ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
NACWA and the municipal clean water community achieved a significant legal victory on September 13 when a federal district 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 ruling by the U.S. District Court for the Middle District of Pennsylvania in American Farm Bureau, et al. v. EPA rejected all challenges to the TMDL made by the agricultural plaintiffs in the case, and granted requests by EPA and a group of municipal intervenors, including NACWA, to uphold the final TMDL and its watershed approach for achieving nutrient and sediment reductions. This decision marks a significant win for NACWA, its members, and its municipal partners by affirming EPA’s ability to pursue a watershed approach under the Clean Water Act (CWA) – including a meaningful contribution from nonpoint agricultural sources – in crafting TMDLs to achieve improved water quality.
This Advocacy Alert provides background on the litigation, a brief summary of the court’s decision, and a discussion of the ruling’s implications for NACWA members. Additional information on the case and copies of relevant court filings are available on NACWA’s Litigation Tracking webpage.
Background on Litigation
The litigation was initiated in early 2011 by a coalition of agricultural groups to challenge the final Chesapeake Bay TMDL, with a specific focus on EPA’s efforts to require greater reduction of nutrients and sediment from nonpoint agricultural dischargers as part of the TMDL’s load allocations. These legal claims from the agricultural community presented a significant threat to the comprehensive, holistic watershed approach upon which point source interests are highly dependent and which NACWA has strongly supported, and could have resulted in increased regulatory pressure on municipal wastewater and stormwater point source dischargers.
In April 2011, NACWA joined with the Maryland Association of Municipal Wastewater Agencies (MAMWA) and the Virginia Association of Municipal Wastewater Agencies (VAMWA) to request intervention as defendants in the lawsuit. The municipal focus was on protecting a watershed approach and EPA’s ability to address nonpoint sources through the TMDL program. NACWA and its municipal partners were granted intervention in the case over the objections of the agricultural plaintiffs in October 2011.
NACWA submitted briefs in the case in April and July of 2012 arguing that the watershed approach embodied in the TMDL was both lawful and necessary to restore water quality, and that EPA’s inclusion of both nonpoint sources discharges and upstream discharges was legal and appropriate. The briefs highlighted the significant investments and achievements municipal clean water utilities have made to improve water quality in the Chesapeake Bay, particularly with regard to nutrient impairments, and argued that additional restrictions on point source dischargers without addressing the significant nonpoint contributions would be inequitable and ultimately ineffective in dealing with the water quality impairments. Oral arguments in the case were heard in October 2012.
Summary of Court’s Decision
The court’s comprehensive 99-page ruling provides a resounding endorsement of EPA’s efforts in developing the Chesapeake Bay TMDL, including its use of a watershed approach to require meaningful reductions from all sources of water quality impairment. Specifically, the court stated that it “endorses the holistic, watershed approach used here,” noting that such an approach “receives ample support in the CWA, its legislative history, and Supreme Court precedent.” The court went on to note EPA’s decision to pursue a watershed approach in the final TMDL was “consistent with the CWA, and practical in terms of attaining a full and fair contribution by all major source sectors and coordinated participation of all states in the watershed.” Importantly, the court held not only that EPA has authority to establish the TMDL, but also that EPA can establish individual wasteload allocations for point sources and load allocations for nonpoint sources.
The court rejected a number of the plaintiffs’ other challenges to the TMDL, including allegations that the final plan impermissibly led to EPA implementation of the TMDL instead of state implementation and that the TMDL was issued without following proper administrative procedures. On the implementation question, the court held that the Bay TMDL itself is not an implementation plan (despite plaintiffs’ protestations that EPA overstepped its authority by including detailed allocations, imposing “backstops” and an implementation timeline) but was consistent with the CWA’s approach of EPA-State “cooperative federalism.” As part of this analysis the court noted that Bay states are “free to choose both if and how they will implement the TMDL allocations.” Regarding the procedural question of the TMDL’s issuance, the court determined that EPA’s process complied with the Administrative Procedure Act (APA) and gave interested parties adequate opportunity to participate in the TMDL development.
The court also rejected the plaintiffs’ claims that they were denied the opportunity to fully review the underlying models that EPA used to develop the TMDL, and highlighted plaintiffs’ failure to show how they were prejudiced by not being able to review all of the underlying modeling documentation, especially in light of other options for participation in the process. The court dismissed complaints regarding flaws in the modeling by explaining that “the Model was used in conjunction with a number of other local factors that states also considered in drafting their local allocations.” According to the court, the plaintiffs failed to meet the burden of showing there was “no rational relationship” between the model and local allocation development.
Throughout, the decision showed a thorough understanding of the ecological importance of the Chesapeake Bay and the history of the Bay restoration efforts. The ruling meticulously catalogued and addressed the current state of the science and sources of pollution across media and state-by-state impacting the Bay, the controlling CWA statutory and regulatory frameworks, and the relevant federal case law. Although an appeal by the agriculture plaintiffs may be filed, the thoroughness of the decision suggests that EPA and the municipal intervenors will be well placed to help defend the ruling at the appellate stage.
Implication of Decision for NACWA Members
This decision is an important victory for NACWA, its members, and the larger municipal clean water community by providing strong legal justification and support for TMDLs employing a holistic watershed approach to address water quality impairment, especial in the context of nutrient reduction. The ruling also provides key legal support for EPA efforts to address water quality issues over a multi-state watershed by fairly allocating TMDL responsibility to both point and nonpoint sources.
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 even higher 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.
The ruling also contains some very positive language on water quality trading that can support the legal basis for trading programs under the CWA both within the Chesapeake Bay and nationwide. As part of the discussion about existing flexibilities under the Bay TMDL, the court specifically noted the role of trading in achieving the targeted pollution reductions. The court noted that “individual sources are free to trade pollution amounts without the need to revise or adjust the TMDL allocations.” This acknowledgement of trading within a CWA program is among the first of its kind in federal case law and can be helpful in defending trading programs from legal challenge, including a separate federal case attacking the Bay TMDL’s trading program which is currently pending and in which NACWA and its municipal partners have intervened.
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