiving water body. The water quality criteria designed to protect the uses of the water body may be expressed as numeric criteria, articulating measurable quantities of pollutants, or as narrative statement, articulating acceptable levels of pollution in light of the designated use. 40 C.F.R. § 131.11. These state standards must be at least as protective of water quality as existing uses, 40 C.F.R. § 130.10, and are subject to EPA review, 33 U.S.C. § 1313(c). After promulgating such standards, states are primarily responsible for monitoring progress, and identifying those waters for which the current pollution controls “are not stringent enough to implement any water quality standard applicable to such waters.” 33 U.S.C. § 1313(d)(1)(A). This list, known as a state’s “impaired waters list” or “303(d) list,” identifies waters where the water quality goals have not been attained, deeming those areas “water quality limited segments,” or “WQLS.” Finally, we arrive at the TMDL. The inclusion of a water body on a state’s 303(d) list triggers the statutory requirement to establish a total maximum daily load, or TMDL, for that water body. 33 U.S.C. § 1313(d)(1)(c); 40 C.F.R. § 130.7(c)(1). As set forth by EPA in its regulations, a TMDL defines the maximum amount of a pollutant that a body of water can receive from point sources, or waste load allocations (“WLAs”), and non-point sources, or load allocations (“LAs”). 40 C.F.R. § 130.2. Thus, a total TMDL is the “sum of the individual WLAs for point sources and LAs for any nonpoint sources and natural background.” Id. § 130.2(i). Before EPA establishes a TMDL, or approves a state-drafted TMDL, it determines whether the state has provided a “reasonable assurance” that non-point LAs will achieve water quality standards. (Administrative Record (“AR”) 0000063.) EPA purports to require reasonable assurances “to be sure that WLAs and LAs established in the TMDL are not based on overly generous assumptions regarding the amount of non-point source pollution reduction that will occur.” (AR0000250.) TMDLs are not self-implementing, but rather are informational tools utilized by EPA and the states to coordinate necessary responses to excessive pollution in order to meet applicable water quality standards. See Anacostia Riverkeeper, 798 F.Supp.2d at 216 (citing Pronsolino II, 291 F.3d at 1129). TMDLs provide crucial information for federal, state, and local actors in furtherance of the cooperative efforts to improve water quality as envisioned by the CWA. See id. at 217. Implementation mechanisms are available under other provisions of the CWA, as well as the Clean Air Act, state laws, federal and state regulations, and local ordinances. (AR0000043.) States are required to submit their lists of WQLSs and TMDLs to EPA every two years for approval. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.7(d)(1) & (2). States are also required to establish a priority ranking for WQLSs based on “the severity of the pollution and the uses to be made of such waters.” 33 U.S.C. § 1313(d)(1)(C). If EPA disapproves a state’s impaired waters list, priority rankings, or TMDL, EPA must assume the duty to issue such a list or TMDL, which are then incorporated into the state’s continuing planning process. 40 C.F.R. § 130.7(d)(2). During the TMDL planning process, the seven Bay Jurisdictions were required to submit Watershed Implementation Plans (‘WIPs”). The WIPs, developed pursuant to Section 117(g) of the CWA, 33 U.S.C. § 1267(g), provide roadmaps for how the Bay Jurisdictions will achieve the preliminary target loads for nitrogen, phosphorus, and sediment allocations necessary to meet the applicable water quality standards. (AR0000255; AR0023289.) EPA expects that the WIPs will identify a schedule for accomplishing nutrient and sediment load reductions, and identify programs and actions to achieve these reductions, such as adopting new regulatory authorities, improving compliance with existing regulations, securing additional resources' for cost-share programs, and issuing NPDES permits with more stringent effluent limits. (See AR000265.) At this juncture, it is helpful to- provide an overview of past Chesapeake Bay preservation efforts before reviewing the actions taken specifically with regard to the final TMDL. C. Chesapeake Bay Preservation Efforts The Chesapeake Bay TMDL is not a new or recent idea. Thus, it would be improper to view the Final TMDL in a vacuum as a single, isolated effort to restore water quality to the Chesapeake Bay. Rather, it is readily apparent from the record before this court that the Final TMDL is merely the latest effort in a long line of efforts dating back several decades to reach that end. In order to understand how and why this litigation came to be, and in order to determine whether EPA’s actions were arbitrary and capricious, it is helpful to provide a history of past preservation and restoration efforts on the Bay. To begin, it is essential to understand the physical characteristics of the Chesapeake Bay. The Chesapeake Bay is an estuary in the United States, and it has been described as one of the most biologically productive ecosystems in the world. (AR0004682.) The Bay is approximately 200 miles long and between four and 30 miles wide. (Id.) The water surface of the Bay encompasses more than 2,500 square miles, and the watershed, or drainage basin to the Bay, covers 64,000 square miles in Virginia, Maryland, Pennsylvania, New York, Delaware, West Virginia, and the District of Columbia. (Id.) Although huge in surface area, the Bay is relatively shallow, averaging 28 feet in depth. (Id.) There are 50 major tributaries to the Bay, the largest of which is the Susquehanna River. (Id.) Other major tributaries include the Potomac, Patuxent, Rappahannock, York, James, and Choptank Rivers, as well as the West Chesapeake Drainage Area. (Id.) As with all estuarine systems, the water of the Chesapeake Bay is an ever-changing mixture of salt and freshwater. (AR0004685.) The Bay and its watershed add ecological, economic, recreational, historic, and cultural value to the region. The Bay’s value has been estimated by economists to exceed $1 trillion. (AR0006969.) More than 500 million pounds of seafood, including crabs, oysters, and rockfish, are harvested from Bay waters each year. (Id.; AR0021459.) The Bay supports a diverse ecosystem and is home to more than 3,600 species of plants, fish, and other animals, and is a key resting ground for migratory bird species along the Atlantic Flyway. (Id.; AR0005417.) In light of this, Congress has recognized that the Chesapeake Bay is a “national treasure and resource of worldwide significance.” (AR0021458.) Much of the Chesapeake Bay watershed has been dramatically changed and no longer resembles what Captain John Smith encountered some 400 years ago. (AR0005509.) Indeed, for over 300 years, the Bay region has supported a number of growing economic sectors, including forestry, agriculture, and industry. (AR004691.) Population growth over the past century has dramatically impacted land use in the Bay watershed. (AR0005417.) Between 1950 and 1980, for example, the amount of developed land in the Patuxent River Basin in southern Maryland has risen from approximately three percent to over 35 percent, a number that is no doubt higher today. (AR0004692.) The intensified agricultural and forestry activities and urban development have placed a significant strain on the Bay’s ecological health. (AR0004694.) In 1982, a five-year study concluded that a rapid loss of aquatic life was due to excess nutrient runoff into the Bay, namely nitrogen and phosphorus. (AR0004725-AR0005374; AR0000050.) By 2009, more than half of the streams in the Chesapeake watershed were rated “poor” or “very poor” by the EPA. (AR0005511.) Non-point sources are the primary sources of pollutants to the Bay, with agriculture alone accounting for 44 percent of the nitrogen and phosphorus loads, and 65 percent of the sediment loads delivered to the Bay. (AR0000136.) Efforts to improve the water quality of the Bay have been ongoing for more than 30 years. In 1983, the governors of Maryland, Virginia, and Pennsylvania, as well as the Mayor of the District of Columbia, the chairman of the Chesapeake Bay Commission, and the EPA Administrator signed the first Chesapeake Bay Agreement. (AR0000051.) This represented the first multi-state coordinated effort to restore water quality in the Bay. The signatories to the Agreement acknowledged the decline of the Bay and agreed “to assess and oversee the implementation of coordinated plans to improve and protect the water quality and living resources of the Chesapeake Bay estuarine systems.” (AR0005488-AR0005489.) The signatories to the 1983 Agreement entered into another agreement in 1987 with the intent of establishing a more comprehensive and coordinated approach to restoring water quality in the Bay. (AR0000051.) The 1987 Agreement set a key goal to “reduce and control point and nonpoint sources of pollution to attain the water quality condition necessary to support the living resources of the Bay.” (AR0005483.) To accomplish this goal, the signatories set the first numeric goal for water quality enhancement: a 40 percent reduction in nitrogen and phosphorus entering the Bay by 2000. (Id.) That same year, Congress amended Section 117 of the Clean Water Act to establish the Chesapeake Bay Program (“CBP”), directing the CBP to “coordinate state and federal efforts to improve Bay water quality, to evaluate sediment impacts on the Bay, and to determine the impact of natural and human-induced environmental changes on the living resources of the Bay.” 33 U.S.C. § 1267. In 1991, the CBP reevaluated the progress made toward achieving the 1987 Agreement’s 40 percent nutrient reduction goal. (AR0000051.) The 1991 reevaluation contained an evaluation of progress made to that point in improving water quality, and it prescribed a detailed quantification of the original narrative goal. (Id.) As a result of this reevaluation, several amendments to the 1987 Bay Agreement were made in 1992. (AR0000052; AR0005478.) Based on the 1991 reevaluation, the 1992 amendments included an increased focused on the importance of the Bay’s tributaries to the goal of water quality restoration. (Id.) The parties to the 1987 Bay Agreement agreed to develop and begin implementation of tributary-specific strategies to meet nutrient reduction goals and improve water quality by August 1993. (AR0005479.) In 1997, the CBP once again conducted an evaluation to determine what progress had been made toward the goal set in the 1987 Agreement of a 40 percent reduction by 2000 in nitrogen and phosphorus. (AR0000052.) The reevaluation indicated significant progress toward the nutrient reduction goals, finding that between 1985 and 1996, phosphorus loads delivered to the Bay declined by six million pounds annually, and nitrogen loads declined by 29 million pounds annually over that same period. (Id.) Nevertheless, the reevaluation recognized that there was no clear improvement in dissolved oxygen levels (“DO”), and further concluded that it would be necessary to speed up implementation of nutrient reduction strategies if the goal of a 40 percent reduction by 2000 was to be met. (Id.) In 1998, EPA added the mainstem and tidal tributary waters of the Chesapeake Bay to Virginia’s Section 303(d) list of impaired waters, thus triggering the statutory requirement under 33 U.S.C. § 1313(d)(1)(C) for the establishment of a TMDL for those water bodies. (AR0000063.) On June 28, 2000, the governors of Maryland, Virginia, and Pennsylvania, as well as the Mayor of the District of Columbia, the Administrator of the EPA, and the chairman of the Chesapeake Bay Commission signed the Chesapeake 2000 Agreement. (AR0000052; AR0005417-AR0005429.) The 2000 Agreement noted that water quality protection and restoration has increasingly focused on a “tributary approach” and, for the first time, emphasized the regulatory framework of the CWA (see supra Section I.B) along with the cooperative efforts by the members of the CBP as the means to address nutrient enrichment problems within the Bay and its tributaries. (AR0005421-AR0005422; AR0000052-AR0000053.) Specifically, the 2000 Agreement set the overall goal of correcting nutrient-and sediment-related problems in the Bay and its tidal tributaries sufficient to remove those waters from the list of impaired waters by 2010. (AR0000053; AR0005422.) To achieve this, the agreement set specific benchmarks and established a cooperative framework between the Bay Jurisdictions (at that point including Maryland, Virginia, Pennsylvania, and the District of Columbia), whereby the Bay Jurisdictions would: (1) By 2001, define the water quality conditions necessary to protect living resources and then assess load reductions for nitrogen, phosphorus, and sediment for each major tributary; (2) By 2002, complete a public process to develop and begin implementation of revised tributary strategies to achieve and maintain the assigned loading goals; (3) By 2003, adopt new or revised water quality standards consistent with the defined water quality conditions. (AR0000053; AR0005422.) Once the Bay Jurisdictions adopted these revised standards, EPA would review the standards. Following EPA’s review, the revised standards would be the basis for removing the Bay and its tributaries from the 303(d) list of impaired waters. (Id.) Also in 2000, EPA, Maryland, New York, Pennsylvania, Virginia, and, for the first time, New York and Delaware, signed a Memorandum of Understanding (“MOU”). (AR0005415-AR0005416.) This multi-jurisdictional MOU once again recognized that, despite some progress, the Bay remained on the CWA’s list of impaired waters and, at least insofar as this court is able to discern, mentions for the first time the establishment of a TMDL by May 2011, unless the Bay and its tributaries meet applicable water quality standards by 2010. (Id.) In 2002, West Virginia signed the MOU, and the parties collectively agreed to work cooperatively to achieve nutrient and sediment targets to cause the Bay and its tidal tributaries to be removed from the list of impaired waters. (AR0000053.) The MOU also called for an “inclusive, open and comprehensive public participation process” and for collaboration in the development of innovative methods to improve water quality. (Id.) It is worth noting that, as with the 1983, 1987, and 2000 Bay Agreements, the signatories to the MOU included both the Bay states (Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, District of Columbia) as well as the federal government (EPA). In 2003, EPA and the seven Bay Jurisdictions, using the best scientific information available, established cap loads for nitrogen, phosphorus, and sediment entering the Bay. (AR0000053; AR0005397.) The goal was that the allocations would serve as the basis for each state’s tributary strategy, which were scheduled to be completed in 2004. (Id.) Specifically, the states, the District of Columbia, and EPA agreed to cap annual nitrogen loads delivered into the Bay’s tidal waters at 175 million pounds and annual phosphorus loads at 12.8 million pounds. (AR0000054; AR0005397). All parties concurred that attainment of these load reductions would eliminate the persistent anoxic conditions in the deep waters of the Bay. (AR0005398.) As stated, in order to achieve the nitrogen, phosphorus, and sediment cap loads, the seven Bay Jurisdictions developed their own Chesapeake Bay tributary strategies. Each tributary strategy outlined river basin-specific implementation activities to reduce nitrogen, phosphorus, and sediment load from point and non-point sources with the goal of removing the Bay and its tidal tributaries from the 303(d) list of impaired waters. (AR0000054.) By way of example, in December 2004, the Pennsylvania Department of Environmental Protection issued Pennsylvania’s Chesapeake Bay Tributary Strategy. (AR0024672-AR0024798.) In that document, Pennsylvania recognized that in order to meet the water quality goals set forth in the Chesapeake 2000 Agreement, reductions of 87 million pounds of nitrogen per year, 1.1 million pounds of phosphorus per year, and 116,000 tons of sediment per year were necessary. (AR0024674.) In the 119-page document, numerous strategies and recommendations were proposed to show how those goals could be met. Such strategies included: (1) limiting wastewater and industrial discharges through the NPDES permitting process; (2) upgrading sewer and water infrastructure by using $250 million in new grants and loans that had been secured; (3) enhancing stormwater management through the NPDES permitting process; (4) accelerating dam removals and building fish passageways; (5) enacting extensive new farm management regulations through the $13 million Preserving Agriculture, Communities, and Rural Environments (“ACRE”) initiative; (6) expanding the Conservation Reserve Enhancement Program (“CREP”); (7) increasing forested buffers and wetlands; (8) promoting manure-to-energy programs by increasing the number of methane biodigesters through programs such as the Pennsylvania Energy Harvest Grant Program, Alternative Energy Portfolio Standard, and the First Industries Farm Investment Fund; (9) establishing a market-based nutrient trading program; (10) securing conservation easements for riparian buffers; and (11) expanding the $52 million Growing Greener II initiative. (AR0024675-AR0024675.) The Tributary Strategy contains a detailed analysis of these strategies and programs, their goals and expected effectiveness, and a cost table that estimates the total tributary strategy implementation cost to be $703,318,063. (AR0024798.) In 2007, the seven Bay Jurisdictions reevaluated their nutrient and sediment cap loads. (AR0000055.) The 2007 reevaluation found that insufficient progress had been made toward improving water quality to a level that indicated the mainstem of the Chesapeake Bay and its tidal tributaries and embayments were no longer impaired by nitrogen, phosphorus, and sediment pollution. (Id.) Coordination of the seven Bay Jurisdictions and EPA was accomplished mainly through the Principal Staff Committee (“PSC”). The PSC includes the cabinet secretaries of each Bay state’s agricultural, environmental, and natural resources departments and the EPA Region III Administrator. (AR0000055; AR0000059-AR0000060.) A management board oversees six implementation teams, the most crucial of which for the purposes of the TMDL is the Water Quality Goal Implementation Team (“WQGIT”). (Id.) At a meeting of the PSC on October 1, 2007, the seven Bay Jurisdictions and EPA reached consensus that EPA would establish a Bay TMDL with a target date of 2025 when all necessary pollution control measures would be in place. (AR0000056.) Specifically, it was agreed that “The Bay watershed TMDLs will be developed jointly between the six Bay watershed states, the District and EPA and then established by EPA ... no later than May 1, 2011.” (Id.; see also Meeting Summary for the Chesapeake Bay Program Principals’ Staff Committee, October 1, 2007, available at http://archive.chesapeakebay.net/pubs/ calendar/PSC_10-01-07_Minutes_l_9029. pdf, link provided at AR0000426.) D. Drafting the Bay TMDL To date, more than 47,000 TMDLs have been completed throughout the United States. (AR0000018; Doc. 110 at 14 of 52, n. 3.) The Chesapeake Bay TMDL, however, is the largest and most complex TMDL thus far. (Id.) Between 2005 and 2010, EPA and members of the CBP met numerous times to evaluate and agree on approaches to address multiple technical aspects related to developing the Bay TMDL. (AR0000198.) By this court’s count, 730 CBP committee, team, and stakeholder meetings took place during that time frame. (See AR0000422-AR0000454.) Of those, 639 meetings took place after the October 1, 2007 decision to have EPA issue the TMDL. Numerous meetings were held with the public including national, regional, and local stakeholders to discuss issues regarding development of TMDL models and the use of data. (Id.; AR0000060-AR0000062.) Throughout 2009 up to the summer of 2010, EPA and the Bay states developed target loads for nitrogen, phosphorus, and sediment for each state.. (AR0000244.) These targets were developed based on the recognition that an equitable approach to apportionment of allowable loading among the Bay Jurisdictions was necessary. (AR0000212.) To that end, on October 23, 2009, the partners met and reached consensus on several principles to guide equitable allocation, including: • The allocated loads should protect the living resources of the Bay and its tidal tributaries and result in all segments of the Bay mainstem, tidal tributaries, and embayments meeting [water quality standards] for [dissolved oxygen], chlorophyll, and water clarity. • Major river basins that contribute the most to the Bay water quality problems must do the most to resolve those problems (on a pound-per-pound basis). • All tracked and reported reductions in nitrogen and Phosphorous loads are credited toward achieving mal assigned loads. (Id.) Applying those principles, EPA developed draft nitrogen and phosphorus target loads. By way of a letter dated November 3, 2009, EPA proposed those targets to the Bay Jurisdictions. (AR0023289-AR0023293.) On July 1, 2010 and August 13, 2010, EPA issued refined target loads as to nitrogen, phosphorus, and sediment. (AR0000244; AR0012670-AR0012682.) The Bay Jurisdictions developed their Phase I WIPs using these revised allocations. (AR0000244.) Meanwhile, in May 2009, President Obama issued Executive Order 13508, which required seven federal agencies, led by the Administrator of the EPA, and in consultation with the Bay Jurisdictions, to develop a strategy for addressing Bay pollution and preserving Bay natural resources. (AR0006953-AR0006960.) The executive order recognized that “at the current level and scope of pollution control within the Chesapeake Bay’s watershed, restoration of the Chesapeake Bay is not expected for many years.” (AR0006953.) In calling for the development of a Bay strategy, the President acknowledged that a “renewed commitment to controlling pollution from all sources” is required. (Id.) The President called for a “new era of shared federal leadership with respect to restoration of the Chesapeake Bay” and required that the seven federal agencies prepare and submit reports to that end. (AR0006954.) The President also called for extensive consultation with the seven Bay Jurisdictions. (AR0006956.) Between 2008 and 2010, EPA provided several letters to the Bay states explaining its expectations regarding each state’s proposed WIP. (See, e.g., AR0000255-AR0000256; AR0023294-AR0023301; AR0023289-AR0023293.) In those letters, EPA acknowledged the complexities associated with drafting WIPs and outlined a three-step process in which the WIPs would be drafted: (1) Phase I WIPs were to be submitted to EPA by September 1, 2010; (2) Phase II WIPs by November 1, 2011; and (3) Phase III WIPs by 2017. (AR0000256.) EPA would use the Phase I WIPs to support the development of specific allocations in the draft Bay TMDL. (Id.) The Phase II and III WIPs will be submitted after the Final TMDL is established, and will refine the actions and controls implemented to achieve applicable water quality standards. (Id.) EPA conducted a “reasonable assurances” evaluation on the states’ draft Phase I WIPs to see if they met expectations, in terms of (1) meeting the state’s numeric target loads, and (2) providing reasonable assurance that the state’s proposed source and sector allocations would be met. (AR0000257; AR0024034-AR0024054.) EPA found that many of the draft Phase I WIPs did not meet their target goal and therefore adjusted the allocations accordingly. (AR0000020.) These adjustments are referred to as “backstop” allocations. EPA then used the states’ draft Phase I WIPs in conjunction with its own backstop allocations, to issue a draft TMDL. (Id.; AR0023773.) That TMDL was published for a 45-day public comment period from September 24 to November 8, 2010. (AR0000016.) During that time, EPA held 18 public meetings in all six states and the District of Columbia. (AR0000020.) EPA also held 15 webinars in 2010 to keep the public up to date (AR0000340) and received over 14,000 public comments from individuals as well as agricultural, municipal, and environmental groups. (AR0000341.) EPA reviewed and responded to each comment, and, where appropriate, incorporated responses to those comments in developing the Final TMDL. (Id.; AR0000016.) EPA continued working with the Bay Jurisdictions on strengthening the WIPs (AR0000025) and, upon receipt of the final Phase I WIPs, found those plans to be considerably improved compared to the draft WIPs. (AR0000263, AR0000266.) As a result, EPA was able to significantly reduce the number of backstop allocations used in the Final TMDL. In the Final TMDL, backstop measures were provided only in the three following instances: (1) making New York’s WLA for wastewater sources more stringent (AR0000285-AR0000286); (2) shifting 50 percent of Pennsylvania’s urban stormwater load that is not currently subject to NPDES permits from the LA category to the WLA category (AR0000287); and (3) shifting 75 percent of the pollutant loads that West Virginia allocated to animal feeding operations that are not subject to NPDES permitting from the LA category to the WLA category and signaling that EPA is prepared to designate any animal feeding operations as a source requiring a NPDES permit (AR0000292). The remainder of the Final TMDL was based on the Bay states’ final Phase I WIPs, which EPA determined had satisfied the reasonable assurances analysis. On December 29, 2010, the Final Bay TMDL was issued. (AR0000015-AR0003790.) That TMDL set forth allocations of 185.9 million pounds per year (mpy) of nitrogen (representing a 25 percent reduction from current levels), 12.5 mpy of phosphorus (representing a 24 percent reduction), and 6.45 billion pounds per year of sediment (representing a 20 percent reduction) among the Bay Jurisdictions. (AR0000016.) The TMDL requires that all pollution control measures be fully implemented by 2025, with at least 60 percent of the actions taken by 2017. (Id.; AR0000021.) E. Consent Decrees, Settlement Agreements, and Memoranda of Understanding The Chesapeake Bay TMDL has also been the subject of considerable litigation over the years. This was not always the case, however, as state and federal governments largely ignored their obligations under CWA Section 303(d) in the years after its passage. Indeed, given the complexities, costs, scientific uncertainties associated with identifying impaired waters and determining TMDLs for those water bodies, and perceived difficulties in implementing TMDLs, states were initially reluctant to undertake such efforts. Likewise, EPA largely ignored CWA Section 303(d) until environmental groups began bringing citizen’s suits against EPA for inadequately implementing TMDLs as envisioned by the CWA. See, e.g., Scott v. City of Hammond, 741 F.2d 992 (7th Cir.1984); Alaska Ctr. for the Env’t v. Browner, 20 F.3d 981 (9th Cir.1994); Idaho Sportsmen’s Coal. v. Broumer, 951 F.Supp. 962 (W.D.Wash.1996). More relevant to the case sub judice are several consent decrees, MOU’s, and settlement agreements involving the establishment of a TMDL for Chesapeake Bay and its tributaries. For example, in 1996, the American Littoral Society and Sierra Club filed suit against EPA due to EPA’s failure to, inter alia, establish TMDLs for all WQLSs in Delaware, in violation of the APA and CWA. (AR0012640; Am. Littoral Soc’y v. EPA Docket No. 96-cv591 (D.Del.1997).) The consent'decree, which was reviewed and approved by the court and effectively resolved the lawsuit, called for EPA to “establish TMDLs for the balance of all pollutants for all WQLSs for which Delaware has not established TMDLs by December 15 of the year following the State’s deadline, except that EPA shall establish all such TMDLs by December 15, 2006.” (AR0012647.) In other words, the consent decree required EPA to establish TMDLs if Delaware failed to do so within the 10-year TMDL development schedule, which was attached to the decree. (AR0000066; AR0012668.) EPA entered into a similar consent decree in Kingman Park Civic Assoc. v. EPA Docket No. 1:98-CV-00758 (D.D.C. June 13, 2000). In that case, Plaintiffs Kingman Park Civic Association, Friends of the Earth, and the Anacostia Watershed Society sued EPA alleging that EPA failed to establish TMDLs for all the District of Columbia’s WQLSs, which constituted a violation of CWA Section 303(d). The court-approved consent decree required EPA to, inter alia, establish TMDLs for the District’s portions of the tidal Potomac and Anacostia rivers, if not first established by the District by a certain date. (AR0000066; AR0012502-AR0012526.) These rivers are tidal tributaries to the Chesapeake Bay and share common impairing pollutants (nitrogen and phosphorus). Thus, establishment of TMDLs on these rivers is directly related to the establishment . of the Bay TMDL. (AR0000066.) In 1999, EPA entered into another consent decree in American Canoe Assoc. v. EPA Docket No. 98-cv-979 (E.D. Va. June 11, 1999). In that case, Plaintiffs, American Canoe Association, Inc., and the American Littoral Society, sued EPA as a result of EPA’s failure to establish a TMDL for all waters on Virginia’s Section 303(d) list. Specifically, Virginia was required to submit its Section 303(d) list and its TMDL by June 26, 1979. See Am. Canoe Assoc. v. EPA, 30 F.Supp.2d 908, 913 (E.D.Va.1998). Virginia had failed to do so, and by the time the case was filed nearly 20 years later, had still failed to submit a TMDL. In response to EPA’s motion to dismiss, Plaintiffs argued, inter alia, that Virginia’s failure to submit a TMDL by the 1979 deadline constituted a constructive submission that no TMDLs are required, and the CWA compelled EPA to disapprove this position as inadequate and establish a federal TMDL for Virginia’s WQLSs. EPA disagreed, arguing that its duty to approve or disapprove is triggered only when the states submit their TMDL to EPA. Thus, EPA argued, because Virginia submitted no TMDL, there was no duty to disapprove and submit its own TMDL. Id. at 919. The court disagreed with EPA and declined to dismiss the plaintiffs’ complaint on this ground, finding that “it seems highly likely that Congress intended that EPA should be required to act not only when states promulgate lists that fail to meet the standards set forth in Section 303, but also when states completely ignore their mandatory statutory responsibilities and fail to promulgate any list at all.” Id. at 921. The suit eventually settled pursuant to a court-approved consent decree, which required EPA to establish a Bay TMDL if Virginia failed to do so by May 1, 2011, in accordance with the schedule established in the consent decree. (AR0000065; AR0012537-AR0012538.) However, as stated above, Virginia, as well as all other Bay Jurisdictions, requested in 2007 that EPA establish TMDLs for nutrient-and sediment-impaired tidal portions of the Chesapeake Bay. (AR0000056, AR0000065.) In addition to the above consent decrees which required EPA to establish nutrient and sediment TMDLs for the Chesapeake Bay, EPA also entered into an MOU with Maryland which required the Maryland Department of the Environment to use available resources to establish and submit to EPA a TMDL for each WQLS identified in Maryland’s 303(d) list by 2008 (“Maryland MOU”). (AR0012626.) This goal was somewhat superceded by the Chesapeake 2000 agreement which targeted 2010 as the year to achieve water quality standards. (AR0000067.) Accordingly, Maryland and EPA entered into a revised MOU in September 2004, that extended the schedule for TMDL development to 2011. (AR0012454-AR0012501.) Regardless, in 2007, Maryland, like all the other Bay Jurisdictions, requested that EPA take the lead in developing TMDLs for its portion of the Chesapeake Bay watershed, in essence mooting the Maryland MOU. (AR0000056; AR0000067.) Finally, in January 2009, the Chesapeake Bay Foundation and others filed suit against EPA alleging, inter alia, that EPA has failed to carry out its nondiscretionary duties under Section 117(g) of the CWA, 33 U.S.C. § 1267(g), to achieve and maintain the goals of the Chesapeake Bay Agreement. (AR0000067; AR0012363; Fowler v. EPA, No. 1:09-C-00005-CKK (D.D.C.2009).) In May, 2010, the parties entered into a settlement agreement whereby EPA was to establish a nutrient and sediment TMDL for the Bay and its tidal tributaries by December 31, 2010. (AR0000067; AR0012374.) In the case sub judice, EPA asserts that it established the Final TMDL in part to meet its commitment under that settlement agreement, and further contends that the establishment of the TMDL is consistent with EPA’s duties established in the other consent decrees. (AR0000067; Doc. 100 at 18 of 76.) The above historical recitation of the Bay TMDL development, and the legal challenges to date, are, without doubt, complicated and confounding. However, as previously stated, a familiarity with the evolution of the Bay TMDL is relevant to Plaintiffs’ challenge of the Final TMDL. To simply view the Final TMDL in a vacuum would ignore the bigger question of why this complicated regulatory procedure has been established in such a manner. With this understanding of the historical and legal context of the TMDL, the court is better positioned to address Plaintiffs’ challenges. F. Procedural History Plaintiffs filed their initial complaint on January 10, 2011 (Doc. 1), followed by an amended complaint (Doc. 16) challenging the Bay TMDL, and seeking a declaratory judgment and injunctive relief against EPA and requesting that the court vacate the TMDL. On May 25, 2011, the CBF Group filed a motion to intervene (Doc. 25) and a brief in support on June 3, 2011 (Doc. 52). Also on May 25, 2011, the Municipal Associations Group filed a motion to intervene and brief in support. (Docs. 27 & 29.) Plaintiffs filed a consolidated response on June 20, 2011. (Doc. 57.) Reply briefs were filed by the Municipal Associations Group (Doc. 66) and the CBF Group (Doc. 67) on July 5 and July 7, 2011, respectively. On June 27, 2011, PMAA filed a motion to intervene (Doc. 59) and brief in support (Doc. 61). Plaintiffs filed a brief in opposition on July 14, 2011 (Doc. 68), to which a reply brief was filed on July 28, 2011 (Doc. 70). On October 13, 2011, the court issued a memorandum and order granting all three motions to intervene. (Doc. 87; Am. Farm Bureau Fed’n v. EPA, 278 F.R.D. 98 (M.D.Pa.2011).) On August 26, 2011, EPA filed a notice of lodging the administrative record and a certified index to the record. (Doc. 76.) The administrative record was filed on September 1, 2011 (Doc. 77) and electronic copies of the record were sent to the court and the parties. On October 11, 2011, Plaintiffs filed a motion to complete the administrative record and brief in support, requesting the court add additional documents to the administrative record. (Docs. 82 & 85.) Briefs in opposition were filed by EPA (Doc. 88) and Defendant-Intervenors (Doc. 89) on October 28, 2011. Plaintiffs filed a reply brief on November 14, 2011. (Doc. 91.) On December 18, 2011, the court issued a memorandum and order granting in part and denying in part the motion, permitting some of the requested documents to be added to the record. (Doc. 92.) On January 27, 2012, Plaintiffs filed the instant motion for summary judgment and brief in support. (Docs. 95 & 96.) On March 27, 2012, EPA filed a cross-motion for summary judgment and a brief in opposition to Plaintiffs’ motion for summary judgment. (Doc. 100.) On April 20, 2012, Defendant-Intervenor PMAA filed a brief in support of EPA’s cross-motion for summary judgment and in opposition to Plaintiffs’ motion for summary judgment. (Doc. 102.) On April 20, 2012, Defendants Intervenor Municipal Associations Group filed its own cross-motion for summary judgment and brief in support of that motion and in opposition to Plaintiffs’ motion for summary judgment. (Docs. 103 & 104.) On April 24, 2012, Defendant-Intervenor CBF Group filed a brief in support of EPA’s cross-motion for summary judgment and in opposition to Plaintiffs’ motion for summary judgment. (Doc. 108.) On May 21, 2012, Plaintiffs filed a brief in opposition to EPA’s cross-motion for summary judgment and a reply in support of its own motion for summary judgment. (Doc. 109.) On June 20, 2012, EPA filed its brief in support of its cross-motion for summary judgment. (Doc. 110.) Reply briefs were filed by PMAA and the Municipal Associations Group on July 13, 2012. (Docs. 115 & 116.) On July 20, 2012, the CBF Group filed its reply brief. (Doc. 122.) Given the complexities of this case and the volume of documents in the administrative record, Plaintiffs moved for oral argument on the cross-motions for summary judgment on August 3, 2012. (Doc. 123.) EPA and Defendant-Intervenors opposed the motion. (Doc. 125.) By order dated August 10, 2012, the court granted the motion and, on October 4, 2012, the court heard oral arguments on the motions for summary judgment. Following oral argument, the court requested additional briefing on the issue of agency deference. (Doc. 138.) Briefs on this issue were filed by Plaintiffs on October 17, 2012 (Doc. 139), and by EPA and the CBF Group on October 24, 2012 (Docs. 140 & 142). Defendant-Intervenors PMAA and the Municipal Associations Group abstained from filing additional briefing. (Docs. 141 & 143.) On November 2, 2012, Plaintiffs filed a reply brief. (Doc. 146.) Thus, all issues having been fully briefed, the motion and cross-motions for summary judgment are ripe for disposition. II. Standard Under Federal Rule of Civil Procedure 56, summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). However, unlike the typical summary judgment action, Plaintiffs are seeking judicial review under the APA. While “[s]ummary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review[,] ... [bjecause ... ‘the district judge sits as an appellate tribunal’ in such cases, the usual standard for summary judgment does not apply.” Uddin v. Mayorkas, 862 F.Supp.2d 391, 399-400 (E.D.Pa.2012) (citing Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir.2001); UPMC Mercy v. Sebelius, 793 F.Supp.2d 62, 67 (D.D.C.2011)); Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 770 (9th Cir.1985) (explaining that summary judgment in an original district court proceeding “is appropriate only when the court finds there is no factual issues requiring resolution by trial”; whereas, summary judgment in a case where the district court is reviewing the decision of an administrative agency under the APA “is an appropriate mechanism for deciding the legal question of whether the agency could reasonably have found the facts as it did.”). Under the APA, a district court may only hold unlawful and set aside an agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The court is required to walk a fine line of conducting a “searching and careful” inquiry into the administrative record to determine whether the agency’s decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment” while, at the same time, refraining from substituting its own judgment for that of the agency. Citizens Advisory Comm. on Private Prisons v. Fed. Bureau of Prisons, 197 F.Supp.2d 226, 240 (W.D.Pa.2001) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) and Soc’y Hill Towers Owners’Ass’n v. Rendell, 210 F.3d 168, 178 (3d Cir.2000)). Even an agency “decision of less than ideal clarity” should be upheld “if the agency’s path may be reasonably discerned.” Anacostia Riverkeeper, 798 F.Supp.2d at 222 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). At the same time, it is “an axiom of administrative law that an agency’s explanation of the basis for its decision must include a rational connection between the facts and the choice made.” Id. (quoting Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 626, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986)). It has been repeatedly stated that “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” United States v. Keystone Sanitation Co., 1996 WL 33410108, *3, 996 U.S. Dist. LEXIS 22808, *10 (M.D.Pa. Aug. 27, 1996) (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). The “whole record” consists of materials either directly or indirectly considered by the decision maker. Keystone Sanitation, 1996 WL 33410108, *6 n. 6, 1996 U.S. Dist. LEXIS 22808, *23 n. 6 (citing Wade v. Dole, 631 F.Supp. 1100, 1107 (N.D.Ill.1986), aff'd 813 F.2d 798 (7th Cir.1987)); see also Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir.1993); Ohio Valley Envtl. Coal. v. Whitman, 2003 WL 43377, *1, 2003 U.S. Dist. LEXIS 148, *8 (S.D.W.Va. Jan. 6, 2003). “An agency’s action is entitled to a presumption of validity, and the petitioner challenging that action bears the burden of establishing that the action is arbitrary or capricious.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 704 (10th Cir.2010); see also Taggart v. GMAC Mortg., LLC, 2013 WL 4079655 *3 n. 6, 2013 U.S. Dist. LEXIS 113823 *10 n. 6 (E.D.Pa. Aug. 12, 2013). The court owes Chevron deference to the extent that EPA’s actions are based on an interpretation of statutory language. All parties are in agreement that the applicable analysis is the two-step analysis set forth in Chevron, USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, an agency’s interpretation is entitled to deference if “Congress delegated authority to the agency generally to make rules carrying the force of law, and ... the agency interpretation claiming deference was promulgated in the exercise of the authority.” United States v. Mead, 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). If a court finds Chevron deference applies, the court must first ask “whether Congress has directly spoken to the precise question at issue.” Id. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. Second, a court asks whether, if the statute is ambiguous, the agency has rendered “a permissible construction.” Id. at 843, 104 S.Ct. 2778. A court is more likely to find the agency’s interpretation permissible if there is a “complex and highly technical regulatory program,” Robert Wood Johnson Univ. Hosp. v. Thompson, 297 F.3d 273, 282 (3d Cir.2002) (citations and quotations omitted), or if the agency has employed formal procedures, such as notice and comment rulemaking, see Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). If Chevron deference applies, the court must defer to the agency’s interpretation as long as it is reasonably consistent with the statute. See Mead, 533 U.S. at 229, 121 S.Ct. 2164. Where a court declines to extend Chevron deference, it may nonetheless extend the lesser degree of deference set forth in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). However, the court is in agreement with the parties that Chevron deference is appropriate in this case. See Pronsolino II, 291 F.3d at 1131 (finding Chevron deference applicable in a TMDL case because the “EPA has the statutory authority to enact a rule carrying force of law [in a TMDL case because]” the CWA delegates to EPA the general rule-making authority necessary for the agency to carry out its functions under the Act). III. Discussion Plaintiffs put forward various arguments in support of vacating the Bay TMDL. As a preliminary matter, however, the court will address EPA’s argument that Plaintiffs lack standing to bring suit. The court will then address each of Plaintiffs’ arguments ad seriatum. A. EPA’s Standing Argument EPA argues for the first time in its memorandum in support of its cross-motion for summary judgment (Doc. 100) that Plaintiffs lack standing to bring suit under Article III of the Constitution. Article III limits the federal courts to adjudication of actual “[c]ases” and “[controversies.” U.S. Const. Art. Ill, § 2, cl. 1. “Standing circumscribes the federal judicial power by requiring a litigant to show that it is entitled to have the court decide the merits of its case.” Am. Auto. Ins. Co. v. Murray, 658 F.3d 311, 317 (3d Cir.2011) (citing Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). The three constitutional elements of standing are: (1) an “injury in fact,” that is, a concrete and particularized invasion of a legally protected interest that is actual or imminent, not conjectural or hypothetical; (2) causation, the showing of a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant; and (3) redressability, that is, “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The import of EPA’s argument in this regard is that Plaintiffs failed to submit affidavits or set forth any evidence to establish the requisite elements of representational standing. In response to this argument, Plaintiffs, in their brief in opposition to EPA’s cross-motion, attached 13 declarations which contain statements pertaining to the various Plaintiffs’ standing in this case. (Docs. 109-1-109-13.) EPA nevertheless argues in its reply brief that such affidavits must be submitted “at the first appropriate point in the review proceeding,” in this ease Plaintiffs’ opening brief, and that Plaintiffs produced no reason to excuse the untimely filing of the declarations. (Doc. 110 at 10 of 52 (citing Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 684 (D.C.Cir.2004) (“CARE”)).) The court rejects EPA’s argument. First, while it is true that at the summary judgment stage, a plaintiff may not base standing on mere allegations and must set forth by affidavit or other evidence of “specific facts” to support standing, see Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.Cir.2002), there is no hard and fast rule that failure to attach said affidavits to an opening brief automatically divests a plaintiff of Article III standing, and thus the court of subject matter jurisdiction. Indeed, in CARE, a case relied upon by EPA, the court readily excused the plaintiffs belated submission of declarations regarding standing, where, like here, the declarations were not filed concurrent with the opening brief. 355 F.3d at 685. The court found that the supplemental declarations clearly demonstrated “injury in fact” sufficient for standing purposes, and further found that the agency was not prejudiced because it was permitted to respond to the declarations. Id. Here, too, EPA’s prejudice is limited because it was able to respond to Plaintiffs’ declarations in its reply brief, wherein EPA merely restates its untimeliness argument. (Doc. 110 at 10-11 of 52.) Moreover, the affidavits were not filed egregiously late in the proceedings. Indeed, the first time standing was even challenged was in EPA’s memorandum in support of its cross-motion. This was not a case where a preliminary motion to dismiss for lack of standing was filed. Nor was this a case where a plaintiff did not submit any evidence regarding standing until its final brief, thus requiring post-argument supplementation, as in Sierra Club. Rather, the court finds Plaintiffs’ standing to seek review of this administrative action to be self-evident. As stated by the court in Sierra Club, [I]n many, if not most cases the petitioner’s standing to seek review of administrative action is self-evident; no evidence outside the administrative record is necessary for the court to be sure of it. In particular if the complainant is “an object of the action ... at issue,”— as is the case usually in review of a rulemaking and nearly always in review of an adjudication — there should be “little question that the action or inaction has caused him injury, and that judgment preventing or requiring the action will redress it.” Sierra Club, 292 F.3d at 899-900 (quoting Lujan, 504 U.S. at 561-62, 112 S.Ct. 2130.) Here, the declarations make clear that Plaintiffs are the object of the action, and that they will incur economic injury if required to comply with the TMDL. For example, some of the Plaintiffs are point sour