Three Important New CWA Decisions

Vol. 28 No. 3

Mark Ryan is a member of the editorial board of Natural Resources & Environment.

Three recent Clean Water Act (CWA) decisions, American Farm Bureau v. EPA (M.D. Pa. Sept. 13, 2013), Alt v. EPA (N.D.W.VA. Oct. 13), and Food and Water Watch v. EPA (D.D.C. Dec. 13, 2013), take on some very big issues under the CWA. These three cases deal with total maximum daily loads (TMDLs), concentrated animal feeding operations (CAFOs) and effluent trading, respectively. All three East Coast cases significantly affect agriculture, but they go in different directions. The appeals, if any occur, will be worth watching. (I did not work any of these cases, and this summary review of their holdings is based entirely on my reading of the court opinions.)

First, American Farm Bureau. If you work with TMDLs, this is a case to read because it addresses almost every major issue in the TMDL process. TMDLs have been around for a long time. They are designed to be the safety net of the CWA, ensuring that water quality is protected when the technology and water-quality-based standards that are applied to point sources are not doing the job. Since the CWA was passed in 1972, 47,000 TMDLs have been prepared in the United States, most of them by the states.

The TMDL at issue in the case was for the Chesapeake Bay, which is the nation’s largest estuary. The Chesapeake is downstream of several heavily populated states and is very polluted. Because the Chesapeake TMDL is part of a huge watershed that crosses multiple state boundaries, the states asked EPA to take the lead in preparing the TMDL. Years in the making, that TMDL addresses point and nonpoint sources throughout the watershed. Sophisticated modeling was used to come up with a scientifically justifiable plan.

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Considering how long TMDLs have been around, one would think the methodology and basic legal framework for TMDLs would be long settled. But in American Farm Bureau, plaintiffs challenge many of the very basic elements of traditional TMDL. Reflecting the number and complexity of the issues in the case, the court’s opinion is ninety-eight pages. After setting out a lengthy history of the efforts to clean up the Chesapeake—an understanding of which the judge opined was crucial to her decision in the case—the judge carefully addressed and rejected all of the plaintiffs’ many arguments. An important theme of the opinion is the substantial deference the judge gave both to EPA’s interpretations of the CWA and to it technical decisions on the TMDL. How different judges apply the Chevron due deference standard is a debatable topic in itself. It will be interesting to see on appeal whether the 3rd Circuit adopts the same level of deference.

Given the size and breadth of the Chesapeake TMDL, it is not surprising that the plaintiffs engaged in such a broad assault on it. The opinion is very long and complex, so I won’t cover all of the court’s holdings, but a couple of points are worth noting. Of particular interest were the plaintiffs’ challenges to the waste load and load allocations (point and nonpoint source contributions) and the reasonable assurance methodology of the TMDL.

A TMDL sets pollutant allocations between point and nonpoint sources. The implementation plan, which is not part of the TMDL, sets out how those allocations will be achieved. It is the states’ role to prepare the implementation plans. The Chesapeake TMDL is very specific regarding what reductions in point and nonpoint sources need to occur. The plaintiffs argued that EPA’s detailed management of the allocations in the TMDL amounted to an unlawful interference with the state’s implementation plans. Noting that none of the states involved in the TMDL participated in the plaintiffs’ case, the court concluded that EPA had not crossed the line in mandating specific implementation strategies. This is an important ruling because the CWA does not clearly address what the state and federal roles are, and the interplay between a TMDL itself and the implementation of that TMDL is an issue in all TMDLs prepared by EPA.

Second, the plaintiffs challenged the reasonable assurance determination by EPA, arguing that it, again, was an intrusion on the state’s implementation plans. The reasonable assurance requirement is an EPA rule requiring that all TMDLs be written in such a way to reasonably assure that increases in point source discharges will be offset by reductions in nonpoint source contributions. The reasonable assurance requirement has long been a cornerstone of the TMDL program. Without it, TMDLs would likely turn into paper tigers—plans based on nonpoint reductions that may never occur. TMDLs would be hard to implement because the CWA grants little to no authority over nonpoint sources, and the nonpoint sources often are the bulk of the problem in water-quality-impaired watersheds. Since nonpoint sources cannot be directly controlled under the CWA, the point sources often get left picking up most of the slack. Thus, EPA regulations require TMDLs to be written in such a way that there is assurance that the nonpoint source reductions will occur. The court held because the TMDL is not an implementation plan, the reasonable assurance requirement did not intrude into state sovereignty. There are many more TMDL issues addressed in this opinion, making it worth a read.

The plaintiffs in Food and Water Watch v. EPA attacked the Chesapeake TMDL from a different angle. The states within the Chesapeake watershed have set up trading programs to allow point and nonpoint sources to make trades to meet strict new discharge limits. The plaintiffs sued, alleging that the TMDL authorized a trading program and a trading program would result in water-quality degradation. The court dismissed the case on standing and ripeness. The plaintiffs’ case appeared to hinge on plaintiffs’ view that EPA had authorized the state trading programs under the TMDL. The court held that EPA had, in fact, authorized none of the trades; they were all voluntary; and any harm that may occur from them would be in the future, if at all. Consequently, the court held that plaintiffs could show no injury from the issuance of the TMDL. The court also held that the case was not ripe because there was no final agency action; EPA had not authorized any trades. EPA has advocated effluent trading to attain water quality since at least 2003. This is one of the first cases that I am aware of where a party has challenged water-quality effluent trading. The plaintiffs in this case have made statements to the press that this will not be the last.

Finally, Alt. The CWA covers discharge of pollutants from point sources to waters of the United States. If something is not a point source, there is little to no regulation—at least at the federal level—of that discharge. So definition of what is a point source is critical. And Congress did something interesting when it defined that term. In section 502(14) of the Act, a point source is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel,. . . concentrated animal feeding operation, . . . from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture.” (Emphasis added.) So Congress provided that CAFOs are a point source, but stormwater runoff from agriculture is not. Since CAFOs are agricultural in nature, one could conclude there is some internal tension within the definition.

The Alt case addressed that conflict, and the judge in that case concluded that the agriculture stormwater exemption trumps. Alt arises out of an administrative compliance order issued by EPA to a chicken farm in West Virginia. The chicken farm met the definition of a CAFO. The chicken coops at the Alt farm have ventilation fans that blow out chicken feathers and bedding material, where it accumulates on the ground outside the coop. EPA inspectors noted that the Alt chicken farm was discharging this material into a nearby stream when it rained. EPA ordered the discharge stopped, and Alt challenged the order. The issue in the case was wwhether the runoff was a nonexempt CAFO discharge or an exempt “agricultural stormwater” discharge. The court held that the discharges are exempt, reasoning that CAFOs were point sources, but stormwater runoff from CAFOs is not a point source discharge. Unlike the judge in American Farm Bureau, the judge in Alt did not give deference to EPA’s interpretation of the statute. The broad reading of Alt is that all stormwater runoff from CAFOs is exempt. This would likely result in little CAFO regulation in the country since most CAFO discharges occur when rain or snow melt runs across feed lots. The narrower reading is that CAFO wastes outside the production areas of the CAFOs, i.e., outside the feedlots and coops, would be exempt, but nothing else. Either way, Alt would result in a significant change in the law if it is affirmed on appeal or followed by other courts. Time and a possible appeal will tell how much effect Alt has on CAFO regulation in the country.

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