AND A WATERSHED RUNS THROUGH IT

Posted on January 19, 2017 by Michael M. Meloy

My roots are in central Pennsylvania near the dividing line between the Susquehanna and Potomac watersheds.  The creeks follow the valleys, flowing away from each other and carrying water that will ultimately rejoin in the Chesapeake Bay.  It is a rich agricultural area with a farming legacy that goes back to the mid-1700s.  It is also ground zero for the continuing struggle to improve degraded water quality in the Chesapeake Bay, one of biological jewels of the eastern United States. 

One of my best friends is a dairy farmer.  He has faithfully carried on a family tradition reaching back over multiple generations.  He is an excellent farmer.  He finally sold the dairy herd this fall, buffeted by plunging milk prices and lack of help in shouldering the relentless grind of running a dairy operation.  The barn where I have spent hundreds of hours over the course of my life now stands empty and quiet.  The cows are gone and the milk tank is dry.  Unfortunately, this is a story that is repeating itself with remarkable regularity as the number of dairy farms continues to shrink both in Pennsylvania and elsewhere in the country.

For those with a single-minded focus on water quality in the Chesapeake Bay, the demise of another dairy farm in Pennsylvania may be a cause for quiet celebration.  Even though Pennsylvania does not border the Chesapeake Bay, the Susquehanna River drains approximately 46 percent of the state, including some of its most productive farmland.  The Susquehanna River contributes almost half the fresh water to the Chesapeake Bay.  The Bay and the River are inextricably linked. 

In 2010, the United States Environmental Protection Agency issued a total maximum daily load (TMDL) for the Chesapeake Bay focusing on loading rates for nitrogen, phosphorous and sediment.  EPA identified agriculture as a key contributor of these pollutants.  Each state within the Chesapeake Bay watershed, including Pennsylvania, is attempting to figure out how to achieve the targets that EPA has set for reductions in nitrogen, phosphorous and sediment.  The process is fraught with difficulties, pushing the envelope of technical feasibility, legal permissibility and political acceptability.  The process is also underscoring the limitations of the tool box under the Clean Water Act to solve truly complex and multi-dimensional water quality problems.  

If the goals that EPA has set for water quality in the Chesapeake Bay under the TMDL are to be met, a financially-sustainable agricultural sector is vital to that outcome.  Runoff of nutrients and sediment from farms may be the immediate focal point but crafting solutions that will facilitate farms being able to operate in the future is critically important to the long-term health of the Chesapeake Bay.  If farming operations are forced under, prime farmland will change use and be taken out of production.  Development of former farms and the runoff from such development carries its own challenges for water quality in the Chesapeake Bay.  Moreover, rolling back changes in land use after they have occurred is almost impossible to achieve. 

Preserving farming operations holds significance extending well beyond water quality.  In the coming decades, food production is likely to become one of the key issues that not only our country but the world will face.  Loss of farms also alters the fabric and social bonds of rural areas in many detrimental ways.  

On January 6, 2017, the Chesapeake Bay Foundation released its 2016 State of the Bay Report, a bi-annual evaluation of the health of the Chesapeake Bay.  While the Chesapeake Bay received failing grades on certain key metrics, the overall health of the Bay received a grade of C-, the highest grade that the Chesapeake Bay Foundation has given since it began making such assessments more than 30 years ago.  Progress is being made – slowly and painfully but surely.  At the same time, Pennsylvania, Maryland and Virginia have collectively lost more than 600,000 acres of farmland (about half the size of the Delaware) since 2002.  One can only hope that the twin goals of saving the Chesapeake Bay and saving agriculture in the Chesapeake Bay watershed can harmoniously coexist.

Third Circuit Upholds Chesapeake Watershed TMDL

Posted on July 24, 2015 by Ridgway Hall

On July 6, in American Farm Bureau Federation v. EPA, a Clean Water Act case involving important issues of first impression, the U.S. Court of Appeals for the Third Circuit upheld the Chesapeake Bay Watershed Total Maximum Daily Load (TMDL)  – the largest and most complex TMDL ever issued. This watershed covers 64,000 square miles in parts of Maryland, Virginia, Pennsylvania, Delaware, West Virginia, New York, and the District of Columbia. Its population is 17 million and growing.

Under Clean Water Act Section 303(d), when a water body is not meeting water quality standards, a TMDL must be developed, typically by the state, subject to EPA approval. It specifies the maximum amount of a pollutant that can be discharged to the water body and still meet water quality standards. Under Section 303(e), the TMDL becomes part of a state’s “continuing planning process,” which specifies the measures the state will take to bring the impaired water body into compliance. This plan is designed by the state, with EPA oversight, but EPA has no authority to implement the plan.  In addition, the Act does not define a TMDL or spell out exactly what EPA may do to assure achievement of the water quality standards if the plan is not adhered to.

The Chesapeake Bay TMDL was issued by EPA in December, 2010. It was the culmination of over 25 years of unsuccessful efforts by the Bay states and EPA to stem the increasing discharges of nitrogen, phosphorus and sediment which were damaging the water quality of the Bay, causing losses of blue crabs, oysters, and other aquatic organisms – including notably those at the base of the food chain, and impairing a number of uses: commercial, recreational and aesthetic. Because of the interstate nature of the pollution and the complex scientific issues involved, in 2006 the Bay states asked EPA to take the lead in drafting a watershed-wide TMDL, in consultation with them and the public, which EPA did.

In prior blogs I have described the substance and background of the Bay TMDL, the district court decision upholding it and the issues raised on appeal and the large number of amicus briefs from across the country on both sides. In American Farm Bureau Federation, appellants claimed that EPA exceeded its statutory authority by (1) establishing not just the maximum daily and annual loadings of nitrogen, phosphorus and sediment, but also waste load allocations to a number of permitted point sources and load allocations to “sectors” of nonpoint sources (such as agricultural and urban stormwater), (2) specifying target dates for compliance (60% of the necessary measures in place by 2017, and the rest by 2025) and (3) requiring “reasonable assurance” by each state that it is making progress with its plan, to be reviewed at two-year intervals for which “milestones” were to be established. 

While the TMDL was in development, interim action has involved an iterative process in which each state developed a “watershed implementation plan” to eventually bring its part of the Bay watershed into compliance, with input from county and local government entities and the private sector. EPA has conducted regular reviews and advised states of any shortcomings. This advice is then discussed, with the states having the final say on implementation measures.

With this background, the Third Circuit first considered the jurisdictional issues of standing and ripeness, which had not been raised by the parties. The court held, as many other courts have, that a TMDL is not a regulation but an “informational tool” which gets implemented when permits are issued or other regulatory measures are taken. If it is not currently impacting anyone, who can have standing to challenge it? The court found that while the TMDL is not itself enforceable, where a petitioner can demonstrate a high likelihood that it will be affected by the implementation that will follow, it has standing. This test was met by the farm community represented by the Farm Bureau. The court then held that the TMDL was ripe for review because it was a purely legal dispute on a well-developed record, and hardship would result to the parties if the merits were not addressed. As the court put it: “If there is something wrong with the TMDL, it is better to know now than later.”

Because the statute neither defines a TMDL nor sets out what EPA must or might do if satisfactory implementation is not undertaken by a state, the court concluded that Chevron deference was warranted so long as EPA’s actions were reasonable and consistent with the purposes of the Act – in this case to substantially improve the quality of the nation’s waters. The court stated, citing extensive case law, that often Congress legislates in broad terms, leaving to the agency the task of filling in the “gaps” based on its expertise and evolving experience. The court then noted that EPA has had regulations in place defining a TMDL as the sum of the loadings from point and nonpoint sources to a water body for over 20 years, they had never been challenged, and had been discussed by numerous courts. The court held this definition reasonable. It further held that since a TMDL is an informational tool, EPA acted reasonably in including loading allocations to point sources and categories of nonpoint sources, especially in light of the interstate nature of the TMDL and the complexity of moving thousands of sources towards compliance with water quality standards.

The court also held that EPA did not err in prescribing target dates (which are hortatory but not enforceable) because Congress clearly intended that water quality standards be achieved with reasonable promptness. Similarly it held that EPA acted within its authority in requiring “reasonable assurance” from the states that they are taking appropriate measures leading to achievement of water quality standards. The court further held that none of EPA’s actions illegally impinged on the rights of the states to make the detailed choices as to which sources to regulate, and how stringently, to achieve the TMDL loadings. Nor did EPA intrude improperly into matters of local land use regulation, which is traditionally the province of the states.

As a result, all of the cleanup and restoration measures being taken throughout the watershed based on the TMDL can continue to go forward, now that the foundation on which they are based is secure. In addition, this decision, by resolving a number of key issues, will provide valuable guidance to practitioners across the country.