Federal Courts Rule on Cleanup Plans for Two Watersheds: Chesapeake Bay and Mississippi River Basin

During September, federal judges ruled on separate cases related to cleanup plans (TMDLs or Total Maximum Daily Loads) for two large watersheds in the United States: the Chesapeake Bay, comprising of six states and the District of Columbia, and the Mississippi River Basin, comprising of 31 states. In the first case, U.S. District Judge Sylvia Rambo, Middle District of Pennsylvania, ruled in favor of the U.S. Environmental Protection Agency (EPA) against challenges to the Agency’s 2010 multi-state cleanup plan for the Chesapeake Bay—or the Chesapeake Bay TMDL. The court’s decision was published on Sept. 13, 2013. Key challenges to the Chesapeake Bay TMDL, filed initially by The American Farm Bureau Federation in 2011 and joined by other industry groups, centered around the argument that EPA had overstepped its authority in establishing the Chesapeake Bay TMDL and that the level of detail in the TMDL placed a federal agency, EPA, in the position to make local land use decisions. EPA also was charged with using faulty modeling data and not allowing sufficient time for public comment. The court denied all challenges to the TMDL argued in this case. A decision to appeal the ruling has not yet been announced. For more information on the Chesapeake Bay TMDL, read the AGC’s Environmental Observer article published when the Bay TMDL was finalized; or go to EPA’s Chesapeake Bay TMDL website to read the TMDL, fact sheets and other resources. The court’s decision upholding the multi-state Chesapeake Bay TMDL may lend support for inter-state water quality trading programs (which are also being challenged in court, see Observer article) within the Chesapeake Bay watershed, as well as, other wide-sweeping cleanup plans such as a potential TMDL for the Mississippi River Basin. In the second case, U.S. District Judge Jay Zainey, New Orleans, ruled in favor of environmental groups, led by the Natural Resources Defense Council, to force EPA within six months to set standards for phosphorus and nitrogen pollution—or explain why they are not needed—for the Mississippi River Basin. The decision was filed on Sept. 20, 2013. Should EPA be required to develop a TMDL for the Mississippi River Basin, either by its own determination or by consent decree, the 31 states within that watershed would have to develop Watershed Implementation Plans to meet any TMDL requirements. Similar to the Chesapeake Bay TMDL, contractors would then likely see stringent erosion and sedimentation controls in their National Pollutant Discharge Elimination System (NPDES or stormwater) permits to curb nutrients in runoff. AGC will continue to track this issue as it develops. For more information, please contact Melinda Tomaino at tomainom@agc.org.