ELR Citation: 43 ELR 20213
No(s). 1:11-CV-0067 (M.D. Pa. Sep 13, 2013) (Rambo, J.)

A district court upheld EPA's final TMDL for the Chesapeake Bay against challenges from farmer and home building groups. The TMDL—the largest ever developed by EPA—identifies the necessary pollution reductions of nitrogen, phosphorus, and sediment across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia and sets pollution limits necessary to meet applicable water quality standards in the Bay and its tidal rivers and embayments. Farmer and home building groups challenged the TMDL, arguing that it impedes the states' rights to implement the TMDL as each state sees fit. But while TMDL implementation responsibilities primarily fall to the individual states, the Chesapeake Bay TMDL does not represent an unlawful implementation plan. The CWA is an "all-compassing" and "comprehensive" statute that envisions a strong federal role for ensuring pollution reduction. Here, the record reveals that significant efforts were made to preserve the framework of cooperative federalism, as envisioned by the CWA, and that EPA did not unlawfully infringe on the Bay states' rights. The TMDL contains only allocations, and it includes no formal statement of how the allocations are to be achieved. Indeed, it is silent as to methodology, strategy, and other implementation measures, leaving those matters to the states. Furthermore, the states retain sufficient flexibility within this framework regarding the TMDL allocations. In the end, the states are still free to choose both if and how they will implement the TMDL allocations, regardless of the level of detail in those allocations. The court also rejected claims that EPA violated the APA's public participation requirements, or that it relied on flawed models and flawed data inputs.