On Monday, the U.S. Court of Appeals for the Third Circuit sided with the Environmental Protection Agency and affirmed the district court’s ruling that the Chesapeake Bay TMDL is lawful under the Clean Water Act. In a 60-page opinion, the Third Circuit panel found that the statutory term “total maximum daily load” is ambiguous and that EPA reasonably interpreted that term to include not only a total allowable pollutant load, but also “allocations” of the total among point and nonpoint sources, timelines for states to put measures in place to achieve those source allocations and requirements that states provide “reasonable assurance” that those source limits will be achieved.
The panel rejected arguments by American Farm Bureau and other agricultural and home builder associations that the Bay TMDL (and EPA’s interpretation of the statute) exceeds EPA’s Clean Water Act authority and intrudes upon the states’ primary authority over land use and water resources. In so doing, the panel repeatedly emphasized the act’s goal of improving water quality, as well as EPA’s role within the cooperative federalism framework. AFBF is continuing to analyze the decision.
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