November 01, 2015

The Third Circuit interprets “total” maximum daily loads

Kelly Gable

In a unanimous decision, the Third Circuit Court of Appeals recently confirmed what many had taken for granted: that a Total Maximum Daily Load (TMDL) is not limited to simply the overall loading capacity, but can include what are known as wasteload and load allocations. The court further found that consideration of target dates and reasonable assurance in setting allocations was consistent with the Clean Water Act (CWA). Am. Farm Bureau Fed’n. v. EPA, 792 F.3d 281 (3d Cir. 2015). AFBF v. EPA, which originated in the Middle District of Pennsylvania (Am. Farm Bureau Fed’n v. EPA, 984 F. Supp. 2d 289 (M.D. Pa. 2013)) is the latest in a line of cases determining what TMDLs are and what they can contain.

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