On February 29, 2016, the United States Supreme Court declined to hear American Farm Bureau Federation’s (AFBF) appeal challenging the Environmental Protection Agency’s (EPA) total maximum daily load (TMDL) allocation for the Chesapeake Bay. As a result, states will need to comply with the TMDL requirements related to the Chesapeake Bay clean-up.
The TMDL is commonly called the “pollution diet” for the Chesapeake Bay. EPA established this pollution diet for the Chesapeake Bay in 2010 to comply with the Clean Water Act directive to restore and maintain the chemical, physical and biological integrity of the nation’s waters. EPA determined that nitrogen, phosphorus, and sediment (collectively, NPS) were the biggest problem pollutants in the Bay. The TMDL was set by 1) determining the amount of NPS that could be healthily absorbed by the Bay and 2) determining the additional NPS reductions necessary for improving the Bay’s quality (much like a healthy human diet is determined by calculating a balanced caloric intake and adjusting for weight loss). EPA then required states within the Chesapeake Bay watershed to create watershed implementation plans (WIPs) to reduce NPS and conform to the TMDL. Delaware, Maryland, New York, the District of Columbia, Virginia, West Virginia, and Pennsylvania were required to adopt WIPs.
In 2011, AFBF sued the EPA, claiming among other things that EPA’s calculation of the pollution diet exceeded its authority. AFBF claimed that EPA does not have the authority to allocate the nutrient load among point and non-point sources; it only has the authority to set the nutrient load entering the watershed (e.g. EPA cannot allocate a certain amount of the nitrogen load to the agricultural industry, it can only set the total maximum daily load of nitrogen for the watershed). EPA argued that it had authority to determine the meaning of “total maximum daily load” under the Clean Water Act, and thus could interpret the statute to allow for allocation of the load among a variety of sources.
The Third Circuit Court of Appeals agreed with EPA and deferred to EPA’s interpretation of TMDL under the Clean Water Act. AFBF’s last chance to oppose the TMDL was by petitioning the Supreme Court to hear the appeal. Due to the denial of AFBF’s petition, the Third Circuit’s decision stands and EPA may move forward with requiring states to comply with the pollution diet.