Chesapeake Bay Decision Holds Potential Ramifications for Great Lakes' Water Quality Regulation

 “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. 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  . . .  a goal our elected representatives have repeatedly endorsed.”

American Farm Bureau Federation v EPA
    (Thomas L. Ambro, J., Third Circuit Court of Appeals)

Last year, I wrote a blog entry regarding the jurisdictional scope of the Clean Water Act (CWA) in which I mentioned that Michigan joined several states and commercial groups representing agriculture and fertilizer manufacturers to file an amicus brief in a lawsuit against the Environmental Protection Agency (EPA) involving a water body well away from the Great Lakes, the Chesapeake Bay.

Recently, the Third Circuit Court of Appeals handed a defeat to the challengers, finding that the CWA allowed the EPA’s plan to restore the Chesapeake Bay, explaining its rationale in a 60-page opinion. This decision allows the establishment of watershed-based regulation of a large water body with possible application to current regionwide water quality issues involving the Great Lakes.

The plaintiffs argued that the EPA could not use its authority to set a total maximum daily load (TMDL) for nitrogen, phosphorus and sediments for the Chesapeake Bay, because doing so would usurp the states' traditional land use regulation role. A TMDL identifies a load limit for a particular water body that will allow the water body to meet or reach water quality standards. Once set, the TMDL governs all sources of pollutants into the water body.

The EPA and several states that sit in the Chesapeake Bay watershed spent years developing plans to improve the Chesapeake Bay’s water quality. As the court noted, this was a large undertaking covering a large expanse involving more than 17 million residents:

“The Bay’s watershed area of 64,000 square miles contains tens of thousands of lakes, rivers, streams and creeks. The bay itself has a surface area of 4,500 square miles, and it has 11,684 miles of shoreline, longer than the coastline from San Diego, California to Seattle, Washington.”

Normally, states create a TMDL for a particular body water, but in this instance the cooperating states agreed to let the EPA set the standard for the Chesapeake Bay. The CWA then regulates those sources that discharge effluent. Years passed before the states and the EPA developed the TMDLs, which in turn led to successful lawsuits to force a quicker response. The EPA eventually created thousands of TMDLs and agreements were reached for “Watershed Improvement Plans” for each of the relevant jurisdictions. The Chesapeake Bay Foundation published a study documenting the economic benefits of the plan.

As with nearly every EPA attempt at regulation, the TMDLs precipitated lawsuits by environmental groups that claimed that they were too lenient and commercial groups claiming that they were too strict or, in this case, that the EPA did not have the authority to act at all. Specifically, the plaintiffs claimed that the EPA exceeded its authority by establishing permissible levels of nitrogen, phosphorus and sediments among a variety of sources, establishing target dates for meeting the reduction of discharges of the pollutants identified in the TMDLs and getting the relevant states to agree to fulfill the objectives of the TMDLs.

The Third Circuit Court concluded that the EPA was within its authority to regulate TMDLs in the way it chose to. Under what is known as “Chevron deference,” courts must defer to an agency’s interpretation of a statute that it administers. In this case, the court established that the EPA’s process and goals were consistent with the CWA. The court rejected the plaintiffs’ assertion that the EPA’s action usurped traditional state land-use authority, because the EPA did not itself develop any land-use restrictions. The court also stated that a “load” for the purposes of the TMDL is not limited to a single body of water, but also can involve subdivided regions and sources that affect the body of water.

Recent news reports discuss the progress toward meeting the goals of the Chesapeake Bay cleanup efforts. This includes the fact that some of the states that have agreed to meet water quality goals are falling short. Now that the court has upheld the TMDLs, several of the states may soon face enforcement efforts.

Earlier, I posted a blog entry that explained that because of its unique place in the Great Lakes, Michigan should remain concerned about legal decisions in other jurisdictions that may become relevant to its own resources. In this case, Michigan, other states in the Great Lakes Basin and Canada are trying to work on maintaining water quality in the Great Lakes.

Like the Chesapeake Bay, one of the driving forces behind poor water quality and harmful algal blooms is agricultural runoff from fields and feedlots. Michigan has its own regulations, but if water quality in the Great Lakes diminishes, it is not farfetched to think a watershed approach like the one used in the Chesapeake Bay would be considered by state and federal regulators.

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