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.

TMDLs’ embattled history

Section 303(d) of the CWA requires a TMDL for each waterbody for which point source controls for any given pollutant (e.g., nutrients) are inadequate to meet water quality standards (e.g., drinking water, fish spawning, and migration). That statutory requirement was largely ignored, however, until the constructive submission lawsuits in the 1980s and 1990s (see, e.g., Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984) and its progeny).

Once states were establishing TMDLs somewhat regularly, litigation moved on to the substance and effect of TMDLs, such as whether they were enforceable, whether they could be written for waters impaired only by nonpoint sources, and whether allocations had to be set in “daily” terms. In all of that litigation, the basic concept set out in the federal regulations (40 C.F.R. § 130.2)—that a TMDL is more than just the total loading capacity for the waterbody, but rather the sum of the wasteload allocations to point sources, such as wastewater treatment plants, and load allocations to nonpoint sources, such as agriculture—was never questioned. Until now.

Doing the Chevron two-step

Reaching the merits of the case after sua sponte analyzing jurisdiction and ripeness, the court conducted a thorough Chevron analysis. The court asked first whether Congress had spoken to the precise question at hand and, if not, whether the agency’s interpretation of the statute was arbitrary, capricious, or manifestly contrary to the statute.

Step one

Under the first prong of the analysis, the court found that the word “total” in “TMDL” was ambiguous based on the structure of the CWA and the fact that appellants’ argument would render the word “total” redundant, violating the principle of statutory construction that words should not be read to be meaningless. The court also found that the act was silent as to whether target dates and reasonable assurance could be considered when establishing a TMDL.

No exceptions

Before leaving step one, the court considered two “avoidance” canons of statutory interpretation: federalism (avoid interpreting a statute in a way that gives a federal agency authority to regulate something traditionally regulated by the states) and constitutionalism (avoid interpreting a statute in a way that pushes a constitutional boundary). On federalism, the court found that setting individual point source allocations and sector wide nonpoint source allocations did not intrude on states’ land-use or zoning powers because the allocations are an informational tool only and “the TMDL’s provisions that could be read to affect land use are either explicitly allowed by federal law or too generalized to supplant state zoning powers in any extraordinary way.” 792 F.3d at 302. On constitutionalism, the court found no concern because the Chesapeake Bay is plainly a channel of interstate commerce, as distinguished from the waterbodies at issue in Rapanos v. United States, 547 U.S. 715 (2006) and Solid Waste Agency of N. Cook County. v. Army Corps of Engineers, 531 U.S. 159 (2001).

Step two

Under the second prong of the Chevron analysis, the court conducted a lengthy analysis of the legislative history of the CWA and found that “Congress not only agreed to [the EPA’s] definition of TMDL as the sum of load and waste load allocations, but also affirmatively incorporated the EPA’s rule in an addition to the statute,” id. at 308, and that EPA “has reasonably carried out Congress’s directives in administering the TMDL section of the Clean Water Act,” id. at 308. The court concluded that EPA’s interpretation of “TMDL” to include wasteload and load allocations, and to consider target dates and reasonable assurance when setting those allocations, is “reasonable and reflects a legitimate policy choice by the agency in administering a less-than-clear statute” Id. at 309.

Implications

This decision has important implications for federal and state TMDL programs, both at the establishment and implementation stages.

Most significantly, the decision confirms that TMDLs can include wasteload and load allocations for, at least, the individual level for point sources and the source sector level for nonpoint sources. If the decision had limited TMDLs to the single overall loading capacity, it would have called into question thousands of existing TMDLs. It also would have made the job of a state employee trying to implement a TMDL extremely difficult. How would that overall loading capacity be parsed out so that it could be incorporated into an NPDES permit or an agricultural nutrient management plan?

The decision also confirms that a reasonable assurance analysis is critical to determining that water quality standards will be achieved, which is the purpose of a TMDL. Indeed, it implies that establishing a TMDL without reasonable assurance might be arbitrary and capricious.

Finally, the decision recognizes the cooperative federalism structure underlying the CWA and TMDLs, which gives joint responsibility to state and federal governments to restore and maintain the quality of the nation’s waters.

Editor’s Note: On September 18, 2015, the American Farm Bureau and other applicants in American Farm Bureau Federation v. U.S. Environmental Protection Agency sought an extension of time from the U.S. Supreme Court to file a petition for a writ of certiorari.

Kelly Gable

Kelly Gable is an attorney with EPA Region 3. This article is written in her personal capacity and is not intended to represent the position of EPA or the U.S. government. Ms. Gable is a co-author of the ABA’s The Clean Water Act Handbook (Third Edition) chapter on TMDLs and is a member of the Delaware Valley Environmental Inn of Court.