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In an Opinion issued on September 13, 2013, U.S. District Judge Sylvia H. Rambo granted summary judgment in favor of EPA, sustaining the total maximum daily load (TMDL) which had been issued by the EPA under the Clean Water Act for the Chesapeake Bay watershed.

As required by Section 303(d) of the Clean Water Act, the Chesapeake Bay and its tributary waters had been designated by EPA as impaired water, which in turn mandated that a TMDL for the watershed be established.

On December 29, 2010, EPA had promulgated the TMDL for the Chesapeake Bay. This promulgation was the result of a multi-jurisdictional planning process between EPA, six states and the District of Columbia, where the Bay and its tributary waters are located.

In January of 2011, the American Farm Bureau Federation filed a law suit against EPA in the U.S. District Court for the Middle District of Pennsylvania (American Farm Bureau Federation, et al. v. EPA, et al., Civil No. 1:11-CV-00067), challenging the legality of the TMDL. An aspect of the TMDL that plaintiffs objected to is imposition of load allocations to reduce phosphorous, nitrogen and sediment from agricultural activities.

The cooperative efforts to clean up the Bay by the seven Bay jurisdictions and EPA began more than 30 years ago and resulted, ultimately, in a consensus that EPA would establish a Bay TMDL with jointly developed target loads for nitrogen, phosphorous and sediment for each state and that after promulgation by EPA, each state would develop a Watershed Implementation Plan (WIP) – designed to achieve the TMDL and eventually remove the Bay watershed from the list of impaired waters.

The plaintiffs in the suit argue that the TMDL constitutes an unlawful federal implementation, impeding the states’ rights under the Clean Water Act to implement the plan as they see fit. The Court, however, rejected this argument, pointing out that TMDL implementation under the Act is divided between EPA and the states. EPA is clearly given authority to review and approve or disapprove of each state’s proposed process of TMDL implementation. EPA also has authority under the Act to ensure that federal NDPES permits are consistent with TMDL implementation and has authority to provide or withhold grant money to encourage implementation for non-point sources.

The plaintiffs also argued that the TMDL’s establishing the total load as the sum of waste load allocations from point sources and load allocations from non-point sources was improper because the Clean Water Act only authorizes EPA to establish the total maximum daily load. Here the court determined that the provisions of the Act left room for interpretation on this point. It then invoked the principle known as the Chevron rule, a two-step analysis established in the case of Chevron v. NRDC, 467 U.S. 837, 842 (1984). This rule provides, first, that if the rule is unambiguous and clearly authorized by statute, the Court will not overturn it. Second, if the rule or statute is ambiguous, deference to the agency’s interpretation will be given if that interpretation constitutes a “permissible construction,” i.e., if it is “reasonable.”

The plaintiffs argued that the TMDL was too specific in designating load allocations for various sectors (including agriculture, stormwater, wastewater, forest, non-tidal atmospheric deposition, on-site septic and urban sectors) and for establishing waste load allocations for 478 individual permitted facilities. Citing the broad language of the statute and the complexity of establishing a TMDL for such a large watershed in seven different jurisdictions, the Court refused to find that the TMDL’s level of detail “crossed the line” into unlawful implementation. Similarly, EPA’s imposition of “backstop adjustments” to the Bay states’ implementation plans was held to be reasonable in the circumstances of this project.

Judge Rambo’s Memorandum Opinion granting summary judgment to EPA comprises approximately 100 pages and includes a thorough discussion of each aspect of the plaintiff’s arguments. The Court refused to disrupt a plan that resulted from decades of work among the jurisdictional governments and extensive public participation. Unless revised by an appellate court, the individual industries and business sectors affected by the limitations on discharges will remain bound by the TMDL and the Watershed Implementation Plans adopted by the states.