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USEPA’s “Pollution Diet” For A Major National Waterway: Land Use Regulation and the Clean Water Act Intersect

iStock_000010382621_LargeThe Federal Clean Water Act became law in 1972 with the goal of eliminating pollution of the nation’s rivers, lakes and coastal waters by 1985. Despite the intervening decades, there is widespread recognition that the goal line is still off in the distance. Although significant progress has been made in reducing pollution from “point source” discharges such as industrial facilities and municipal sewage treatment plants, it is generally recognized that considerably more needs to be done, particularly with respect to “non-point source” pollution from agriculture (fertilizers and livestock management are examples), urban stormwater runoff, and residential sources (e.g., lawn fertilizers, certain soaps and detergents, etc.).

  One of the Clean Water Act’s key pollution reduction tools is the process by which the states, in collaboration with the U.S. Environmental Protection Agency, determine the “total maximum daily load” (or “TMDL”) for each of the pollutants that exceed applicable water quality standards for a particular waterway – in essence a “pollution diet” for the waterway. See 33 U.S.C. § 1313(d)(1)(C). Continuing the “diet” metaphor, the TMDL measures, for each of the relevant pollutants, the extent to which the waterway is “overweight.” EPA’s authority to facilitate pollution reduction through the TMDL process was recently challenged before the U.S. Court of Appeals for the Third Circuit in American Farm Bureau Federation, et al. v. U.S. Environmental Protection Agency, No. 13-4079 (July 6, 2015), and a 3-judge panel was unanimous in upholding the TMDL that EPA issued in 2010 to address pollution of the Chesapeake Bay, the United States’ largest estuary.

Important context for the American Farm Bureau case – and the TMDL process generally – is the point noted above: specifically, the need to reduce “non-point source” pollution such as nitrogen and phosphorus loading from agricultural sources. While EPA’s direct and primary role in regulating point source discharges, see 33 U.S.C. § 1311(b)(1)(A), is a significant factor in our more favorable national report card on controlling point source pollution, regulation of non-point source pollution is a more diffuse process where: (i) EPA and affected states have shared responsibility; (ii) the interests of affected states could diverge; and (iii) state interests could conflict with the goals of the Clean Water Act. A formidable antidote to counter those concerns is the TMDL process (to be sure, EPA’s use of the TMDL regimen developed haltingly – see American Farm Bureau at 20-22). Although the Clean Water Act gives states initial responsibility for developing TMDLs, if a state fails to do so, or if EPA disapproves a state’s submission, EPA prepares the TMDL for the affected water body. In addition, a state (or states) can agree to have EPA prepare the TMDL for a particular water body, which was the case for the seven states in the Chesapeake Bay watershed that are subject to the EPA-established TMDL at issue in American Farm Bureau.

While EPA’s preparation of a TMDL would not necessarily be controversial, in American Farm Bureau the appellants argued that EPA went too far because the Chesapeake Bay TMDL intrudes on matters of land use management that are the domain of state government. As described by the appellants, EPA’s Clean Water Act-prescribed role in TMDL formulation is narrow and specifically limited to determining the total amount of a given pollutant that can be discharged into a particular waterway (or waterway segment). Conversely, the appellants argued that EPA is not allowed, as it did with the Chesapeake Bay TMDL, to go further and allocate pollutant loading limits between point and nonpoint source categories, specify deadlines for reducing pollutant discharges, or incorporate into the TMDL the affected states’ commitments to meet the TMDL’s pollutant reduction targets. According to the appellants, those additional measures “necessarily dictate[]   intensely local land use decisions,” authority that is reserved for the states. See Brief of Plaintiffs-Appellants, American Farm Bureau Federation, et al. v. U.S. Environmental Protection Agency, No. 13-4079 (January 27, 2014), at 49. The Third Circuit disagreed, explaining that “Congress was ambiguous on the content of the words ‘total maximum daily load,’” and noting that substantive requirements in the Clean Water Act “expand the scope of a TMDL beyond a mere number.” American Farm Bureau at 34-37. In addition, the court rejected as “long on swagger but short on specificity” the argument that the Chesapeake TMDL infringes on state land use regulation.” Id. at 45. In that regard, the court concluded that the TMDL “preserv[ed] state autonomy in land-use and zoning,” emphasizing that “the TMDL nowhere prescribes any particular means of pollution reduction to any individual point or nonpoint source” and instead leaves those tasks to be addressed by the states. Id. at 46 (original emphasis).

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While our national effort to achieve the Clean Water Act’s pollution reduction goals has made significant progress, additional actions are needed to address, in particular, non-point source pollution. The TMDL regimen is an important example, particularly given the Third Circuit’s strong endorsement of EPA’s Chesapeake Bay TMDL in the American Farm Bureau case. To be sure, the last word may not be written in American Farm Bureau (the period for seeking Supreme Court review won’t close until October), and, independent of the outcome in American Farm Bureau, interested stakeholders will benefit from monitoring ongoing developments regarding state and federal TMDL implementation.



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