The American Farm Bureau Federation's (AFBF) legal challenge of EPA's novel, multistate pollution load limit for the Chesapeake Bay watershed could provide a new test of the agency's authority to set pollution limits among different sources and to dictate state actions in cleaning up waterbodies.
The American Farm Bureau Federation's (AFBF) legal challenge of EPA's novel, multistate pollution load limit for the Chesapeake Bay watershed could provide a new test of the agency's authority to set pollution limits among different sources and to dictate state actions in cleaning up waterbodies.
In its Jan. 10 lawsuit, AFBF, et al. v. EPA, the farm industry group charges the recently finalized Bay total maximum daily load (TMDL) for nutrients and sediment is "fatally flawed" because the allocation of pollutant loads among sources in the TMDL is too specific and exceeds agency authority under the Clean Water Act (CWA).
Additionally, AFBF says the pollutant loads are based on inaccurate information that was fed into an unsuitable model; and during the comment period the public "did not have access to the information it needed to comment effectively on the modeling results and the assumptions in the final TMDL." AFBF filed the lawsuit in the U.S. District Court for the Middle District of Pennsylvania.
EPA, however, is defending the TMDL, with agency officials saying Jan. 10 at a conference with environmentalists that the TMDL is on solid legal ground and citing key legal precedents, including a 1995 ruling from the U.S. Court of Appeals for the 9th Circuit in Dioxin/Organochlorine Center v. Clarke and a 1992 ruling from the Supreme Court in Arkansas v. Oklahoma.
The officials noted that the Bay states asked the agency to set the TMDL, and the schedule for its creation was established in a court settlement with environmentalists. Further, the officials argued that EPA is owed deference in areas where the CWA is not explicit, such as how to address the impairment of a multistate waterbody.
EPA finalized the TMDL Dec. 29 along with approving state watershed implementation plans (WIPs) that detail how states will put controls in place by 2025 to meet the stringent new pollution load limits. The agency intends also to "backstop" the WIPs by requiring states to expand point source permitting to include pollution sources that have traditionally been considered nonpoint sources.
Concerns About Cost
Opponents of EPA's plans have long said it is too costly and oversteps the bounds of the CWA's National Pollutant Discharge Elimination System (NPDES) permitting program, particularly in expanding requirements at high-volume farming operations, known as concentrated animal feeding operations (CAFOs), and for municipal stormwater. Wide expansion of state CAFO and stormwater permitting programs is a key aspect of EPA's plans, agency officials and environmentalists say.
AFBF echoes these criticisms in its lawsuit, arguing that EPA has gone too far in setting pollution limits for the TMDL, overstepping the rights of states to manage their own delegated NPDES programs. The TMDL covers six states with delegated CWA authority -- Virginia, West Virginia, Maryland, Pennsylvania, Delaware and New York -- as well as the District of Columbia.
The farm group argues that EPA's statutory authority is "to act directly only in the form of federal disapproval of or objection to state action or inaction, and with no authority at all for EPA to develop a state's planning process or implementation plans."
AFBF argues that EPA may approve or disapprove of the TMDL, and if the state fails to establish it, EPA has "backstop" authority to establish it, with the calculations of waste load allocations (WLAs) and load allocations (LAs) used available for public review. WLAs are pollution coming from point sources of pollution while LAs are pollution from nonpoint sources of pollution or natural background sources.
But the farm group says, "How, when, and indeed whether a TMDL is ultimately achieved, including any imposition of enforceable pollutant load allocations among sources and sectors within a state, is placed exclusively in the hands of each state. State implementation plans are not part of the TMDL, are not required to be submitted to EPA, are not subject to EPA approval, and are not subject to unilateral modification by EPA."
EPA, however, maintains that it has the authority to establish the TMDL on behalf of the states, provide specific break-downs of the WLAs and LAs, and to review the state WIPs and implementation progress.
Jim Curtin, an attorney working on the TMDL with EPA's Office of General Counsel, said Jan. 10 at the Choose Clean Water conference -- a meeting of environmentalists focused on Bay cleanup -- that EPA believes it has the legal support for the TMDL, and that case law on the issue is in the agency's favor.
Section 303(d) of the CWA "does not expressly speak to what happens when a multistate water is impaired," Curtin noted at the meeting, and does not answer the question of what happens when waters that are impaired overlap state boundaries.
The agency thinks "that it is reasonable that EPA find a reservoir of authority" in 303(d), Curtin said, to "do a TMDL that addresses the entire problem" of pollution in the Chesapeake Bay. Also, he noted, "we think it's important that the states asked us to do it."
Curtin noted that the 9th Circuit in Dioxin/Organochlorine Center v. Clarke upheld a multistate dioxin TMDL that EPA established in 1990 at the request of Idaho, Oregon and Washington, covering the entire Columbia River basin. In that case, environmental groups sued to make the TMDL more stringent and paper mills "sued the agency for setting the TMDL before finalizing new effluent guidelines for the entire industry," according to the book Science at EPA: Information in the Regulatory Process by Mark Powell.
Supreme Court Precedent
And Curtain cited the Supreme Court's ruling in Arkansas v. Oklahoma, which upheld EPA regulations saying that water quality based effluent limits had to be consistent upstream with the needs of downstream states.
"We think it's very instructive here," Curtin said, even though Arkansas was based more on permitting issues, because the ruling showed the CWA allows for consideration of downstream water quality impaired by upstream states. It "makes sense for a TMDL plan to include all the pollution," Curtain said.
Curtain acknowledged that courts have made clear that Section 303(d), which governs TMDLs, does not grant EPA the authority to require WIPs as part of a TMDL. "We have in this TMDL very very carefully tried to respect that dichotomy" between TMDL and WIP, he said.
Nevertheless, Curtain noted that the WIPs are an important part of the Bay restoration process, and that the agency does derive additional authority for the Bay states under CWA section 117(b), which requires that EPA ensure "management plans" are done by the states.
As for the models, environmentalists at the meeting said that EPA's models for the Bay TMDL are the best in the nation, and were augmented for the TMDL with the benefit of more than 50 meetings with home builders, farmers, municipalities and other stakeholders. The TMDL relies on a baseline assumption of "clean water" agreed to by the states, and the agency relied heavily on the U.S. Department of Agriculture and conservation districts for farm information.
An EPA spokesman told Inside EPA last fall, in response to industry complaints about the models, "The development of the models, including Scenario Builder, are completely transparent and open to anyone who is interested, and occur through extensive collaboration with a wide range of partners and interested stakeholders. So there would be no 'public comment period' on one of our modeling tools -- these modeling tools are always open to public review and input. The development and improvement of the models is a highly collaborative process involving a wide range of partners, stakeholders and experts. During this process, revised versions of the models are regularly shared openly with partners throughout the Bay community. This allows for review, testing and suggestions during the development and improvement, which is vital for federal, state and local officials who utilize the model results as a tool to inform a wide variety of management decisions."