Chesapeake Bay TMDL Survives Legal Challenge
Written By Brian G. Glass for The Legal Intelligencer*
In a cooperative federalism model, federal and state governments work together to
achieve a common goal. The Clean Water Act employs this model to accomplish many of its
objectives, including that of restoring the nation’s polluted waters. Commentators have observed
that cooperative federalism can be “messy.” Perhaps no one knows that better these days than
Judge Sylvia H. Rambo, who spent the better part of a year wading through the mire in an
industry challenge to the Chesapeake Bay Total Maximum Daily Load for Nitrogen,
Phosphorous, and Sediment (Chesapeake Bay TMDL), promulgated on December 29, 2010, by
the U.S. Environmental Protection Agency (EPA). Last month, Judge Rambo emerged from the
swamp and issued a long awaited decision in the case. When the mud had settled, the
Chesapeake Bay TMDL was still standing.
In Am. Farm Bureau Fed’n, et al. v. EPA, et al., Civil No. 1:11-CV-0067 (M.D. Pa.),
several agricultural interests and others filed a complaint seeking a declaratory judgment and
asking the court to vacate the Chesapeake Bay TMDL. A TMDL is a key component in the
cooperative federalism framework that the Clean Water Act employs to restore impaired waters.
Under that framework, states first establish, subject to EPA review, water quality standards,
including the criteria that they deem necessary to protect various water uses. Next, states
identify waters that fail to meet those standards and record them on lists (commonly referred to
as 303(d) lists), which they submit to EPA every two years for approval. Finally, for each of the
impaired waters on the 303(d) lists, states must establish total maximum daily loads, or TMDLs.
A TMDL is the total maximum daily load of a pollutant that is presently impairing a water body
that the water body can assimilate from all sources of pollution within the watershed and still
meet water quality standards. Just as a doctor might prescribe a target weight to improve the
health of an overweight patient, states establish a target pollutant load to restore the ecological
health of a water body that has been impaired by that pollutant.
In its regulations, EPA defines a TMDL as the sum of the maximum amount of a
pollutant that a body of water can receive from point sources (waste load allocations, or WLAs),
non-point sources (load allocations, or LAs) and natural background. As this equation suggests,
there are two ways that a state can reduce pollutant loads to a waterbody to meet the limit in a
TMDL: it can reduce WLAs by ratcheting down effluent limitations in permits issued to point
sources regulated through the National Pollutant Discharge Elimination System (NPDES) permit
program, and/or it can reduce LAs by, for example, directing available federal funding to
projects within the watershed designed to decrease pollution from nonpoint sources not regulated
through the NPDES permit program. How a state decides to reduce pollutant load will inform
how a state budgets a TMDL among WLAs and LAs (e.g., a state that wants to avoid imposing
stringent limits on point source dischargers will assign more of the TMDL to WLAs than to LAs,
thereby requiring significant reductions from nonpoint sources). As with water quality standards
and 303(d) lists, states submit TMDLs to EPA for review. Before EPA approves a TMDL, it
conducts what is known as a “reasonable assurance” analysis to ensure that the TMDL does not
contain overly generous assumptions regarding the amount of nonpoint source pollution
reduction that will occur.
The Chesapeake Bay is the largest estuary in the United States, draining a 64,000-squaremile watershed covering large sections of six states (Virginia, Maryland, Pennsylvania, New
York, Delaware, and West Virginia) and the District of Columbia (collectively, the Bay States).
Although the Chesapeake Bay has been described as “one of the most biologically productive
ecosystems in the world,” changes in land use over time have impaired its ecological health. A
number of sources located throughout the watershed, including agricultural operations, urban and
suburban stormwater runoff, and wastewater facilities, have been contributing excess nitrogen,
phosphorous and sediment to the Bay. These pollutants have caused algae blooms that deplete
the oxygen that fish and shellfish need to survive and that obstruct the sunlight that sustains
important underwater vegetation, resulting in dead zones unable to support aquatic life. After
more than 30 years of agreements, amendments, schedules, goals, programs, and strategies, all of
which have proven unsuccessful in restoring the water quality of the Chesapeake Bay, the Bay
States and EPA agreed that EPA would establish a Chesapeake Bay TMDL with a target date of
2025 for when all pollution control measures necessary to meet applicable water quality
standards must be in place.
EPA and the Bay States developed target loads for nitrogen, phosphorous and sediment,
which the Bay States used to develop draft watershed implementation plans. These roadmaps for
achieving target loads consisted of schedules for accomplishing reductions and identified
programs and actions to achieve those reductions. EPA conducted a “reasonable assurance”
analysis on these draft plans following their submission. Where EPA found “reasonable
assurance” lacking, it made adjustments, which were referred to as “backstop” allocations. EPA
then used the draft plans and backstop allocations to develop a draft Chesapeake Bay TMDL,
which it published for a 45-day public comment period. During that time, EPA continued to
work with the Bay States to strengthen their plans, effectively reducing to three the number of
backstop allocations EPA used to develop the final Chesapeake Bay TMDL. The largest and
most complex TMDL ever promulgated, the Chesapeake Bay TMDL established allocations of
185.9 million pounds per year of nitrogen (a 25 percent reduction from current levels), 12.5
million pounds per year of phosphorous (a 24 percent reduction), and 6.45 billion pounds per
year of sediment (a 20 percent reduction) among the Bay States.
The gravamen of plaintiffs’ complaint in the Am. Farm Bureau Fed’n case was that the
Chesapeake Bay TMDL was an unlawful federal implementation plan that impeded on states’
rights. In her decision on cross-motions for summary judgment, Judge Rambo agreed with
plaintiffs that TMDL implementation primarily rests with the states and that the Clean Water Act
does not authorize EPA to establish or otherwise take over TMDL implementation in the same
way that it allows EPA to issue its own water quality standards, 303(d) lists, or TMDLs in the
absence of state submissions or when it finds state submissions to be inadequate. Nevertheless,
Judge Rambo rejected that states have exclusive authority over the implementation of TMDL
allocations or that the Chesapeake Bay TMDL represents an unlawful implementation plan.
Plaintiffs advanced several arguments in support of their claim that EPA unlawfully
intruded on the Bay States’ implementation authority. After finding that plaintiffs possessed the
requisite standing to pursue their claims despite failing to submit supporting evidence in their
opening brief, Judge Rambo systematically shot down all of these arguments, as summarized
below.
Definition of TMDL. Although EPA’s regulatory definition of TMDL as the sum of
WLAs and LAs (plus natural background) has been in effect for more than 25 years and has been
used to develop more than 25,000 TMDLs, the plaintiffs in this case were the first to challenge it,
arguing that the Clean Water Act only authorizes EPA to establish a total maximum daily load
(i.e., one number). Applying traditional Chevron analysis, the court found that in defining a
concept as complex and technical as a TMDL, the Clean Water Act left plenty of room for
interpretation and that EPA’s regulatory definition was reasonable and entitled to deference.
Detailed Allocations. Plaintiffs argued that EPA unlawfully micromanaged TMDL
implementation by allocating pollutant loads among various sectors and by establishing WLAs
for individual permitted facilities. The court found that assigning allocations during TMDL
development, when agencies are working together in a coordinated fashion to evaluate the health
of an entire water body, is reasonable, and that delegating such allocations to individual permit
writers would be unworkable, particularly in a watershed extending across political boundaries.
The court also rejected the contention that EPA was solely responsible for the allocations in the
TMDL, finding that the process of developing the TMDL was more representative of cooperative
federalism than unlawful coercion, notwithstanding a handful of documents in the record that
plaintiffs cited to argue the contrary.
Reasonable assurance and backstop allocations. Plaintiffs argued that EPA’s
“reasonable assurance” requirement represented an unlawful attempt by the agency to insert
itself into TMDL implementation, but the court found that reasonable assurance was little more
than a standard upon which EPA evaluated proposed allocations. Plaintiffs argued that the three
backstop allocations imposed by EPA where it found reasonable assurance lacking unlawfully
overrode state decisions on TMDL implementation, but the court found ample support for EPA’s
backstop authority in several provisions of the Clean Water Act.
Insufficient flexibility. Plaintiffs argued that the TMDL created unlawfully binding
allocations “by locking [detailed] allocations in, establishing a federal timeline for
implementation, and reserving exclusive authority to revise them.” The court disagreed. While
EPA regulations require that NPDES permits contain effluent limitations for point sources that
are “consistent with the assumptions and requirements of any available [WLA in a TMDL],” the
court observed (as did the TMDL itself) that EPA regulations do not require that effluent
limitations be identical to the WLAs in a TMDL. States are also able to submit proposed
modifications to EPA for approval, and the TMDL contains a number of provisions offering
additional flexibility, like those supporting water quality trading programs. The court rejected
plaintiffs’ argument that the federal grant program coerces state action, finding that states remain
free to choose both if and how to implement the TMDL. Finally, the court noted that the 2025
implementation target established by the TMDL was the result of a consensus reached by EPA
and the Bay States and not a unilateral directive from EPA.
Watershed approach. Plaintiffs argued that EPA only has the authority to issue
allocations to tidal states and not to upstream, headwater states. The court found that while
nothing in the Clean Water Act expressly authorizes EPA to take a holistic, watershed approach
to TMDL development, nothing in the Act prohibits such an approach either, and the court found
the approach to be consistent with the Act and otherwise supported by EPA regulations. In
endorsing the approach, the court was persuaded by Supreme Court precedent sustaining EPA’s
authority to regulate upstream pollution sources in order to achieve downstream water quality
standards.
After concluding that EPA did not exceed its authority under the Clean Water Act, the
court turned to plaintiffs’ other claims. The court first rejected plaintiffs’ argument that EPA’s
45-day public comment period was unreasonable, finding that it exceeded the statutory
minimum, that the TMDL drafting process had effectively been ongoing for more than a decade,
and that plaintiffs were unable to demonstrate prejudice. This inability to demonstrate prejudice
was also fatal to plaintiffs’ claims that they were deprived of key modeling information during
the public comment period, as the court declined to be guided by a footnote in a Third Circuit
opinion suggesting that a regulated party automatically suffers prejudice when members of the
public are denied access to the complete public record. Finally, the court found a rational
relationship between allegedly flawed models and data that EPA used to develop the TMDL and
the reality that those models and data sought to represent. As such, the court rejected that their
use was arbitrary and capricious.
Assuming the decision in the Am. Farm Bureau Fed’n case survives any appeal that may
be filed, the approach that EPA took in developing the Chesapeake Bay TMDL is likely to
become a national model that the agency employs to restore other impaired waters that overlap
state boundaries, particularly where nonpoint sources are the prevailing sources of the
impairment. That this approach can withstand legal challenge has now been established. As for
whether it can succeed in restoring impaired waters like the Chesapeake Bay? On that matter
the jury is still out.
BRIAN G. GLASS is a partner at Warren Glass LLP, an environmental and water resources law
practice. He draws on more than a decade of varied environmental law experience to help his
clients design solutions to environmental problems that achieve multiple business objectives.
He can be reached at bglass@warrenglasslaw.com.
Reprinted with permission from the October 11, 2013 edition of The Legal Intelligencer©2013
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