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October 04, 2013
EPA's TMDL authority affirmed by court

The agricultural sector took a hard hit when a U.S. district court upheld EPA’s broad authority to participate in the implementation of total maximum daily loads (TMDLs).  An impressive array of agricultural organizations charged that the EPA had unlawfully usurped the rights of states to implement a TMDL for nitrogen, phosphorus, and sediment in the Chesapeake Bay. 

The organizations also said the EPA failed to make key scientific modeling and calculations the Agency applied in promulgating the final TMDL available during the public comment period.  In these and related issues in American Farm Bureau Federation et al. v. EPA et al., Judge Sylvia H. Rambo, the presiding judge in the U.S.  District Court for the District of Pennsylvania, ruled in favor of the Agency. 

Deep disappointment

“The American Farm Bureau Federation (AFBF) is deeply disappointed with the district court’s ruling upholding the Environmental Protection Agency’s total maximum daily load for the Chesapeake Bay,” said the AFBF.  “Congress did not authorize EPA to dictate how farmers, builders, homeowners, and towns would share the responsibility of achieving clean water.  This is the states’ job.  We believe EPA’s approach wrongly puts federal agency staff in charge of intensely local land use decisions.”

In a statement, the EPA pronounced the rule a “victory for the 17 million people in the Chesapeake Bay watershed.” 

“The ruling affirmed that EPA, working with the states, has the authority to set science-based pollution limits,” said the Chesapeake Bay Foundation, one of six groups that intervened in the case on EPA’s behalf. 

TMDL Partnership

In December 2010 the EPA issued a TMDL for Chesapeake Bay.  The TMDL resulted from the work of the Chesapeake Bay Partnership, whose members include the EPA and the states that surround the bay. 

Two weeks after the TMDL was published, the AFBF and the Pennsylvania Farm Bureau filed a complaint in the district court against the EPA and the TMDL.  The two organizations were soon joined in the suit by seven major agricultural and industry organizations, including the National Chicken Council, the National Corn Growers Association, The Fertilizer Institute, and the National Association of Homebuilders.

The plaintiffs did not dispute that the EPA was legally entitled to issue the final TMDL.  The major complaint was that the waste load allocations (WLAs) for point sources and the load allocations (LAs) for nonpoint sources the Agency included in the TMDL effectively told states how to implement the TMDL. 

EPA as arbiter

Judge Rambo agreed that states are authorized by law to implement TMDLs, but did not find that the EPA overstepped its authority by involving itself in the implementation process.  One reason, wrote Rambo, is that six states discharge into Chesapeake Bay, creating potential problems when dividing responsibility for pollution and pollution limits. 

“To merely set a number, and then let the states, permit writers, and other groups within each state ‘duke it out’ would not only be impractical, but would also be inconsistent with the CWA’s foundational principle, which is that the burdens of eliminating pollution in the Nation’s water is one to be shared among federal, state, and local authorities,” wrote Rambo.  “In addition, it would be misleading to say that EPA was the sole author of the TMDL.  Rather, the allocations were devised largely by the states in their [watershed implementation plans].  The process included considerable back-and-forth between EPA and the Bay states.

“Thus, the record, when viewed as a whole, does not support a finding that the framework of federal and state interaction was coercive in nature so as to render the TMDL an unlawful federal implementation plan.”  Rambo also found it “noteworthy that no state has filed suit challenging the TMDL, let alone alleged that their participation in the TMDL drafting process was a result of coercion.”

Modeling data sufficient

Further, Rambo disagreed with the plaintiffs’ contention that the EPA withheld documentation on three core models underlying the final TMDL.  In each case, Rambo said the EPA provided sufficient information to allow commenters to understand the role of the models in developing the TMDL, and any information that was not provided simply had not been developed yet.  Also, the judge said the plaintiffs weakened their case because they did not explain how they would have responded if the information they sought had been made available.

American Farm Bureau Federation et al. v. EPA et al.

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