American Farm Bureau, et al. v EPA

American Farm Bureau, et al. v EPA

NACWA and the municipal clean water community achieved an important legal victory July 6, 2015 when a federal appellate court upheld EPA's final total maximum daily load (TMDL) for the Chesapeake Bay and its holistic watershed approach requiring pollution reduction from all sources of impairment, including nonpoint sources. The unanimous ruling by the U.S. Court of Appeals for the Third Circuit in American Farm Bureau, et al. v. EPA rejected all challenges to the TMDL made by the agricultural plaintiffs in the case and affirmed a lower court decision upholding the TMDL. On February 29, 2016 the United States Supreme Court declined the Farm Bureau’s request to review the case, effectively affirming the Third Circuit’s ruling.

This decision marks a significant win for NACWA, its members, and its municipal partners by supporting EPA's ability to pursue a watershed approach under the Clean Water Act (CWA) – including a meaningful allocation ascribed to nonpoint agricultural sources – in crafting TMDLs to achieve improved water quality.

Litigation Background
This appeal was initiated by a group of agricultural and development interests, led by the American Farm Bureau, that sought to limit EPA's ability to include nonpoint sources under the CWA TMDL program. The appeal was filed in 2013 after a federal district court ruled against the nonpoint source interests in a challenge to the final TMDL, upholding the ability of EPA to include specific allocations for nonpoint source dischargers. (See Advocacy Alert 13-14 for more information on the lower court ruling.) Oral arguments were held before the Third Circuit in November 2014.

NACWA, the Maryland Association of Municipal Wastewater Agencies (MAMWA) and the Virginia Association of Municipal Wastewater Agencies (VAMWA) have been active participants in the litigation since its inception in 2011 to defend the interests of municipal clean water utility members and support EPA's watershed approach in the TMDL. The municipal focus throughout the litigation has been on protecting a watershed approach and EPA's ability to address nonpoint sources through the TMDL program.

NACWA filed a brief in the appeal in April 2014, arguing that the watershed approach embodied in the Bay TMDL is both lawful and necessary to restore water quality. The brief also highlighted the significant investments NACWA's utility members have made and will continue to make to improve water quality, but noted that true water quality advancements can only be achieved with the meaningful participation of nonpoint sources. Endorsing NACWA's position, a group of major U.S. cities – including New York City, Baltimore, Chicago, Los Angeles, Philadelphia, and San Francisco – also filed an amicus curiae brief in the litigation, echoing the importance of the watershed approach for large municipal governments.

Summary of Court's Decision
The primary argument from the agricultural challengers in this appeal was that TMDLs may only be expressed as a single number representing the "total" allowable pollutant load to the water body, and that TMDLs may not be divided into separate allocations for point and nonpoint sources. The Third Circuit, however, explicitly rejected this reading. While the court agreed that the term "total maximum daily load" is ambiguous within the statute, it also found that a plausible reading of the word "total" is that a TMDL is "the sum of the constituent parts of the load" – in other words, the sum of nonpoint waste load allocations and point source waste load allocations. This is consistent with how EPA structured the final Chesapeake Bay TMDL and also with the Agency's longstanding regulatory definition. The court thus deferred to EPA's interpretation of the ambiguous "total maximum daily load" phrase to include both point and nonpoint allocations.

Bolstering this position, the court noted that "we believe the congressional silence on how to promulgate a TMDL and the congressional command that a TMDL be established only for waters that cannot be cleaned by point source limitations alone (necessarily implying that, whatever form the TMDL takes, it must incorporate nonpoint source limitations) combine to authorize the EPA to express load and waste load allocations."

The court also went on to state:

Farm Bureau's reading of the Act would stymie the EPA's ability to coordinate among all the competing possible uses of the resources that affect the Bay. At best, it would shift the burden of meeting water quality standards to point source polluters, but regulating them alone would not result in a clean Bay… Establishing a comprehensive, watershed-wide TMDL – complete with allocations among different kinds of sources…. – is reasonable and reflects a legitimate policy choice by the agency in administering a less-than-clear-statute.

Overall, the court unequivocally endorsed a reading of the CWA and the TMDL program that allows for the use of a watershed approach, requiring reductions from all contributors to water quality impairment. The court further recognized the fallacy and inadequacy of only requiring reductions from point sources, emphasizing that allocations for all sources were reasonable.

The Third Circuit also dismissed arguments alleging that the nonpoint allocations impermissibly gave EPA authority to make local land-use and zoning regulations, noting this claim was "long on swagger but short on specificity." The court explained that "the TMDL's provisions that could be read to affect land use are either explicitly allowed by federal law or too generalized to supplant state zoning powers in any extraordinary way." Additionally, the court dismissed challenges to the TMDL's reasonable assurance provisions and use of target completion dates.

Implication of Decision for NACWA Members
In concluding its decision, the court opined that the solution to the complex water quality problems facing the Chesapeake Bay watershed, like many others nationwide, will result in winners and losers. The court observed that based on the "the arguments and amici briefs filed in this case, the winners are environmental groups, the states that border the Bay, tourists, fisherman, municipal waste water treatment works, and urban centers."

NACWA is in complete agreement with the court that this decision is an important legal win for the municipal clean water community. It reaffirms the authority of the TMDL program to include both point and nonpoint sources, thereby giving nonpoint sources shared responsibility with point sources for reducing water quality impairments through the TMDL process. For NACWA members within the Chesapeake Bay watershed, this ruling protects the TMDL nutrient allocations that have already been assigned to municipal point sources and removes the risk of more stringent nutrient removal requirements in the event of the loss of the watershed approach. This allows utilities within the Bay watershed to proceed with their existing TMDL implementation plans. For NACWA members outside the Chesapeake Bay region, this decision provides key legal backing for a holistic watershed approach and can serve as valuable legal precedent to support similar approaches elsewhere in the country.

It is possible that the agricultural and nonpoint interests in the case will seek rehearing before the Third Circuit, or even request review by the U.S. Supreme Court. NACWA will closely monitor potential appeals and is prepared to help defend this decision if necessary. The Association will continue to keep the membership updated on developments in the case as they unfold.

NACWA's Position on Cooperative Federalism
Within the context of a large watershed, and particularly an interstate watershed like the Chesapeake Bay, NACWA believes EPA can play an important and valuable role in setting specific allocations, especially for nonpoint sources. However, setting pollutant load allocations in a TMDL is not the same as dictating the means of implementing such allocations, which NACWA agrees is properly the role of states. In this case, the plaintiffs argued that EPA was limited to establishing the maximum amount of nitrogen, phosphorus and sediment that could enter the Bay and that other actions such as setting waste load allocations constituted TMDL implementation, which was reserved to the states.

The federal district court judge rejected these arguments. While she agreed that implementation is largely but not exclusively the responsibility of the states, she also ruled that EPA could take the lead role in setting the detailed allocations, including for nonpoint sources. The judge noted that the TMDL development process is an example of "cooperative federalism" and that it was "misleading" to suggest the allocations were set solely by EPA. Instead, the allocations were the result of considerable "back and forth" between the states and EPA, thus appropriately reflecting the shared role between EPA and the states in implementing CWA requirements. In briefs filed with the court, NACWA addressed the question of where to draw the line between TMDL allocation-setting and implementation: dividing a water body's assimilative capacity among sources of pollutants is the proper role of a TMDL and is necessary to adequately address all sources, which is the essence of the holistic, watershed approach. The court's ruling fortified NACWA's interpretation on the matter.

Alternatively, the primary responsibility of states under the CWA for developing water quality standards – especially for numeric nutrient criteria (NNC) – was underscored by the September 20, 2013, ruling in Gulf Restoration Network, et al. v. EPA . For additional analysis on this aspect of the decision, see Cooperative Federalism: Courts Get it Right in Nutrient Litigation in NACWA's weekly blog, The Water Voice.

Additional information on the decision is available in the 07/06/15 NACWA News Release— NACWA, Municipal Clean Water Community Secure Major Victory in Chesapeake Bay TMDL Litigation.

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American Farm Bureau, et al. v EPA