In a cooperative federalism model, federal and state governments work together to achieve a common goal. The Clean Water Act employs this model to accomplish many of its objectives, including that of restoring the nation’s polluted waters. Commentators have observed that cooperative federalism can be “messy.” Perhaps no one knows that better these days than U.S. District Judge Sylvia H. Rambo of the Middle District of Pennsylvania, who spent the better part of a year wading through the mire in an industry challenge to the Chesapeake Bay Total Maximum Daily Load for Nitrogen, Phosphorus and Sediment, promulgated December 29, 2010, by the U.S. Environmental Protection Agency. Last month, Rambo emerged from the swamp and issued a long-awaited decision in the case. When the mud had settled, the Chesapeake Bay TMDL was still standing.
In American Farm Bureau Federation v. EPA, Civil No. 1:11-CV-0067 (M.D. Pa.), several agricultural interests and others filed a complaint seeking a declaratory judgment and asking the court to vacate the Chesapeake Bay TMDL. A TMDL is a key component in the cooperative federalism framework that the Clean Water Act employs to restore impaired waters. Under that framework, states first establish, subject to EPA review, water quality standards, including the criteria that they deem necessary to protect various water uses. Next, states identify waters that fail to meet those standards and record them on lists (commonly referred to as 303(d) lists), which they submit to the EPA every two years for approval. Finally, for each of the impaired waters on the 303(d) lists, states must establish total maximum daily loads, or TMDLs. A TMDL is the total maximum daily load of a pollutant that is presently impairing a water body that the water body can assimilate from all sources of pollution within the watershed and still meet water quality standards. Just as a doctor might prescribe a target weight to improve the health of an overweight patient, states establish a target pollutant load to restore the ecological health of a water body that has been impaired by that pollutant.
