Tuesday, July 7, 2015

Chesapeake Bay Update: Court Upholds Chesapeake Bay TMDL

On July 6, 2015, the U.S. Third Circuit Court ofAppeals ruled against the American Farm Bureau Federation (AFBF) and in favor of the U.S. Environmental Protection Agency (EPA) regarding the legality of the Chesapeake Bay total maximum daily load (TMDL) regulations.  According to the court, AFBF was incorrect in its assertion that EPA’s Chesapeake Bay TMDL regulations exceeded EPA’s statutory authority to regulate.

The court opinion stated that under the federal Clean Water Act (CWA) Congress has required the establishment of TMDLs for certain waters.  According to the court, though undefined in CWA, EPA has interpreted the term TMDL “to require publication of a comprehensive framework for pollution reduction in a given body of water.” Accordingly, EPA’s Chesapeake Bay TMDL provided for “allocations of permissible levels of nitrogen, phosphorous, and sediment among different kinds of sources of these pollutants.”
According to the court, one of AFBF’s primary assertions was that the correct reading of the “total load” in TMDL represented a single number, “like the ‘total’ at the bottom of restaurant receipt,” and did not permit specific allocations of permissible levels of nitrogen, phosphorous, and sediment.  The court disagreed that CWA only permitted one number, stating that “a plausible understanding of ‘total’ is that it means the sum of the constituent parts of the load.”
In addition to finding that “total” allowed for allocations of permissible levels of nitrogen, phosphorous, and sediment, the court found that EPA had not overstepped its statutory authority in requiring both TMDL target dates and state assurances that TMDL objectives would be fulfilled. 
Significantly, the court opinion stated that any solution to the Chesapeake Bay problem “will result in winners and losers.” According to the court, the winners include “environmental groups,” “fishermen,’ and “urban centers,” while the losers are “rural counties with farming operations,” and “the agricultural industry.”
Written by M. Sean High - Staff Attorney
July 7, 2015

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