Federal Court Upholds Bay TMDL, Freeing EPA and the States to Focus on Enforcement

In a much-anticipated opinion, a district court judge on Friday upheld the Bay TMDL, or pollution diet, against a challenge brought by the American Farm Bureau. The decision affirms that EPA’s Chesapeake Bay efforts have been squarely within its authority under the Clean Water Act (CWA), not to mention the various consent decrees, memoranda of understanding (MOU), and a presidential executive order.

The Chesapeake Bay Total Maximum Daily Load (TMDL) is a cap on the total amount of nitrogen, phosphorus, and sediment that can enter the Bay from the District of Columbia and the six Bay Watershed states: Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia. The plan is the largest and most complex of all such pollutant limits to date, and jurisdictions across the country are paying close attention to it because they consider it a possible model for efforts to clean up their own polluted watersheds.

The verdict provides welcome certainty as municipalities and counties carry out the complex task of developing their own plans for meeting reduction goals. And, even more importantly, it allows EPA and the states to direct their attention to the pressing need to enforce the requirements of the TMDL.

The plaintiffs had three main allegations: (1) that the EPA was acting outside the scope of the Clean Water Act by implementing the Bay TMDL; (2) that the TMDL was arbitrary and capricious in that it relied on flawed science; and (3) that EPA failed to provide an adequate notice and comment period, in violation of the Administrative Procedure Act (APA). The district court disagreed with all three allegations, as summarized below.

(1)   EPA’s TMDL is authorized by the CWA. The meat of the Farm Bureau’s argument was that EPA overstepped its authority. While the plaintiffs conceded that EPA has the power to issue a TMDL, they argued that EPA improperly implemented the TDML, which it does not have the authority to do under the CWA. Judge Rambo agreed that TMDL implementation primarily falls to the individual states, but disagreed that the TMDL represents an unlawful implementation plan. The court rejected the Farm Bureau’s argument that the inclusion of wasteload allocations (WLAs), load allocations (LAs), and sector and individual source allocations in the TMDL is too detailed and should be left to the states to decide. First, the court found nothing in the CWA that prohibits EPA from defining the TMDL in terms of WLAs and LAs. Second, the court acknowledged that most of the individual allocations were provided by the states, rather than dictated by EPA.

Key to the court’s decision was the TMDL’s demonstrated commitment to cooperative federalism. Judge Rambo dedicated nearly twenty pages of her ninety-nine-page opinion to reviewing the history of the Bay preservation efforts, which has spanned more than thirty 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 TMDL.”

(2)   EPA’s reliance on scientific models and data are reasonable. The court found that EPA’s reliance on certain models and data were rational and, under Chevron, deferred to the agency’s expertise.

(3)   The length of the comment period and information provided was adequate. The court had very little trouble finding that the forty-five-day public comment period was sufficient. First, the period exceeded the statutory minimum requirement of thirty days. Second, because the TMDL was developed over a ten-year period, plaintiffs actually had much longer than the forty-five days in which to participate in the plan’s development. Finally, the court disagreed that the process was procedurally insufficient because EPA allegedly withheld information about three models underlying the final TMDL. The court found that not only did the EPA give as much information as it could regarding these ever-changing models, but also that the plaintiffs failed to demonstrate how it was prejudiced by the lack of information.

The TMDL calls on states to reduce nitrogen and phosphorus loadings to the Bay by twenty-five percent by 2025, and sediment loadings by twenty percent. Meeting these targets will require robust oversight and enforcement: enforceable pollution limits in permits, consistent monitoring, and regular inspections. Without such enforcement, the TMDL is destined to follow in the footsteps of the Bay’s past unsuccessful cleanup efforts.

While progress is being made, enforcement is already lagging. A report released by the Environmental Integrity Project, for example, found that nitrogen discharges from significant municipal and industrial sources increased by 500,000 pounds in Pennsylvania from 2010—the year the TMDL was issued—to 2011. Of the 561 operators of large animal feeding operations (AFOs) in Maryland that had submitted notices of intent to be covered by an AFO permit, the Maryland Department of Environment had only managed to register 237 of them by the end of fiscal year 2012. pdf, page 88.

Friday’s verdict reinforces the legality of a massive and critical undertaking. Yet the hardest work—enforcing the TMDL requirements—has only just begun.