Wednesday, July 8, 2015

Appeals Court Chesapeake Bay Pollution Plan Opinion has Implications for Mississippi River Basin

Photo: Wikimedia Commons
A 60-page ruling issued Monday by the U.S. Court of Appeals for the Third Circuit in American Farm Bureau Federation, et al., v. EPA has implications beyond the Chesapeake Bay watershed to which it applies.   The case stems from the Environmental Protection Agency's (EPA's) 2010 Chesapeake Bay Total Maximum Daily Load (or TMDL) requirement that states meet nutrient runoff reduction goals from agricultural and other sources by certain dates.   That TMDL and a resulting 2011 lawsuit by the American Farm Bureau Federation, National Association of Home Builders and seven other co-appellants have drawn national attention, as groups on both sides of the issue saw the potential for the EPA to utilize a similar regulatory approach to water pollution in the Mississippi River watershed and elsewhere.  The EPA TMDL specifically calls for reductions of 25% in nitrogen, 24% in phosphorus, and 20% in sediment loading to the Bay by 2025.

A three-judge Third Circuit panel found that the TMDL process appropriately created a flexible framework designed to meet pollution targets on a large watershed scale. The Court struck down each of the appellants' claims, importantly ruling that the TMDL did not usurp states’ rights or dictate local zoning and land use. The panel also disagreed with the appellants argument that the Clean Water Act and Congress have not authorized the EPA to set numeric loading reduction goals and deadlines when issuing a TMDL.

In the near-term the appellants may decide to seek an en banc review of the Third Circuit decision or to petition the U.S. Supreme Court to consider the case.  Beyond those actions, the ruling could have implications related to nutrient pollution in the Mississippi River, its tributaries and the Gulf of Mexico. The ruling would appear to strengthen the Des Moines Water Works' position in the water utility's lawsuit against upstream tile drainage districts over nitrogen pollution from non-point agricultural sources in the Raccoon River (Iowa's Raccoon River is already considered an impaired waterway).   Monday's ruling could also provide an impetus for additional lawsuits against producers, landowners and other parties over non-point agricultural runoff into surface waters throughout the watershed.

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