Jump to Navigation
Jump to Content

American Farm Bureau Federation v. United States Environmental Protection Agency

ELR Citation: 45 ELR 20129
Nos. 13-4079, (3d Cir., 07/06/2015)

The Third Circuit upheld EPA's TMDL plan for the Chesapeake Bay against challenges from farmer and home building groups. The TMDL—the largest ever developed by EPA—identifies necessary pollution reductions of nitrogen, phosphorus, and sediment across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia, and sets pollution limits necessary to meet applicable water quality standards in the Bay and its tidal rivers and embayments. The groups argued that the TMDL exceeded the scope of EPA's authority to regulate because it allows the Agency to intrude on states' traditional role in regulating land use. But a district court disagreed, ruling in EPA's favor, and the appellate court affirmed. The groups interpreted the term "total maximum daily load" to unambiguously mean that a TMDL can consist only of a number representing the amount of a pollutant that can be discharged into a particular segment of water. It further argued that EPA overstepped its statutory authority when it: (1) included in the TMDL allocations of permissible levels of nitrogen, phosphorus, and sediment among different kinds of sources of these pollutants; (2) promulgated target dates for reducing discharges to the level the TMDL envisions; and (3) obtained assurance from the seven affected states that they would fulfill the TMDL's objectives. But while the CWA's structure supports that TMDLs need to account for both point and nonpoint sources, the Act is silent on how to account for those sources. It is also silent on whether EPA may consider and express the time frames within which it and the states will strive to achieve water quality standards, and the extent to which EPA may consider and express whether a state will meet the goals it sets. For these reasons, the court concluded that the phrase "total maximum daily load" is ambiguous enough to allow EPA to include the elements of the TMDL challenged here. In addition, EPA acted reasonably in establishing a comprehensive, watershed-wide TMDL—complete with allocations among different kinds of sources, a timetable, and reasonable assurance that it will actually be implemented. The TMDL reflects a "legitimate policy choice" by the Agency in administering a "less-than-clear statute."