Total Maximum Daily Load upheld

Chesapeake Bay Total Maximum Daily Load

Total Maximum Daily Load upheld

In December 2010, the Environmental Protection Agency (“EPA”) established the Chesapeake Bay Total Maximum Daily Load.  The Chesapeake Bay Total Maximum Daily Load was established as a “pollution diet” of sorts, which imposed “rigorous accountability measures to initiate sweeping actions to restore clean water in the Chesapeake Bay and the region’s streams, creeks and rivers,” according to the EPA.

The Chesapeake Bay Total Maximum Daily Load

The EPA has said that “[d]espite extensive restoration efforts and significant pollution reductions during the past 25 years, the [Total Maximum Daily Load] was prompted by insufficient progress and continued poor water quality in the Chesapeake Bay and its tidal tributaries.”  The Total Maximum Daily Load is required by the Clean Water Act (“CWA”) and responds to consent decrees in Virginia and the District of Columbia from the late 1990s.  The Total Maximum Daily Load is also part of President Obama’s overarching plan to restore Chesapeake Bay.

The Total Maximum Daily Load identifies the necessary pollution reductions of nitrogen, phosphorous, and sediment across the states of Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia and sets limits on the amount of pollution in Chesapeake Bay that is acceptable under applicable water quality standards.  Specifically, the Total Daily Maximum Load sets the pollution limits for the aforementioned elements and sediments as follows: 1) nitrogen is limited to 185.9 million pounds per year (25% reduction in nitrogen); 2) phosphorous is limited to 12.5 million pounds per year (24% reduction in phosphorous); and 3) sediment is limited to 6.45 billion pounds per year (20% reduction in sediment).  “These pollution limits are further divided by jurisdiction and major river basin based on state-of-the-art modeling tools, extensive monitoring data, peer-reviewed science and close interaction with jurisdiction partners,” the EPA says.

The EPA says the Total Maximum Daily Load was:

[D]esigned to ensure that all pollution control measures needed to fully restore the Bay and its tidal rivers are in place by 2025, with at least 60 percent of the actions completed by 2017. The [Total Maximum Daily Load] is supported by rigorous accountability measures to ensure cleanup commitments are met, including short-and long-term benchmarks, a tracking and accountability system for jurisdiction activities, and federal contingency actions that can be employed if necessary to spur progress.

As part of devising the Total Maximum Daily Load, the six Chesapeake Bay States and the District of Columbia submitted Watershed Implementation Plans (WIPs), “which detail how and when the six Bay states and the District of Columbia will meet pollution allocations.”  After states submitted the draft WIPs, the EPA worked closely with each jurisdiction to revise and strengthen its WIP.  Because of this cooperative work and state leadership, the final WIPs were significantly improved.  As a result, the final Total Maximum Daily Load “is shaped in large part by the jurisdictions’ plans to reduce pollution.”

Trade Association Members Sue, Claiming Total Maximum Daily Load Exceeded EPA’s Scope of Authority

In the time after the Total Maximum Daily Load was established, several trade associations with members that would be affected by the implementation of the Total Daily Maximum Load, including the American Farm Bureau Federation, the National Association of Home Builders, and other organizations for agricultural industries that include fertilizer, corn, pork, and poultry operations, sued the EPA.  These groups claimed:

[A]ll aspects of the [Total Maximum Daily Load] that go beyond an allowable sum of pollutants (i.e., the most nitrogen, phosphorous, and sediment the Bay can safely absorb per day) exceeded the scope of the EPA’s authority to regulate, largely because the agency may intrude on states’ traditional role in regulating land use.

In Am. Farm Bureau Fed’n v. United States EPA, the plaintiffs sought to challenge the Total Maximum Daily Load on several grounds, including that the EPA overstepped its statutory authority in drafting the Chesapeake Bay Total Maximum Daily Load when the agency (1) included in the Total Maximum Daily Load allocations of permissible levels of nitrogen, phosphorous, and sediment among different kinds of sources of these pollutants, (2) promulgated target dates for reducing discharges to the level the Total Maximum Daily Load envisions, and (3) obtained assurance from the seven affected states that they would fulfill the Total Maximum Daily Load’s objectives.

Third Circuit’s Analysis Guided by Chevron (Step One and Step Two)

After determining that the plaintiffs had standing and their claims were ripe, the court addressed the merits of the parties’ dispute.  There, the court set forth that its consideration was guided by the holding in Chevron v. NRDC, which first requires (“Step One”) the court to inquire “whether Congress has directly spoken to the precise question at issue. 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.”  If, on the other hand, the statute is ambiguous, then the court moves to “Step Two,” which “does not ask whether it is the best possible interpretation of Congress’s ambiguous language. Instead, the court extends considerable deference to the agency and inquires only whether it made a reasonable policy choice in reaching its interpretation.”

Third Circuit Found CWA’s Total Maximum Daily Load Ambiguous

After analyzing several considerations regarding Step One, the Third Circuit concluded:

“Total” is susceptible to multiple meanings. Interpreting “total maximum daily load” as requiring one number and nothing more is in tight tension with the Clean Water Act’s goal of providing a cooperative framework for states and the federal Government to work together to eliminate water pollution. The Act’s structure supports that [Total Maximum Daily Loads] need to account for point and nonpoint sources, but the Act is silent on how to account for those sources. It is also silent on (1) whether the EPA in calculating a [Total Maximum Daily Load] may consider and express the time frames within which it and the states will strive to achieve water quality standards and (2) the extent to which the EPA may consider and express whether a state will meet the goals it sets (the “reasonable assurance” requirement). Last, the APA prefers overt rather than covert reasoning by agencies. For these reasons, we conclude that the phrase “total maximum daily load” is ambiguous enough to allow the EPA to include the elements of the [Total Maximum Daily Load] challenged here.

Even Though Ambiguous, Third Circuit Said EPA’s Interpretation Was “Reasonable”

Having found that the Total Maximum Daily Load portions of the CWA were ambiguous, the court turned to Step Two.  The Third Circuit found that the plaintiffs’ reading of the statute:

[W]ould stymie the EPA’s ability to coordinate among all the competing possible uses of the resources that affect the Bay. At best, it would shift the burden of meeting water quality standards to point source polluters, but regulating them alone would not result in a clean Bay.  As the Supreme Court has admonished in the water-pollution context, “We cannot, in these circumstances, conclude that Congress has given authority inadequate to achieve with reasonable effectiveness the purposes for which it has acted.”  Establishing a comprehensive, watershed-wide [Total Maximum Daily Load]—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.  Therefore we uphold these decisions at Chevron Step Two.

Third Circuit Recognizes the Massive Undertaking of the Chesapeake Bay Total Maximum Daily Load

In conclusion, the Third Circuit admitted that “[w]ater pollution in the Chesapeake Bay is a complex problem currently affecting at least 17,000,000 people (with more to come).”  Furthermore, the court noted that their decision made winners out of “environmental groups, the states that border the Bay, tourists, fishermen, municipal waste water treatment works, and urban centers,” but made losers out of “rural counties with farming operations, nonpoint source polluters, the agricultural industry, and those states that would prefer a lighter touch from the EPA.”  However, the Third Circuit said that “Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution.”  Finally, the Third Circuit noted that the Chesapeake Bay Total Maximum Daily Load will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay—to make it once again a part of our “land of living,” Robert Frost, The Gift Outright line 10—a goal our elected representatives have repeatedly endorsed.”

Commitment to “Cooperative Federalism” Key to Third Circuit’s Decision

Key to the court’s decision was the Total Maximum Daily Load’s demonstrated commitment to cooperative federalism.  The Third Circuit dedicated nearly 20 pages of its 99-page opinion to reviewing the history of the Bay preservation efforts, which have spanned more than 30 years, been the subject of considerable litigation, and yielded numerous consent decrees, settlement agreements, and MOUs.  This history reveals consistent communication and cooperation between EPA and the states. Indeed, the Bay states asked EPA to set pollution levels for the entire watershed in 2007 and, as the court emphasized, “no state has filed suit challenging the [Total Maximum Daily Load].”  Because there was this cooperated effort to clean up the Bay, the court couldn’t see how the individual plaintiffs could complain.  Time will tell if the Total Maximum Daily Load will restore the Chesapeake Bay, but at least there will be the opportunity for restoring the Bay.

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Copyright 2016