On Monday, the Third Circuit Court of Appeals affirmed EPA’s TMDL for the Chesapeake Bay. This should not be news. Although Judge Ambro comprehensively disposed of the appellants’ arguments in a thoughtful opinion, I think that the opinion probably could have been six pages rather than sixty.
The crux of the challengers’ arguments was that a TMDL must consist of a single number specifying the amount of a pollutant that a water body can accommodate without adverse impact. The Court agreed with EPA that such is not the case. The main points include:
- The TMDL review is governed by Chevron and this is particularly so “where an agency is charged with administering a complex statutory scheme requiring technical or scientific sophistication” – as was certainly the case here.
- Because the very point of TMDLs is to address water bodies where point source controls are not sufficient to attain water quality criteria, EPA had authority to allocate the TMDL among point sources and non-point sources.
- EPA also had authority to impose deadlines for attaining water quality standards. As the court stated:
it is more consistent with the purpose of the Clean Water Act to express the deadline that the EPA relied on in calculating the TMDL than to make states and the public guess what it is.
- It was appropriate for EPA to require states to provide “reasonable assurance” that their Watershed Improvement Plans will meet their goals.
- The TMDL does not unconstitutionally infringe on local land use regulatory authority. This argument was borderline silly. “Regulation of the channels of interstate commerce lies at the very core of Congress’s commerce power.” The Chesapeake Bay TMDL is not the regulation of a man-made ditch; it’s the largest estuary in North America and is certainly, as the court noted “navigable in fact.”
As I noted last year, the most perplexing – and disturbing – element of this litigation is that 21 states filed amicus briefs on behalf of the American Farm Bureau Federation, the lead plaintiff, arguing that the TMDL was inconsistent with the notion of cooperative federalism and improperly infringed upon states’ authority over local land use. How could that challenge even make sense, let alone succeed, when EPA developed the TMDL in conjunction with the states directly affected by it?