July 9, 2015

Ruling in Support of EPA and Chesapeake Bay Cleanup

Claire Fitch

Claire Fitch

Program Officer, Food System Policy Program

Johns Hopkins Center for a Livable Future

Downtown Annapolis and Spa Creek, leading into the Severn River and Chesapeake Bay.

Downtown Annapolis and Spa Creek, leading into the Severn River and Chesapeake Bay.

Five years ago, the United States Environmental Protection Agency (EPA) made a landmark decision to foster the cleanup of the Chesapeake Bay. The agency’s plan was the Total Maximum Daily Loads (TMDL), the goal of which was to identify and control major sources of nitrogen, phosphorus, and sediment in the seven Bay jurisdictions (six states and the District of Columbia) that comprise the Chesapeake Bay watershed. The TMDL effort calls for a 25 percent reduction in nitrogen, a 24 percent reduction in phosphorus, and a 20 percent reduction in sediment in the Bay by 2025. It also stipulates that practices should be in place and 60 percent of the reductions made by 2017.

According to an EPA evaluation, Maryland is on track to meet the 2017 reduction targets due to a record number of cover crops planted, wastewater treatment plant upgrades, the implementation of the Fertilizer Use Act of 2011, and agricultural Best Management Practices that proved more effective than previously estimated. Watershed-wide, the seven Bay jurisdictions achieved their 2013 targets for nitrogen and phosphorus reductions and were on track to meet overall 2017 targets.

Not surprisingly, some agricultural groups have never been in favor of the TMDL plan, fearing it will lead to the implementation of similar water pollution regulations in the Mississippi River watershed and other agricultural areas of the country. The American Farm Bureau Federation—along with the National Chicken Council, the National Pork Producers Council, and the National Corn Growers Association, among others—sued the EPA in 2011, arguing that the Clean Water Act should not allow the EPA to set standards and deadlines for environmental cleanup and claiming the agency had overstepped its legal authority by setting TMDL. But this week, the U.S. Third Circuit Court of Appeals in Philadelphia ruled in favor of the EPA, explaining that the Farm Bureau’s reading of the Clean Water Act would prevent the EPA from “coordinating among all the competing possible uses of the resources that affect the Bay.” The judges reasoned, “Establishing a comprehensive, watershed-wide TMDL—complete with allocations among different kinds of sources, a timetable, and reasonable assurance that it will actually be implemented—is reasonable and reflects a legitimate policy choice by the agency,” and explained that the “Farm Bureau’s arguments to the contrary are unpersuasive.” (Read the full opinion of the Court.)

This is a significant, positive development, but it is not necessarily the final word on the TMDL plan—the Court’s decision could be appealed en banc (requiring every judge in the Third Circuit to review the decision), or it could be appealed directly to the Supreme Court. As agriculture is the leading source of nutrient and sediment pollution in the Bay, a lot is at stake if this decision is appealed again. This interactive progress sheet from the EPA illustrates the declines in nitrogen, phosphorus, and sediment in the Bay that have already been made due to the TMDL. Any setbacks to this program would be shortsighted, given the watershed states’ expected abilities to meet TMDL goals and the importance of agricultural pollution control for the health of the Bay.

Judge Thomas Ambro wrote in the Court’s opinion, “The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the Bay—to make it once again a part of our “land of living”—a goal our elected representatives have repeatedly endorsed.” For the long-term health and sustainability of the Bay, they must continue to do so.

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