Federal Court Upholds Chesapeake Bay TMDL

As previously reported by Conduit Street, the American Farm Bureau Federation and the Pennsylvania Farm Bureau filed a lawsuit in federal court challenging the United States Environmental Protection Agency (EPA) over its ability to enforce the Chesapeake Bay Total Maximum Daily Load (TMDL) in 2011.  Other agricultural interests and the National Association of Homebuilders subsequently joined in the suit.  The lawsuit alleged that EPA lacked the authority to enact pollution limits under the TMDL, that model EPA used to determine nutrient and sediment pollution was flawed, and that there was not adequate time for public comment.  The Chesapeake Bay Foundation (CBF) and other environmental groups intervened in the lawsuit on behalf of EPA.

Federal Judge Sylvia Rambo recently decided the case and upheld EPA’s authority, its use of the Bay Model, and the public comment process.  From a September 13 Chesapeake Bay Foundation (CBF) press release:

“This is a great day for clean water in the region, there could be no better outcome,” said Chesapeake Bay Foundation President William C. Baker. “CBF and our partners respectfully salute the thoughtful legal decision making by Judge Rambo, the presiding federal judge in the United States District Court for the Middle District of Pennsylvania.”  …

“Clean water is the legacy I want to leave to my children and grandchildren. Restoring clean water puts people to work and strengthens our economies,” Baker said. “We call on the opposition to cease their attempts to derail the clean-up efforts, lay aside expensive litigation, and roll up their sleeves and work with us for clean rivers and streams across the region.”

From a CBF Summary of the Holding in American Farm Bureau et al v. EPA:

EPA has authority under the CWA

The court upheld EPA’s authority to issue the TMDL where the states failed to do so. The court rejected the Farm Bureau’s claims that the EPA had overstepped its authority by “implementing” the TMDL; i.e., issuing specific waste load allocations (WLAs) and load allocations (LAs); backstop measures; establishing a federal timeline for implementing the allocations; and by reserving exclusive authority to revise them. …

45-Day Public Comment Period Was Sufficient

The court found that the 45 day public comment period was sufficient and in fact, only a 30 day period was required. …

Modeling and Was Sufficient and EPA’s Use of Data [sic]

The court found that the modeling used by EPA to estimate sediment and nutrient loads was sufficient and EPA’s use of the data inputted into the model is entitled to deference. These are fairly technical arguments where the Farm Bureau failed to show it was harmed by EPA’s selection of the technical methods it used.

The American Farm Bureau Federation’s President, Bob Stallman, issued the following response to Judge Rambo’s holding on September 16:

“The American Farm Bureau Federation is deeply disappointed with the district court’s ruling upholding the Environmental Protection Agency’s total maximum daily load for the Chesapeake Bay. We believe the ruling is incorrect and has huge implications for farmers and many others in the Bay area and nationwide.

“Win or lose in this lawsuit, farmers care deeply about our natural environment and want to do our part to improve water quality. But Congress did not authorize EPA to dictate how farmers, builders, homeowners, and towns would share the responsibility of achieving clean water. That is the states’ job. We believe EPA’s approach wrongly puts federal agency staff in charge of intensely local land use decisions.

“AFBF and our allies in this case are reviewing the decision and evaluating next steps.”

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