Chesapeake TMDL Rated A Top National Issue In Enviro Law

A year-end summary of national environmental law issues has rated the Chesapeake Bay Total Maximum Daily Load among its most compelling for the year.

The Vermont Journal of Environmental Law ranked the Chesapeake Bay TMDL as its #2 environmental law issue of the year. This ranking was second only to the recently-announced Clean power Plan from the US EPA.

In their coverage of the issue, they summarize the legal and policy implications:

Summary: On June 6, 2015, the Third Circuit upheld an innovative clean water plan developed by the EPA and the six states of the Chesapeake Bay watershed. The plan represents an innovative approach to the difficult challenge of reducing nutrient pollution into the nation’s waters. The American Farm Bureau Federation is now seeking to have the U.S. Supreme Court overturn this decision. Regardless of whether the Supreme Court hears the case, the Third Circuit ruling will provide a foundation for the EPA, states, and environmental organizations in the development of plans to address polluted stormwater runoff across the country, from the Great Lakes to the Gulf of Mexico.

The report summarizes the current state of the legal challenge as well:

For the Chesapeake Bay TMDL, the EPA first evaluated state plans to determine if they provide “reasonable assurances” of the necessary pollution reductions. Further, the EPA included provisions in an accountability framework such that, if the states do not follow through on their commitments, the EPA may take direct action. The primary consequence of a failure of the state plans is that the EPA would increase the stringency of pollution limits on those point sources of pollution under their authority, primarily through more stringent effluent limitations on sewage treatment plants, urban stormwater discharges, and large feedlot operations.

The American Farm Bureau Federation and the National Homebuilders, among others, challenged this TMDL on the basis that it was unconstitutional and beyond the EPA’s authority. The Farm Bureau argued that the EPA’s approach co-opted state authority and interfered in the states’ traditional authority to regulate land use. The Third Circuit disagreed, finding that the EPA’s interpretation of the Clean Water Act was permissible, since the EPA did not direct any particular land use regulations and only threatened actions directly under the agency’s control.

Coverage in the Bay Journal notes the familiarity and efforts underway in Maryland, obviously in the center of the debate over the full watershed:

As readers of the Bay Journal know, the EPA set the Chesapeake Bay TMDL, or pollution diet, in 2010 after decades of voluntary measures failed to clean up the nation’s largest estuary.

Many rivers and streams have TMDLs, and some are even in the Chesapeake’s watershed. But the Chesapeake TMDL was the largest one in the country, spanning a watershed of 64,000 miles with nearly 18 million residents. The TMDL set the maximum amount of nitrogen entering the Bay at 185.9 million pounds a year, phosphorus at 12.5 million pounds and sediment at 6.45 billion pounds. That represented a 25 percent reduction in nitrogen, 24 percent reduction in phosphorus and 20 percent reduction in sediment from 2010 levels.

Read the Vermont Law Journal article ranking the Chesapeake TMDL its nationwide #2 issue of the year.

Michael Sanderson

Executive Director Maryland Association of Counties