September 23, 2013

Federal Court Upholds the Final TMDL for the Chesapeake Bay in Important Decision Involving Cooperative Federalism

How EPA Will Apply This Precedent in Other Multi-State Water Bodies Is Not Clear
Holland & Knight Alert
Amy L. Edwards

In a case of first impression, the United States District Court for the Middle District of Pennsylvania upheld the EPA's authority to establish a final total maximum daily load (TMDL) for the Chesapeake Bay Watershed that allocates pollution loads amongst various sectors. These sectors include point and non-point sources from forests, agriculture, wastewater, stormwater and other urban runoff in Maryland, Virginia, Delaware, the District of Columbia, New York, Pennsylvania and West Virginia.1 The court's decision, which may have effects on other multi-state water bodies across the U.S., was issued on Sept. 13, 2013.

In an exhaustive 99-page memorandum opinion, Judge Sylvia H. Rambo granted summary judgment to defendant EPA and several intervening environmental and public interest groups.2 In her opinion, Judge Rambo summarized the 30-year history of efforts to improve the ecological health of the Bay and the lengthy public process by which EPA had derived the TMDL allocations. She described this process as a model of cooperative federalism at work and rejected the contention of the American Farm Bureau Federation (Farm Bureau) and others that EPA had surpassed its authority and acted unreasonably to coerce state participation in the watershed-wide TMDL planning process.3

The Farm Bureau Challenged EPA's Authority to Allocate Responsibility for Meeting TMDL Goals

The Farm Bureau argued that the Clean Water Act (CWA) only grants EPA the authority to issue a TMDL and that the Final TMDL for the Chesapeake Bay issued in 2010 goes too far because it includes implementation provisions related to pollution allocations, the so-called "backstop" adjustments, and a federally imposed timeline for state implementation.4 The Farm Bureau looked to provisions of the CWA granting states the authority to establish TMDLs and associated implementation plans, subject to EPA's approval, to argue that, while EPA has review and approval authority over each state's TMDL and continuing planning processes (CPP), it cannot:

  • specify how states choose to meet their TMDLs
  • coerce states into a specific timeline for implementation
  • adjust any state's chosen TMDLs to meet EPA criteria

In further argument, the Farm Bureau stated that EPA lacked the authority to establish pollution load limits for the states upstream of the Chesapeake Bay watershed (Pennsylvania, New York and West Virginia). Additionally, the Farm Bureau argued and that the EPA committed procedural violations of the Administrative Procedures Act (APA) by providing an inadequate 45-day public comment period and by failing to provide key information regarding its models during that period.

Court Found That EPA Had the Authority to Issue Detailed TMDLs and Followed Proper APA Procedures

The court applied the two-step analysis set forth in Chevron, USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) to determine whether it owed deference to the EPA action. It concluded that Chevron deference was appropriate because the CWA delegates to EPA general rulemaking authority. The court agreed with the Farm Bureau that section 303(e) of the CWA would not authorize EPA to take over the TMDL implementation process, but stated that EPA has supervisory authority over TMDL implementation under this provision. The court observed that it was appropriate for states to retain control over the regulation of pollution from non-point sources because controls over these sources of pollution frequently involve local land use and zoning decisions. Nevertheless, the court rejected the plaintiffs' argument that the EPA was micromanaging the implementation process. The court found that the sheer level of detail in the Final TMDL did not convert it into an unlawful federal implementation plan. Likewise, the court concluded that EPA could define a TMDL as the sum of the WLAs and LAs (as opposed to basing it on a final total number) where the statute was silent and where the agency's interpretation was derived from a permissible construction of the statute.

The court also rejected the plaintiffs' arguments that the TMDL process constituted coercion:

... [T]here is no dispute that, if EPA determined that the states' efforts fell short, it would substitute its own backstop measures ... . The question, then, is whether this arrangement amounted to unlawful coercion, or was the result of collaborative, cooperative federalism. The court finds in favor of the latter.5

The court further described the TMDL as an informational document, not an implementation plan,6 and disagreed with the plaintiffs' contention that the allocations were "locked in."7 Because the states retain the flexibility to "choose both if and how they will implement" those allocations,8 regardless of the level of detail, the TMDLs were not an ultra vires act by EPA. The court reiterated that nothing requires the states to implement each and every TMDL allocation "'uncritically and mechanically.'"9 The potential loss of federal grant dollars also did not make the allocations "binding."

Judge Rambo also rejected the Farm Bureau's argument that EPA lacked jurisdiction over the upstream states because its authority to approve of TMDLs is derivative of the states' authority to allocate pollution loading within their own boundaries pursuant to 33 U.S.C. §1313(d)(2). In doing so, she noted that:

  • CWA was again ambiguous as to this authority
  • legislative history indicated that Congress had anticipated a watershed approach to addressing the Chesapeake Bay ecosystem
  • a less holistic approach would be impracticable given the portion of pollution load attributable to the upstream states

She also gave short-shrift to the Farm Bureau's APA arguments, finding that by statute a 30-day notice and comment period would have been sufficient and that the Farm Bureau and the supporting interveners had failed to establish how they had been prejudiced by not receiving modeling information from EPA.

Coordination with State Partners Appears to be Key to EPA Action

This decision was very deferential to EPA's interpretation of its authority under the CWA. It is unclear how the outcome may have differed if any of the watershed states had joined with the Farm Bureau in opposition to the Final TMDLs. Judge Rambo specifically noted that, "although Plaintiffs believe that this process was coercive, it is noteworthy that no state has filed suit challenging the TMDL," and the court's decision was marked by repeated references to the collaborative process underlying development of the states' sector-specific waste load allocations.10 Further, the court found that the conduct of the Bay Partnership (meaning the cooperative effort between EPA and states) — not the EPA's actions alone — was consistent with the provisions of the CWA and APA.11

While the court's decision appears to have strengthened long-standing precedent in favor of a strong federal role in coordinating pollution reduction efforts in interstate water bodies, it did not necessarily strengthen the judicial underpinnings of EPA's authority to act independently when doing so. It remains to be seen whether EPA will utilize this judicial precedent to establish similar TMDLs in other multi-state water bodies, such as the Mississippi River Basin.



1 American Farm Bureau Federation, et. al. v. EPA, et. al., No. 1:11-CV-0067 (M.D. PA Memo. issued Sept. 13, 2013).

2 Intervenors included the Chesapeake Bay Foundation and other environmental groups, several municipal clean water associations and the Pennsylvania Municipal Authorities Association.

3 Id. at 58.

4 Id. at 42.

5 Id. at 58.

6 Id. at 63.

7 Id. at 65.

8 Id. at 75.

9 Id. at 68.

10 Id. at 59.

11 Id. at 98.


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