January 01, 2014

Three Important New CWA Decisions

Mark Ryan

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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