This week, the U.S. Supreme Court announced that it will not review the lower court’s decision in American Farm Bureau v. EPA. The Court’s rejection of the appeal essentially affirms the unanimous 2015 ruling by the U.S. Court of Appeals for the Third Circuit, upholding EPA’s final total maximum daily load (TMDL) for the Chesapeake Bay and its holistic watershed approach requiring pollution reduction from all sources of impairment, including nonpoint sources. This decision marks a significant win for NACWA, its members, and its municipal partners by supporting EPA’s ability to pursue a watershed approach under the Clean Water Act (CWA) – including a meaningful allocation ascribed to nonpoint agricultural sources – in crafting TMDLs to achieve improved water quality.
The Third Circuit appeal and subsequent petition for Supreme Court review were initiated by a group of agricultural and development interests, led by the American Farm Bureau, that sought to limit EPA’s ability to include nonpoint sources under the CWA TMDL program. NACWA intervened and filed a brief in the Third Circuit appeal in April 2014, arguing that the watershed approach embodied in the Bay TMDL is both lawful and necessary to restore water quality. The brief also highlighted the significant investments NACWA’s utility members have made and will continue to make to advance the goals of the TMDL, but noted that true success cannot be achieved without the meaningful participation of nonpoint sources.
The TMDL has already been in effect for more than five years and has resulted in meaningful progress in the health of the Bay. In 2014, the Bay watershed States signed the Chesapeake Bay Watershed Agreement reaffirming their commitment to the TMDL and are implementing it through various means selected by each state. For NACWA members within the Chesapeake Bay watershed, this ruling protects the TMDL nutrient allocations that have already been assigned to municipal point sources and removes the risk of more stringent nutrient removal requirements. This allows the states and utilities within the Bay watershed to continue progress towards the existing target.
The importance of this win for the NACWA member community nationwide cannot be overstated. The decision reaffirms the authority of the TMDL program to include both point and nonpoint sources, thereby giving nonpoint sources shared responsibility for reducing water quality impairments, and will serve as valuable legal precedent to support similar holistic watershed approaches elsewhere in the country.
The decision also reflects a win for cooperative federalism. The TMDL does not impose any binding implementation requirements on the States. It addresses target dates and milestones for measuring implementation and reasonable assurances to measure success, but the TMDL imposes no consequences for missing those target dates and milestones. Moreover, the wasteload allocations in the TMDL were the result of considerable “back and forth” between the states and EPA, thus appropriately reflecting the shared role between EPA and the states in implementing CWA requirements. The alleged overreach by EPA in establishing a federal level TMDL was at the heart of the Farm Bureau’s challenge, and the Supreme Court’s refusal to review the ruling fortified NACWA’s interpretation of the matter.