Appeals court backs landmark cleanup plan in big win for EPA

By Annie Snider | 07/06/2015 01:04 PM EDT

A federal appeals court today unanimously upheld U.S. EPA’s landmark plan for staunching the flow of pollution into the Chesapeake Bay.

Judge Thomas Ambro of the 3rd U.S. Circuit Court of Appeals in Philadelphia, a Clinton appointee, acknowledged the difficulty of cleaning up the 64,000-square-mile watershed, which crosses six states and the District of Columbia and is home to more than 17 million people.

But in ruling against a challenge brought by agricultural and other industry groups, he wrote the Clean Water Act’s Total Maximum Daily Load (TMDL) process creates a framework flexible enough to encompass such massive efforts.

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"Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution," he wrote. "The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay — to make it once again a part of our ‘land of living’ … a goal our elected representatives have repeatedly endorsed."

After three decades of failed efforts to restore the nation’s largest estuary, EPA in December 2010 issued a TMDL — essentially a "pollution diet" — for the watershed.

TMDLs are used regularly to develop plans for cleaning up water pollution, but the bay plan is by far the largest and most complex. Both environmental and industry groups across the nation have watched the effort closely, viewing it as a possible model for future efforts to clean up large watersheds.

For the Chesapeake Bay TMDL, EPA worked with the states to set pollution targets for states and municipalities that were divided among sectors such as stormwater, septic systems and agriculture. It was then up to the states to determine whether or how to achieve the necessary reductions. A plan might, for example, encourage farmers to install fences to keep animals out of the water or by requiring states to implement stormwater fees to pay for improvements.

The American Farm Bureau Federation quickly objected to the plan, leading a number of industry groups in filing a lawsuit in federal district court in early 2011. U.S. District Judge Sylvia Rambo of the Middle District of Pennsylvania ruled for EPA in September 2013, and the groups appealed (Greenwire, Sept. 16, 2013).

The appeal drew a number of interveners and friend-of-the-court briefs, including one from 21 state attorneys general, who sided with industry groups in challenging the bay cleanup plan. Kansas Attorney General Derek Schmidt (R), who led their effort, argued that it would "micromanage how states meet federal water-quality standards" (Greenwire, Feb. 4, 2014).

Many environmental groups, as well as municipal wastewater agencies, joined on the side of EPA.

In the ruling today, the court methodically strikes down each of industry’s arguments against the cleanup plan.

The challengers’ central argument was that the bay TMDL infringes on local rights to make land-use decisions — one that the court found lacking in specifics.

"The heart of the Farm Bureau’s federalism argument is that the TMDL impermissibly grants the EPA the authority to make land-use and zoning regulations," Ambro wrote for the three-judge panel that heard the appeal. "The challenge is long on swagger, but short on specificity. That is likely because the TMDL’s provisions that could be read to affect land use are either explicitly allowed by federal law or too generalized to supplant state zoning powers in any extraordinary way."

Challengers had also argued that the Clean Water Act does not give EPA the authority to write such detailed pollution diets. Of particular concern is the allocation of pollution limits between point sources, like wastewater treatment plants, that are federally regulated under the Clean Water Act, and nonpoint sources like agricultural runoff, which are left to the states to manage under the 1972 law.

In his opinion today, Ambro wrote that it only makes sense to write a pollution diet if it includes targets for nonpoint sources.

"Because TMDLs only relate to bodies of water for which point source limitations are insufficient, they must take into account pollution from both point and nonpoint sources," he wrote. He also wrote that it is only "common sense" that they contain a timeline for implementation — another point the Farm Bureau had challenged.

An EPA spokeswoman called the decision a "victory" for the millions of people who live within the sprawling watershed.

"In rejecting the legal challenge to the Chesapeake Bay TMDL action, the court has affirmed a 2013 lower court ruling, a decision that is a victory for the 18 million people in the Chesapeake Bay watershed," spokeswoman Monica Lee said by email. "Now we can all work together as partners to continue building on the progress made in restoring local waters and the Bay. We remain committed to revitalizing this national treasure through the collaborative federal-state framework with the six Bay states and D.C."

Environmental groups swiftly welcomed the decision this morning.

"This is a great day for everyone who cares about clean water and the Chesapeake Bay," Chesapeake Bay Foundation President William Baker said in a statement. "In a case challenging EPA’s Clean Water Act authorities, the Third Circuit Court in Philadelphia has spoken. The Court affirmed the same, reasoned decision offered by the lower court in Sept., 2013."

The American Farm Bureau Federation did not respond to a request for comment by deadline.

Click here for the ruling.

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