The U.S. Court of Appeals for the 3rd Circuit has upheld
EPA’s landmark multi-state Chesapeake Bay cleanup plan, rejecting industry
claims that the agency exceeded its Clean Water Act (CWA) authority both in
crafting the total maximum daily load (TMDL) plan and in its related rules that
allow EPA to limit nonpoint pollution in TMDLs. The ruling in EPA’s favor, if
it stands and is not appealed, is likely to lead to additional onerous CWA
regulations.
In a unanimous June 6 opinion, a three-judge panel of the
court backed the agency’s arguments in American
Farm Bureau Federation (AFBF), et al. v. EPA, et al., paving the way for
the Chesapeake TMDL policy to proceed—and potentially serve as a model for
other interstate water cleanup efforts.
AFBF and its ag allies were asking the court to rule that
EPA exceeded its CWA authority when it set separate allocations in the TMDL for
point and nonpoint sources. Industry also argued that EPA erred when it
required “reasonable assurance” that states would meet those goals; and when it
set an implementation timeline that states are expected to follow in reducing
nutrients and sediment in the bay. The court ruled that AFBF’s arguments lacked
merit. AFBF is expected to appeal.
Had the court sided with industry it would have vacated the
plan just as many of the Chesapeake states are preparing to implement new water
rules to meet the TMDL's targets.
EPA intends to reassess the plan in 2017 to determine how
much progress is being made in cleaning up the Bay. Ahead of that review,
environmentalists are beginning to target advanced waste water treatment
techniques as a key strategy in offsetting the loss of a substantial trap for
sediment and nutrients that is nearly full. NAAA will continue to monitor TMDL
developments and keep members informed.