EPA Maintains Clean Water Act Authority To Write TMDL Plans for Impaired Waters

April 4 --The Environmental Protection Agency has told an appellate court that the Clean Water Act has authorized it to set a total maximum daily load plan to restore impaired waters when states are unable to meet their obligations (Am. Farm Bureau Fed'n v. EPA, No. 13-4079, 3d Cir., reorder 4/2/13).

In an April 2 filing with the U.S. Court of Appeals for the Third Circuit, the agency contended that the Clean Water Act has given it the discretion to allocate pollution levels to point and nonpoint sources in the TMDL plan for an impaired water.

The EPA brief supported the September 2013 ruling by the U.S. District Court for the Middle District of Pennsylvania that upheld the Chesapeake Bay TMDL (Am. Farm Bureau Fed'n v. EPA, 77 ERC 1855, 2013 BL 244380, (M.D. Pa. 2013); .

A TMDL plan calculates the maximum level of pollutants that each point source, such as wastewater utilities and nonpoint sources, such as farms, may discharge without causing violations of water quality standards.

The American Farm Bureau Federation, which unsuccessfully challenged the federal TMDL plan for the bay in the lower court, appealed to the Third Circuit, arguing in its Jan. 27 brief that the EPA “overreached” by going far beyond just specifying the nitrogen, phosphorus and sediment pollution that can be discharged into the bay without violating water quality standards.

Bay Allocations are Illegal.

The farm bureau said that not only are the allocations under the bay TMDL illegal but also that under the law, the agency couldn't ask states to provide “reasonable assurance” that they would meet the allocations included in the TMDL plan.

At issue in this appeal is the baywide TMDL that the EPA wrote in 2010 to reduce nitrogen, phosphorus and sediment from waters that are impairing the bay. This baywide TMDL applies to the six states and the District of Columbia that make up the 64,000-square-mile Chesapeake Bay watershed.

Throughout the act, Congress delegated responsibility to the states but gave the EPA the explicit authority to ensure that the states are meeting that responsibility, the agency said.

The agnecy said Section 303 of the Clean Water Act lays out a “carrot-and-stick” approach for attaining acceptable water quality. “The 'carrot' is that EPA must approve the states' lawful choices--and even help pay for them. But if the states do not meet their obligations, then Congress gave EPA the stick,” the agency said.

Restrictions Placed on Approving TMDL.

Moreover, the EPA said Section 303(d) of the Clean Water Act explicitly said the agency can't approve a TMDL unless it is “established at a level necessary to implement the applicable water quality standards.”

The agency said establishing waste-load allocations for point sources and load allocations for nonpoint sources are essential to this task of evaluation. Furthermore, the agency argued that “by explicitly giving EPA the authority to establish a TMDL in some circumstances, the Act implicitly allows EPA to gather and rely upon the information necessary to do so.”

By Amena H. Saiyid  

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com