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Water Blog

American Farm Bureau Federation, et al. v. EPA: The Reach of EPA’s TMDL Authority

On February 17, 2016, the Supreme Court announced that its February 19 conference, where it was scheduled to decide whether to take up a challenge to the Environmental Protection Agency’s Chesapeake Bay total maximum daily load (“TMDL”), would be delayed following the death of Justice Scalia. The case, American Farm Bureau Federation, et al. v. EPA, has considerable implications for a number of sectors within the Chesapeake watershed, particularly animal feeding operations. If the Supreme Court declines to take the case or upholds the lower court’s decision, then the Chesapeake Bay TMDL will be implemented as drafted, which would likely mean additional regulatory burdens and costs for these sectors. If implemented, the Chesapeake Bay TMDL could become a model for a far more prescriptive and onerous use of TMDLs going forward.

Clean Water Act (“CWA”) § 1313(d) requires states to determine appropriate uses for the waters within their borders and to establish water quality standards protective of those uses. Every few years, states are required to submit to the EPA a list of those waters that do not satisfy the applicable water quality standards. For any waters listed, states are then required to formulate TMDLs. A TMDL is the numeric target that represents the maximum amount of a pollutant a waterway can receive and still meet water quality standards. If EPA finds the submittal to be unsatisfactory, the statute requires EPA to step in and establish a satisfactory TMDL.

The Chesapeake Bay and its tidal waters have long been listed as impaired as a result of high levels of nitrogen, phosphorus and sediment. These pollutants originate from a variety of sources in the watershed, including agricultural operations, stormwater runoff, wastewater facilities, air pollution and other sources. Seven jurisdictions fall within the 64,000-square-mile Chesapeake Bay watershed: Delaware, District of Columbia, Maryland, New York, Pennsylvania, Virginia, and West Virginia. Through a series of agreements, these jurisdictions and the EPA formed a partnership, the Chesapeake Bay Program, to address the problem. And in 2007, the members of the Chesapeake Bay Program agreed that EPA would develop a Chesapeake Bay TMDL, rather than having the individual jurisdictions develop TMDLs in the first instance. 

EPA finalized the Chesapeake Bay TMDL in December 2010. The TMDL, which is the aggregate of 92 smaller TMDLs for individual Chesapeake Bay tidal segments, is the largest, most complex TMDL set to date.

The TMDL sets overall watershed limits: 185.9 million pounds of nitrogen; 12.5 million pounds of phosphorus; and 6.45 billion pounds of sediment per year. The pollutant limits are then further divided by jurisdiction and major river basin, based on monitoring data and modeling.  For this, EPA collected monitoring data and employed modeling techniques to evaluate the proportions of pollutants contributed by each of the jurisdictions and by each of the major river basins within the watershed. It also evaluated pollutant sources of nitrogen and phosphorus by each jurisdiction and by sector. The EPA determined that “[a]griculture is the largest single source of nitrogen, phosphorus, and sediment loading to the Bay through applying fertilizers, tilling croplands, and applying animal manure. Agricultural activities [including CAFOs] are responsible for approximately 44 percent of nitrogen and phosphorus loads delivered to the Bay and about 65 percent of sediment loads delivered to the Bay.” Additionally, the TMDL includes short- and long-term benchmarks, a tracking system, and other accountability measures, as well as federal contingency actions that can be taken, if needed.

On January 10, 2011, the American Farm Bureau Federation (“AFBF” or “Farm Bureau”), joined by the National Association of Homebuilders and a variety of agricultural trade associations, challenged the Chesapeake Bay TMDL in the U.S. District Court for the Middle District of Pennsylvania. They argued that the term “total maximum daily load” refers exclusively to a numeric limit on the total amount of a pollutant that can be discharged into a particular segment of water. In other words, they argued that EPA had the authority to establish an overall limit but nothing more. And by including source allocations, target dates, and reasonable assurances, EPA overstepped its statutory authority and impermissibly interfered with state and local land-use decisions.

On September 13, 2013, the district court dismissed the challenge, deferring to the Agency’s interpretation of the term “total maximum daily load.” The AFBF appealed the decision to the Third Circuit, but on July 6, 2015, the Third Circuit ruled, in a unanimous opinion, that EPA had acted within the scope of its authority. In particular, the court concluded that  "[e]stablishing a comprehensive, watershed-wide TMDL—complete with allocations among different kinds of sources, a timetable, and reasonable assurance that it will actually be implemented—is reasonable and reflects a legitimate policy choice by the agency in administering a less-than-clear statute."

On November 6 2015, the Farm Bureau filed a petition for certiorari, asking the Supreme Court to consider “whether the Third Circuit erred by deferring to EPA’s interpretation of the words ‘total maximum daily load’ to permit EPA to impose a complex regulatory scheme that does much more than cap daily levels of total pollutant loading and that displaces powers reserved to the States.” The High Court was scheduled to decide whether to hear the case on February 19, 2016, but on February 17, the Court announced that the conference would be delayed due to Justice Scalia’s passing.

If the Supreme Court declines to take the case or upholds the lower court’s decision, the Chesapeake Bay TMDL could become a model for TMDL formulation across the country, resulting in considerably more burdensome and prescriptive TMDLs in the future. Animal feeding operations and other agricultural operations, among other sectors, could be impacted by any such TMDLs.

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