Vermont Law Top 10 Environmental Watch List 2016

Chesapeake Bay TMDL

On June 6, 2015, the Third Circuit upheld an innovative clean water plan developed by the EPA and the six states of the Chesapeake Bay watershed. The plan represents an innovative approach to the difficult challenge of reducing nutrient pollution into the nation’s waters. The American Farm Bureau Federation is now seeking to have the U.S. Supreme Court overturn this decision. Regardless of whether the Supreme Court hears the case, the Third Circuit ruling will provide a foundation for the EPA, states, and environmental organizations in the development of plans to address polluted stormwater runoff across the country, from the Great Lakes to the Gulf of Mexico.
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Nutrient pollution is the largest single threat to our nation’s waters, one that has remained largely unaddressed. The Chesapeake Bay Total Maximum Daily Load (TMDL) issued by the Environmental Protection Agency (EPA) and the associated Watershed Implementation Plans developed by states in the watershed represent a major state-federal collaboration to change course. The Third Circuit decision in American Farm Bureau Federation v. EPA, issued in July 2015, upheld this TMDL and gives the EPA and cooperating states the opportunity to take the lead in addressing the major sources of nutrient pollution under an accountability framework overseen by the EPA.

Our nation’s failure to address the problem of nutrient pollution is having major public health, ecological, and economic consequences. A half-million citizens in Toledo, Ohio, opened the newspaper on Aug. 2, 2014, to learn that they could not drink the water coming out of the tap because of a toxin produced by cyanobacteria, also known as blue-green algae. The cyanobacteria outbreak was the result of excessive phosphorus from a range of sources, predominantly in stormwater runoff from farms and development.

Lake pollution suffering from excessive nutrients and sediment, for Lake Erie and across the globe, is exacerbated by climate change, which has led to an increase in the intensity and frequency of precipitation events. In turn, increased rainfall and snowmelt increases polluted stormwater runoff as well as the challenge of dealing with this long-standing problem.

Pollution from nutrients and sediment is not a problem limited to Toledo. Communities are facing similar problems across the United States in water bodies large and small. Hundreds of smaller lakes and ponds in every state have been affected, and significant portions of other large lakes including others of the Great Lakes and Lake Champlain are being affected by phosphorus pollution. Major saltwater bays and estuaries such as the Gulf of Mexico, Long Island Sound, and Puget Sound are also experiencing significant degradation as a result of nutrient pollution, primarily from excessive amounts of nitrogen. The consequences of ecological collapse in these waters include not just the public health impacts faced by the citizens of Toledo, but major economic losses for commercial fisheries and tourism-based businesses.

Confronted by these problems in the Chesapeake Bay, the EPA worked with the states in the watershed and the District of Columbia to put together a pollution budget known as a TMDL. TMDLs are required for all waters that are considered impaired because they are not meeting water quality standards. The Chesapeake Bay is impaired as a result of excessive levels of the nutrients nitrogen and phosphorus, and sediment. Each affected state developed Watershed Implementation Plans addressing the full range of the sources of these pollutants, including both “point sources” such as municipal sewage treatment plants and “nonpoint sources” such as stormwater runoff from parking lots and farm fields.

The “point” and “nonpoint” terminology is from the Clean Water Act and illustrates a structural problem that has plagued efforts to address nutrient pollution. The EPA has direct authority to directly regulate the discharge of pollutants from point sources, but has to rely on states to address other nonpoint sources. Most states have used voluntary programs to address stormwater pollution, and the EPA has struggled to hold them accountable for demonstrating results. The Chesapeake Bay TMDL navigates this gap in the EPA’s authority in an approach under which the states have leeway to design programs to control polluted stormwater runoff, but must demonstrate that these programs will work. Relying on their own authority to meet pollutant load targets, the Chesapeake Bay states have proposed a range of actions, relying significantly on projected reductions of pollution by increasing stormwater controls on developed land and farm fields. This approach is generally more cost-effective than simply focusing on point sources.

For the Chesapeake Bay TMDL, the EPA first evaluated state plans to determine if they provide “reasonable assurances” of the necessary pollution reductions. Further, the EPA included provisions in an accountability framework such that, if the states do not follow through on their commitments, the EPA may take direct action. The primary consequence of a failure of the state plans is that the EPA would increase the stringency of pollution limits on those point sources of pollution under their authority, primarily through more stringent effluent limitations on sewage treatment plants, urban stormwater discharges, and large feedlot operations.

The American Farm Bureau Federation and the National Homebuilders, among others, challenged this TMDL on the basis that it was unconstitutional and beyond the EPA’s authority. The Farm Bureau argued that the EPA’s approach co-opted state authority and interfered in the states’ traditional authority to regulate land use. The Third Circuit disagreed, finding that the EPA’s interpretation of the Clean Water Act was permissible, since the EPA did not direct any particular land use regulations and only threatened actions directly under the agency’s control.

Water-quality regulators in every state are following this case closely to see if the EPA uses the approach the agency took in the Chesapeake Bay for other TMDLs. A recent phosphorus TMDL issued by the EPA for Lake Champlain includes a similar structure and accountability framework suggesting that this is likely to be the case, at least for major, multistate watersheds where the EPA takes a lead role. This would be a positive result since existing efforts to control polluted stormwater pollution have not been successful. The EPA cannot wait for instructions from Congress that may never arrive, but instead must act now to fulfill the goal of the Clean Water Act to restore the biological, physical, and chemical integrity of the nation’s waters using available authority and tools.