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On July 6, 2015, the Third Circuit Court of Appeals upheld the U.S. Environmental Protection Agency’s (EPA) total maximum daily load (TMDL) for the Chesapeake Bay.  TMDLs establish the maximum amount of a pollutant (or pollutants) a water body can absorb before violating applicable water quality standards.  The Chesapeake Bay TMDL is the largest TMDL ever developed and affects dischargers within the 64,000 square miles of the watershed, which includes six states and the District of Columbia.  The TMDL allocates pollutant levels among different kinds of pollutant sources (e.g., among agriculture, stormwater, publicly owned treatment works), sets a timeframe for meeting the pollutant levels, and requires the states to provide reasonable assurances that they will implement the TMDL.  The EPA established the TMDL in 2010 and, shortly thereafter, the American Farm Bureau Federation (Farm Bureau) and multiple trade organizations whose members would be affected by the TMDL sued the EPA.  Primary questions for the appellate court included whether the term “total maximum daily load” was ambiguous per case law and statutory instruction, whether the TMDL intrudes on states’ traditional ability to regulate land use, and whether the TMDL presented federalism and other constitutional concerns.

The court proceeded under the Chevron framework.  Under Chevron, the court first analyzes whether the term at issue, as given by Congress, is unambiguous.  If the term is unambiguous, the court will enforce Congress’ intent.  If the term is ambiguous, the court then defers to agency interpretations that are not arbitrary, capricious, or an abuse of discretion.  UnderChevron’s first step, the court found that “total maximum daily load” could have multiple meanings and was ambiguous.  Because the court found the term ambiguous, it then analyzed whether the EPA’s implementation was arbitrary, capricious, or an abuse of discretion.  The court determined that the EPA reasonably carried out Congress’ instructions for administering TMDLs.

When engaging in the Chevron analysis, the court addressed multiple sub-questions.  The court noted that this is the first case in which a court considered whether a TMDL could include more provisions than merely a pollutant quantity, but case law was useful to show other courts have recognized EPA’s ability to fill gaps in instruction on how to promulgate TMDLs.  The court found that the extensive requirements for promulgating TMDLs indicate that TMDLs were meant to be more than a number and fleshed out by the agency.  Overall, the court found TMDLs could go beyond a number to include allocations, target dates, and reasonable assurances from states because such actions were consistent with the Clean Water Act’s (CWA) purpose:  to restore and maintain the chemical, physical, and biological integrity of the country’s waters.

The Farm Bureau argued that because states traditionally regulate land use, the court should not allow the EPA’s interpretation unless Congress clearly intended federal interference with this realm.  The court rejected this argument, stating the EPA did not make a land use rule and federal law permits this type of regulatory action.  Thus, this case did not present a federalism issue that required a clear statement from Congress.  Additionally, after distinguishing two landmark CWA cases, the court found no constitutional issues with the EPA’s statutory interpretation.

Ultimately, the court held TMDL terminology is ambiguous enough to permit the EPA to include the elements present in the Chesapeake Bay TMDL and the EPA’s interpretation was reasonable and in accordance with the law.

For more information please contact Lauren Bernadett at lbernadett@somachlaw.com.

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