21 States Challenge EPA’s Authority to Set TMDLs for Chesapeake Bay Watershed Under CWA

Attorneys general in twenty-one states, including Texas, Kentucky and West Virginia, filed an amicus brief in the Third Circuit in support of the American Farm Bureau Federations’ challenge to the EPA’s cleanup plan affecting the Chesapeake Bay Watershed.  The states and other groups opposing the plan allege that this plan “marks the beginning of the end of meaningful state participation in water pollution regulation.”  The states allege that the EPA’s action has side-stepped the intent of the Clean Water Act, which is to involve states in the decision-making process when nonpoint source runoff is regulated.  

The appeal stems from a decision by the District Court for the Middle District of Pennsylvania in September, upholding the EPA’s 2010 limits on total maximum daily loads (TMDLs).  The EPA’s TMDLs impose caps on nitrogen, phosphorus, and sediment loadings for waters throughout the 64,000 square-mile Chesapeake Bay watershed.  The district court held that the CWA term “total maximum daily load” is ambiguous and, therefore, allows the EPA to set deailed “allocations” setting pollution caps for sources throughout a watershed, including farms, builders and towns.  The district court also upheld the EPA’s demand for “reasonable assurances” that the caps will be achieved by a certain time without regard to cost, feasibility or whether the water quality goals are even achievable.

In the amicus brief, the states claim that the EPA used the Chesapeake Bay TMDL to “micromanage sources of pollution that by tradition – and by statute – have been beyond EPA’s reach.”  Although this action only affects the Chesapeake Bay watershed, the states worry of the far-reaching implications for states across the country if this decision stands.  The states argue that the “EPA can create incentives for states to control nonpoint sources, but it cannot mandate how states choose to do so.”  By overstepping as it has, the states claim that the EPA has “unlawfully usurped States’ traditional authority over land-use management decisions” and exceeded the “statutory limitations on EPA authority.”

Laura Patterson Hoffman focuses her practice in the areas of environmental and regulatory law, energy, tort and business litigation. Hoffman regularly assists energy producers with compliance issues and litigation relating to the Clean Water Act and other environmental permitting issues. She has practiced in federal and state courts and before the Kentucky Office of Administrative Hearings. Hoffman has also engaged in extended negotiations with the Kentucky Cabinet for Energy and Environmental Protection and various environmentalist groups. She also has experience in groundwater contamination litigation and contractual disputes.
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