AmericanFarm.com

EPA, CBF win appeal to keep TMDL plan

By SEAN CLOUGHERTY
Managing Editor

PHILADELPHIA (July 14, 2015) — A federal Third Circuit Court of Appeals opinion, released last week, upheld a lower court decision that affirmed the legality of the Total Maximum Daily Load plan, or TMDL, a multi-state Chesapeake Bay clean-up effort.
The ruling found in favor of EPA, the Chesapeake Bay Foundation, and other intervenors to keep the TMDL plan in place for the states in the Bay watershed.
Argued on Nov. 18, 2014, American Farm Bureau Federation, Pennsylvania Farm Bureau and several other groups, said the TMDL should only be a single number, a sum of the nutrient or sediment that can be discharged into a particular segment of water.
So EPA overreached its authority when it included a framework for how the states would achieve pollution reductions and requiring “reasonable assurance” that plans set up by the states would achieve their goals, the groups said.
In its decision, the three-judge court said AFBF’s argument “fails to persuade us.” 
“Congress was ambiguous on the content of the words ‘total maximum daily load.’ They are not defined in the statute, and ‘total’ is susceptible to multiple interpretations. Furthermore, the Clean Water Act includes certain substantive requirements that expand the scope of a TMDL beyond a mere number. It is silent on how the EPA must set the loads, and the APA requires the EPA to provide information about how it arrived at its conclusion. These factors suggest that Congress wanted an expert to give meaning to the words it chose, and, as we explain below, we believe the EPA’s interpretation falls within the gap created by Congress.”
The American Farm Bureau Federation and its allies have 90 days to seek an appeal to the U.S. Supreme Court. At press time, the AFBF had not responded to requests for comment on the court ruling.
The ruling comes a few weeks after the EPA issued interim reports on progress made by each state in meeting 2017 reduction targets. According to the reports, Pennsylvania is on track for phosphorus but not nitrogen and sediment, Virginia is on trace for nitrogen and phosphorus but not sediment, Delaware is on track for nitrogen, phosphorus and sediment and New York is on track for phosphorus but not sediment and is “significantly” behind on nitrogen reductions.
In Maryland, the Farm Bureau called the ruling disappointing but expected little impact on the state farm industry since it’s a leader in pollution reduction.
“Maryland farmers are ahead of schedule in our effort to reach Bay Clean Up goals. In fact, we are ahead of all other sectors and are well set to achieve the 2017 and 2025 goals if the alternative uses of phosphorus are developed and critical cost-share funding is provided,” said Valerie Connelly, executive director of the Maryland Farm Bureau.
While hailing the decision last week as a great day for clean water and the Bay, Will Baker, Chesapeake Bay Foundation president said it’s now time to end the lawsuit and proceed with more measures to reduce pollution.
“It is now critical that the governors of the Bay states and the Environmental Protection Agency Administrator exert leadership to fully implement the Blueprint,” Baker said. “It’s a heavy lift. But there’s no doubt that all the science and all the technology is available. It’s a matter of implementation.”
After decades of voluntary efforts, and as part of the settlement of a 2008 Clean Water Act lawsuit by the Chesapeake Bay Foundation in December of 2010, EPA established science-based limits on the pollution entering the Chesapeake Bay and its rivers and streams.
In addition, the states developed individual plans on how to achieve those limits and committed to two-year milestones that outline the actions they will take to achieve those limits, and EPA promised consequences for failure.
Together, the limits, plans and milestones make up the Chesapeake Clean Water Blueprint.
Within weeks of that announcement of pollution limits, the American Farm Bureau Federation and others challenged EPA’s action in federal court in  2011. The Chesapeake Bay Foundation joined the case as a defendant and argued in support of EPA’s Clean Water Act authorities.
Many eyes around the country were watching this case. The dead zones, harmful algal blooms, and human health risks caused by nitrogen and phosphorus pollution occur in waters across the country. Attorneys General from 21 states, many in the M-dwest, sided with the Farm Bureau. Weighing in with EPA and CBF were cities from New York to San Francisco; Maryland, Virginia, and the District of Columbia and environmental groups from Florida to the Great Lakes.
In that precedent-setting case, Judge Sylvia Rambo ruled in favor of EPA, affirming the TMDL plan’s legal standing and calling the work between states and the EPA a good example of “cooperative federalism.”