The U.S. Court of Appeals for the Third Circuit recently determined that the U.S. Environmental Protection Agency acted within its statutory authority in publishing the total maximum daily load, or TMDL, of nitrogen, phosphorous and sediment that can be released into the Chesapeake Bay to comply with the Clean Water Act, in American Farm Bureau Federation v. U.S. Environmental Protection Agency, No. 13-4079 (3d Cir. July 6, 2015). It calls for substantial reductions in discharges of these pollutants from municipal sewage treatment plants and industrial sources, but also for steps to control runoff from “nonpoint” sources, like agricultural fields, yards and streets. Those controls often are not imposed by conventional Clean Water Act permits, and require steps to be taken on private or municipal land.

In 2010, the EPA promulgated the Chesapeake Bay TMDL—the largest and most complex of its kind—through the notice-and-comment rulemaking process of the Administrative Procedure Act. Soon after, trade associations, including the American Farm Bureau Federation, the National Association of Home Builders, and other agricultural organizations with members who would be affected by the TMDL’s implementation sued the EPA in the Middle District of Pennsylvania. The Farm Bureau argued the EPA exceeded its statutory authority in drafting the TMDL by including deadlines and allocations and by requiring “reasonable assurance” from the states that they would adopt measures to achieve those deadlines.

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